text:
    FORGERY OF WILL.
    [Circuit Court of Wayne County.]
    William W. Gurley et al v. Wade Armentraut et al.
    Decided, September Term, 1904.

      Wills — Contest of — Executor Need not Necessarily he a Party to— Testator's Declarations of Intention — Disputed Will Competent Evidence, When — Other Forged Wills or Papers Competent for Purpose of — Where Will is Clearly a Forgery — Judgment will not he Reversed for Errors — Charge of Court.

    1. A defect of parties does not necessarily arise in a will contest from failure to make the executor or administrator a party thereto.
    2. The legal presumption that a will once known to exist and to ■ have been in the possession of the testator, but which can not be found after his death, was- destroyed by the testator -with the intention of revoking it, may be eiher fortified or weakened by evidence as to declarations by the testator subsequent to the making of the w.iíl.
    3. Where the ‘Controlling issue is as to whether the alleged wilí is a forgery or genuine, any competent evidence tending to prove either fact is admissible; and to this end it is competent to introduce the disputed will in evidence for comparison with other written documents in evidence which have been proved to be - genuine, or to introduce forged papers where such papers will tend to show the*evil puipose of the parties who'may 'have, forged the will in suit.
    4. Where in a suit to contest a will the evidence conclusively shows that the alleged will is a forgery, a verdict and judgment to that effect will not be set aside by a reviewing court for errors at the trial or in the charge of the jury.
    McCarty, J.; Voori-iees, J., and Donai-iue, J., concur.
    Error to Wayne Common Pleas Court.
   On November 4, 1902, the defendants in error, who were then plaintiffs, began an action against the plaintiffs in error, who were then defendants, to contest the validity of a certain paper writing, which purported to be the last will and testament of “S. Glass,” deceased.

The action was brought and an issue was made up under the statute as to whether the- so-called paper writing which purported to be the last will and testament of S. Glass, deceased, was his valid last will and testament.

It was averred in plaintiff’s petition below that said paper writing is not the last will and testament of the said Samuel Glass, but that said purported will is false, forged and fraudulent; that the first purported witness on said paper writing, viz., D. B. F. Jones, is a fictitious person or his name is a forgery; that the names of the second and third purported witnesses to said paper writing, viz., John P. Jeffries and S. R. Bonewitz, both of whom are now deceased, are false, forged and fraudulent and were not written by said Jefferies or Bonewitz, and that all the writing in said purported will, including the signatures together with all other signatures, and indorsements thereon, is a forgery, and plaintiffs prayed that an issue may be made up as to whether said paper writing is the last will and testament of the said'Samuel Glass, and that the same may be set aside and held for naught.

An issue was made up under the statutes as to whether said paper writing is the last will and testament of Samuel Glass; and it was ordered' by the court that it be ascertained by the verdict of the jury whether said writing is the last will and testament of the said Samuel Glass or not.

The ease was tried to a jury in "Wayne county, it having been ox-iginally commenced in the Ashland Common Pleas Court and on a change of- venue transferred to Wayne county and there tried to a jury, who returned a verdict at the January Term, 1904, to-wit, on March 8, determining that the paper writing purporting to be the last will and testament of Samuel Glass, deceased, is not the last will and testament of Samuel Glass, deceased.

And thereupon a motion for a new trial was filed, and on heax-ing was overruled, to which the defendants duly excepted, and a jxxdgment i.n accordance with said verdict was duly rendered by the court adjudging that the paper writing produced in this ease and purporting to be the last will and testament of the said Samuel Glass, was not the last will and testament of said Samuel Glass, deceased; to all of which findings and judgments the said defendants excepted. And thereupon a petition in error was duly filed asking this court to reverse the judgment on the alleged errors:

(1) . The court erred in overruling the motion for new trial.

(2) . The court erred in its charge to the jury.

(3) . ' The court erred in refusing to charge as requested by defendants.

(4) ._ The court erred in admitting evidence objected to by the defendants, as shown by the bill of exceptions.

(5) . The court erred in rejecting evidence offered by the defendants.

(6) . The court erred in other matters.

(7) . The judgment was against the weight of the law and the weight of the evidence.

(8) . The judgment should have been given for defendants instead of for plaintiffs.

I will endeaver to dispose of these several alleged errors as they are presented in argument. •

It is claimed by counsel for plaintiffs in error that there is a defect of parties in this, that no executor or administrator of the estate of Samuel Glass, deceased, has been made a party to this suit, which it is claimed the statute requires.

Section 5859 reads as follows:

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must.be made parties to the action.”

It will be remembered that Dr. Samuel Glass died on February 26, 1873, more than thirty-one years ago; and it is shown by the evidence in the ease that at the commencement of this action there was no personal property of any kind, and no debts, so that under Section 6018 there could be no administrator with the will annexed, for the very simple reason that there would be nothing for him to act upon, so that his appointment as such administrator would be a vain and useless ceremony.

In Andrews v. Administrators, 7 Ohio St., 143, it is decided that an executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same on the legatees or devisees. The executor is not entitled when the will is adjudged invalid to charge the estate in his settlement account with the expense of maintaining such defense.

In the eases reported, where the executor is given the power of sale of the land of the decedent, ihe courts almost uniformly hold that the executor, in case he sees fit to exercise this power, holds the fee in the land. No such power is given in the purported will in this case.

And besides the petition in this case, and the evidence, show that all the heirs at law and devisees and legatees of Samuel Glass, deceased, are made parties.

The plaintiff in the case below, Wade Armentraut, was not an heir, legatee or devisee, either at law or under the purported will, and he would have no power to secure the appointment of an .administrator with the will annexed. So that the making of the executor or administrator a party would be useless.

We are therefore of the opinion that there was no defect of parties, or at least not such a defect as would be prejudicial to plaintiffs in error.

It is also claimed that the court erred in admitting in evidence the alleged declarations of .Dr. Glass as to his intention to make a will, or that he had not made a will.

When a will once known to exist and to have been in the custody of the testator can not be found; after his decease, the legal presumption is that it was destroyed by the testator with the intention of revoking it. To strengthen such presumption it is competent to prove the declarations of the testator after making his will, that he has destroyed, or intended to destroy, the same.

But while the declarations of the testator may be used to weaken presumption that he has destroyed his will with the intention of revoking it, his declarations may also be. received as evidence to strengthen and fortify the presuipption that he has destroyed his will with such intention; whether it be the making of a will or the destroying of one, the competency of the testator’s declarations as evidence is alike in each case and for the same reason admissible. Collagan v. Burnes, 57 Me., 449, 465.

No claim is made that a will may be revoked by the mere declaration of the testator, or otherwise than by the modes prescribed, by the statute, but a legal presumption is raised upon the decease of the testator that he destroyed his last will and testament in the statutory mode with the intention of revoking it. It is obvious that while the declaration of the testator may be admitted as evidence towards rebutting the presumption of such destruction and revocation before the death, they may with. equally good reason be received as evidence to support and strengthen that presumption. Behrens v. Behrens, 47 Ohio St., 323, 332, 334.

The strongly expressed conclusions in Reel v. Reel, 1 Hawks (N. C.), 248, is in accord with the citations already made. The court say in that ease:

‘ ‘ To reject the declarations of the only person having a vested interest and who was interested to declare the truth whose fiat gave existence to the will, and whose ficé could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and they are received, not upon the ground of their being a,part of the res gesta, for whether they accompany an act or not, whether made long before or long after making the mill, is entirely immaterial as to their competency. Those circumstances only go to show their weight or credit with the tribunal which is to try the fact.”

This is quoted with approval in Behrens v. Behrens, supra, page 334.

In 1 Elliot on Evidence, Section 533, it is said:

“The rule as to declarations of intention by a testator has been stated as follows: ‘The declarations of a deceased testator as to his testamentary intention and as to the contents of his will are deemed to be relevant when his will has been lost, when there is a question as to what were its contents; and where the question is, whether an existing will is genuine, or was improperly obtained; and the question is, whether any, and which of more existing documents than one constitutes his will.’ ”

In all these cases it is immaterial whether the declarations were made before or after the making or loss of the will. The rule might have been properly extended to say that declarations of a testator are received to corroborate direct testimony as to a will alleged to be a forgery, or to have been executed under undue influence or force. The court, we think-, properly admitted the evidence of the alleged declarations of Dr. Glass showing his intentions as -to the making of a will.

It is also contended on the part of the plaintiffs in error that the court erred in permitting the papers purporting to be the wills of Dr. Glass and the letters and envelopes which appear in the bill of exceptions. It is not to be forgotten that the controlling issue to be determined by the jury was whether the alleged will is a forgery or whether it is genuine. Upon the trial of that issue any competent evidence tending to prove the forgery or genuineness of the instrument in contest is not the valid will of the testator is admissible and should receive proper consideration by the jury. As bearing- upon this question—

“It was also held to be competent for the jury to compare the handwriting of documents properly in evidence, and proved to have been written by the defendant, with the handwriting of the cards in dispute, for the purpose of ascertaining the origin of the cards.” United States v. Chamberlain, 12 Blatchf., 390.

“Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to be genuine is permitted to be made witnesses, and such writing, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise of the writing in dispute. This paragraph applies to all courts of judicature, criminal or civil, and to all persons having by law or the consent of parties authority to hear, receive and examine evidence.” Stephens Digest of Evidence, Art. 52, page 220.

“Writing not relevant to the cause may be received irrespective of the rules as to the standards- of comparison when offered not for the purpose of comparing handwriting as such, but for the purpose of showing identical or dissimilar usages of languages, such as characteristic mistakes in spelling.

“On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust made to a trustee, to secure the payment of promissory notes or bonds found in his possession or proved to have been uttered or published by him, are competent testimony to show the guilty knowledge of the accused. ” Lindsey v. State, 38 Ohio St., 507, third syllabus.

But what is 'there aside from all this to show that this purported will is not the genuine will of Dr. Glass ?

Cloyd Mansfield, Probate Judge, Ashland, says the will is not genuine. Joseph Patterson says it is not his handwriting. A. G. Beer, postmaster for fourteen years, knew his handwriting well, and says the will is not genuine. P. T. Crowell, D. P. McDonald, S. L. Arnold, Levi F. Bandie, expert; Thomas F. Hunter, William Franks, C. C. Adams, L. R. Kramer, W. H. Sampsell, George J. Knight, J. J. Sanborn, Ross W. Funck, prosecuting attorney; H. A. Mykrantz, and an almost innumerable number of other witnesses taken from all the various walks of life, bank cashiers, merchants, clerks, lawyers, postmasters, and men who often saw Dr. Glass write, sign his name, and whose signature was as familiar to them as his countenance was, and there was as little likelihood of their being mistaken as to his signature or his walk, these witnesses, many of them, have testified as fully intelligently and with as much apparent familiarity as to the signatures of John P. Jefferies and S. R. Bonewitz, two of the alleged witnesses to the will. The other alleged witness to the will, D. B. F. Jones, has not been found, and that fact alone stamps the alleged will with suspicion as to its genuineness. These witnesses, who testify on that side, all testify, with apparent clearness, that in their opinion the whole will and signatures of the witnesses to the will are all forged.

This purported will seems to have been written at Wooster, Ohio, on October 30, 1869, a time within the memory of most of us; and to find none of the named witnesses to the will, nor any persons who ever knew or heard of one of them, and no trace of him or his whereabouts, is more than I can reconcile with the genuineness of the will, and there seems to be no way of reconciling the matter other than on the belief that it is all forged and untrue. These facts and circumstances all fit in and are reconcilable on the theory of forgery and upon no other possible theory can they be reconciled. True, a great many witnesses have testified on the other side who are intelligent and honest persons and have given their opinion 'that the purported will and signatures are genuine. But we think the great weight of the testimony and circumstances when placed in the balance leaves but little room to contend in favor of the validity of the will. There is not a fact or circumstance connected with the paper, its production in court where it was written, where it was sent to, to whom it was sent, and how the whole scheme worked, that is reconcilable with its genuineness, and it is not only false, forged and counterfeited, but the whole will, all names of the alleged witnesses are forged, and tbe whole of it is a part of the grand scheme, and shows a persistent and determined effort on the part of some one to provide a last will and testament for Dr. Samuel Glass.

From 1873, when Dr. Glass died, until 1897, when Mrs. Glass died, she treated all this property as her own and sold portions of it, and no question of her right to do so was ever raised', although if this purported will is to prevail the rights of innocent third parties would be jeopardized- and they left without remedy. And within a few weeks after her death the wills came to parties in Ashland from unknown sources, also alleged promissory notes purporting to have been signed by Dr. Glass as surety for various parties. Another striking coincidence is-the fact that all of the witnesses are dead, unless it be D. B. F. Jones, and he probably was never born — is a myth.

Dr. Glass died about March 1, 1873; his estate was administered upon in the usual way, and his widow became possessed of all property left by him as his sole heir under the law. The custodians of the paper purporting to be the will turned up after the death of .the widow, which occurred more than twenty-five years after the death of Dr. Glass. John P. Jeffries died August 13, 1888; S. R. Bonewitz died in May, 1898, and the other purported witness, D. B. F. Jones, not found.

The custodians of this purported will all lived during the time Dr. Glass’ estate was being settled up, and it was not settled under a bushel or behind a barn secretly, but was settled in the usual ordinary way. Alexander. Nelson acted as administrator in the settlement of his estate, and must have known w'hat was going on. It could hardly have been otherwise.

Isaac Stull, who seems to have had the custody of this will, did not leave Ashland for California until 1888, and neither before nor after he left for California did he intimate to any person that he had the will, not even to members of his own family, and he lived in Ashland during the time that Alexander Nelson settled up the estate.

It is claimed that the court erred in its charge to the jury as follows:

“It is claimed by the plaintiffs — by plaintiffs I mean to include such defendants as- well as the plaintiffs who are against the will — and denied by the defendants — and by the defendants I mean such of the defendants as favor the will — that the alleged will in controversy was one of a number of purported wills in evidence, all forged in pursuance of a design by the person forging the same to cheat and defraud the rightful owners of the estate described in the alleged will m controversy, out of the estate or a large portion of it, and that the other writings in evidence were simulated and forged by him for the same purpose, and that all of these purported wills and writings, including the • one in controversy, are in the same handwriting, by the same person, and that back of the purported wills and other written instruments was a general plan or scheme to defraud the rightful owners of the ‘estate, and that the design or plan is evidenced by these purported wills and writings and circumstances developed in the testimony, and that they are so connected as to indicate a common purpose including in its scope the fraudulent purposes I have described.

“The fact of forgery of a particular paper can not be shown by proof of other acts of the same kind, and’ these alleged wills and writings claimed to be forged were not admitted in evidence, and can not be considered to prove that the alleged will is forged or genuine. But if you find that such person did foi-ge the purported wills and other writings, you can consider them with other circumstances developed in the testimony bearing on the question to show that at the time of the execution of the alleged will in controversy such person had fraudulent design, you can consider that he had such design in determining whether the alleged will in controversy is genuine or forged by such person, but for that purpose you can only consider such of said reputed wills and instruments as .you find forged by such person and forged within a reasonable time to that at which the alleged will in controversy was executed to show the plan of such person at that time.”

,.T can not answer this objection to the charge better than by quoting what is said in Lindsey v. State, 38 Ohio St., 507, where it is said:

“On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to -secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowledge of the accused.”

We think the court properly instructed the jury and that there' is no room for complaint on that ground.

If we. are right in our conclusion as to the fact of this being a forgery — in other words, if it is a forgery — no matter what the court said to the' jury as -to how they should consider certain branches of the testimony,' or what their finding' should be; the fact remains 'that the will is forged, fictitious and a counterfeit,-.and- no charge- of‘-a cpur't or finding of a' jury would change 'the fact'or instill hew life'into that already déad. -' It is not like that, that had some sparks of vitality in.it that might be" revivified, -but if orir conclusion is right it is false in toto.

Take all of this evidence from the beginning to the end and all "of these remarkable' circumstances and coincidences — the fact that all of 'the principal active and merely passive participants in this grand scheme are all dead; the will' comes to light'after they have all closed their eyes in death-; no one is left to tell the story although those are living, if there' ever wa's a genuine will, who could have told the -story and who naturally would have told the whole truth. One of these, or both alleged witnesses 'lived during the time the estate of Dr. Glass was being settled, and for many years thereafter. ■ They were "on the will and within re'ach, and the most natural thing in the world for them to do would have been to .tell it, and yet no syllable escapes their lips about it.

This conduct is too unnatural to be true. It is- not true. The jury made no mistake, and no matter if any error has crept into the record, if the main issue — viz.: Was- the the paper writing a forgery? — has been properly determined, and we think it was.

M. L. Smyser, N. W. Wolf and W. S. Kerr, for plaintiffs.

McCray & McCray, F. W. Patterson and H. A. MyJcrantz, for defendants in error.

But suppose we are wrong on some of those and still right on the main issue as to whether it is a forgery, the alleged error must be prejudicial error.

Section 5115 reads as follows:

“The court, in every-stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

There must be prejudicial error to authorize the reversal of a judgment. When from the whole record it appears conclusively that the proper judgment was entered, the proceeding will not be reversed on error if the court mistook the law on some of the propositions discussed during the trial.

In order to justify the reversal of a judgment on error the record must affirmatively show not only that error intervened but that it was to the prejudice of the party asking to take advantage of it.

It is also settled that a judgment will not be reversed for erroneous instruction where it clearly appears from the whole record that it did not prejudice the rights of the party objecting thereto. Where upon the whole record it is' apparent that on a retrial no recovery can be had', a judgment in favor of defendant will not be reversed merely because the court below may have erred in their instructions to the jury.

Finding no error in the record prejudicial to the plaintiffs in error, the judgment of the common pleas court will be affirmed, without penalty, at the costs of the plaintiff in error.


source: Caselaw Access Project

license: Public Domain

text:
    COMPLIANCE WITH TERMS OF A STREET RAILWAY GRANT AS TO GRADE.
    [Circuit Court of Clermont County.]
    The State of Ohio, on the Relation of John S. Davidson, Prosecuting Attorney of Clermont County, Ohio, v. The Cincinnati, Milford & Loveland Traction Company.
    Decided, May 1, 1905.

      Street Raihoays — Reasonableness of Grade — Discretion of Council as to — Compliance with Grant Required — Notwithstanding an Intervening Injunction — Public Interest.

    A street railway company may be compelled in a proper action to comply with the terms of its grant, notwithstanding there is an "injunction in force against compliance with such terms, and the public interest does not require it.
    Jet,we, P. J.; Swing, J., and Gieeen, J., .concur.
   This is a proceeding in quo. warranto in which it is sought to oust the defendant company of its franchise to maintain and' operate an electric railway upon 'and over the streets of the village of Milford.

Eleven distinct specifications are made in which the corporation failed to comply with the terms of its franchise, whereby, it is alleged, the same has been forfeited.

We find that the corporation has substantially complied in every particular except the ninth, to-wit: “That the defendant fails and refuses to place its track in Montauk to the grade established by the village council of Milford.” While there has been some delay in performance there was reasonable grounds therefor. The reasonableness of the grade established is left by the statute as well as Ordinance No. 116 .to the discretion of council with which the court will not interfere except for gross abuse. The street at this point is a part of a turnpike owned by the Cincinnati, Columbus & Wooster Turnpike Company, at whose instance an injunction was obtained and is still in force restraining the village of Milford and the defendant company from lowering or changing the railroad track to the grade established by council. • While this excuses performance now, there was abundance of time before in which to comply with the ordinance and make the change; but the defendant contends, and perhaps rightly, that it will not only impose an unnecessary hardship upon it, but will materially interfere with other travel upon the highway. The parties however have made their own terms in Ordinance No. 116, and unless they are complied with in a reasonable time by laying the track in Montauk at the grade established by. council, the prayer of the petition must be granted although the public interests seem to. not require it.

D. W. Murphy, for the relator.

C. W. Baker, for the traction company.


text:
    LIABILITY OF STOCKHOLDERS FOR DEBTS OF THE CORPORATION.
    [Circuit Court of Cuyahoga County.]
    Wm. C. Scofield v. The Excelsior Oil Company et al.
    Decided, January 16, 1905.

      Appeal — Garries up all Questions on tfhe Pleadings — Supplemental Petition — Motion to Strike from the Files — Amount of Indebtedness Fixed by Judgment — Stockholders’ Liability — Under the Amended Section 3258 — Limited in What Way.

    1. A motion to strike a supplemental petition from the files is carried up on appeal, and may be heard and determined in the appellate court in the same manner as such Questions are raised in a court having original jurisdiction of the case.
    2. Where -the supplemental petition only adds to the allegations of the original petition that .of recovery of judgment on said original petition and failure to obtain any property on execution wherewith to satisfy said judgment, no ground exists for striking the supplemental petition from the files.
    3. The evidence in this case, taken in connection with the fact that plaintiff brought suit only for the amount recovered, establishes the fact of the indebtedness to the amount of the judgment.
    4. The intention of the Legislature, as expressed in Section 3258 as amended April 29, 1902, was to restrict the liability .of a stock- . -holder to debts incurred while the stock w-as held by the stockholder and which were enforceable when due.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Appeal by plaintiff.
   This case comes to this court by appeal from the judgment of the court of common pleas.

The questions to be determined relate to whether the defendant, Lester A. Cobb, is liable in any sum to the plaintiff.

Scofield originally brought his suit claiming' to be a creditor of the Excelsior Oil Company, which is a corporation, setting out an indebtedness of the corporation to him; that the corporation was without assets and- was insolvent; that the defendant, Cobb, was a stockholder in the corporation at tbe time the indebtedness was created; that he transferred his stock to Charles E. French, who thereafter transferred the same to J. B. ITuston. Said French is insolvent, and said Huston died insolvent in 1894. The prayer was for a recovery against Cobb for a proportionate share of such indebtedness determined by the amount of stock held by him when the indebtedness was created.

Upon a trial had in this court it was held upon the evidence that the corporation was indebted to plaintiff in the sum of $149,016.67, with interest from the 9th day of January, 1900, and such holding was made upon the evidence of original indebtedness and transfers of claims made to him.

Upon proceedings in error in the Supreme Court, it was ther'e held that the allegations of the petition were not sufficient to entitle the plaintiff to relief against the stockholders, in that no allegation was made that a recovery had been obtained against the company, and that upon execution being issued, no property was found out of which the same could be satisfied, and the case was remanded to the court of common pleas, where it originated, for further proceedings.

Thereafter said plaintiff brought suit in the Court of Common Pleas of Cuyahoga County against said oil company for said indebtedness. Appearance of the company was entered by its attorneys, and upon hearing, the plaintiff recovered judgment against the company for the sum of $96,497.20, 'together with costs, said judgment bearing, interest from the 22d day of September, 1902.

On leave granted, plaintiff, after obtaining such judgment, filed a supplemental petition in this action, setting up the recovery of this judgment; that execution had been issued thereon; that no property of the company was found whereon to levy; and that no part of said judgment has been paid.

Motion was made in the court of common pleas and renewed here, to strike this supplemental petition from the files. This motion was overruled at the time of the hearing, the court reserving the final determination of what should be done therewith until after the case had been heard. Such hearing has been had, and it becomes our duty now to determine whether such motion should have been sustained by this court.

On the part of the plaintiff it is urged that this question is not properly here; that the question was one of discretion with the court of common pleas and its determination must be final unless such discretion was abused. In support of this, reliance is had upon Section 5225, R. S., which provides that, when a case is appealed from the court, of common pleas to the circuit court, the trial shall be conducted in the latter court “in the same manner as in the common pleas court and upon the same pleadings, unless amendments are ordered or permitted by the circuit court.”

This proposition of the plaintiff is not sound. The construction sought to be given to this section is against repeated holdings of the courts. ' It has been held many times by this court that an appeal brings up questions upon the pleadings, in the same manner as such questions would be raised had this court had original jurisdiction of the case.

To hold otherwise would be to hold that if a petition or answer to which a demurrer had been filed but not sustained, but which clearly ought to have been sustained, still upon an appeal the court could not pass upon that question of pleadings. We hold otherwise. It has been repeatedly said that the .appeal brings up the demurrer and all questions raised on demurrer. We hold, therefore, that the motion to strike off this pleading is properly here.

In support of this motion it is urged that, since the Supreme Court has held that the facts as they existed at the time the suit was brought were not such as 'to entitle the plaintiff, to recover at all, that he can not by the creation of subsequent facts, be permitted to bring such facts into his original' action and proceed thereon.

We think this contention is not sound. The supplemental petition in this ease only added to the allegations of the original petition that judgment had been recovered by plaintiff against the company on the indebtedness set- out in the original petition, and failure to obtain any property upon execution with which to satisfy said judgment. It made no claim for an indebtedness not claimed in the original petition, nor did it make.any new allegation as to the actual insolvency of the company, but only set out the facts occurring after the bringing of the suit, which the law requires in a proceeding of this kind as evidence of such insolvency before suit can be maintained against the stockholders.

In the case of Gibbson, Admr., v. Dougherty et al, 10 O. S., 365, it is held that, where in aid of execution on a judgment the judgment creditor brings an action to subject to the satisfaction of his judgment, the' debt of a debtor of the judgment debtor, and such debtor of the judgment debtor is served in the action, the fact that after such service, the judgment upon which the action is brought is set aside at a subsequent term for irregularity, and a new judgment is entered, it is proper to set up such facts in a supplemental petition and proceed with the action.

In the opinion, on pages 371 and 372, this language is used by the court:

“The subject-matter of the suit and the parties in the action, as well as the object of the suit, all continued to be before the court. The substantial object was the payment of the debt of the judgment debtor; and the reversal of that judgment for an irregularity was in no sense an intimation of its payment, or a relinquishment of the claim of the plaintiff to enforce its payment in the manner and by the means expressed in the petition. The law, which never requires a vain thing, would not, therefore, require a plaintiff, after having the irregularity in the judgment cured by a new judgment expressing the same debt, incur the deiay and expense of dismissing the suit and commencing de novo, when the entire proceeding could be perfected by a supplemental petition. And our practice, as regulated by the code, shows still less favor to objections merely technical. A supplemental petition was always regarded as only ancillary to the original petition. Its office is to bring before the court some event which has happened subsequently to the commencement of the suit. The plaintiff does not thereby withdraw any allegation in his original petition not inconsistent with the averments in the supplemental petition. If, therefore, the plaintiff had even neglected to make, as he has done in this case, special reference in his supplemental petition to his original petition, he would still have been entitled to the full benefit of the same.”

1 Nash Pleading & Practice, page 288 and following, discusses this question and cites authorities, and quotations in brief of counsel for plaintiff are made from them, and we think the holding as enunciated here is in full accord with these authorities.

"We, therefore, overrule the motion to strike the supplemental petition from the files.

A great amount of evidence was introduced on the question of whether the company was indebted to the plaintiff. The transactions of the parties from the beginning of their business relations up to the time of the bringing of the suit was gone into. From this evidence we find that the oil company was, at a time when Cobb was a stockholder, indebted to the plaintiff; that the subsequent holders of the stock which had formerly been owned by Cobb were insolvent; that all of the solvent stockholders, other than Cobb, have paid their proportionate share of such indebtedness, and that the liability of Cobb must depend upon whether the plaintiff is still a creditor of the corporation. A judgment has been obtained, as hereinbefore stated, by the plaintiff against the corporation, for $98,497.20 together with costs, and drawing interest from September 22, 1902. Except by contributions of stockholders, nothing has been paid upon this judgment. The judgment is still in full force and, as we hold, establishes the fact of the indebtedness to the amount of such judgment. Without going into a discussion of the facts as to any indebtedness other than such as is shown by this judgment, we only say that viewing such evidence as we now view it, and considering the fact that plaintiff brought suit for only the amount recovered, we find that the amount of the indebtedness of the company to the plaintiff is fixed by said judgment. If it is said that this is not consistent with the finding of this court in the case before, the only answer we have to make is that the court as now constituted would not find' upon the facts as we found before.

It was suggested in argument that the defendant, Cobb, was' not liable to respond in this action because of the wording of Section 3258, Revised Statutes, as amended April 29, 1902. The section as amended reads:

“The stockholders of a corporation who are-the holders of its shares at a time when its debts and liabilities are enforceable against them, shall be deemed' and held liable, equally and ratably, * * * and no stockholder, who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock, properly witnessed or tendered for transfer on the books of the company prior to the time when such debts and liabilities are so enforceable, shall be held to pay any portion thereof.”

Before the amendment the section .read:

“The stockholders of a corporation which may be hereafter formed and such stockholders as are now liable under former statutes, shall be deemed and held liable,” etc.

Under the statute before the amendment the holding of the Supreme Court is that the liability of the stockholder attaches at the time the debt is created, and is not discharged by the subsequent transfer of the stock. Brown v. Hitchcock, 36 O. S., 667.

In that case Judge White in the opinion discusses at considerable length the nature of the stockholders’ liability, quoting at length from the decisions of other courts with approval, where it is held that the liability is in the nature of a contract made by the stockholder when he becomes such. Among such quotations is the following from Corning v. McCullough, 1 Comstock, 47-54:

“It is virtually and in effect a liability upon a contract and the mutual agreement of the parties.”

Also from Hager v. Cleveland, 36 Md., 476:

:' “ It is a debt under the statute, due from the stockholder to the creditor, springing out of the co-existent with the contract between the corporation and the creditor. * * * It is clear that no act of the stockholder, without the consent of the-creditor, can exonerate him from the liability thus named.”

Henderson & Quail, for plaintiff.

Goulder, Holding & Masten, for defendants.

In Hawthorne v. Calif, 69 U. S., 10, it is said in the syllabus:

“A statute repealing a former statute, which made the stock of the stockholders in a chartered company liable to the corporation’s debts,.is as respects creditors of the corporation existing at the time of the repeal a law impairing the obligation ■ of contracts, and void.”

If, then, the amended section is construed to mean that the stockholder is liable only for such debts as have matured, and upon which suits eOuM be at once brought before the stock was transferred, it would be void as obnoxious to Section 16, Article VIII of the Constitution of the state, which' reads: “No * * * law impairing the validity of contracts shall ever be made,” etc.

We think, however, it was not the intention of the Legislature by this amendment to restrict the liability of the stockholders to those debts which are due and collectable before the stock is assigned, but only to such as are incurred while the stock is held by such stockholder, and are enforceable when they become due against the corporation; hence the liability of defendant, Cobb, is in no wise affected by this amendment of the statute.

We reach the conclusion, therefore, that the plaintiff is entitled to the rights of a creditor to the amount of his judgment; that Cobb is liable to him as a stockholder to the amount of his pro rata share of the stock held at the time the debt was contracted. This is 42-1700 of the entire judgment. Decree will be entered accordingly.

This is an opinion of the majority of the court only. Judge Hale does not concur.


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    JUDGMENTS OBTAINED BY FRAUD OR. COLLUSION.
    [Circuit Court of Cuyahoga County.]
    Wm. C. Scofield v. The Excelsior Oil Company et al.
    Decided, January 26, 1905.

      Collusion or Fraud — In the Obtaining of a Default Judgment — notice —Legal Effect of Admissions in Pleadings.

    1. The default judgment obtained by the plaintiff against the oil company in another action, during the pendency of this suit, is conclusive upon the defendant, Cobib, notwithstanding there was no service upon him and he had1 no notice of the suit, provided it was not obtained by collusion or fraud.
    2. The bringing of the second1 suit without notice to the defendant, Cobb, can not, under th-e circumstances of this case, be characterized as a fraud, nor is collusion established by the fact that the oil company made no defense.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Heard! on motion for a new trial.
   The defendant, Lester A. Cobb, has filed his motion for a new trial in this case, which has been argued to us with earnestness and ability by his counsel, and in such wise as to show that counsel feel great confidence in the position that the judgment of the court is wrong. The matters urged in support of the motion, though not all touched upon in the opinion, were all carefully considered by the court before the judgment was announced, and the members of the court who concurred in that judgment are still of the opinion that the judgment is right.

The point upon which the court has found the greatest difficulty, and because of which one member of the court does not concur in the judgment, is upon the question of whether the judgment obtained by the plaintiff against the oil company in another action, during the pendency of this suit, is conclusive upon the defendant, Cobb. That judgment was obtained without any service being obtained upon Cobb and without his having notice of the suit. If that judgment was obtained by the fraud of the plaintiff or by collusion between him and the oil company or those representing the oil company, it is not conclusive as against Cobb. The averments of the answer of Cobb to the supplemental petition in reference to the obtaining of such judgment are in part as follows1:

“Plaintiff as the owner of all the stock of said company and defendant, George F. Scofield, purposely and intentionally refrained and omitted to file any answer or make any defense in said cause, and caused and permitted a default judgment to be taken in said action in the sum of $98,497.21 in furtherance of the collusion and fraud aforesaid; that neither this defendant or his attorneys were given notice of the bringing of said action, and they had no knowledge thereof or of the judgment in said case until after the filing of the amended and supplemental petition herein in February, 1903, when the term of the court at which said judgment was rendered had terminated; that said notice was withheld from them in furtherance of said collusion and fraud, the plaintiff well knowing that he had brought said action and secured said judgment for the intent and purpose of further prosecuting this action against this defendant. Defendant further says that the Excelsior Oil Company had a good and sufficient defense to said action, and that it was not indebted to plaintiff in any amount whatever, all of which plaintiff and George F. Scofield well knew, but that plaintiff and George F. Scofield colluded together to obtain, and did obtain judgment aforesaid1 fraudulently by withholding and refusing to make any defense.”

The admission of the plaintiff in reply to this answer is as follows: Tie admits'—

“'That plaintiff purposely refrained from making any defense to said action and caused a default judgment to be taken therein in the amount stated' by said defendant; that said action was commenced and said judgment secured partly for the purpose of further prosecuting this action against the said defendant Cobb; but as to all the averments of the said1 fifth defense not herein admitted, and which are not admissions of the averments of plaintiff’s said amended and supplemental petition, plaintiff says that he denies them and each of them.”

It was urged upon the original hearing, and upon the hearing of this motion, that this admission upon the part of the plaintiff was an admission of collusion between himself and the Excelsior Oil Company, or between himself and George F. Scofield acting for said oil company. Such is not the legal effect of the admission. It is admitted that he took a default judgment; that he purposely refrained from making any answer, or making any defense in said action. It is a denial of any collusion between himself and anybody else to secure this judgment.

We come, then, to the question, do the facts justify us in holding that this judgment was obtained either by fraud or collusion ? -

Collusion is defined in the A. & E. Ency. of Law (2d Ed.), Vol. 6, page 212, as follows:

“ ‘Collusion’ is where two persons, apparently in a hostile position and having conflicting interests, by arrangement do some act in order to injure a third person or deceive a court. ’ ’

In Carey v. Houston, etc., R. Co., 52 Fed. Rep., 675, it is defined as “An agreement between two or more persons unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

“Collusion” is defined by Webster as follows:

“In law, a deceitful arrangement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, 'as to defraud a third person of his right; a secret understanding between two parties, who plead or proceed fraudulently against each other, to the preju-

Bouvier’s Law Dictionary defines collusion as follows:

“Collusion, fraud. An agreement between two fpr more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

The facts here are that the plaintiff had obtained the judgment of the court of common pleas and the judgment of this court that the plaintiff was a creditor of the oil company to an amount greatly in excess of the amount prayed for in the action, in which it is claimed there was this collusion and fraud. The Supreme Court had reversed those judgments, giving no intimation by such reversal as to there being any error in holding that the plaintiff was a creditor of the oil company to the amount which had been found by the lower courts, but holding that until the insolvency of the oil company was established by a judgment against it, and the issuance and return of an execution unsatisfied, the present action could not be maintained. For the purpose of establishing such insolvency in the way pointed out by the Supreme Court, the action in which collusion is charged was brought. We think that the charge that the bringing of such action without any notice being served upon the defendant, Cobb, should not be characterized as a fraud, and that the fact that the oil company made no defense should not be characterized as collusion. It was not sought in that action to recover for an amount greater than two courts had already found that the oil company was indebted to the plaintiff, and though it might have been well for the plaintiff to have given notice to the defendant, Cobb, we do not see that the failure to do so constituted a fraud upon him. The plaintiff manifestly expected to obtain no right against Cobb which he did not already have, except to have the proper evidence that the oil company was insolvent.

Henderson & Quail, for plaintiff.

Goulder, Holding & Hasten, for defendants.

Entertaining these views, the motion for a new trial is overruled.


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    COUNTY COMMISSIONERS AND GRADE CROSSINGS.
    [Circuit Court of Portage County.]
    William Grinnell et al v. Commissioners of Portage County et al.
    Decided, September, 1904.

      Oounty Commissioners — Powers of, in the Elimination of Grade Grossings — 'Limited to Existing Grossings — Township Trustees■ — • Highways — Injunction.
    1. The power of county commissioners with reference to> the elimination of dangerous railway crossings over highways is limited to existing crossings, and can not be exercised with reference to a proposed crossing over a railway which has not yet been constructed.
    2. Neither does the power to change or alter the course of a highway, and to vacate a portion thereof for the purpose of doing ¡away with a crossing at grade, permit the commissioners to also change the course and vacate a portion of an adjacent highway intersected by the railway by a crossing not at grade.
    3. Owners of lands abutting upon that portion of a highway which it is proposed to vacate or change the course of, may enjoin such change. where the injury which they will suffer thereby is different from or in excess of that which will be suffered by the general public.
    4. The authority of township trustees is not repealed or abridged with reference to crossings over railways by the later act of April 27, 1893, conferring power upon county commissioners “to provide for the abolition of dangerous grade crossings.”
    Laubie, J.; Burrows, J., and Cook, J., concur.
   In this case plaintiffs seek to enjoin the commissioners from changing the location and vacating a portion of the public highway running west from the town of Ravenna to Kent in said county, known as the Ravenna-Kent road. The facts sufficiently appear in the special finding of facts made by this court at the request of defendants.

The Pennsylvania Company, a defendant herein, controls and operates the Cleveland & Pittsburg Railway and has laid out and is now constructing a new and shorter line for that railway, through Portage county, which is to cross said highway diagonally (as the direction of said new line is from northwest to southeast) at a point between said towns a mile distant from its original line, at a grade of more than thirty feet below that of the highway; and at a point some seven hundred feet east thereof said new line is to cross another public road nearly at grade, known as the Sandy ’Lake road, which runs from the south northward and connects with said Ravenna-Kent highway north of said new line of railroad.

The object of the suit is to restrain the defendants from carrying out an agreement entered into between them, to change and divert the line of said Ravenna-Kent highway and vacate and abandon a part thereof, as follows:

Commencing at a point about 350 feet east of said proposed crossing of said Ravenna-Kent highway, -thence turning and running said highway to the southwest until it intersects said new railroad, crossing the same by an overhead bridge at right angles, and then turning to the northwest -and paralleling such new railroad until it strikes or intersects the original highway at a point west of where such new line of railroad was to strike said -highway, and vacate and abandon such portion of the said highway as lies between the said points of divergence.

The object of this, as claimed by the- defendants, is to avoid the nearly-at-grade crossing of the said Sandy Lake road for the safety and convenience of the public, said agreement also including a change of the line of that road by turning it to the northwest at some point south of where it was to be crossed by such railroad, and to connect it with said Ravenna-Kent highway at a point near the southwest end of said overhead bridge; and the right to do this, it is claimed, is conferred upon the commissioners by the provision of the act of April 27, 1893 (90 O. L., 359).

That the provisions of said act do not apply to such a case as this, is evident — even the title of the act shows this. It reads, “To provide for the abolition of dangerous grade crossings.” Section 1 one of that act (R. S., 3337-8), in regard to crossings outside of municipalities, provides that if “the commissioners of any county in which, outside of any municipal corporation, a railroad or railroads and any public road or highway cross each other at grade, and the -directors of the railroad' company or companies are of the -opinion that the security and convenience of the public require that alterations shall be made in such crossing, or in the approaches thereto, or in the location of the railroad or railroads or the public way, -or any grades thereof, so as to avoid a crossing at grade, or that such crossing should be discontinued with or without building a new way in substitution therefor, and if they agree as to the alterations which should be made, such alterations may be made in the following manner: ’ ’ * * *

Section 2 (3337-9) :

“When it is deemed necessary * * * the commissioners * * * shall by resolution declare such necessity and intent, and shall state # * * the manner in which the alterations in the crossing are to be made,” etc.

Section 10 (3337-17) provides that “When any grade crossing is- on a county line road, the commissioners of each county in which such crossing is situated may join in all the proceedings necessary for the abolition of such grade crossing as provided in this act,” etc.

This act and all of its provisions, beyond question, relate solely to existing crossings — crossings at grade that have been and are being used by, -and on -the line of operated railroads, to the danger and inconvenience of the public, and for that reason are to be changed or abolished.

Here there are not only no existing crossings, but no built and operated railroad — there is nothing to change, alter or abolish except a scheme or design. How is it possible to abolish a crossing, because of its dangerous character, that dees not and never did exist? Commissioners of counties are qiutsi corporations, and have only such power as is conferred by statute, and such statutes are to be strictly construed; and the power here conferred is limited to existing crossings upon existing and operated railroads, and can not be enlarged to include proposed crossings upon a proposed railroad.

But if it were otherwise there are still other reasons why their action would be illegal, and plaintiffs entitled to relief prayed for.

The grade crossing which they are thus seeking to abolish is not, or will not be on the Ravenna-Kent highway, but on the Sandy Lake road; and that is the only highway necessary, or that they could have' any right to change in order to abolish such crossing. The statute in question limits such right to the highways intersected, and to the points of intersection.

That road could be changed just as proposed and its crossing abolished by continuing it instead of the Ravenna-Kent highway, along the south line of said railroad to the northwest, until it strikes said Ravenna-Kent highway where said highway was to be reunited as aforesaid, without affecting or changing one foot of the line of the Ravenna-Kent highway.

It would seem, therefore, that even if the proposed change in the line of the Ravenna-Kent highway was agreed upon for the security and convenience of the public in getting-rid of a grade crossing on another highway and not for the pecuniary benefit of the Pennsylvania Company, that it could be done at much less expense to the county and productive of much less inconvenience and injury to the-adjacent landowners.

Again, the plaintiffs live upon lands owned by them, abutting on the Ravenna-Kent highway at the point in question, and they will, it appears, suffer injury by the vacation and abolition of such part of such highway in excess of and different from that of the general public; and, therefore, before their property rights in such easement can be taken, compensation must first be made them.

But here there is no provisio a or method! in this or any other statute by or under which their damages could be ascertained and ordered paid. And in such cases, where no provision exists for awarding compensation, the parties thus injured are entitled to an injunction restraining the officials from making the proposed change. Tussing v. King, 65 Ohio St., 10; Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264.

We have an earlier statute which, while it is not decisive of the question, reflects somewhat upon it. The act of April 2, 1891 (88 O. L., 261), confers upon township trustees authority to fix and determine the kind and extent of all new crossings and the time and manner of constructing the same within their townships.

Section 1 of said act (R. S., 3337-3) provides that — “railway or railroad companies operating a line or lines of railway in this state, shall build * * * good and sufficient crossings over, or approaches to such line or lines of railway * * * at all points where any public highway # * * is now or may hereafter be intersected by such lines of railway, its tracks, sidetracks or switches. * * * And as to crossings and approaches • outside of municipal corporations, the township trustees shall have power to fix and determine the kind and extent thereof, and the time and manner of constructing the same; * * * and such cross-ways, approaches * * * shall be constructed, repaired and maintained by the railroad companies as so ordered.”

The other sections of the act provide for the notice to, be served by such trustees on the company to build such crossing; that if not done in thirty days thereafter the township trustees may construct the same and recover 'the cost from the company; that such company must keep the same clean of snow, etc.; and if such company neglects to comply with these demands, a penalty shall be assessed against it in favor of the township whei’e the crossing is situate.

The Pennsylvania Company, as shown in this case, is operating a line of railway °in this state, and is now constructing an additional track to get rid of curves and shorten its said line, which will intersect and cross the highway and road in question at points where its said line did not intersect or cross the same; and therefore it is the township trustees of the township where these crossings are to be made, who are to determine the kind and extent of these crossings, and the manner of constructing the same, and the defendants can not change the position of these crossings in the manner agreed upon by them.

This authority is not taken away or abridged by the said act of April 27, 1893. It is only after crossings are constructed and become established that the commissioners of the county are, by such later statute, authorized to act in these respects by joining with the company in changing, altering or abolishing such of those crossings as may be grade crossings. We are not aware whether the trustees have taken action in the matter or not, but that is immaterial to the present case.

I. T. Siddall, for plaintiff.

W. J. Beckley, for defendants.

The injunction prayed for is granted.


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    PRESENT INTEREST IN A DEVISE WHERE POSSESSION IS DELAYED.
    [Circuit Court of Franklin County.]
    Elmore J. Swerer v. Trustees of Ohio Wesleyan University.

    Decided, February 20, 1905.

      Wills — Trust Estate — Present Interest of Devisee where Possession is Delayed for a Number of Years.

    An immediate vested interest is devised in real estate, where the property is bequeathed direct to devisees, but possession and control is placed in the executor for a term of years with .the provision that the benefits during that period shall inure to the devisees; and judgment liens attaching during the period of the executor’s control are, therefore, superior to a deed covering such interest executed subsequent thereto.
    Sullivan, J.; Dustin, J., and Wilson, J., concur.
    Appeal from Franklin Common Pleas Court.

       For decision below, see 2 N. P.—N. S., 333,

   The contention in this ease is between the trustees of the university and the judgment creditors of Bert L. Rees, all of whom are defendants in the action. It is, whether the trustees or the said judgment creditors are entitled to the funds in the sheriff’s hands arising from the sale of the realty, for the partition of which the action was brought by the plaintiff. The amount in hands of sheriff is the net one-half of the sum for which the premises were sold. The solution of the question between the parties depends upon the construction to be given to Item 4 of the last will of the late Huida R. Huffman which reads as follows:

“I give, devise and bequeath to my grandson, Bert L. Rees, and to my grandson, Walter B. Huffman, share and share alike, my home property situated on the southwest corner of Lexington avenue and Mount Vernon avenue in the following manner, to-wit: My executor, hereinafter named, is to have and to hold the same in trust for the term of ten years; to collect the rents arising therefrom and out of such rents to pay all taxes, insurance and assessments and repairs thereon and expenses, and to pay the net balance of such income equally to my two grandsons aforesaid or the lawful children of such grandchildren in case of the death of either or both of said grandsons before the expiration of said ten years, and at the expiration of said ten years after my decease, my executor shall turn over to my said grandsons or in case of the decease of either of said grand.sons before said term of ten years shall have lapsed without lawful issue of said decedent then the share of such grandson to go to the surviving grandson and to his heirs and assigns forever, said real estate situated in Columbus, Ohio.”

The will of the testatrix was executed on January 16, 1891. She died February 6, 1891, and the will was admitted to probate February 14, 1891. The plaintiff as grantee of the grandson, Walter B. Huffman, filed in the common pleas court his petition for partition April 23, 1901. The university claims the funds in the hands of the sheriff under a deed executed and delivered to its trustees for the undivided one-half of the premises by Bert L. Rees on January 30, 1897.

The dates of the judgments of the several creditors of Burt L. Rees are not disputed. It is conceded by counsel representing the university, that said judgments are valid liens upon the undivided one-half of the realty devised by Item 4 if an estate therein vested at the death of the testatrix in Burt L. Rees, and therefore prior to any interest or estate in said premises conveyed by the deed to it by said Rees of date January 30, 1897.

“In the construction of wills the intention of the testator must govern.” This intention must be ascertained from the language of the instruments as applied to the subject matter and in whatever language or intended disposition is expressed. If the disposition itself be not unlawful, it must follow the ascertained intent. Every case stands upon the evidence of the testator’s intention arising out of each will, and whilst the value of rules of construction when confined to their proper office can not be overestimated, they are simply to be resorted to as a means of aid in arriving at the intention of the testator. Where the essential data do not correspond, the terms of the will, the subject matter and the material relations and surroundings attending the eases, it will not do to make one case unquestioned the standard for the decision of another. Hence in the construction of, this will the rules of interpretation are valuable only in so far as they aid in ascertaining the intention of the testatrix.

All of the several devises of the will are direct to the grandsons, Burt L. Rees and Walter B. Huffman, except they are not equal, Burt L. Rees receiving the greater share of the estate. By Item 2, Burt L. Rees is upon the death of the testa.trix to have the immediate possession of the articles therein named. This is also true as- to the articles named in Item 3 of the will. In Item 4 the testatrix uses the same identical language, namely: “I give, devise and bequeath to my said grandson, Burt L. Rees, and to my grandson, Walter B. Huffman, share and share alike, my home property”; and in Item 5 the disposition of property therein devised is to the grandsons the same as in Item 4, except as to the time when they are to have possession. By Item 7, the testatrix uses the same language, “I give, devise and bequeath to my grandson, Burt L. Rees,” his heirs and assigns forever, the realty therein described, and by Item 6 the testatrix gives, devises and bequeaths to the grandsons, Burt L. Rees and Walter B. Huffman, all the rest and residue of her estate, both real and personal. No other persons except these grandsons, it seems from the will itself, were in the mind of the testatrix whom she desired should have her estate, unless the fact that in Items 4 or 5 where she provides that in case of the death of one or both of the grandsons before the expiration of the time therein stated, that the share of the deceased grandson should go to his children, and if one should die without children, then the share of the deceased grandson should go to the survivor, children and his heirs forever.

L. U. Innis, for plaintiff.

J. T. Holmes, for defendant.

It will be noted first, that the devises, under Items 4- and 5, are not to the trustee but direct to the grandsons. From this alone we think it is apparent that the testatrix intended to give the grandsons an immediate vested interest therein, and intended simply to delay the possession thereof until a future time. This view, we think, is further justified by the fact that the grandsons are to have and enjoy all the benefit that could arise out of the bequests whilst thé control thereof was in the trustee. It is further to be borne in mind that the bequest in Item 4 is real estate and hence does not fall within the line of those cases where the bequests are those in the direction to pay or distribute at the expiration of a period named as was the devise in the case of Richey v. Johnson, 30 Ohio St., 288, and relied upon by counsel for the university as the controlling authority in the ease at bar.

In that case the executors were directed to sell the testator’s farm after death of the widow and to distribute the proceeds arising from the sale equally among his brothers and sisters living at that time, and to the children of such as had died before the death of the widow. We are, therefore, of the opinion that the grandsons, Rees and Huffman, took a vested estate in the real estate, devised by Item 4, and in consequence there'of, the liens of the judgment creditors of Burt L. Rees are superior and prior to any interest ur estate that the university took under the deed to it, and a decree may be so drawn.


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    THE DUTY TO PRESERVE NISI PRIUS TRIALS FROM ERROR..
    [Circuit Court of Hamilton County.]
    Newport & Cincinnati Bridge Company v. August Jutte et al.
    Decided, March, 1905.

      Reviewing Courts — And Nisi Prius Trials — Duty of Counsel — Playing for Error — In the Event a Reversal is Desired.

    1. The forum of a reviewing court is noit; a place where, for the first time, a point which has not been deemed of essence at the nisi prius trial, and Which has not been seriously pressed to the attention of the court, is to be brought to the front for the mere technical purpose of a securing a reversal of a judgment which the reviewing court feels substantially just and correct.
    2. It is the professional duty of counsel to endeavor themselves and assist the trial court in preserving the nisi prius trial from error.
    Jelke, J.; Swing, J., and Giffen, J., concur.
   This cause was originally tried in the court of common pleas in April, 1899. The judgment then rendered in favor of the defendant company was reversed by this court in the January Term, 1901, for reasons assigned in the opinion reported in 21st Circuit Court Report, page 422. To this decision the company prosecuted error to the Supreme Court. Upon the hearing, the Supreme Court affirmed the judgment -of this court, reversing the court of common pleas, and .in its mandate said, for the reason that the court of common pleas had erred in that portion of its general charge which dealt with the question of contributory negligence.

The cause was then remanded to the court of common pleas, and was again tried in that court in April, 1904, resulting in a verdict and judgment in favor of the plaintiffs, August Jutte et al.

Error to that judgment is now prosecuted to this court, and is herein under consideration.

At this latter trial, it was contended by counsel for the bridge company that inasmuch- as the Supreme Court had mentioned but one of the grounds for reversing the former judgment of the court of common pleas in its mandate, the Supreme Court intended thereby to indicate its disapproval and to overrule the reasons assigned by this court, in its opinion, 21 C. C. Reports, 422, supra.

The trial judge refused to recognize this contention, and in its trial of the case generally followed the principles of law enunciated by this court heretofore and that of the Supreme Court in its mandate.

The trial court, however, did not follow our former opinion strictly, but whatever modification it made of it, tended and was in favor of the defendant, the plaintiff in error herein. We do not think the contention of plaintiff in error as to the significance of the Supreme Court’s mandate is well taken. We think that the rulings and charge of the court below at this latter trial, are substantially right and in accordance with the law as laid down by this court and the Supreme Court, and we find no error therein.

Again, it is contended that there was error in the trial below in the refusal of the following charge and under circumstances detailed on page 296 of the record:

“It makes no difference in this case whether proper newspaper notices were published or not, if you find from the evidence that the plaintiffs had actual knowledge of everything which the secretary of war required to be published.

“The foregoing charge was tendered and not given and the defendant excepted, all under the circumstances following:

“Counsel for defendant had, during the trial, handed the court the printed record of the former trial and at this point stated that he wished each of the special charges asked by the defendant on the former trial, as the same appeared in said record, given on this trial. Said charge was one of those so tendered. No special attention was called to said particular charge, nor was there any argument upon it in the case, although there was argument on the charges. The court had examined the said printed record of charges and stated that he would not give any of them. Counsel for defendant then said: ‘To the refusal of each of these charges defendant excepts.’

“In declining the printed charges the court overlooked the foregoing charge. If his attention has been specially called to the charge, he would have given it. The court made no objection, nor did plaintiff’s counsel, to the manner in which said charges were tendered.”

We are of opinion that the refusal to give this charge under the circumstances herein set forth does not constitute prejudicial error of a character to require or justify a reversal of a judgment otherwise correct and on the record appearing to give substantial justice.

Without resorting to a fine criticism of this charge to justify its refusal, we are willing to say that the forum of a reviewing court is not .a place where, for the first time, a point which has not been deemed of essence at the nisi prius trial, and which has not been • seriously pressed to the attention of the court, is to be brought to the front for the mere technical purpose of securing a reversal of a judgment which the court finds otherwise correct.

A nisi prius trial is not a game of chess or a match of the wits of counsel to achieve a technical result. Counsel on both sides owed it to themselves, to the trial judge, and to the administration of justice, to help the trial judge, and so far as possible preserve the nisi, prius trial from error. Admitting that this charge ought to have been given, we nevertheless are of the opinion that the failure to give the same had no controlling effect upon the verdict.

However, looking for a technical escape from such technical error, we might say that the statement on page 288 of the record: “And thereupon before argument the counsel upon both sides requested special charges to be given to the jury, as follows:” does not show a request that these eharges.be given before argument though the sequence of the record shows that the request was made before the argument; the record does not disclose a request that the charges be given by the court before argument.

“To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give siieh instructions before the argument, and that its refusal to do so was the subject of an exception” (The Village of Monroeville v. Root, 54 O. S., 523).

Maxwell c6 Ramsey, for plaintiff in error.

Stephens, Lincoln & Stephens, contra.

“While it is the right of a party to have correct written instructions given by the court to the jury before the argument of the ease to the jury commences, when properly asked, to constitute error as to this, it must affirmatively appear from the record that the'court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception” (The Cincinnati Street Railway Company v. Jenkins, 20 Ohio Circuit Court Reports, 256).

If this is not strictly a special charge within Revised Statutes, 5190, the subject is treated in a general way on page 305 of the record in the general charge sufficiently to cure the court’s refusal to give it as written.

We find no prejudicial error in the record of the trial of this case, and judgment therefore will be affirmed.


text:
    THE MALT LIQUOR. KNOWN AS “SWANKEY” AN INTOXICATING LIQUOR..
    [Circuit Court of Mahoning County.]
    Ernest Dominick v. The State of Ohio.
    Decided, March Term, 1905.

      Local Option Law — Constitutionality .of Beal Act — Jurisdiction of Mayor of Municipality — Keeping Place and Belling Distinct Offenses — BwamJoey ■ an Intoxicating Liquor.

    1. The mayor of the city of Youngstown has jurisdiction to hear and finally determine misdemeanors notwithstanding the act of April 26th 1904 (97 O. L., 623), where .no imprisonment is part of the penalty, and of such character is a charge under Section 4364-20« for the first offense.
    2. The trial court having determined that a malt liquor is intoxicating, the judgment of such court will not he reversed unless such finding and judgment is manifestly against the weight of the evidence; • and in the case of a malt liquor known as 'Swankey it floes not so manifestly appear, but on the contrary it clearly appears in this ease, -that such malt liquor is an intoxicating liquor under the statute.
    Cook, J.; Burrows, J., and Laobie, J., concur.
    Error to Mahoning Common Fleas Court.
   Ernest Dominick, plaintiff in error, was tried and convicted by the mayor of the city of Youngstown for the offense of keeping a place for the sale of intoxicating liquors in the village of Struthers, this county, such municipality being a local option village under Section 4364-20», 206 and1 20c, known as the Beal Law, fined one hundred dollars and costs and ordered committed until fine and costs were paid.

The common pleas court affirmed the judgment and sentence of the mayor, and error is now prosecuted in this court to reverse the judgment of both courts.

The evidence shows, that the accused had a regulary fitted up bar room at which he sold a m'alt liquor known as swan-key.

Several grounds of error are assigned and relied upon for the reversal of the judgments below: That the law is unconstitutional for the reason that it gives the magistrate final jurisdiction in the action. As a fine is the only penalty under the section under which the accused was convicted, it is unnecessary to consider that question further than to say that it has been so often determined by the courts in this state, and especially in regard to this particular act, that it must be considered as fully settled that the act of the General Assembly is not only constitutional, but that mayors generally under the act have jurisdiction to finally determine cases arising under the act and fine the accused.

Again: It is claimed that the affidavit under which he was tried should have averred and the state should have proven that the accused knew that the liquor which he had for sale was intoxicating. We think not. Where one sells liquor as a beverage'he is presumed to know whether it is intoxicating or not. If it is, he sells at his peril.

Again: It is claimed the mayor of Youngstown had no jurisdiction for the reason that it has a police court. Without entering upon a discussion of the question whether or not the act creating a police court for the city of Youngstown is unconstitutional for the reason that it is a special act conferring corporate powers upon the municipality of Youngstown, it is sufficient to say that the act did not deprive the mayor of final jurisdiction in this case, first, for the reason that under the act the, police court of said city had only jurisdiction for misdemeanors committed within the corporate limits, and, were it otherwise, yet it seems to us that under Section 1536-776 and 1536-777 of the Municipal Code the mayor would have jurisdiction. These sections provide:

“1536-776. In cities other than those which have a police .court, the mayor shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation, unless imprisonment is prescribed as part of the punishment.

“1536-777. He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is, by the Constitution, entitled to a trial Joy jury; and his jurisdiction in such cases, shall be co-extensive with the county.”

That the commission of an offense under the Beal Law is a misdemeanor is. conceded, but it is said that these two sections were originally embraced in one and the evident intention was to confer exclusive jurisdiction upon police courts in all cases of misdemeanor. We are not impressed with that argument. It would not seem that the intention of the Legislature was to deprive mayors of their jurisdiction to hear and determine misdemeanors when imprisonment is not part of the penalty.

In Section 1536-776 the mayor is specially deprived of jurisdiction under an ordinance in eases therein prescribed, and by Section 1536-777 he is given jurisdiction in misdemeanors where the party is not entitled to trial by jury under the Constitution.

The cases are entirely dissimilar and the history of the legislation upon this subject sustains this view. We, therefore, would not be inclined to hold, even independent of the restricted powers of the police court for the city of Youngstown, that the mayor had not such jurisdiction; but however that may be, we have no clonbt that, under the act (97 O. L., 623) creating a police court for the city of Youngstown, the mayor had such jurisdiction.

It will be observed that this act is classified as a local law and possibly should be construed as such. It does not provide for a police court but a criminal court, a court new to our general legislation. The first section, as we have said, distinctly restricts its jurisdiction in misdemeanors to the limits of the city, and as we think, could not by any process of reasoning be construed as intending to deprive the mayor of his judisdiction in misdemeanors outside of the city limits, even if Section 1536-777 should be construed as defendant claims it should be.

It is again insisted that the accused had been acquitted by the mayor of Struthers for the same offense. That question need not be considered, as the .bill of exceptions does not purport-to set out all the evidence, but, waiving that, the claim is riot tenable. Keeping a place for the sale of intoxicating liquors and the sale of the same are distinct offenses under the section. Whoever shall keep a plaice for the sale of intoxicating liquors and whoever sells intoxicating liquors shall be guilty of a violation of the statute (Miller & Gibson v. The State, 3 O. S., 475, and other authorities cited by counsel-for the state). Moreover in this ease the sales relied upon by the state for the purpose of showing that the accused was guilty of “beeping a place” were entirely different and distinct from the sale which he was charged with making before the mayor of Struthers.

Lastly it is said that the liquor which Dominick sold was not intoxicating. Like- the last assignment this question is not before us for the reason that, the bill of exceptions does not purport to contain all the evidence; but we have read the evidence' and we think that the finding and judgment of the trial court is not only not against the weight of the evidence, but is clearly supported by the evidence. True, there was the evidence of the expert chemist sent by the brewer at Chicago who manufactures swankey which would tend to show that it does not contain sufficient alcohol to intoxicate without very large quantities were used. To offset this was the chemists for the state who testified that it contained a considerable quantity of alcohol.

E. N. Brown, for. plaintiff in error.

C. A. Manchester, Boyd P. Doty and W. B. Graham, for defendant in error.

Which of these hired experts was most worthy of belief, if they should be believed at all, was peculiarly a question for the trial court. Then there were witnesses — true they were detectives employed by the Anti-saloon League — who testified that one or two glasses would make you sensible of its effects and that four or five glasses would make you quite drunk, showing that it was equally as strong as lager beer for intoxicating purposes, either from alcohol or a much worse ingredient.

Further we should take into consideration that Dominick had a room for the almost exclusive sale of swankey. Why did he have such place in a local option village? What would the people want with swankey if it did not intoxicate and how would it pay to keep a room for its sale if it would produce no different effect from soda water or other soft drinks? These so-called malt drinks are not sold as a beverage for their taste, but for their effect, and they are used for that purpose.

When the citizens have decided they do not want any intoxicating liquors sold in a certain district, there is no excuse for attempting to violate the law by artifice of this character — better by far to have open saloons for the sale of ordinary intoxicants.

We see no error in the record and the judgment is affirmed.