text:
    DESCENT OF PERSONALTY LEFT BY A WIDOW.
    Court of Appeals for Delaware County.
    Edwin M. Paul et al v. Frank Brown et al.

    Decided, 1918.

      Descent — Widow Talcing Personalty — Belonging to Her Intestate Husband Who Left Children Surviving — Does Not Take as Next of Kin ■ — But Solely by Virtue of Section 8592' — Distribution of Such Personalty Upon Her Death Intestate.

    Upon the death of a widow, intestate and without issue, personal property which came to her from her deceased husband, who also died intestate, does not pass to the children of said husband by a former marriage, but to her own brothers and sisters.

      T..E. Powell, for plaintiffs in error.

      Marriott, Freshwater & Wickham,-contra.

      Motion for an order directing the Court of Appeals to certify its record in this ease overruled by. the Supreme Court, November 12, 1918.

   Powell, J.

Carey B. Paul, late of this county, died January 11, 1901, intestate. He left five children surviving him, and a widow, Sarah C. Paul. The five children were the children of a former marriage and were not the children of the widow, Sarah C. Paul. He left a large estate which passed, under the statutes of descent and distribution, to his widow and children in their statutory proportions.

Sarah C. Paul, the widow, died December 30, 1915, intestate and without issue, possessed of a large amount of personal property which came to her from her deceased husband on distribution of his estate.

Petitions were filed by four of the children of said Carey B. Paul, deceased, asking the direction of the court, to the effect that they are entitled to the share of the 'estate of said Sarah C. Paul, deceased, for distribution, which came to her from her former •deceased husband, their father.

One of said children, Frank C. Paul, did not join as plaintiff and was made defendant to the action. The issue was made up by the filing of an amended petition, the answer thereto of the defendants, Frank Brown and Anne E. Carpenter, and F. M. Marriott as special administrator of the estate of said Sarah C. Paul, deceased, and the reply thereto of the plaintiffs. The case was submitted to the court of common pleas upon the admissions of fact contained in the pleadings, and upon such submission a judgment was entered in favor of the defendants. Motion for a new trial was filed and overruled. A petition in error was filed in this court with a transcript of the proceedings had in the court of common pleas.

The question presented for adjudication is as to how such property in the possession of said Sarah C. Paul should be distributed under the statutes of descent and distribution. The, claim of the children of Carey B. Paul is that the distribution of such property as Sarah C. Paul owned at the time of her death, that came to her from the estate of Carey B. Paul, passes and descends under the provisions of Section 8577 of the General Code to the five children of the said Carey B. Paul in equal proportions; while the defendants, Frank Brown and Anne E. Carpenter, as brother and sister of the said Sarah C. Paul, and the defendant, F. M. Marriott, as administrator of her estate, claim that the entire personal estate of the said Sarah C. Paul passes and descends to the said Frank Brown and Anne E. Carpenter as her next of kin, without reference to the source from which such property came to her, under the provisions of Section 8578 of the General Code, which by reference requires all property that passes by virtue of said section to be distributed according to the classification prescribed by Section 8574, but subject, “however, to such right as a widow or widower may have to any part of such personal property.”

So much of Section 8577, as is applicable to the question here involved reads as follows:

“Section 8577. When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former husband or wife by deed or gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy-four, then such estate, real and personal, shall pass to and vest in the children of such deceased husband, or wife, or the legal representatives of such children.”

Section 8578, or so much thereof as is applicable to this case, reads as follows:

“Section 8578. When a person dies intestate and leaves personal property, it shall be distributed in the manner- prescribed in section eighty-five hundred and seventy-four, as to real property which came not by descent, devise or deed of gift from an' ancestor; saving, however, such right as a widow or widower may have to any part of such personal property.”

Applying the provisions of Section .8577 to the case now under discussion, we have:

1. Sarah C. Paul is the relict of a deceased husband, Carey B. Paul, both dying intestate and without issue.
2. She was possessed of a large amount of money and other personal property which came to her from such former deceased husband under the statutes of descent and distribution.
3. “Such estate, real and personal, shall pass to and vest in the children of such deceased husband, or the legal representatives of such children,” if the same came to her from her deceased husband’s estate “by deed of gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy-four.”

It is contended in the briefs of counsel that said Sarah C. Paul did not come into possession of said money by deed of gift, devise or bequest, or under the provisions of Section 8574, therefore the provisions of Section 8577 do not apply. By Section 8578 cf the General Code the title to personal property of an intestate passes on distribution of his 'estate, by the course of descent prescribed by Section 8574, subject, however, to such right as a widow or widower may have in the personal property of such decedent. This would include any right which a widow or widower would have in the personal property of the desceased consort. This saving clause would indicate that a widow or widower, relict of a former deceased husband or wife, has other rights in the personal property of such deceased consort than are to be found in Sections 8578 and 8574, and that a widow’s rights as defined by these two sections are such other rights as are exempted from the operation of said two sections. By Section 8574, a widow, relict of a deceased husband, is entitled to all the personal property of said deceased husband for distribution if there are no children or legal representatives of children of such deceased husband. This is the only provision made by Section 8574 for the benefit of such widow, and it is the opinion of the court that this is the provision to which reference is made in Section 8577 as to property which came to such intestate under the provisions of said Section 8574.

In such case, too, where the widow or widower takes the whole estate of such intestate by virtue of Section 8574, she tabes it as next of kin of such intestate (Section 8592, General Code). When there are children surviving, the widow does not take as next of kin. Such children are next of kin of such intestate and take the whole of the personal property to the exclusion of the widow, so far as the independent provisions of Section 8574 are concerned, but they take it even under said section subject to such other rights as the widow may have by other provisions of the statute. By virtue of Section 8592, the widow takes as next of kin of her deceased husband all the personal property subject to distribution on settlement of the estate, provided there are no children of such intestate surviving. This is the same provision that is made for her by Section 8574. But .Section 8592 goes further and prescribes what she shall have if her deceased husband left children surviving him. In such event she is “entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution.” As said above she does not take this share as next of kin, but is entitled to it, as we think, solely by operation of said statute Section 8592. Doyle v. Doyle, Jr., 50 Ohio St., 330.

Her title to the property sought to be recovered in this action is a title solely by virtue of this statute and as a consequence resulting therefrom it does not descend or pass from her on distribution of her estate under the direction of Section 8577, but does pass and descend under the provisions of Sections 8578 and 8574 as directed by said Section 8578.

It follows, therefore, that as the property in her possession at her death, which came to her from her deceased husband, did not come to her by deed of gift, devise or bequest, or under the provisions of Section 8574, it does not pass on distribution of her estate, under Section 8577, but does pass generally under Sections 8578, 8574 and 8592.

The judgment of the court of common pleas directing the distribution of said estate to the said defendants, Frank Brown and Anne E. Carpenter, as the brother and sister of said decedent, and to her administrator, was the proper judgment and decree to have been entered and should be affirmed by a reviewing court.

Judgment affirmed.

Houck, J., and Shields, J., concur.


source: Caselaw Access Project

author: Shields, J.

license: Public Domain

text:
    RESPONSIBILITY OF MOTORMAN FOR STRIKING ONE ATTEMPTING TO CROSS THE TRACK BEFORE HIM.
    Court of Appeals for Licking County.
    George R. Taylor, Administrator of the Estate of Martha B. Taylor, Deceased, v. The Ohio Electric Railway Company.

    Decided, October Term, 1918.

      Negligence — Woman Killed While Crossing Intentrban Trach in Open Country — Motorman Charged With Ordinary Care Only — Charge of Court — Last Chance.

    1. A motorman on an interurban car can not be held responsible under an inexorable rule and as a matter of absolute duty to discover under any and all circumstances the presence of persons on or near the track before him who may be struck by his car, and where he maintained as vigilent a lookout as was consistent with the paramount duty which he owed to the passengers in his charge, he can not be held responsible for failing to discover what he did not and could not see by the exercise of ordinary care.
    2. A charge of court which holds a motorman responsible for failure to see a person on the company’s right-of-way in time to avoid injuring him, is too broad and to refuse to give it to the jury is not error.
    3. Inconsistent charges do not constitute ground for reversal unless they are prejudicial and relate to matter which is material, and where it is reasonably certain that the charges given did not come within this rule, ground is not afforded for setting aside a verdict which otherwise ought not to be disturbed.
    4. Where one having an unobstructed view of a car approaching at high speed misjudges the time required for the car to pass him and in attempting to cross in front of it is struck and killed, a verdict in favor of the company will not be set aside on the ground of the -weight of the evidence.

      Kibler & Kibler', for plaintiff in error.

      J. B. Fitzgibbon and Montgomery & Blade, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court February 11, 1919.

   Shields, J.

In this proceeding it is sought to reverse the judgment of the court of common pleas because of certain alleged errors occurring upon the trial of said action in said court, as appears in a petition in error filed in this court for such reversal.

In said action a recovery in damages was sought by the plaintiff in error as plaintiff against the defendant in error as defendant for the death of Martha B. Taylor on the 25th day of May, 1915, caused by the alleged negligence of the defendant in error, the facts and circumstances of which are referred to in this opinion.

The defendant by answer admitted that the said decedent was struck by one of its cars and instantly killed at the time and place mentioned, but it denied the negligence charged and averred contributory negligence, which was denied by the plaintiff in his reply.

A verdict and judgment was recovered by the defendant company below.

While the petition in error alleges some thirteen separate grounds of error, three grounds only were argued to this court, namely:

1. The refusal of the court below to charge the jury before argument as requested by the plaintiff below.

2. Error in said court’s charge to the jury.

3. That the verdict was manifestly against the weight of the evidence.

It appears that the decedent who before and up to the day of her death resided in Newark, Ohio, had left her home on said day to visit at the home of one John Fullerton, near Hebron, in said county, where a friend of hers had just died, and where other friends of the deceased friend were also gathered. The Fullerton home was located near the defendant company’s line of road, perhaps some thirty or forty feet from its tracks, where there was a signal stop known as “The Oak Stop,” and where persons at the Fullerton home boarding the defendant company’s cars, going north, were obliged to cross the two tracks of said company at a distance of some fifty feet from said home. The customary signal to the passing cars to stop for passengers awaiting passage was given by the waiving or throwing up of the hands or other like means. On the day in question it appears that the decedent desired to return to her home in the. early evening of said day and being informed that a car was approaching, which'could be seen at a considerable distance on a straight track from the Fullerton home, she hurriedly arose from the table where she was eating and signaling the motorman of the car with her hands, and perhaps a handkerchief, with an accompanying friend, while in the yard of the Fullerton home, she hastened to cross the defendant company’s tracks in plain sight-of and within a short distance of a rapidly approaching car to reach the opposite side to board the same, and in the attempt to do so she was struck and killed by one of the defendant’s cars, which was then running at the rate of thirty-five or forty miles per hour. As in other like eases the eye witnesses to the tragic end of the decedent in this case differ in some of the particulars of the accident, some testifying that the decedent was warned against the danger of crossing the tracks at that timé, in the face of the fast approaching car, which could readily be seen before she attempted to cross, and that she was running across the tracks when struck when the car was about two hundred feet distant from her, while others testify to a different state of facts.

Upon an examination of the testimony given upon the trial on this branch of the case, if we were sitting as a jury to judge of the effect of this testimony, we would feel compelled to find that death resulted from a mistaken judgment based upon a miscalculation of the speed of the car, a conclusion reached by the jury, perhaps, as evidenced by their verdict. In this connec-. tion is might be remarked that it is a matter of common knowledge, emphasized by the daily record of accidents happening upon railroads and from the operation of automobiles upon the public highways, that many such accidents are due to a misconception of the extent of space traveled by such vehicles in an incredibly short period of time, and as a result accidents follow. Here it is admitted that the car in question was traveling at the rate of from thirty-five to forty miles per hour; hence it is apparent that á person about to cross the track of said company to take passage on the car from the opposite side would be required to so cross at a considerable distance in advance of such approaching car in order to cross safely and to avoid accident. But contributory negligence, when the evidence is conflicting, is a question of fact for the jury, and leaving this feature of the case, counsel for plaintiff in error argued that although the decedent may have been primarily negligent, the petition presents a case on which the plaintiff in error claims he was entitled to have certain propositions of law submitted to the jury before argument, which the court refused to give. Here the issue of what is known as the “last chance” is claimed to be raised by the averments in plaintiff’s third amended petition and, as claimed, was supported by the evidence, and it is urged that the court below erred in refusing to give to the jury in charge several requests containing certain propositions of law submitted on behalf of the plaintiff in error before argument in relation to such issue. In Drown v. Traction Co., 76 O. S., at page 249, the judge announcing the opinion in that case, among other things, says:

“It is clear, then, that the 'last chance’ rule should not be given as a hit or miss rule in every case including negligence. It should be given with discrimination.”

The doctrine of “last chance” in the evolution of modern jurisprudence, as defined by modern text-writers and interpreted by courts, seems to extend the long recognized rule as to the effect of combined contributory and concurrent negligence, and affords a right of action in damages to the injured person, although primarily negligent, if the defendant after discovering, or by the exercise of ordinary care could have discovered, the danger of’ such person and fails to use such care to avoid injuring such person. This view contemplates that the act of negligence of the injured party was not heedless or wilful, for certain it is that the law does not place a premium upon one’s own wanton or rash act and east upon another the responsibility of such act, but while such negligence creates the condition of danger, the law permits a recovery in damages for the subsequent negligence of a defendant causing such injury after becoming aware,'or in the exercise of ordinary care could have become aware, of such danger.

Of the eight requests submitted on behalf of the plaintiff in error to be given in charge to the jury before argument, Nos. 4, 5, 7 and 8 were so given and Nos. 1, 2, 3 and 6 were refused.

Request No. 1 was as follows:

“The court charges you that the plaintiff can recover in this case, notwithstanding the decedent may have been guilty of negligence in crossing in front of the moving car, if the motorman, after he became aware, or ought to have become aware, of her position, failed to use ordinary care to avoid injuring her. ’ ’

In their brief, counsel for plaintiff in error cite as authority for such instruction: Railroad Co. v. Kassen, 49 O. S., 230; Erie Railroad Co. v. McCormick, Admx., 69 O. S., 45; Drown v. Traction Co., 76 O. S. 234; Traction Co. v. Brandon, Admr., 87 O. S., 187; West, Receiver, v. Gillette, Admr., 95 O. S., 305.

In Railroad Co. v. Kasáen, cited, the court announced the rule that:

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

In the case of Erie Railroad Company v. McCormick, Admx., cited, the court laid down the following rule:

“In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employees operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. Railroad Co. v. Kassen, 49 Ohio St., 230, distinguished.”

In Drown v. Traction Co., cited, it was held that:

“The doctrine of ‘last chance,’ as formulated in Railroad Co. v. Kassen, 49 Ohio St., 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

In Traction Co. v. Brandon, Admr., cited, the third syllabus reads as follows:

“Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or cheek the car in order to avoid collision; and the fact that such driver may have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such ear if the motorman has not used such vigilance.”

In West, Receiver, v. Gillette, Admr., the court held that:

“Where a collision occurs and such driver is injured and the undisputed evidence shows that the motorman actually saw such vehicle and had it continually in view for a considerable distance from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances; and the fact that the driver may have been originally negligent in the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him.”

Of course, the rule of law announced in each of the foregoing cases was intended to apply to the particular facts in such cases. While the last three were crossing cases, the facts in each case were essentially different. Without taking time to discuss the history of these cases or the principles of law laid down therein, we are not persuaded that the Supreme Court of this state has as yet announced the doctrine contended for by the plaintiff in error, as embraced in said request No. 1. As we read them, the last three cases cited do not bear out the construction contended for, certainly not in the last case, for there the motorman in charge of the car actually saw the horse and buggy several hundred feet before the impact at the crossing, which fact eliminated from that case the question of vigilance enjoined by the law upon a railroad company with a view to discover persons éxposed to danger at a highway crossing. Nowhere in the eases cited do we find that the court has held it to be an inexorable rule and as a matter of absolute duty that a motorman shall be held to accountability under any and all circumstances for failing to discover that which in the exercise of ordinary care he did not and could not discover, or as stated in said request ‘ ‘ or ought to have become aware of.” True, this language was used in the Kassen case referred to, but Judge Shauck in announcing the opinion in the McCormick ease in reviewing the Kassen case on page 54 says:

“The phrase ‘ought to have been aware’ manifestly applies to those in charge of the following train, and implies the duty of the company to communicate to them its actual knowledge of Kassen’s danger. # * * It is entirely clear, therefore, that the liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him. The doctrine of the case can have no application when neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge. The rule of liability applies only when there is actual knowledge of those operating the train inflicting the injury, which knowledge is imputed to the company derived through other means, with opportunity to communicate it to those operating the train. By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,’ and by other expressions in the charge involving the same conception, the court gave to the jury an erroneous view of the law. ’ ’

It appears that the foregoing opinion was concurred in by Judge Spear who announced the opinion in the case of Traction Co. v. Brandon, Admr., and by Judge Davis who announced the opinion in the case of Drown v. Traction Co., referred to.

In the opinions announced in both the Drown v. Traction Co. and West, Recr., v. Gillette, Admr., cases the following text from Vol. 2, Thompson on Negligence, Section 1629 was cited with approval:

"Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no. legal rights to be- — -the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

As here stated, "the servants of the railway company are bound to keep a vigilant lookout, ’ ’ but where such vigilance has been exercised by the motorman consistent with his paramount duty owing to passengers in his charge, as held in the Kistler case, 66 O. S., 326-337, has not the duty imposed by the law upon him been discharged! Opportunity to know may not be knowledge. Without pursuing this subject further we think that the epitome of the law on this subject is correctly and concretely stated in Thompson on Negligence, referred to, which was approved by Judge Johnson in the ease of West, Rec’r, v. Gillete, Admr., as being "well founded in reason and authority.”

As each case rests upon its own facts, let us inquire what the facts were on this branch of the ease as shown by the record in the case at bar. As stated, "Oak Stop” was a signal stop in the open country where the defendant company’s cars stopped on signal. While the failure of the motorman to give a signal or to reduce the speed of the car at said signal stop are alleged in the plaintiff’s said amended petition as contributing causes to said decedent’s death, the failure of the motorman to discover the presence of the decedent at or about said stop was specifically-urged in argument as the proximate cause of said death. Passing the circumstances under which the decedent undertook to cross the tracks from the Fullerton home, to which we have already referred, it appears that in running from Buckeye Lake to Oak Stop the ear was running at the rapid rate mentioned, and it appears that C. T. Hayden, the motorman in charge of said car, testified as follows:

“Do you remember about what time the accident occurred? A. It was in the evening but I don’t remember the time.
Q. Where were you coming from with your ear. A. Buckeye Lake.
“Q. Where did you first see Mrs. Taylor? A. Well, she was coming through the little gate by the roacl crossing.
“Q. At that time how far was the ear from the crossing, to the best of your knowledge ? A. One hundred and fifty to two hundred feet.
“Q. Now, I wish you would state fully and in detail what you did when you saw Mrs. Taylor at the gate, or coming through the gate. A. I blew the whistle, shut off the power and reversed the car.
“Q. What did Mrs. Taylor do? A. Well, I don’t remember. o
“Q. Was there any one in the compartment where you were at that time? A. Not to my knowledge.
“Q. Did you see the ear strike Mrs. Taylor ? A. Positively not.
11Q. How far did the car run beyond the crossing after Mrs. Taylor was struck? A. Between two hundred and fifty and three hundred feet.
“Q. That is, before it came to a stop? A. Yes, sir.
“Q. Are you employed by the Ohio Electric at this time?
A. No, sir.
Cross-examination.
* * * *
1' Q. Who was your conductor ? A. W. H. Smith.
“Wasn’t he in the vestibule with you? A. No, sir.
“Q. Isn’t it a fact that from the trestle to the point where you struck Mrs. Taylor, you were talking with some one in that vestibule the whole way from the trestle? A. Positively not.
“Q. When you approached this crossing did you intend to stop there? A. I didn’t see any one that wanted on until we were within a hundred and fifty or two hundred feet.
“Q. You didn’t intend to stop? A. There was nobody flagging.
‘‘Q. Because there was nobody there, flagging you, you didn’t intend to stop as you came there ? A. No.
“Q. Did you see any one waiving about that gate on the left hand side of the track the direction you were coming? A. I didn’t. She was running somewhere through the gate when I first seen her.
“Q. My question is, did you see any one waiving to you standing in the neighborhood of that gate as you approached that crossing ? A. I did not.
1 ‘ Q. Did you see any one at or near the gate at the time you saw Mrs. Taylor? A. I don’t remember of seeing any one.
“Q. Does that mean that you didn’t or did? A. I didn’t.
‘ ‘ Q. And at no time before you got to within a hundred and fifty or two hundred feet of that crossing did you see any signal? A. I did not.
‘ ‘ Q. Now, as you approached that crossing, were you in your proper place? A. Yes, sir.
“Q. And you claim you kept a proper lookout? A. I did.
‘‘Q. And yet you didn’t see Mrs. Taylor, or any other woman. A. I did not. *
‘ ‘ Q. Now, when you saw Mrs. Taylor, what did you do ? A. I shut off the power.
“Q. Why? A. She was running toward the car.
“Q. You had no signal from her ? A. I didn’t see any.
“Q. And of course you didn’t in that 150 or 200 feet— you didn’t slacken the speed much before you got to the crossing? A. I couldn’t say how much it was slackened.
“Q. You shut off the power? A. Shut off the power and reversed the motor.
“Q. Now, Mr. Hayden, there was nothing to prevent your view of this track at any time after you crossed the trestle ? A. A misty rain on the windows.
!iQ. Didn’t you have the windows opened? A. I did not.
“Q., How do you know? Do you remember that' fact? A. The windows can’t be opened.
“Q. So, your view was obstructed, was it? A. To a certain extent.
“Q. Was it raining at the time of the accident? A. Justa misting rain.
“Q. How long had it been raining? A. Before we left Buckeye Lake.
“Q. Now, Mr. Hayden, when you first saw Mrs. Taylor she was to the left of the gate as you approached? A. Yes, sir.
“Q. Did you see anything like a handkerchief in her hand? A. I did not. ’ ’

During the trial one Leonard Hoskinson, a witness for the plaintiff, testified that he was sitting in a certain seat in the ear where he could see and did see the motorman and conductor talking together in the front vestibule of the car, at some little distance from the scene and immediately before the time of the accident, and that the motorman looked behind him at times during such talk, as tending to show that he was not engaged in keeping a vigilant lookout in front of the car; but other witnesses in addition to the motorman and conductor testified that the said Hoskinson did not occupy the seat in said car as claimed by him, and that the motorman and conductor were not so engaged in conversation at said time, whose testimony appears to have been believed and accepted by the jury as the true and correct statement of this disputed fact.’

Request No. 2 reads as follows:

“The Court charges you that if the motorman saw Mrs. Taylor upon the company’s right of way, or could by the exercise of ordinary care have seen Mrs. Taylor in said position in time to have slackened his speed or stopped his car and avoid the injury, then your verdict should be for the plaintiff.”

This request is open to the objection that it extends the range of vision of the motorman to the company’s right of way. It was said in argument, and not disputed, that said company’s right of way at this point was over forty feet. The presence of one on such right of way, if seen, would rather repel than raise the presumption that such person would go upon the company’s tracks in the face of a rapidly approaching ear at high speed. As was said by Judge Burket in announcing the opinion in. the Kistner case, 66 O. S., 326-336:

“It is the .duty of an engineer on a train to keep a lookout on the track ahead of him, and he is not expected to see anything on the sides of the right of way farther than his eye may take in objects within the range of vision while looking ahead along the track,” citing Railroad Co. v. Elliott, 4 O. S., 474, 476, and other authorities.

The principle here announced, applicable to an engineer on a locomotive, is alike applicable to a motorman operating an interurban car. The request, as a proposition entire, was too broad in its statement and was therefore properly refused."

Request No. 3 was properly refused for the same reason as was request No. 2.

Requests Nos. 4 and 5 were given as requested.

Request No. 6 was properly refused for the same reason as request No. 1.

It was also urged that the court below erred in its general charge to the jury, and our attention was specially called to what are claimed to be inconsistent instructions on the subject of contributory negligence and to the speed of interurban ears in the open country. After giving request No. 5 on behalf of the plaintiff in error as appears on page 362 of'the record, it was contended that the court afterward gave another and a contrary instruction on behalf of the defendant in error, which is as follows :

“If you find that the decedent Martha Taylor was negligent, and that the defendant was negligent, and that the negligence of both was contemporaneous and continuing until after the injury, and that the negligence of each was a direct cause of the injury without which it would not have occurred, the plaintiff may not recover and your verdict should be for the defendant.”

The charge proceeded upon the theory that the petition "and evidence presented a case involving the issue of the “last chance.” The reasoning adopted by Judge Davis in announcing the opinion in the case of Drown v. Traction Co., that—

“If the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause, ’ ’

seems to have been followed in framing said request so far as it applied to the question of contributory negligence. So far as it goes, we see nothing wrong in this instruction, but it is objected to because it does not include the qualifications of the “last chance” rule, which nullifies the defense of contributory negligence in a proper case. True, this might have been given under the issue raised by the pleadings in the case, as claimed by the plaintiff in error, but it was a request submitted by the defendant in error, and yet the court in its general charge instructed the jury in accordance with the instruction given in said request number five, submitted by the plaintiff in error. To constitute ground of reversal where inconsistent charges have been given, they must be to a material matter and prejudicial. Here it cannot be said that the subject-matter of the instruction was not material, but was it misleading and prejudicial in view of the instruction given in said request number five and the same instruction in substance repeated in the general charge? 'We do not think it was, but even assuming that it was, we think that the verdict and judgment below was right and that said judgment ought not to be disturbed on this account. Way & Co. v. Langley, 15 O. S., 392; Banning v. Banning, 12 O. S., 437.

It was objected also that the following instruction as the same appears on page 365 in the record, given on behalf of the defendant in error, was inconsistent with request No. 4, given on behalf of the plaintiff in error on page 364:

“ It is not negligence for the defendant to run its car on its own right of way in the open country at a high rate of speed.”

It is contended that this instruction is contrary to a holding made by the Supreme Court in the Kistler case referred to. The instruction contained in said request appears to be general and as such it appears to be in harmony with the proposition laid down in the third syllabus of said case. A different rule would apply in a case where the motorman of a car discovered, or in the exercise of ordinary care in keeping a proper lookout could discover, a person at a public crossing or at a customary stopping place. We fail to find any ground of reversible error in this respect.

It was also urged that the verdict of the jury was against the manifest weight of the evidence. Because of the loss of a life we have been led to carefully read and examine this record, not in the hope of finding error against the defendant in error that would authorize us as a reviewing court to set aside the verdict, but to ascertain whether or not the decedent’s legal representative had a fair trial under the forms of law provided in such eases. Accidents by violent death usually evoke sympathy, and such undoubtedly was the natural feeling shared by the jury under a recital of this tragic occurrence, but sympathy has no place in the administration of the law, and under the evidence presented in this case, under the instructions of the court, we are of the unanimous opinion that the verdict of the jury was a proper and just one. As we read this record, the decedent, with a full and unobstructed view of an approaching car running at a high rate of speed, attempted to hastily cross the tracks of the' defendant in error at an unsafe and dangerous distance from said car, and not being discovered by the motorman in time to check its speed to protect her from injury, she was struck and killed by said car. Unsympathetic and uncharitable though it may seem, the law affords no reparation in such cases.

Judgment affirmed.

Powell, J., and Houck, J., concur.


author: Metcalfe, J.

text:
    ILLEGAL SUSPENSION OF A CIVIL SERVICE EMPLOYEE.
    Court of Appeals for Jefferson County.
    City of Steubenville v. Henry Bougher.
    Decided, December Term, 1916.

      Civil Service — Sealer of Weights and Measures May Not he Removed for Lack of Funds to Pay Him — ■Authority of the Director of Public Service.

    1. Where a sealer of weights and measures has ¡been appointed by the mayor of a municipal corporation, such officer is subject to the rules of the civil service, and can only be suspended or removed in accordance with the provisions of the civil service act. 105, 106 O. L„ 411.
    2. Said act does not permit a removal or suspension of such officer • by reason of a shortage of funds to pay his salary.
    3. The director of public service has no authority to make such suspension or removal. ■

      F. E. Morrow, for plaintiff in error.

      G. L. Williams, contra.
   Metcalfe, J.

The defendant in error was appointed sealer of weights and measures of the city of Steubenville by the mayor of that city, and as such appointee he is subject to the regulations of the civil service act. 105-106 O. L., 411.

A shortage of funds with which to pay his and other salaries occurred in the city treasury, and alleging such shortage as a reason for his action the director of public service issued an order suspending Mr. Bougher from his office indefinitely.

This action was brought by Mr. Bougher to recover his salary, and it is contended that he could only be suspended or removed in accordance with the regulations of the civil service act, and, that in any event, the director of public service had no power to suspend or remove him.

Section 486-17 of the civil service act, supra, provides':

“In cases of reduction, lay-off or suspension of an employee or subordinate, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employee or subordinate with a copy of the order of lay-off, reduction or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation. ’ ’

The appointing authority in the case of the defendant in error is the mayor, and the appointment appears to have been legally made by such officer; hence the provisions above cited applies to him, and hence he could not be arbitrarily suspended indefi-. nitely for any reason, but has the right to an explanation of any charge made against him and to a trial in accordance with the further provisions of the act.

We find no provision in the act authorizing or permitting the suspension of an officer or employee for the reaspn that there is a shortage of funds in the treasury. The appointing and removing power resting in the mayor it follows that the action of the director of public service was a usurpation of such power and his action absolutely void.

Judgment affirmed.

Pollock, J., and Farr, J., concur.


author: Jones, J.

text:
    REMAINDER VESTED IN FEE SIMPLE IN THREE SONS.
    Court of Appeals for Hamilton County.
    William A. Stark, Trustee, v. Charles E. Marsh et al.

    Decided, April 15, 1918.

      'Wills — Alternative Clause of Survivorship Saving Become Inoperative — The Remainder Tested in the Sons Named — Notwithstanding They Were Survived 5y the Life Tenant.

    1. A died leaving a will, giving a life estate to a daughter and granddaughter and then provided, “the remainder in the portions thus devised to my daughter and grand-daughter shall at their respective deaths vest in the lawful issue of their respective bodies and in default of said issue, then the same shall descend to and vest in my said three grandsons, sons of my son Augustus, the survivor -or survivors of them.”
    2. At the death of the testator the daughter was unmarried and so remained until her death; the three sons of Augustus were all alive at the death of the testator and all died prior to the death of the life tenant.

      Seld: That at the death of the testator the daughter took an interest for life in the estate devised and the remainder vested in the three sons of Augustus, subject to be divested by the life tenant leaving children or the condition of survivorship existing among the three sons of Augustus at Jhe death of the life tenant.
    3. As the life tenant never married and the condition of survivorship did not exist at the death of the life tenant the estate that had vested in the three sons of Augustus at the death of the testator was never divested, notwithstanding the fact that all three sons died prior to the life tenant.

      Robt. A. Taft, for appellant.

      W. S. Little and Louis N. Gatch, for plaintiff.

      W. F. Fox, for Edna and Eva Marsh.

      Owen N-. Kinney, for Blanche Marsh Salway and Chas E. Marsh.

       Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 12, 1918,

   Jones, J.

This is an action brought by the trustee under the will of Elbert Marsh, for the construction of said will. It was heard in this court on appeal taken by Ida Plamilton Roberts, granddaughter of said testator, from the decision of the court of common pleas.

A fund of about thirteen thousand dollars, concerning the distribution of which this controversy relates, represents the proceeds of the sale of one-third of testator’s real estate, devised for life to his daughter Martha E. Marsh, who received the income thereof until the date of her death in December, 1915, at the age of eighty-one years.

Testator’s will was executed August 11, 1872, and he died in March, 1878, leaving three living children, Martha E. Marsh, Augustus W. Marsh and Charles E. Marsh; and four grandchildren, Charles A., William IT. and Edward E. Marsh, children of his son Augustus W. Marsh; and Ida Hamilton, who after-wards by marriage became Ida Hamilton Roberts and who was the only child of a deceased daughter, and is the appellant in this case.

At the time of the making of the will Martha E. Marsh was forty-two years of age and unmarried. The three sons of August were none of them at that time more than fifteen years of age; they all died prior to the death of Martha E. Marsh, as follows: Edward, January 15, 18$9; William, May 9, 1910; and Charles A., September 6, 1910. Edward left two children; Edna Marsh and Eva Marsh Ford. Charles A., left two children: Charles E. Marsh and Blanche M. Salway. And William died childless. Martha E. Marsh never married and died without issue.

The clause requiring construction is found in the fifth item of the will, as follows:

* * * The remainder in the portions thus devised to my daughter and granddaughter, shall at their respective deaths, vest in the lawful issue of their respective bodies and in default of said issue, then the same shall descend to and vest in my said three grandsons, sons of my son Augustus, the survivors or survivor of them.” * * *

Appellant contends that because none of the three'sons of August survived their aunt Martha E. Marsh, the life tenant, that testator must be held to have died intestate as to this fund.

The two children of Edward E. Marsh and the two children of Charles A. Marsh, appellees, contend that this clause created a vested remainder in fee simple in their respective fathers and their childless uncle William Marsh, and that they together inherit from their fathers and uncle, respectively, the entire fee simple of the real estate which is now represented by this fund to be distributed.

In the construction of a will the sole purpose of the court should be to ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will. Where the intention remains in doubt, resort for aid must be had to settled rules of construction, but they can not control if they are in conflict with the apparent intention of the testator. Townsend v. Townsend, 25 O. S., 477; Linton v. Laycock, 33 O. S., 128; Barr v. Denney, 79 O. S., 358.

The will is long and involved and an exhaustive effort is shown in the endeavor to meet every possible contingency, clearly showing the desire on the part of the testator to leave no part of his estate undisposed of by his will or to provide in any way for his son Charles E. Marsh or his children. It shows, however, an intention to divide the entire estate into three equal parts, and to give one-third of his real estate for life only to each of the two female lines, to-wit, his daughter Martha E. Marsh, and his granddaughter Ida Hamilton Roberts, sole representative of a deceased daughter, and” the other one-third to the three sons of his son Augustus in fee simple subject to certain interests given Augustus therein.

It also evinces an intention to give the share of his daughter Martha, on her death without issue, to the same three grandsons, and it make the same provision as to his granddaughter, the appellant.

In addition to this apparent intention shown in the will we must consider the legal presumption against intestacy found in the policy of the law, unless no other construction is possible. Collier v. Collier, 3 O. S., 74; Davis v. Corwine, 25 O. S., 668, 675; Fulton Trust Co. v. Phillips, 218 N. Y., 573.

Estates created by will under the policy of the law will be regarded as vested rather than contingent unless the contrary intention is apparent from the contest of the will. The estate in remainder, created by the will at the death of the life-tenant without issue seems to have all the attributes of a vested remainder. Linton v. Laycock, 33 O. S., 128, 134; Gilpin v. Williams, 25 O. S., 283; Bolton v. Bank, 50 O. S., 291, Beckley v. Leffingwell, 57 Conn., 163; Mercantile Bank v. Ballard, 83 Ky. 481; Patterson v. Hennessey, 85 N. Y., 91, 104.

“Vested interests liable to divestment are preferred, in construction, to interests contingent.” I Schouler on Wills, 5th Ed., Section 562, p. 724.

The estate in remainder vested in the sons of Augustus was subject to being divested upon the happening of one of two con'ditions: one that Martha E. Marsh leave issue at her death; the other condition was the element of survivorship provided for among the three brothers at the death of the life tenant without issue. This element of survivorship is all that raises any question of doubt as to the meaning of the clause. If these words had been omitted there would be no question but that a vested remainder was given • to the three grandsons, subject to divestment only upon the death of the life tenant with issue surviving her.

It will be observed that the clause relating to survivorship is in the alternative and operates only in case one "or more, and not all, of the brothers survive the life tenant. If that case had arisen there is no question but that the one or two brothers who died before the life tenant, leaving the one or two surviving her, would be divested of all interest in the remainder in favor of the survivor or survivors. But none of the three survived the life tenant; the clause became inoperative and fails in any way to affect or change the title in fee simple in remainder that had already vested in these three brothers under the will, because while the words “heirs” or other words of inheritance are not used here or anywhere in the will with reference to this remainder in those three grandsons, they would take a fee in remainder under the statute. General Code 10580.

The case of Jeffers v. Lampson, 10 O. S., 101, is directly in point, and particularly that part of the opinion found at page 104 quoting from the old case of Harrison v. Foreman, 5 Ves. Jr., 207. The cases of Sturgess v. Pearson, 4 Maddocks, 411, and Belk v. Slack, 1 Keen, 238, are also directly in point, as is Mill v. Vernard, 152 Mass., 767; also Acres v. Dabney, 133 Ala., 437.

The case of Richardson v. Cincinnati Stockyards Co., 8 N. P., 213, relied upon by appellant, is not contrary to this doctrine. In that case certain land was devised by testator to his daughter Jane Richardson, and “the heirs of her body forever,”

“but in ease of the death of said Jane Richardson without surviving issue of her body, then the property hereby to her bequeathed at the death of my said wife shall revert back to and be equally divided amongst my surviving children, share and share alike.”

Jane Richardson survived all her brothers and sister and never had any children. It was held that — ■

“the reversion in the estate passed to the heirs of testator subject to be divested of it by Jane Richardson dying with issue of her body or with children of the testator surviving her, an event which it is now known can never happen,”

and -the title of the property was therefore east upon the heirs of testator. This holding followed the law as laid down in Gilpin v. Williams, 25 O. S., 283, and is not inconsistent with the holding in this case.

Among the cases relied upon by appellant are Sinton v. Boyd, 19 O. S., 30; Smith v. Block, 29, O. S., 488; Richey v. Johnson, 30 O. S., 288; and Hamilton v. Rodgers, 39 O. S., 242. None of these cases however disclose a situation similar to the instant ease, or lay down a rule that controls it.

In Sinton v. Boyd, where testator give a life estate to his wife, after her death to be divided equally amongst his children or the survivors of them, it was held that the daughter of a son who failed to survive his mother took no share where other children survived her.

In Smith v. Block, where real estate was conveyed to a mother for life and after her death to her surviving children by E, her husband and after the death of all said children to E, in fee simple, it was held that only such children as survived the mother took an estate, and that E took a vested remainder in fee subject to the intervening contingent estate of the children.

In Richey v. Johnson there was a direction to the executors to sell and divide after the death of testator’s wife, equally between such of his brothers and sisters as might then be living, and the issue of those dead, per stirpes. There were survivors within the class thus divided who took the property.

In Hamilton v. Rodgers testator devised his estate to trustees to pay certain annuities out of the income, and to distribute after the “final cessation” of such annuities. It was held that the estate did not vest until the time fixed for distribution, which had not yet arrived.

Disregarding the alternative clause as to survivorship, which we have seen has become inoperative, the rule laid down in Linton v. Laycock. 33 O. S., 128, would apply and the language under construction would be held to have vested a remainder in fee simple in the three sons of Augustus W. Marsh, to-wit, Charles A., William H., and Edward E. Marsh.

William IT. Marsh having died intestate heaving no widow or children, his one-third interest would pass by decent to his brother Charles A. Marsh and Edna Marsh and Eva Marsh Ford the children of his brother Edward E. Marsh.

Edward E. Marsh and Charles A. Marsh having also each died intestate leaving two children, these children would inherit the interests of their respective fathers, and therefore each of the four children, to-wit: Edna Marsh, Eva Marsh Ford, Charles E. Marsh and Blanche Marsh Salway would be entitled to one-fourth interest in said fund.

A decree may be taken accordingly.

Hamilton, J., concurs.


author: Allread, J.

text:
    CONSTRUCTION^ WILL WITH REFERENCE TO AFTER ACQUIRED PROPERTY.
    Court of Appeals for Pickaway County.
    [Judges of the Second Appellate District sitting in the place of Judges Sayre, Walters and Middleton.]
    Jerome Blacker v. George W. Litten et al.
    Decided, December 6, 1918.

      Wills — Testatrix Inherits Property After Executing Her Will — Intention Manifested to Dispose of all the Property of Which She Died Possessed — Devise in Full of all Interest Does Not Bar Participation in a Lapsed Estate.

    1. A devise in a will to a daughter “to be her full share and interest in all my estate” does not bar suck devisee from her share of property not disposed of by the will.
    2. This construction is not affected by the fact that the property in controversy had been disposed of by a legacy which had lapsed by reason of the death of the legatee in the lifetime of the testator.

      G. A. Leist and Barton Walters, for plaintiff.

      G. W. Morrison and I. F. Snyder, contra.
   Allread, J.

This case involves a construction of the will of Margaret Blacker in respect to after-acquired real estate.

It appears that the will was executed on November 5, 1890. At the time of the execution the testatrix owned a farm of which she died seized. At the date of the execution of the will her husband Jefferson T. Blacker owned one-twentieth thereof, having been acquired by descent, and the nineteen-twentieths thereof by purchase.

'Subsequent to the making of the will Jefferson T. Blacker died intestate and his estate descended to Margaret Blacker, who took a life estate in the one-twentieth and a fee simple in the nineteen-twentieths. Subsequently Margaret Blacker died seized of the fee simple estate in the nineteen-twentieths of said real 'estate in addition to the farm owned by her at the date of the will.

It is contended by the plaintiff, a brother of Jefferson T. Blacker, that the nineteen-twentieths of the real estate acquired by purchase and owned by Jefferson T. Blacker at the time of his death, did not pass under the will of Margaret Blacker but descended upon her death as intestate property.

It is conceded that under the common law after-acquired real estate did .not pass under a will and the following statute govern in this state.

“Any estate, right or interest in lands' or personal estate or orther property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention.” General Code, Section 10579.

. The defendants claim under the seventh and eighth clauses of Item 3. These clauses are as follows:

‘ ‘ I give and bequeath to my brother George W. Litten should he survive my said husband Jefferson T. Blacker all my real estate during the term of his natural life.
“I give and bequeath to the children of my brother George W. Litten after the death of my said beloved husband and after the death of my said brother George "W. Litten all the real estate of which I died seized and to them and their heirs and assigns forever to be divided equally among them share and share alike.”

Under the general scheme of the will, after providing for the payment of just debts and funeral expenses, the testatrix devised to her husband Jefferson T. Blacker “all the real estate of which I may die seized during the term of his natural life.” In Item 3 the testatrix bequeathed to his children if any should be born and survive “all the residue of my property both real and personal, after the payment of my just debts and after the death of my said husband” in fee simple. The testatrix then provides that if he should have no surviving child or children “then I devise my said property as follows.”

There are several clauses under this item providing for specific devises. The fifth clause gives to the husband “All the rest and residue of my personal property of which -I may die seized after the payment of debts and funeral expenses,” and excepting specific devises. The sixth clause provides for a monument and the ninth clause provides for a remainder in the event of the death of George W. Litten’s children without issue. The arguments pro and con rest largely upon the intention “manifestly” appearing in the concluding clause of Section 10579, General Code. It is contended by plaintiff that the intention to include after-acquired real estate and particularly the real estate acquired by her from her husband does not manifestly appear from the will of Margaret Blacker.

Coming to clauses seven and eight under which defendants claim, the life estate of' George "VV. Litten is created expressly “in all my real estate.” The remainder to the children of George W. Litten is expressly given “in all the real estate of which I die seized.” If we confine our construction of the will to the express language used we would have no difficulty in holding that an estate was created by clause eight in favor of the children of George W. Litten in “all the real estate of the testatrix of which she died seized.” This would include ex termini the after-acquired estate of the testatrix. The life estate of George W. Litten which is created under Item 7 in “all my real estate” is less conclusive than Item 8 creating the remainder.

In passing it may be said that even these words “all my real estate” is sufficient under the adjudications of our Supreme Court and the weight of authority in the lower courts to carry after-acquired real estate. The case of Pruden v. Pruden, 14 O. S., 251, is a leading case and has never been criticized nor questioned by any subsequent decision of the 'Supreme Court. In that case the devise to the wife for life was of all my moneys, credits, right and choses in action, personal and real estate and property. Under this general language in connection with the general scheme of the will it was held that after-acquired property passed.

Judge Ranney in one of his characteristic opinions after referring to the common law and the enabling statute says:

“Indeed, every line of this will looks to his death, and the situation of his property at that time, as the starting point in his dispositions. It is then that his debts are to be paid and it is then that his wife is to take, either for life or otherwise, all the residue of his ‘personal and real estate and property’ of every description; or, if she is not then living that it is all to go to his heirs, as though the ‘will had not been made.’ ”

These are the features of the Pruden will upon which Judge Ranney bases the conclusion that after-acquired property passes. All the features of the Pruden will are found in the Blacker will under consideration with the important addition that many devises expressly include “all the real estate of which I may die seized.” Devises containing less conclusive description are so entwined with the others as to make it clear that the same estate was intended throughout, and that the various terms of description were used interchangeably. In connection with the general scheme of distribution and the descriptive terms employed it was the clear intention of the testatrix to dispose of her entire estate at the time of her death. The case of Wright v. Masters, 81 O. S., 304, is not in conflict with the Pruden case. There the significant controlling fact was, as stated in the opinion, “the property therein devised by Item 1 to Mary Mlasters during her life is definitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anywhere of a purpose on the part of the testator to give her more' than the property thus specifically described. ’ ’

The rule 'established in the Pruden case, that after-acquired property passes under general description of the testator’s property has been followed and applied to various wills in the following cases: Lee v. Scott, 5 C.C.(N.S.), 369; Newton v. McKinstry, 16 C.C.(N.S.), 219; Strock v. Strock, 26 C.C. (N. S.), 561.

See opinion of Judge Schauck, Farrar v. Fallestine, 4 C. C., 235.

It is contended, however, that it does not manifestly appear from Margaret Blacker’s will that she intended that the particular estate received by inheritance subsequent to the making of the will was intended to be included in her will. It is contended that the testatrix contemplated that her husband would survive her and take the life estarte provided for in Item 2 and that the estates created in favor of George "W. Litten and his children are dependent upon the idea of the survivorship of the husband. In this connection counsel cite the case of Lepley v. Smith, 13 C. C., 189, and rely upon the somewhat analogous provisions of that will and the argument of the majority of the court in the opinion.

The Lepley case involved a devise of “all my property both real and personal, moneys and affects.” It is difficult to harmonize that decision with the Pruden case, the case of Johnson v. Johnson, 51 O. S., 446, and the circuit court cases in which general descriptions of that character were involved. Nevertheless we think that the decision in the Lepley case should not be extended to a case like the present where thq intention to include subsequently acquired property is much more clearly and definitely expressed.

It is true that the testatrix in the case at bar may have considered it probable that her husband would survive her and with that contingency in view made provision for him and made other provisions in favor of her brother dependent upon the latter’s survivorship.

It appears that the will of Margaret Blacker was made twenty-five years prior to her death. No evidence is offered to show that the testatrix was moribund or in extremis. It is a matter of common, if not universal, knowledge that there is no certainty of life and while the testatrix may have considered the probabilities of survivorship in favor of the husband, she must have been fully aware of the possibility that her husband might be the first called. She is presumed 'to have known the laws of nature and to have contemplated such possibility as the husband’s prior death and a subsequent acquisition of his property by descent or deed. The testatrix evidently intended by the words employed in the will to dispose of the estate owned by her at her death. The fact that she might subsequently acquire property even if not expected at the time the will was executed does not create an exception from the express terms of the devise. No one can know in advance what property may be subsequently acquired. 'Where a will clearly shows an intention to dispose of after-acquired property, it is not important that the testator did not foresee or judge the sourse and nature of the property. Farrar v. Fallenstine, supra.

It is urged that Item 3 should be limited to property which could have been taken by the husband, and that the term “said property” in Item 3 refers to property which the husband could have taken, and limits the character of the property carried in the subsequent clauses.

The force of this argument is met by the frequent, repetition in the subsequent clauses in words of description, making it clear that she intended to dispose of all her estate of which she might die seized.

We have reached the conclusion that it is manifiest from the terms of -the will in controversy that the testatrix intended to dispose of all the real and personal property which she owned at the time of her death, and that George W. Litten took a life estate and his children the remainder in fee in the real estate in contraversy.

Demurrer'to the second cause of action sustained.

Kunkel, J., and Fernedins, J., concur.


author: Richards, J.

text:
    JUDGMENTS BY DEFAULT.
    Court of Appeals for Lucas County.
    The W. C. Pressing Canning Co. v. Weller.
    Decided, June 29, 1918.

      Final Order — Judgment by Default is Not One to Which Frror May be Prosecuted — But is Interlocutory Only, When — Section 12258.
    A judgment by default in an action for damages, finding that the plaintiff is entitled to recover damages and ordering that the cause be sent to a jury to ascertain and assess the damages, is not a final order or judgment to which error can be prosecuted.

      Rhoades é Rhoades and G. Ray Craig, for plaintiff in error.

      Taber & Daniells, contra.
   Richards, J.

The defendant in error brought an action in the court of common pleas to recover damages and for an attachment. The court of common pleas sustained the attachment, to which judgment error was prosecuted to this court, and the judgment sustaining the attachment was reversed and the attachment discharged. While that proceeding in error was pending in this court, plaintiff in the court of common pleas secured the entering of a judgment by default in the following terms:

“This matter coming on to be heard upon the petition, the court finds that an attachment was issued, and levied herein upon the property of the defendant in Lucas county, Ohio, and that said property was appraised and valued at $1,582.95, and that said property is now held by the sheriff of Lucas county, Ohio, under and by virtue of said attachment.
“The court further finds that the defendant is in default for answer or demurrer, and that the allegations of the petition are confessed by defendant to be true, and that plaintiff is entitled to recover damages from defendant.
“It is therefore ordered that this, cause be sent to a jury to ascertain and assess said damages, and that the sheriff of Lucas county, Ohio, proceed as upon execution to advertise and sell the personal property hereto attached to pay said damages.”

It will be observed that no damages were assessed, but that the cause was directed to be sent to a jury to ascertain and assess the damages, and in fact no damages have as yet been assessed. Shortly after the entering of the above, quoted order the W. C. Pressing Canning Company filed a petition in error in this court to reverse the alleged judgment on the grounds that the plaintiff in error had never been served with summons or process and had never entered its appearance and the court of common pleas never acquired jurisdiction over it. The only question however is whether the entry made in the court of common pleas is a final order or judgment which will authorize the prosecution of a proceeding in error.

General Code, Section 12258, defines a final order as follows:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, # * * is a final order which may be vacated, modified, or reversed as provided in this title.”

We are of the opinion that where a default is taken in an action to recover damages and the cause is directed to be sent to a jury for the assessment of damages, that this is not a final order determining the action within the meaning of the section above quoted, and that error will not lie to procure a reversal of such order until after the damages shall have been assessed by a jury, and a judgment rendered therefor. So far as we are aware our Supreme Court has not directly passed on this question in any reported case, but the views of the court have been expressed in the course of the opinion in several cases. In the case of Towner v. Wells; 8 Ohio, 136, 141, the court uses this language:

“Further proceedings were necessary to be had before the rights of the parties could be ascertained, or before execution could be issued. It may properly be assimilated to a judgment, by default or on demurrer, where a subsequent inquiry of damages is necessary. Such judgments are merely interlocutory, and can not operate as liens upon the lands and tenements of a defendant.”

See also Teaff v. Hewitt, 1 O. S., 511, where the court held that an interlocutory decree is one which leaves some material question open for future determination.

See also Kelly v. Stanberry et al, 13 Ohio, 408, 421, to the same effect.

In the case of Kerosene Lamp Heater Company v. Monitor Oil Stove Company, 41 O. S., 287, 292, the court say in the course of the opinion:

“When a cause is retained for reference to a master, for the purpose of ascertaining a material fact, the decree is interlicutory only, and does not become final until the whole merits of the cause have been disposed of and nothing remains for the further action of the court.”

We call attention to the unreported ease of Arbuckle v. American Belting Company, 91 O. S., 413, in which the Supreme Court vacated the judgment of the court of appeals on the ground that it had not acquired jurisdiction of the case, there never having been any final order or judgment in the court of common pleas; and the Supreme Court remanded the case to the court of common pleas with instructions to proceed according to law to assess the amount of damages. While the brief memoranda of that ease does not disclose the nature of the action, we have been favored by counsel in that case with a copy of the printed record from which it appears that the action in the court -of common pleas was one to recover damages and that a default entry was made and entered finding the allegations of the petition to be true and that upon the pleadings the plaintiff was “entitled to damages, the amount thereof to be assessed by a jury upon the further hearing of this case’.’ and the court considered that the plaintiff should recover damages to be assessed by a jury to be thereafter impaneled. The printed record in that case also discloses that the court of appeals held that the entry did not amount to a final order or judgment, but was an interlocutory order only.

Of course, it would follow that if there were no final order then the court of appeals should have dismissed the petition in error for want of jurisdiction, but that court proceeded to adjudicate certain other matters between the parties not necessary to be here stated and for this reason the Supreme Court, finding that no final order or judgment had been rendered in the court of common pleas, vacated the order of the court of appeals and ordered that the damages should be assessed by a jury. This holding we deem to be conclusive on the case now at bar. The decision of the Supreme Court was in accordance with the doctrine as stated in the text books, notably, 1 Black on Judgments, Section 28, where the rule is stated in the following language:

‘‘The rule in regard to a judgment by default is, that if such a judgment is rendered for a fixed and liquidated sum, or if the amount can be ascertained by mere calculation from the pleadings, it is final; but if the amount of the recovery or damages remains to be ascertained by a writ of inquiry or other judicial method of computation, then the judgment is merely interlocutory, until such amount is settled and entered on the record.” See also 3 Corpus Juris, 607.

The 'Supreme Judicial Court of Massachusetts in Riley v. Farnsworth, 116 Mass., 223, held that a judgment for the plaintiff in an action for damages for breach of contract without assessing damages was not a final order and that an appeal would not lie therefrom.

It follows from what has been said that the original action in the court of common pleas being for damages, and the damages not having been yet assessed, a mere entry of default ordering that the case be sent, to a jury to assess damages is not a final order or judgment and that the proceeding in error in this court to reverse the same must be dismissed.

Chittenden, J., and Kinkade, J., concur.


author: Shohl, J. Hamilton, J.

text:
    COMPENSATION RECOVERED FOR LEGAL SERVICES.
    Court of Appeals for Hamilton County.
    Albert T. Brown v. Martin G. Bruner.
    Decided, February 3, 1919.

      Champerty and Maintenance — Reduction of Street Assessment Secured — Property Owner Refuses to Share loith Attorney the Amount ■ — Quantum Meruit Recovery May he Had, When.

    1. Where the contract of employment between attorney and client is void for champerty, but not otherwise illegal, the attorney is entitled to reasonable compensation for his services.
    2. Suit for money was brought by an. attorney on a contract with a client, and was dismissed on motion of the defendant, on the pleadings for champerty in said contract. Held: Such dismissal was not -a decision on the merits and is not a bar to a second suit brought in quantum meruit for the services performed under the contract.

      G. A. Groom and E. S. Aston, for plaintiff in error.

      E. F. Alexander, amicus curiae.

   Shohl, J.

Martin G-. Bruner employed Albert T. Brown, an attorney of Cincinnati, to secure a reduction by suit or otherwise of the assessment levied by the city of Cincinnati against his property on Cass avenue. Under the terms of that agreement Brown was to be paid one-half of the amount saved on the assessment, and was to bear all expenses involved in the litigation. An action was brought and a reduction of the assessment was secured. After a payment of ten dollars on account Bruner refused to make further payments, and Brown brought suit against him on the contract in the municipal court of Cincinnati. The defendant there secured a judgment on the pleadings from which no error proceedings were taken. -Between the parties, therefore, it is settled that the contract was illegal. Brown then brought another suit in the municipal court for services rendered asking judgment for the reasonable value of his services, alleging that they were worth $88.97, which was the exact amount to which he was entitled had the contract been valid. Credit was given for the ten dollar payment. The 'defendant answered alleging that the services were performed under a contract adjudged to have been illegal. The municipal court decided in favor of the defendant, and the court of common pleas affirmed that decision.

The dismissal of the original suit does not bar the new action. It was not a decision on the merits and amounted to no more than a judgment on demurrer to the petition. Moore v. Dunn, 41 O. S., 62; Rafferty v. Toledo Traction Co., 1 C.C.(N.S.), 538.

If the contract was champertous there is no doubt that the courts will not enforce it. Davy v. Insurance Company, 78 O. S., 256. It does not follow, however, that the plaintiff is entirely without remedy. The law of champerty and maintenance had its origin in England, where influential persons to whom rights of action were transferred in order to obtain their support and favor, harassed society and stirred up strife and litigation. ‘ ‘ The power of'the nobles became mighty in corrupting the fountains of justice and subverting the freedom and independence of the judicial tribunals. It was to remedy these evils that the law of champerty and maintenance was introduced,” Hovey v. Hobson, 51 Maine, 62, 64. Under modern conditions the reason for the old rule has largely disappeared. The general tendency is toward a relaxation of the ancient doctrines relating to this subject. 11 Corpus Juris, 236.

In many jurisdictions where the services rendered by an attorney are not illegal, either on account of the nature of the service or the circumstances under which it is rendered, the attorney may recover in quantum meruit, notwithstanding the invalidity of the contract under which the services were rendered. City of Rochester v. Campbell, 184 Ind., 421, 425.

Cases have been cited supporting the opposite view. Such decisions as Roller v. Murray, 112 Va., 780 and Barngrover v. Pettigrew, 128 Iowa, 532, arise in states where' such a contract for services was criminal. The case of Moreland v. Devenney, 72 Kans. 471, is in point but we regard it as opposed to the better view. The authorities are collected in 11 Corpus Juris, 269, and in the notes in 2 L. R. A. (N.S.), 263, and 39 L. R. A. (N.S.), 1202.

There is nothing in good morals that requires Bruner to have the work done for nothing. He knew just what the services were to be and he got results that were valuable to him. We adopt the rule established by the weight of the authoritative decisions, that although an agreement between an attorney and a client is void for champerty, if it is not otherwise illegal the attorney is nevertheless entitled to reasonable compensation for services rendered. The judgment will be reversed.

Jones, P. J., concurs; Hamilton, J., dissents.

Hamilton, J.

(^dissenting.)

I dissent from the judgment in this case for the following reasons :

Plaintiff first brought suit in the'municipal court of Cincinnati on a written contract. The petition set up the contract and the plaintiff relied thereon for recovery. The contract provided for services as attorney to secure a reduction of street assessments, and among other things provided for the payment to the attorney for his services, "one-half of the amount saved on said assessment, said attorney to bear all expenses involved in the said litigation. ’ ’

The reduction on the assessment was procured, and the attorney brought suit to recover under this provision of the contract.

The defendant in this ease moved to dismiss the cause, and upon consideration the municipal court sustained the motion and dismissed the cause at cost of plaintiff. 'No further proceedings were taken in that case by plaintiff, and that judgment stands unmodified, unreversed and is a binding judgment on the plaintiff. .

Thereupon the plaintiff filed his second suit, which is the case under consideration, in quantum meruit for the same services admittedly rendered under the contract sued upon in the first case. I am unable to see how this can be upheld. The subject-matter of the suit was the written contract upon which plaintiff relied for recovery. He elected to pursue that course and should be bound by that judgment.

In the case of the C. L. & N. Ry. Co. v. Pierson, 18 C. C., 392, the syllabus is:

“A suit can not be maintained upon an express agreement which the plaintiff predicates upon an adjudication in a previous ease, where recovery was sought upon the same cause of action, but covering a different period of time, the former case bein in quantum meruit based upon an implied contract.”

This ease is simply the reverse of the instant case. In the ease under consideration suit' was brought on the express contract and judgment rendered, and he should not now be permitted to pursue his action in another suit in quantwm meruit.

In the case of Buchwalter v. Clendenning, 17 C. C. (N.S.), 455, the court holds:

“A plaintiff against whom judgment has been rendered is es-topped from prosecuting a second action against the same defendant for the.same subject-matter by merely changing the form of the suit.”

In the case at bar litigation was carried on wholly by the parties to this action. The parties in this action who are interested are the same, and the subject of the controversy is the same. The only difference is in the form of the action. Plaintiff having elected to bring this action in the manner he did in the first suit, and it having been decided against him, should be estopped from prosecuting another action of the same subject-matter in another form. Under this view of the case any discussion as to the champertous feature of the contract becomes merely academic.


author: Houck, J.

text:
    EFFECT OF FAILURE TO PROVE A MATERIAL ALLEGATION.
    Court of Appeals for Licking County.
    William Gilmore v. Ollie Alberry, as Administratrix of the Estate of Lester P. Alberry, Deceased.
    Decided, November 7, 1918.

      Directed Verdict — Required for the Defendant — Where no Proof Has Been Offered by Plaintiff Supporting a Material Allegation — Man Killed by a Stallion — Alleged Negligence of the Owner — Charge of Court.

    1. An instruction to the jury is not rendered erroneous by reason of the fact that standing alone and not further explained it might be construed as in effect saying to the jury that the proximate cause of the accident was as there stated, where the charge as a whole clearly explained the instruction and made it applicable ■to the pleadings and proven facts.
    2. Where the plaintiff offers no proof as to a material and necessary allegation of fact which must be established before recovery can be had, there is nothing for the jury to pass upon, and on proper motion it -is the duty of the trial judge to direct a verdict for the defendant.

      Fitzgibbon, Montgomery & Black, for plaintiff in error.

      Flory & Flory and J. W. Horner, contra.
   Houck, J.

This cause comes into this court on petition in error to reverse the judgment of the common pleas court. The parties here stand in reverse order from which they stood in the lower court, and hereafter will be referred to as they appeared there.

Plaintiff brought suit to recover damages for the death of her husband, alleged to have been caused by a vicious stallion owned by the defendant.

The action was tried below to a jury, a verdict in favor of the plaintiff was returned, and a motion for a new trial was overruled and exceptions taken.

Numerous errors are set out in the petition in error, but counsel urged only two, namely:

1. That the trial judge erred in his general charge to the jury.

2. That the verdict and judgment are not sustained by the evidence and the la-w, and that the court erred in not sustaining defendant’s motion for a directed verdict.

Let us discuss briefly the first error relied upon by counsel for a reversal of the judgment entered below, where it is claimed the court erred in instructing the jury as follows:

“The negligence and carelessness recited in this petition, which it is claimed caused the death of Alberry, is the service of the mare in an open space, called the barn floor, in front of and in sight of other stallions, which were hitched in the stalls. It is claimed that that act, the serving of the mare, in front of these stallions, and near to them, caused them to become excited; caused them to become vicious; caused them to. bite and kick, and made the position or place of Alberry dangerous.”

The court, in using the above language, was simply calling the attention of the jury to one of the claims of negligence charged in the petition, which, if standing alone, and if not further explained, might be construed, in effect, as instructing the jury that the proximate cause' of the death of plaintiff’s decedent was as thus stated, and not otherwise. If such were the case it would be misleading and prejudicial to the legal rights of the defendant; but an examination of the entire charge clearly explains the above statement and makes it applicable to the issues raised by the pleadings’ and the proven facts. The error thus complained of is not well taken.

But how stands the claim as to the second ground of error, to-wit: Is the judgment supported by the evidence and law ?

In order to properly answer this question necessitated a reading of all of the testimony and evidence, as contained in the bill of exceptions, which we have done.

The defendant’s answer, while making certain admissions, contained a general denial of all the other allegations, thereby casting the burden upon the plaintiff to maintain them by proper proof. Among the material allegations in the amended petition, which is denied in the answer of the defendant, is the following averment:

‘ ‘ That Lester Pearl Alberry, while in said stable in the course of his said employment, was kicked and struck by one of said stallions in said stable and so injured as to cause his death. That same was the result of the negligence and careless acts and omissions of the defendant,” etc:

It will be conceded that the allegation “that one of said stallions kicked and struck Lester Pearl Alberry ” is a material statement, and that fact must be established by the evidence in the case, or plaintiff can not recover.

In a very careful reading of all the evidence in the case, as contained in the two hundred pages.of typewritten matter, we have failed to find any evidence proving, or even tending to prove the fact, as averred in the petition, that one of the stallions, owned by the defendant, kicked and struck the decedent, thereby causing his death.

We think the rule is well settled that where any evidence in support of a fact has been offered, and passed upon by a jury, or where the evidence is conflicting, or where different minds might arrive at different conclusions from it, and a jury has determined the fact, that a reviewing court will not interfere with such verdict. But in the case now before us, as to a material and necessary allegation of fact which must be established before a recovery can be had, there is an entire want of proof; there is nothing for a jury to pass upon, and in such cases, upon the filing of a proper motion, it is the duty of the trial judge to direct a verdict.

It is clear to us that we are fully justified in arriving at .this conclusion by the decision in the ease of Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio State, 644, in which Judge Ranney says:

“But where no evidence is given to establish a fact, without which the law does not permit a recovery, he has nothing to submit to the jury; and the determination of the court, that the fact constitutes an essential element in the right of action, necessarily ends the case. ’ ’

This same doctrine is announced in the case of Gibbs v. Village of Girard, 88 Ohio State, page 34, fourth syllabus:

“A cause of action for damages brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury case if there is some evidence tending to prove every essential fact necessary to entitle plaintiff to recover.”

It will be observed in the case at bar, that as to one of the essential and material facts necessary to entitle the plaintiff to a judgment there was no evidence offered tending to prove the allegation. It therefore follows that, applying the rule of law laid down by our Supreme Court in the cases cited above, there is prejudicial error in the record now under consideration.

The record discloses that at the close of the plaintiff’s evidence the defendant moved for a verdict thereon in his favor, which was overruled by the court, and excepted to by defendant. After all of the evidence was in, the defendant renewed his motion, which the court again overruled, and the defendant excepted.

We are of the opinion that the court of common pleas erred to the prejudice of the defendant below in not sustaining said motion, and that the judgment in this case must be reversed.

Judgment reversed.

Powell, J. and Shields, J., concur.


text:
    LIABILITY OF TRUSTEE FOR DEBTS CREATED BY HIM.
    Court of Appeals for Lucas County.
    Ernest H. Witker v. Henry H. Ellison et al.
    Decided, May 27, 1918.

      Trusts and Trustees — Estate Not Liable for Indebtedness Incurred by Trustee, Unless — Personal Liability Arises Ayainst Trustee— In the Absence of Stipulation to the Contrary.

    One who acts as trustee of a merchant tailor for the purpose of receiving daily the proceeds from the business transacted and paying the accounts arising, in order to provide for the continuance of the business, is personally liable for the purchase price of goods bought on his behalf and used in carrying on the business, in the absence of a stipulation relieving him from such liability.

      Fell <& Schaal and E., E. Davis, for plaintiff in error.

      Sail, Flowers & Cotter, contra.
   Richards, J.

Henry IT. Ellison and others, partners doing business as John B. Ellison & Sons, began an action-in the court of common pleas in which they filed a third amended petition against Ernest IT. Wither, claiming judgment in the amount of $669.49. A demurrer to the third amended petition was overruled and an answer and reply filed. The trial resulted in a verdict and judgment in favor of the plaintiff for the amount claimed.

The bill of 'exceptions shows that one August E. Ziegler, had been engaged in business as a tailor in the city of Toledo, and that in 1913 his business had become so unsuccessful that he applied to his relatives for assistance. The indebtedness which he was then owing was about $2,000 and various relatives, including Wither, executed notes for him to provide for the payment of his indebtedness. Thereafter the business was continued with the arrangement that" Ernest H. Wither should act as trustee for Ziegler and should receive the funds derived from the business and deposit the same in the bank in the name of Wither as trustee and should pay claims from this fund. Witker continued the business for a considerable period of time after this arrangement was made and accounts- were opened, using the same books that Ziegler had theretofore used, but leaving a blank space after the time when Ziegler had constituted Witker trustee. The monies were deposited in the bank as provided in the name of Witker as trustee, and from this account various payments were made. Among other payments that were made was the indebtedness represented by the notes amounting to some $2,000 which had theretofore been given for the prior indebtedness upon which Witker was liable.

While the business was being so continued, and while Witker was acting as trustee for Ziegler, goods were purchased of John B. Ellison & Sons and charged to Witker as trustee, the various items amounting to $1,341.73. Upon this account Witker as trustee made two payments, one of $500 and one of $172.24, leaving the balance claimed in plaintiffs’ third amended petition.

Ultimately Ziegler was taken seriously ill, and the business was closed up by Witker and the assets of Ziegler proved to be insufficient to pay the indebtedness of various creditors.

While several grounds of error are assigned in this ease, on which it is claimed that the judgment in favor of Ellison & Sons should be reversed, the real and only question of law at issue is whether Witker is personally liable for the claim of Ellison & Sons. After a careful examination of the authorities we have no doubt of this liability. The general principle is laid down in 39 Cyc., 333, in the following language:

“Acting within the limits of his powers, a trustee may create contractual obligations enforceable against the trust estate, such as for goods, supplies, and services, where the trust contemplates the carrying on of the settlor’s business by the trustee, or where the trust is for the support and maintenance of the beneficiaries. To render the estate liable, however, it must be shown that the trustee acted within the scope of his poweis, and that the articles furnished were really for the use and benefit of the trust estate; •and that the trustee may and should, in making contracts, expressly stipulate that the trust estate, and not he shall be liable thereon, for, in the absence of such an express agreement absolving him from liability, a contract made by him is binding on, and enforceable against, him alone. ’1

•We suppose it to be well settled that the contracts of guardians, administrators and other trustees, though made in the execution of the trust, impose upon them a personal liability in the absence of a stipulation relieving them therefrom. It was manifestly contemplated by Ziegler and Wither that the business should be continued and that in the continuance of that business it would, of course, be necessary to buy additional goods. Ellison & Sons were justified in charging these goods to Wither as trustee, and on the claim so made Wither would be personally liable.

In addition to the authority already cited we call attention to Truesdale v. Philadelphia Trust, Safe Deposit & Insurance Company, 63 Minn., 49; McGovern v. Bennett, 146 Mich., 558; Knipp v. Bagby, 126 Md., 461; Taylor v. Davis, Admx., 110 U. S., 330

In view of the authorities we reach the conclusion that Wither became liable for the goods sold by Ellison & Sons.

Independent of the fact of the sale to Wither as trustee, the record discloses that Wither as trustee, used the funds in the banh in his name as trustee, which were derived from the sale of goods made subsequent to the time that he became trustee, in payment of the pre-existing indebtedness evidenced by promissory notes on which he was personally liable, and this fact is of vital importance in determining the liability of Wither.

The judgment of the court of common pleas will be affirm^,

Kinkade, J., concurs; Chittenden, J., not participating.