author: GIFFEN, J.

text:
    EXECUTORS AND ADMINISTRATORS — ACCOUNTS—LIMITATION OF ACTIONS.
    [Hamilton (1st) Circuit Court,
    1902.]
    Giffen, Swing and Jelke, JJ.
    In re Estate of Bridget Glenn, Deceased.
    1. Presumption prom Failure to Charge Claim Against Estate.
    The fact that a widow as executrix of her deceased husband’s estate, fails to file an account of a claim against his estate or institute proceedings for its allowance and collection, the same being paid by her, raises a presumption that she did not intend to charge it, but intended that it should inure to the benefit of her children, and, in the absence of proof to the contrary, an exception will not be sustained to the inventory of her estate for failure to include such claim among the assets of her estate.
    2. Allowance op Year’s Support to Children — Sec. 6040, Rev. Stat.
    The allowance of a year’s support to children under fifteen years as provided by Sec. 6040, Rev. Stat., applies as well to the estate of their deceased mother as to that of a deceased father. Hence, an exception to an allowance to children out of the estate of their deceased mother should be overruled.
    3. Exception to Omission op Charge Sustained.
    An exception will lie to an inventory of the estate of a deceased executrix of her husband’s estate for omitting to include in the assets of her estate a charge of an account paid by her against her husband’s estate, appearing in her account filed in the settlement of his estate as “ Paid by Bridget Glenn, widow.”
    4. Limitation op Action on Claim Paid by Executrix.
    The two years’ statute (Sec. 6113, Rev. Stat.) of limitations begins to run against an account against an estate, paid by the executrix, from the date of allowance and confirmation and not from notice of appointment.
    5. Claim Within Sec, 6113, Rev. Stat., prom Appointment.
    The year’s support allowed a widow under Sec. 6040, Rev. Stat., being a preferred claim, is within Sec. 6113, Rev. Stat., barring actions against estates not brought within two years of notice of appointment of the personal representative thereof. Accordingly the failure to include a claim for her year’s allowance in the inventory of the estate of a deceased widow as a charge against her deceased husband’s estate is not ground for an exception against such inventory, more than two years having elapsed since her appointment as executrix thereof.
    6. Entry Sufficient to Make Agreed Statement op Pacts Part op Record.
    The fact that no bill of exceptions is filed, and an agreed statement of facts is not formally entered upon the record, does not deprive a reviewing court of jurisdiction from reconsidering the findings of the trial court on error, where the judgment entry shows that the case was submitted to the lower court upon such agreed statement of facts. In such cases, no further entry is. required to make the agreed statement of fact part of the record.
    Heard ok Error.
    Jacob Krummell and John J. Gasser, for plaintiff in error.
    Gloss & Luebbert, contra.
   GIFFEN, J.

This case was heard in the probate court upon exceptions to the inventory filed, and was submitted upon an agreed statement of facts, the substance of which is as follows :

Martin S. Glenn died in April, 1898, leaving Bridget Glenn his widow, and three children, aged eleven, eight and six years, respectively. By his last will and testament he gave all his property, real and personal, to his widow for life, with remainder to his children. Bridget Glenn was duly appointed and qualified as executrix, and on the-day of May, 1898, published notice of her appointment. On July 13, 1898, she filed an inventory, wherein the appraisers set off the sum of $500 in money, and merchandise of the value of $-, no part of said sum of $500 having been paid. On January 30,1900, the executrix filed her account in the probate court, which was allowed and confirmed February 28,1900. The account contained no charge against the executrix, although she had collected accounts to the amount of $166.77, but it showed a credit of debts and expenses of administration paid in the sum of $264.15.

On May' 14,1898, she collected $2,000 life insurance from which fund and from her own money she paid debts of the estate of Martin S. Glenn, other than those mentioned in her account filed January 80, 1900 in the sum of $1,143.62, and was not herself indebted to any one. On July 1, 1900, and subsequently thereto she became indebted to sundry parties in the sum of $1,578.23.

Bridget' Glenn died intestate January 14, 1901, leaving Mary and Eaura, her children. The inventory of her estate shows assets in the sum of $2,008.13, of which $600 was set off for the support of the children. The exceptions filed by the creditors are to the allowance of $600 to the children, to the omission from the inventory of the sum of $264.15 paid by Bridget Glenn for the estate of Martin S. Glenn, as shown by her account as executrix, filed January 30, 1900, and the further sum of $1,143.62 paid for the. estate of Martin S. Glenn, and also to the omission of the claim of $500 set off to her for twelve months’ support.

The exceptions were sustained by the probate court, and that judgment affirmed by the common pleas court.

The exception to the allowance of $600 to the children is disposed of by the case of Hinton’s Estate, In re, 64 Ohio St. 485, [60 N. E. Rep. 621], and should have been overruled. [See also Sec. 6040, Rev. Stat., providing for allowance of year’s support to children under fifteen years.] 60 N. E. Rep. 621.

As to the claim that the sum of $1,143.62 paid by Bridget Glenn for the estate of Martin S. Glenn is a debt of the latter, the burden of proof is upon the creditors excepting to the inventory. The only evidence in support of it is the payment itself, while on the other hand the failure of Bridget Glenn to file any account of such claim, or institute proceedings for its allowance and collection, raises a strong presumption that she did not intend to charge it against her husband’s estate, but that it should inure to their children. We think, therefore, that the court erred in sustaining the exception to this claim.

The exception as to the omission from the inventory of the sum of $264.15, we think, therefore, was properly sustained, because in the account filed January 30, 1900, there appears this statement: “Paid by Bridget Glenn, widow,” thereby showing an intention to [charge the same against the estate of her husband.

It is urged, however, that the claim was barred by the statute of limitation of two years provided by Sec. 6113, Rev. Stat.; but we think that the limitation began to run only from the allowance and confirmation of the account by the probate court on February 28, 1900.

The debt owing to Bridget Glenn as an allowance from the estate of Martin S. Glenn for her support, being a preferred claim, the presumption is that she applied the book accounts collected in part payment thereof. The residue of the claim is barred under Sec. 6113, Rev. Stat.

It is contended finally that, there being no bill of exceptions, and the agreed statement of facts not being formally made part of the record, this court can not consider it. The facts being agreed upon by the parties, no bill of exceptions was required, and the judgment entry showing that the case was submitted upon the agreed statement of facts, there would seem to be no necessity for a further entry to make such statement a part of the record. Ish v. Crane, 13 Ohio St. 574; Brown v. Mott, 22 Ohio St. 149; McGonnigle v. Arthur, 27 Ohio St. 251.

Judgment of the common pleas and probate courts reversed and cause remanded.


source: Caselaw Access Project

author: LAUBIE, J.

license: Public Domain

text:
    NEGLIGENCE — PROXIMATE CAUSE.
    [Ashtabula Circuit Court,
    October 18, 1891.]
    Daubie, Burrows and Cook, JJ.
    L. S. & M. S. Railway Co. v. Albert E. Harris, as Adm’r of Cora E. Harris.
    1. Failure to give Statutory Signals — Not Proximate Cause.
    The failure to give the statutory signals, by bell and whistle, of the approach of a train to a highway crossing cannot be a ground for recovery in an action for wrongful death where it appears that the train, after passing the crossing and several hundred feet therefrom, struck the decedent as she attempted to cross the tracks on the private grounds of the company, where people were in the habit of crossing.
    2. Erroneous Application oe Rule of Conduct after Discovery os Danger.
    In such case, it was error for the court to charge : “If the decedent in this case was negligent in going upon the .track in the manner and at the time she did, yet, if the engineer in charge of the train, ought, by the exercise of ordinary care, to have seen the decedent in her perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to have avoided the collision, and failed so to do, it would be negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”

      8. Where Contributory Negligence Appears — Duty to Direct1'Verdict.
    In such a case, if the undisputed facts clearly establish negligence on the part of the decedent in failing to look and listen for the approaching train, it becomes the duty of the court to instruct the jury to return a verdict for the defendant.
    T. E. Hoyt and A. J.- Trunkey, for plaintiff.
    Theodore Hall, for defendant.
   LAUBIE, J.

This is a proceeding to reverse a judgment of the court of common pleas rendered in .favor of defendant in error for the claimed wrongful killing of the decedent by the plaintiff in error.

It appears from the evidence in the case that the decedent, Cora É. Harris, went to the depot of the company at Geneva for the purpose of taking east-bound train, No. 28. On arriving there before the train was due, she passed over the tracks and grounds of the company to the Knapp & Pratt Manufacturing Company’s plant; located north of the tracks, to see her húsband, the present administrator, the depot being on the south. There were two main tracks, the west-bound track being the one next to the depot, as the trains of that road run on the left-hand track. Adjoining that on the north and in close proximity was the eastbound track'; adjoining that; and in close proximity, was a side-track, and then about forty feet north of that was one or more other side-tracks. It seems that there was a way or footpath there, Used by the company’s employes in going from the passenger station across to the north side of these tracks to the freight depot. It was also in evidence that there was a path used by the public, and by the employes of this manufacturing company without- objection on part of the railway company, that ran from a point opposite the center of the station platform to that company’s plant in a slightly northeasterly direction, but not visible across the railway tracks. Mrs. Harris came back on this latter path from the Knapp & Pratt Manufacturing plant toward the passenger station and was struck by train No. 23, which was running west over the south track, and was thrown on to the station platform, dead. This was a fast train that did not stop at Geneva.

It seems there was a street called “-North Broadway,” which intersected the tracks east of the passenger station. The distance from the passenger station to North Broadway was definitely fixed by the husband of the decedent, the plaintiff administrator, who testified that he counted the rails from North Broadway to the passenger depot, and there were seventeen rails; and it was shown that the rails were thirty feet in length. So the distance was over five hundred feet instead of two hundred and fifty, as alleged in the petition. . .

Exception was taken to the charge of the court in regard to this crossing, which charge is as follows:

“ It is claimed that the decedent’s death was caused by the negligence of the defendant:
“ First, by running of train No. 23, at a high and dangerous rate of speed near to the depot and over a crossing used by the public in crossing its tracks to certain buildings or shops located upon the opposite side of said depot, and its failure to give notice or warning by sounding its whistle at not less than eighty or more than a hundred rods before reaching North Broadway, a public highway, located east of the depot, and in not ringing its bell until it had passed over said North Broadway crossing. * * *
“ And we say to you gentlemen, as matter of law, it was the duty of the railroad company to sound its whistle not less than eighty nor more than one hundred rods before reaching the crossing at North Broadway, and to ring or cause to be rung the bell from said engine until said street was crossed.”

So that the court gave to the jury, as one of the issues m the case, that if the whistle was not blown a statutory distance before the train reached Broadway crossing, and the bell rung, then the plaintiff might recover. What had that to do with the decedent crossing the tracks of the company beyond, and five hundred feet distant from such street ? She was not upon that crossing, nor near to it, nor upon that street. What duty did the company on this occasion owe to her in regard to Broadway crossing ? The failure, to give such signals had no possible connection with her injury, and could not have, as she was not upon ornear to that highway. It was only to persons on such highway that such duty was due, and the court submitted to the jury an issue that ought not to have been submitted to it; and for aught we know the jury based its verdict solely upon that very proposition, because there was evidence that such signals were not given for North Broadway; and in this respect the court, as we think, erred.

Another exception was taken by defendant below to the court’s giving to the jury, at the request of the plaintiff’s counsel, the following instruction:

“ If the decedent in this case was negligent in going upon the track in the manner and at the time she did, yet, if the engineer in charge of the train, ought, by the exercise of ordinary care, to have seen the decedent in her perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to have avoided the collision, and failed so to do, it would be negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”

In the general charge the court instructed the jury along the same lines, but not so clearly and unequivocably as in this request.

The meaning and effect of this request clearly was that the plaintiff might recover although the decedent had been guilty of the same degree and kind of negligence as the engineer — failure to see her peril and avoid the collision, which she might have done, and could have done, in the exercise of ordinary care.

Now, this is opposed to all our ideas of contributory negligence and its effect. It is opposed to the settled law of the state, — settled by many decisions of the court of last resort, unless those 'decisions have been set aside and reversed by the case referred to and relied upon by counsel for defendant in error. Railway Co. v. Schade, 57 Ohio St. 650 [50 N. E. Rep. 1138]. Up to that time it certainly was the law of this state that a person approaching a known railroad crossing was obliged to use his senses of sight and hearing to ascertain whether there was a train approaching which might cause him injury in case he got upon the track of the railway company, and that if he did not, without a reasonable excuse therefor, and was injured upon the track, he could not recover, unless, indeed, it was alleged and proved that the engineer actually saw such person in his perilous position in time to have stopped the train, in the exercise of ordinary care, and have prevented the injury.

The case of Railway Co. v. Schade, supra, was taken on error to the Supreme Court from the circuit court of the eighth circuit and affirmed. The case as reported by the circuit court, 8 Circ. Dec. 316 (15 R. 424), contains the charge of the trial court upon the question (from which the charge in the case at bar was copied), and is as follows:

“4. If the decedent in this case was negligent in going upon the track in the manner and at the time he did, yet, if the engineer in charge of the train, ought, by the exercise of ordinary care, to have seen the plaintiff in his perilous position, and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to avoid the collision, and failed to do so, it was negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”

This charge having been upheld as good law by the'circuit court, the case was taken to and was affirmed by the Supreme Court in Railway Co. v. Schade, 57 Ohio St. 650, as I have stated, but without report.

On what ground it was affirmed the Supreme Court has left us in doubt. Was it because there was no legal bill of exceptions, or because no exception was taken to the charge, or because from the undisputed evidence the plaintiff, was entitled to recover-'anyhow, and' therefore" the charge was not prejudicial ? The court has given us no light- upon the question. Can it be assumed as a fact that the Supreme Court would thus undertake to reverse the numerous former decisions of- that court, and the settled law of. the state, without a word of explanation ? Certainly not. If the court intended to do so, it would have discussed the matter and stated the reasons for such reversal. But we are not left in this position of doubt. If the Supreme Court did undertake in the case just referred to,.to reverse and upset the former rulings of that court upon this question (which I do not believe it did), the case of Lake Shore & M. S. Railway Co. v. Ehlert, Admr., 63 Ohio St. 320 [58 N. E. Rep. 812], shows that the court has returned to its original' holdings. That case also went up from the Cuyahoga county circuit court, reported in 10 Circ. Dec. 443 (19 R. 177). In that case Christian Holtz, the decedent, was killed upon the crossing of the Big Four Railway at Barton street, in the city of Cleveland; over which the Take Shore ran trains. There were gates and a flagman at the crossing. There was no arm of the gates over the sidewalk,- but over the street the gates were down. Holtz approached on the sidewalk and placed himself near to the first or south track where he stopped and stood watching and awaiting the passage of a train on the second or north track, when a train approached from the opposite direction on such first track, which he did not see or hear, and he was struck by it and killed. Now the same - claim was made by counsel for plaintiff in that case and • the same charge, substantially, given in regard -to it as in. Railway Co. Schade, supra, and we have it on page 447 (19 R. 182) in the opinion rendered' by Caldwell; J., as follows: -

“ Further, I say to you; gentlemen, that although the decedent may have been guilty of negligence in putting himself in - a dangerous position, a position in .which- he was liable- to be injured by the passing of the trains, yet if the employes of' the railroad- company- in charge of said passenger train, knew of his danger, or might have'known of his dánger, by the exercise of ■ ordinary care, -and, by the exercise of ordinary care thereafter, controlled and stopped and managed the train in such a manner as to save the decedenffrom the injury and from death, it'was their duty to do it; but, if they failed to do it, under such circumstances, that failure would be the approximate cause of the death, and not negligence in getting into or going into a pláce of danger.”

In-affirming this-chargej Judge Caldwell said:.

i I have already said' that Christian Holtz was to blame in part for his own'death..- .He was guilty of contributory negligence. '
•Nbw, here is the proposition .in law-given yb the court to the jury» saying to them that notwithstanding a party may contribute to- his own injury, yet if his negligence can be seen and known by the- defendant in time to protect him or save his life, and it fails to do it, then such negligence of the defendant is the proximate cause, and that of the plaintiff is the remote cause, and the party may recover. * * ■ *
“ This is a proposition that has undergone a vast amount of discussion by the courts. A large number of states hold it to be the law. The United States court holds it to be the law, and as we understand it, this state holds it to be the law.
“In Railway Co. v. Kassen, 49 Ohio St. 230, there was .much discussion as to whether that case settled this principle of law or not. But a case went from this county to the Supreme Court, that involved the question fairly and squarely, and the Supreme Court affirmed the opinion of this court, or affirmed the case wherein this court had allowed a charge of that nature to stand.” L. S. & M. S. R. R. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424). Affirmed by Supreme Court without report, 57 O. S. 650.]
“ We think that has settled the law of Ohio, and that this is a proper charge if the facts warrant it.”

So the learned judge in thus announcing the majority opinion of the court, stated that it now had become the settled law of the state that in such a case plaintiff might recover, although he was guilty of precisely the same grade of negligence as the servants of the defendant. |

We cannot think so. Ret us consider the effect of such a proposition for a moment.

Two persons walking very rapidly upon a sidewalk come in collision and both are injured. If each could have seen the other in time to have avoided the collision, then eslch would be equally guilty of negligence ; can each recover in such a case, or which one may recover ? Where a party with a team and loaded wagon undertakes to cross the track of a known railroad, and a train' comes along and strikes the wagon, as in the case of Railway Co. v. Shade, supra, and kills driver and horses, and the train be thrown off the track, when the driver of the team and of the engine could each have avoided the collision by looking out for the danger, but neither did; or, where at a crossing of two railroads; trains of the respective roads come in collision, which might have been avoided had either engineer looked along the other’s track, which' party can recover of the other? Such cases have occurred. May each recover of the other, or is it the one that first sues that can recover ? Or, it is to be contended that the rule applies only where but one of the parties is injured? These questioñs aré substantially'answered1 by the 'Supremé Court in disposing of Lake Shore & Michigan Southern Railway Co. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812], and this is the syllabus:

“ 1. When the gates across a highway at a railroad crossing are closed, they definitely warn the public that the crossing, whether it is of a siugle, or a double track, is, for the time being, to be used for the passage of trains.
“2. One, who with the knowledge of such warning, passes a closed gate and takes a position upon the crossing is guilty of negligence which will prevent a recovery for injuries he may receive from a passing train.’

And the case was reversed, but why? If the doctrine given to the jury, and affirmed by the circuit court was correct — if such doctrine had become the settled law of the state by the affirmance of Railway Company v. Schade, supra, then why did not the Supreme Court affirm, instead of reversing this case of Railway Company v. Ehlert, Admr. ? The jury under the evidence must have founded its verdict directly upon the proposition given to it by the trial judge, that although the decedent was negligent in the respects claimed, yet, if the engineer could have seen him and saved him from injury, by the exercise of ordinary care, the plaintiff would be entitled to' recover. The Supreme Court in reversing the case held otherwise, and returned to, if it ever did abandon, the doctrine of the effect of contributory negligence in defeating recovery, where either party might have avoided the injury by the exercise of ordinary care. True, the Supreme Court, in reversing this case, did not refer to, notice, or expressly disapprove of the charge of the trial court and the assumption of its legality by the circuit court by reason of the affirmance of Railway Co. v. Schade, supra; but to place the matter beyond question, the doctrine that “ ordinary care requires that a person in the full enjoyment of the faculties of sight and hearing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed,” as held in Railway Co. v. Crawford, 24 Ohio St. 631; Railway Co. v. Elliott, 28 Ohio St. 340; and Railway Co. v. Rathgeb, 32 Ohio St. 66, was expressly upheld, affirmed and applied in the case of Wabash Ry. Co. v. Skiles, 64 Ohio St. 458.

The case of Cincinnati, H. & D. Co. v. Kassen, 49 Ohio St. 230, has no bearing upon the question, as the holding in that case was predicated upon the fact that the servants of the company had actual notice, or that which amounted to the same thing, of the perilous position of the deceased in time to have saved him, and yet made no effort to do so.

We therefore hold that the court in this case erred in its instructions to the jury on this point.

It is also claimed that the verdict in this case is contrary to the evidence, and as may be inferred from what I have said, we find that claim to be correct.

I have stated some of the facts, but not all by any means bearing upon this question. It was áhown upon the part of the defendant below, that from the tracks, and especially as far north as the third track north of the station platform, one could see along the track on which this train was coming for a great distance — that any one looking to the east could see the train approaching for some miles. What did the decedent do ? The evidence is, .that she looked neither to the east nor the west; that she was running until she approached near to the south track on which this train was approaching from the east, when she dropped into a walk and was struck evidently when near the south rail, as she was thrown to the south onto the station platform. The evidence further shows that people on the platform were yelling to her to stop; men were waving their hats at her,, and some one looking out of the telegraph office, in the excitement of the moment, as an expression of the situation, exclaimed, “ My God, that woman is going to try to cross.” Bverybody saw the train coming. Bverybody heard it. Did she? If she did not, it was her own fault.

The warnings were sufficient in every way, and the train that she wanted to take (No. 28), was still a mile or more to the west, and did not arrive for several minutes after this accident, so that it was not necessary that this unfortunate woman should have rushed iuto this danger for the purpose of making sure that she should make hér train.

These facts make it plain that there could be no recovery in this case; that there were no disputed questions of fact to submit to the jury, and for the errors stated, the case will have to be reversed and remanded.


author: SWING, J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Woodruff v. Woodruff.
    1. Rute as to Construction of Witts.
    All the rules as to construction of wills must bend and conform to the rule that nothing shall stand in the way of the expressed intention of the testator unless it be contrary to law, The expressed intention is the will, to deny which intention would in effect be to deny the right to make a will.
    2. Devise of Life Estate — Remainder—Specific Devises.
    Where by an item of a will, testator devises “ all that certain piece or parcel of real estate on which we now live, situate on Mt. Auburn,” etc., * * and all the income and profits of all the rest and residue of my estate, real, personal and mixed, ” to his wife, and by another item devises and bequeaths “ said real estate on Mt. Auburn, above described, and all the rest and residue of my estate, both real, personal and mixed, , * * * after the decease of my wife, to my children, to be equally divided between them,” the widow takes a life estate in all testator’s property, and all of his estate remaining at the death of his widow is to be equally divided among his children under the statute as if no will had been made. The fact that one piece of property seems to have been specially designated in both items does not make it the subject of a specific devise.
    3. Debt Due Estate Superior to Mortgage of Interest.
    A debt due an estate by a son of testator is superior to a mortgage give’n by him on his interest in certain lands of his father, to secure another debt, and'will be deducted from his legacy upon distribution unless his interest in the lands mortgaged comes by way of a specific devise of such real estate.
    Heard on Error.
    William Worthington, for plaintiff in error.
    Pogue .& Pogue, for defendant in error.
   SWING, J.

This was an action in the court of common pleas for partition, and an accounting, and for general equitable relief. The case in this court is on error to the judgment of said court, both sides prosecuting error to certain portions of the judgment of the court. The errors arise on the pleadings and the finding of facts and the judgment of the court. The facts are substantially as follows:

Edward Woodruff died in February, 1883, testate. He left surviving him his widow and seven children, of whom Horace W. Woodruff was one. His will was executed on January 13,1881, and on January 29,1881, he executed a codicil to said will. By the first item of his will he directs the payment of his debts; by the second item he gives to his wife for her life all of his estate, both real and personal, with power to sell and dispose of his household furniture, silverware, piano, bookcase and books, as she may deem best, and with power to change and reinvest in bonds and securities.

In the devise of his real estate to his wife he says: “ I give and devise to my beloved .wife * * * all that piece or parcel of real estate on which we now live, situate on Mt. Auburn, in the city of Cincinnati, * * * being the same property conveyed to me by Jethro Mitchell by deed dated September 28, 1872.” He further says: “I also give and bequeath to her all the income and profits of all the rest and residue of my estate, real, personal and mixed.”

The effect ot this devise was to vest in his wife for her life his whole estate, after the payment of his debts, with the power to sell certain chattel property if she saw fit, and with power to change and reinvest bonds, stocks and securities.

The third item of the will is as follows:

“I devise and bequeath said real estate on Mt. Auburn above described, and all the rest and residue of my estate, real, personal and mixed, with all said household furniture, silverware, piano, bookcase and books, including the proceeds of my life insurance policy, after the decease of my wife, to my children, to be equally divided between them, the representatives of any of my said children who may be deceased to take the share of such deceased child, respectively, under this will; this devise and bequest to my children being subject, however, to the devise and bequest to my said wife as above made, which are to be in lieu of her dower in my real estate and in lieu of the statutory allowance for her support, or otherwise.”

By the fourth item he appointed his wife executrix of his will.

By the codicil to his will he directs and empowers his wife to sell certain parcels of this real estate, consisting of certain lots, which are specified, in such manner as she may deem proper, and the proceeds she is to have during her natural life, and then it provides as follows: “ The principal, and whatever interest may remain, shall be divided between my children and their legal representatives, share and share alike, as provided in my said will for the other property.”

The widow elected to take under the will, and enjoyed the estate granted to her until her death, in the year 1897.

On June 1,1882, Horace W. Woodruff borrowed of his father the sum of $5,000, for which he gave, his note, and this note remains unpaid, although he paid the interest on the same to his mother up to the year 1891. ,

Horace W. Woodruff is insolvent, and the amount he owes the estate is greater than he would receive from the estate on distribution.

Horace W. Woodruff gave a mortgage on the Mt. Auburn Homestead, and certain judgments were rendered against him, and executions on the same were levied on said real estate.

The controversy here is whether this mortgage and the judgments are entitled to be paid out of his share of this particular real estate and his other portion of the real estate before he satisfies the note held by the estate against him.

Since the decision by our Supreme Court in Keever v. Hunter, 62 Ohio St. 616 [57 N. E. Rep. 454], we think there can be no doubt that unless the devise of the Mt. Auburn homestead is a specific devise, indicating that the testator intended that the devisee should enjoy this in specia, that neither Horace W. Woodruff nor his creditors may share in the estate until his debt to the estate is paid.

In the court of common pleas it was held that the devise of the Mt. Auburn real estate was specific, but that the other real estate devised was not. In holding that all the balance of the real estate devised was not specific and that it is subject to his indebtedness, we think the court was right, and it will not be considered further except as it comes under what we have to say as to the portion of the devise held to be specific.

We come now to a construction of the will. The law having granted to one the right to make a will, the courts have universally held that the intention of the testator as gathered from his whole will taken in connection with the surrounding circumstances, must be given effect to, unless the expressed intention is contrary to law or against public policy. There are numerous other rules of construction but they must all bend to and conform to this rule so that nothing stands in the way of the expressed intention of the testator, unless it be contrary to law. This is a sound and reasonable rule and never likely to be departed from, for to hold that the intention of the testator was not to be carried out would, in effect, be to deny to the testator the right to make a will,, as the expressed intention is the will.

Carrying out this rule the courts have frequently said that adjudicated cases in which the intention of the testator has been determined give little or no aid in arriving at the intention of the testator in another and different will.

In Robertson v. Broadbeck, (Raw Rep. 8 App. Cas. 812) a question similar to the one. in this case was before the house of lords. Selborne, E. C., in giving his opinion, held the legacy in question not to be specific and gave a definition of a specific legacy. Eord Blackburn also gave an opinion and in doing so used the following language:

‘ ‘ I think that in considering the case below, more has been said as to the definition of what is a specific bequest, as if it was a technical question, than was quite requisite for the decision of the case. I do not know if it was necessary to give a definition of a specific legacy that any would come nearer to my idea than what has been said by the Lord Chancellor in this case: ‘Something which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed in the state and condition indicated by that description, separates in favor of a particular legatee from the general mass of his personal estate.’
“ I do not, however, like to bind myself even to saying that this is a precise definition. I think the real question is what is the true construe, tion of the will of this testator. * * * But it all comes round to the same thing. The court' can not make a will for the testator; it must construe the one he has made. And I think that the bequest of the residue of his effects, which shall not consist of money or securities for money to Mrs. Robertson, and the residue of his personal estate to the two trustees is one residuary bequest to two persons.”

The general purpose of the testator evidently was to give all of his estate, real and personal, to his wife for her life, and at her death all of said estate remaining was to go to his several children or their descendants, to be equally divided between them. If there was any property left to the children in the nature of a specific devise it was not to be en. joyed m specia, as his wife was to enjoy it, but it was to be equally divided between them. Suppose a testator had three farms and three sons and no other lands and no other children, and he should devise farm No. 1 to his three sons to be equally divided between them, and he should devise the other two farms in the same way, these could not be considered as specific devises, but the devises would be nothing more than a devise of the whole of his real estate to his three sons to be equally divided between them; but if he had devised farm No. 1 to Thomas and farm No. 2 to William and farm No. 3 to John, these would be specific devises of separate property to separate devisees. Does the fact that the testator in this case mentions particularly one piece of real estate as going under his will and devises all his other real estate “as all the rest and residue of my estate real ” indicate an intention tó separate this particular piece of real estate from the balance of his real estate, to be taken and held by them in any different way from the other real estate?

. It seems clear that the intention of the testator that all of his estate remaining at the death of his wife should be equally divided among his children; not a part of it should be equally divided among them, but all of it. If this be the clear and plain intention, it must be given effect, and any technical rule of construction which might stand in the way must be disregarded. - '

If the testator had said that he gave all of his estate to his wife for her life (with power to dispose of certain chattels and reinvest in certain securities), and the remainder to go to his children at her death, it would be equivalent to what he has said.

In the devise of the life estate to his wife, he describes particularly his Mt. Auburn real estate; it was his homestead, and was the most valuable part of his real estate, and while not intending that she should hold this property in any different way than the balance of his real estate (which he devised to her by saying: “ I give and bequeath to her all the income and profits of all the rest and residue of my estate, real, personal and mixed”). It was only natural that he should specifically describe the larger portion of his real property, his homestead, as he did; and as to his wife, there was to be no different holding of his estate except as to the matters already referred to. With these exceptions it was simply a life estate in his whole estate.

When he comes to the devise of the remainder to his children, he follows, in the main, the gift to the wife just preceding. He says: I devise and bequeath said real estate on Mt. Auburn, above described, and all the rest and residue of my estate, real, personal and mixed.'1' This, no doubt, is the reason why the language employed is as it is; he had already given his wife a life estate in all his estate, and coming to give the remainder to his children, he uses as near as he can the Same language used in the gift to his wife. In both instances he used more words in creating the devises than was absolutely necessary to effectuate his purpose, but this was not unreasonable. A will is rarely found that does not contain more words than is necessary to express the meaning of .the testator.

Here the testator particularly mentions his Mt. Auburn real estate, but he does not immediately after state how he wants' it divided, or' what he wants done with it; but he goes on and gives the balance of his real estate and all his personal estate, and says it is to go to his children “ to be equally divided between them ;”then he goes on and says, “ this devise ana bequest,” clearly indicating there was but one devise to the children. If the testator had intended that his Mt. Auburn real estate should go to his children differently from the way - that his other real and personal property should go to them, he certainly would have used some more apt words to have expressed that intention,.and- would not afterwards1 have mentioned it .as “ this devise and bequest.” The codicil also throws considerable light on the intention of the testator as to this 'devise. ■ In this he provides for the sale of certain lots, and the investment of the proceeds for the benefit of his wife during her life, with the remainder to “ be divided between my children and their legal representatives, share and share alike, as provided in my said will for the .other property,” clearly indicating that there was but one provision in his will for the other property, and which was that it was all to be divided equally , between his children as one gift of all his estate in which he describes with more or less exactness his real and his personal estate.

What was the effect of the testator giving to. all his children all of his estate, real and personal, subject to the life estate of his wife? He gave them nothing but what they would have taken if he had made no will. It is equivalent to saying, I give to my children all my estate to which they are enitled under the law. Such a will is of no effect, and the heir takes by force of the statute rather than by will. This is an old and well established principle of the law. Powell on Devises, 284; 4 Kent’s Com., star pp. 506-7; Ellis v. Page, 7 Cushing, 161.

There is no necessity for making a will when property is given in the same way that the statute passes it; the object in giving the right to dispose of property is that it might be given in a way different from that in which the law gives it.

In holding that the Mt. Auburn property was subject to the mortgage given by Horace W. Woodruff, and to the judgment liens existing against it in favor of his creditors before the debt due his father’s estate, we think the learned judge who gave the judgment erred, and so much of said judgment is reversed and the cause remanded to said court to carry this judgment into execution.


text:
    ATTORNEY AND CLIENT.
    [Hamilton (1st) Circuit Court,
    1902.]
    Giffen, Swing and Summers, JJ.
    Herman Keck et al. v. August H. Bode.
    1. Section 5241, Rev. Stat., Declaratory Only.
    The provisions of Sec. 5241, Rev. Stat., concerning privileged communications between attorney and client is declaratory only, and subject to the same construction as the rule at commou law. It is founded upon public policy, to encourage confidence between attorney and client, by preventing disclosure of communications, but the protection thus guaranteed the client cannot be used to defraud the attorney.
    2. Competent Testimony by Attorney.
    Under Sec. 5241, Rev. Stat., relating to privileged Communications, it is competent for an attorney to testify as to communications between his client and himself, where it is necessary for him so to do in order to protect his own interests; but the same rule which creates this exception to the statute, limits its scope and effect, and if the communication is not essential to preserve the rights of the attorney, it continues to be privileged.

      3. Evidence Tending to Prove Other Matters — Inadmissible, When.

      Ex parte statements and affidavits cannot be introduced as evidence of the nature and character of the service rendered by an attorney in examining them for his client, where these .papers tend to prove other matters to the prejudice of the parties, and the object for which they are introduced can be attained in another way.
    4. Confession not Constituting Unqualified Admission — Inadmissible.
    Where in an action brought by an attorney to recover for services rendered a client in settling a dispute among the stockholders of a corporation, in which it was difficult to secure the settlement because of the strained relation existing between them, as appears from a petition prepared but not signed, charging the defendant with the commission of acts constituting a crime, a confession not constituting such an unqualified admission of the truth of the charge therein, as would relieve the attorney from the duty of making an investigation, is not admissible to prove the value of his services therein as being enhanced thereby, since the labor and skill required could easily have been described to the jury.
    5. Argument — Reference to.Matters not in Issue.
    Reference to a matter not tendered in issue, by an attorney in his argument to the jurv, if prejudicial, should be excluded by the court, and the jury instructed to disregard his statement.
    Heard on Error.
    Jones & James, for plaintiffs in error.
    Goebel & Bettinger, for defendant in error.
   GIFFEN, J.

The original action commenced by the defendant in error was upon an account as follows:

“ To legal services in the matter of dispute among the stockholders in the Duhme Jewelry Company settling the charges of fraud against H. and O. Keck in selling inferior goods and forcing them upon the public by false marks and false representations and surreptitiously removing goods from store and submitting inferior goods instead of goods intrusted to them by their customers for repair or resetting and effecting an agreement of. purchase of dissatisfied stockholders’ stock and preventing bringing of suit, $2,500.
“ To consultation and bringing about a family agreement in regard to stockholding in Herman Keck Manufacturing Company, $100; total, $2,600.

The first defense of the answer admits that the defendants consulted plaintiff and denies each and every other allegation in plaintiff’s amended .petition.

The second defense pleads payment. A. third defense is a seUoff. Numerous errors are assigned and the first that we will notice is the admission of certain communications by defendants to plaintiff in the relation of attorney and claimed to be privileged under Sec. 5241, Rev. Stat., which contains this provision:

“ The following persons shall not testify in certain respects:
“ 1. An attorney concerning a communication made to him by his client in that relation, or his advice to his client, * * * but the attorney * * * may testify by express consent of the client.”

This provision is only declaratory and should receive the same construction as the rule of the common law. It is founded upon public policy to the end that a client may freely communicate with his attorney without fear of disclosure or abuse of confidence but a like reason should prevent him from using the protection thus guaranteed to him as a means of defrauding the attorney. When a controversy arises between client and attorney the facts of which are evidence by communications between them, the very necessities of the case require an exception to the general rule, and the fact that the legislature has already incorporated one exception does not necessarily exclude all others. In states where the privilege protecting communications with attorneys is still regulated by the common law, as well as in those where it is prescribed by statute, the weight of authority favors the competency of an attorney as a witness to such communications, when the suit is between himself and client.

The doctrine is stated in Mechem on Agency, section 887 as follows :

“ But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligence or misconduct, and it became necessary for the attorney to show what his instructions were or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an action against the client, the client’s privilege could not prevent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.”

It will be observed however that the same necessity which creates the exception limits also its scope and effect, and if the communication is not essential to preserve the rights of the attorney it continues to be privileged.

In the trial below, a petition prepared by counsel for the Duhme Bros., but not signed, which contained serious charges of fraud and dishonesty against the Keck Bros., had been received in evidence, when the defendant in error was permitted to testify that the Kecks had confessed to him that the charges were in part true. It may be doubted whether this petition was itself competent, as its natural tendency was to open up a large field of investigation upon questions not relevant to the issue, and could be received for the purpose only of showing the strained relation between the Duhmes and the Kecks, and thereby the difficulties the defendant in error had to encounter in his efforts to bring about a settlement. • •

■We think that the so-called confession was erroneously received because it was not such an unqualified admission of the truth of all the charges, as- would relieve, the attorney of the duty of making an investigation, and if so made, the labor and skill bestowed could easily have been described to the jury.

Again, it necessarily presented the issue of the truth or' falsity of the charges, which meant the trial of as many cases ot deceit or fraud as the petition contained distinct charges.

While it is true that the Kecks were permitted to deny that they made any such confessions; yet the defendant in error having testified that no third person was present, it became important to prove if possible the falsity of the charges,-for'if false it is highly improbable that they would admit them to be true even to their attorney, there being an entire absence of motive. ■

, The next alleged error was the admission in evidence of certain ex parie statements and affidavits tending to prove the charges set forth in the Duhme petition,- although .the court cautioned the j'ury not to consider them for that purpose, but only as tending to show the nature of the business transacted by the attorney and the character of the work performed. It would- be difficult for the jury to consider for any purpose statements and affidavits of this kind charging fraud and corruption without inquiring into their truth or falsity to the prejudice of the parties, and if the object sought can be attained through any other source, they should be excluded for any and all purposes.' It was competent for the defendant in error to testify that he had examined a certain number of written statements and affidavits, and consumed a certain number of hours or days in doing so. If an attorney sues for services in making an abstract of title to real estate it will hardly be contended that the record should be' encumbered with each deed, mortgage, will or other instrument examined-by him, in order to prove the value of his sérvices. So in this case the purpose for which the papers were offered could have been subserved by other means less liable to prejudice the plaintiffs in error. ...

Another alleged error is that the services rendered were immoral, and the payments therefor against public policy.

The defendant in error testified that' although the Keck Bros, had acknowledged the truth of some of the charges contained in the Duhmé petition,-he repeatedly characterized the petition, when conferring with Duhmes’-counsel, as a blackmailing petition, “for the purpose (as he says) of getting the matter settled/’ However culpable this may be from a moral point of view, the act is not corrupt as tainted with fraud, or illegal as in violation of a rule of law or a statute, so as to constitute a good defense. Moore v. Remington, 34 Barb. 427.

It is further claimed that the court erred in permitting counsel to make the following statement in argument to the jury without reproof or correction: “And to this day Judge Bode is responsible in a ten thousand dollars bond for the appearance of that man in Philadelphia where he is next wanted for trial on the same charge,” — meaning thereby the charge of smuggling diamonds preferred against one of the plaintiffs in error. No such issue was tendered and the tendency of the statement being prejudicial, the court should have restrained counsel, and instructed the jury to disregard it.

Again it is contended that the court erred in charging the jury that the first question for them to determine was whether the plaintiff had rendered services for the defendants, and, if so, their value. The defendants in their answer admitted only that they had consulted plaintiff, and if a literal construction is insisted on, the answer is evasive and misleading. But if the jury found the facts required by the charge of the'court, the employment of plaintiff was fully shown, and the court did not err in the instruction given. The hypothetical question submitted to the attorneys called as witnesses by the defendant in error is objectionable in so far as it is based upon evidence erroneously admitted.

Many other errors are assigned, but we do not consider them of such importance as to merit special notice. Some of them were invited by counsel for plaintiffs in error, others were provoked by the spirited if not bitter prosecution of a too lengthy trial, but none was prejudicial.

Judgment reversed and cause remanded.


author: HULL, J.

text:
    MORTGAGES — BUILDING AND LOAN COMPANIES — MECHANICS.
    Lucas (6th) Circuit Court,
    February 7, 1902.]
    Haynes, Parker and Hull, JJ.
    George H. McMullen, Receiver, v. Britton W. Griggs et al.
    1. Sale or Mortgage oe real Property — Misrepresentation as to Value. A purchaser of real property who, if competent ahd capable of judging of its value, examines it, cannot avoid the transaction by showing a statement Of the seller that the property is worth more than it really is, this, rule is applicable to a mortgagee of real estate, mortgagee being required to advance, at" the suit of a receiver, the full amount of a loan. , ■

      2. Rule Applied — Mortgage Sustained.
    Representations as to the value of real estate offered as security for a loan, to the effect that the property is worth $9,000 when in fact it is not worth more than $6,000, held not to amount to fraud or to vitiate mortgage,. where it appeared that the report of appraisers appointed by the loan company, showing the real value of the property, was given on the same application and it also appeared that the general manager of the loan company also examined the property. Under such circumstances the loan company cannot be said to have relied on the statements of the applicant for the loan.
    3. Representations as to Ownership — Notwithstanding Equitable Interest.
    The fact that a mortgagor, having the legal title to property mortgaged so far as the record discloses, represents that he is the sole owner thereof, notwithstanding another has an equity in it, will not defeat the mortgage where the equitable owner makes no claim of any interest therein prejudicial to the mortgagee.
    4. Agency — Power to Solicit and Consummate Loans.
    The representative of a loan company appointed to solicit subscriptions to its capital stock and collect the membership fee therefor, and who has power to solicit loans, collect fines and dues, appraise property and do everything necessary to consummate a loan, though he received a commission from the borrower by way of compensation for making the loan is not the agent of the latter, but of the company.
    5. Interest on Mechanics’ Liens.
    A loan company having contracted to pay holders of mechanics’ liens the balance due upon a building constructed by them upon the mortgaged premises, they are entitled to interest thereon from the time of completion thereof, less the amount of dues and premiums due the loan company.
    Appeal.
    Ralph Emery and B. F Brough, for plaintiff.
    O. S. Brumback, for Southern O. L- & T- Co.
    Fluckey & Garver, for Jacob Cook and Ruth A. Arnold, Executrix.
    T. L. Gifford, for Wolfe & Warnke.
    Chas. A. Keller, for Fishback Plaster Co.
   HULL, J.

This action grew out of the building of a certain building in the city of Toledo., and the loan that was made to the owner of the building by the .Southern Ohio Loan and Trust Company, as secured by mortgage, and the rights and claims of certain mechanics and materialmen who furnished material, and performed labor in the construction of the building.

The question in the case presented to us is, whether the Southern Ohio Loan and Trust Company, called the Loan Company for convenience, should be required to advance a balance of $1,500 still ■ remaining unpaid on the mortgage of $4,500 which was given by Britton W. Griggs to the Loan Company to secure a loan for that amount; the claim of the Loan Company is that they were defrauded by Mr. Griggs at the time of the loan, that he misrepresented the value of the property. the title to the property, and further that the building was not completed according to contract; that they advanced $8,000 and that that is all that they should be required to advance upon this mortgage by reason of these misrepresentations.

The claifn of the mechanics and materialmen — for the controversy is between the Toan Company and the mechanics and materialmen — is, that under the equities of the case, the Toan Company should be required and are required to advance the full amount of the mortgage; and further, that after the building was partially completed, it being apparent that there was not sufficient on hand of the money advanced under this loan to finish the building and to pay for the work and labor, that the Toan Company agreed with the mechanics and materialmen, in consideration of their releasing their mechanics’ liens, that the Toan Company would advance the balance of the mortgage, then about $1,500 — it was in fact $1,700 — but there is only $1,500 in controversy, and that the balance of the mortgage should be distributed among the mechanics and materialmen; and the mechanics and matérialmen claim that by reason of that contract, which they claim was made with the agent of the company, Mr. H. H. Barber, they proceeded with the construction of this building and finished it. Having finished it, the Toan Company refused to advance the balance of the money, and action was commenced by Mr. McMullen as receiver for Hyter & Company, the holder of one of the liens, to foreclose the liens, and all the interested persons were made parties.

The general office of the Toan Company was in Cincinnati, and H. H. Barber was the agent of the company, at least for certain purposes, in the city of Toledo. He had admitted authority to solicit loans, and to collect assessments, fines, dues, examine property, appoint appraisers of property, and exercise some other authority. His appointment was in writing and makes him the agent of the company. It reads:

“ This is to certify that H. H. Barber, the bearer hereof, has this 26th day of June, 1899, been appointed local agent of the Southern Ohio Toan and Trust Company, for Toledo, Ohio, and is hereby duly empowered to solicit subscriptions to the capital stock and collect the membership fee therefor.”

Signed by the president and M. S. Todd, secretary.

Britton W. Griggs was the owner, as has been said, of this property. He had negotiated a loan with Irish & Company for $2,500. In fact he purchased the lot through Irish & Company for a consideration of $1,500 and executed a mortgage thereon for $2,500. They loaned him $1,000 above the purchase price with which he began the construction of this building.

This money being insufficient, in November, 1889, be called upon Mr. Barber, the agent of the Toan Company in Toledo, and finally made written application to the Toan Company for a loan of $5,000. This application was rejected; or at least one was sent on in its place for $4,500 which he filled out. In that application, he represented that the cash value of the lot was $1,600, and that with the improvements when they were completed, the value would be $9,000, and signed answers to various other questions which were printed in the application. This was sent on, and his loan for $4,500 was allowed, and a mortgage was executed pursuant thereto, and sent on to the company. As a part of this application, there was an appraisers’ report which was made by appraisers appointed by Mr. Barber,, and sworn by him as notary. The appraisers appraised the lot at $900 instead of $1,600, and the buildings and improvements when completed, at $5,000 instead of $7,400, the amount named in the application, which preceded this appraisement and was on the same piece of paper. All of this went on to the company, the owner’s estimate of the property and the estimate put on it by the appraisers. It is claimed that this was such a misrepresentation on the part of Mr. Griggs as would invalidate the mortgage contract or relieve the company at least from advancing the amount of money they had agreed to advance. It was further claimed that Griggs represented he was the owner of the property and sole owner; but that in fact Mr. Swinehart had an equity in the property and that that representation was therefore false, and that the company relied upon these representations in making the loan, and that therefore they are relieved from advancing the full amount of the mortgage, and it is claimed that the mechanics and materialmen who did work upon the building and furnished the material can have no greater right than Griggs.

If the company had relied entirely upon the representations of Mr. Griggs, the case would stand differently from what it does. But it appears, instead of relying upon his statement, they required Mr. Barber to appoint three appraisers, who, in his judgment, would be competent to appraise this property; and that they did appraise it, and placed a value upon it considerably lower than the value fixed upon it. by Mr. Griggs; that Barber himself examined the property at the time the company agreed to make this loan of $4,500; they had before them the information afforded by this appraisement by appraisers that were appointed by their own agent in the city of Toledo. So it is very clear that they did not rely and did not intend to rely wholly upon the representations that were made by Mr. Griggs. If they did not rely upon them, but sought information elsewhere,, they were not prejudiced by the value that he might put upon his property. And more than that, the testimony shows that before this loan was made, which was in February, Mr. Todd, the secretary and treasurer of the company, was in Toledo, and he also seems to have acted in the capacity of general manager of the company. He went out to this property, and examined it himself, examined the lot; and the building at that time was well along toward completion, and he examined that; and after an examination by this officer of the company, the loan was made. So that the company not only had the judgment of the appraisers, but also the benefit of an examination by one of its officers.

The law is well settled that in matters of value, which are always to a great extent matters of opinion, if the purchaser, as you may call the mortgagee here, examines the property himself and has full opportunity to examine it, and is competent and capable of judging of its value, so that no advantage of him is taken, that a statement by the seller that the property is worth more than it really is is not a fraudulent representation, or such a representation as would avoid a contract. The rule is often applied to personal property, and there is no reason why it should not be applied to real estate in a case where the facts are such as to admit of its application.

Here was a transaction where each party had an opportunity to examine and had sufficient knowledge and experience to form an opinion of his own. So that, so far as these representations, if there were any, as to value, are concerned, we think that they were not of such a character, under all of the circumstances, as would amount to a fraud or would vitiate or affect this mortgage. It appears that Griggs did probably put a high estimate on this property. He paid $1,500 for it however ; but the agent through whom he bought it (there is some intimation at least of this) paid only $800, and that was regarded by the agent and his principal, perhaps, as the real value of the property. But Griggs had no knowledge of this arrangement, and he paid $1,500 for the property and perhaps honestly thought it was worth about $1,500. At any rate, we find, under all the circumstances, there was no representation here that would affect this mortgage.

As to the title, Griggs represented that he was the sole owner of it. It appears by the testimony that Swinehart, his partner, had an equity in it. They were partners in the building business. But Griggs did have the sole legal title to the property, and so far as the record disclosed, he was the sole owner. Swinehart makes no claim of any interest in it. So that if these representations of Griggs were not exactly true, it worked no prejudice to the Doan Company.

The mortgage was sent on, and on February 6, 1900, the Toan Company, through Mr. Todd, forwarded $3,000 to Mr. Barber, and with it a blank waiver of liens to be signed by all persons Having liens upon the property. This waiver of liens apparently was filled out in the office of the company before being sent here. It is a printed blank filled out. And with the check for $3,000 was sent a letter of instructions to Barber to have the enclosed waiver of liens signed by the persons having furnished labor or material. It was apparent that $8,000 would not finish the building. The materialmen and mechanics concluded they were liable to lose at least a portion of what they had put in the building They had various meetings and discussed matters and talked of discounting their claims, and finally on February 17, they met Mr. Barber at his office and all of them signed a waiver of liens that had been sent on by the company, in consideration of the company agreeing that the balance still coming upon the mortgage, $1,724.50 would be advanced. The amount in dispute, as stated, really being only $1,500; there being no controversy that the rest was advanced, bringing it up to $3,000. And in the waiver which they signed they postponed their claims to that of the Toan Company, and their priority to the mortgage of the Toan Company. The waiver contained this language :

“ In consideration of one dollar paid to each of them severally by the Southern Ohio Toan and Trust Company, the receipt whereof is hereby acknowledged, and in further consideration of a loan of $4,500 granted by the said The Southern Ohio Toan and Trust Company to the said Britton W. Griggs, and secured by mortgage upon said premises, do hereby respectively postpone to the said The Southern Ohio Toan and Trust Company any priority which they may have or might otherwise obtain by mechanics’ lien, or other similar liens upon said premises.”

The waiver itself contained a recital and statement that this was done in consideration of this loan of $4,500, and the original agreement and arrangement beeween the Toan Company and Griggs was that this money was to be used in the construction of this building ; and upon a written order signed by Mr. Griggs, it was all to be sent to Mr. Barber, who was to distribute it among the persons entitled to it; the Toan Company accepting this order, which is as follows:

“ The Southern Ohio Toan and Trust Company:
“ I hereby authorize you to pay the proceeds of my loan of $4,500 made in accordance with my application, bearing date the —:-day of -, 189 — , as stated below, and this shall be your receipt therefor. “ $4,500 to H. H. Barber.
“ (Signed) BrittoN W. Griggs.
“ Witness: A. F. Swinehart.”

So that the arrangement and understanding between Griggs and the Loan Company was that this money was to be used to complete this building, and that it was to be held by the company, or by its agent, and distributed by him to those who performed labor • or furnished material for the building. It was not to go into Griggs’ hands at all unless there was some surplus. And the $1,500 being held back, in consideration of the company loaning the full amount of $4,500, the lienholders, the mechanics and materialmen who were entitled to liens, signed this waiver, and the company accepted it.

But besides that, Mr. Barber signed the following paper on the same day, and as a part of the same transaction :

“ Toledo, Ohio, February 17,1900.
“ The Southern Ohio Loan and Trust Company in consideration of the waiver of certain rights and priorities on the part of certain persons and firms who have performed labor and furnished materials for the erection of a building upon the following real eatate, viz: The west twenty-four feet of lot 2 and the east twelve feet - of lot 3 in Spaulding’s addition to Toledo, Lucas county, Ohio, hereby undertakes and agrees that after the payment of claims and liens which have priority over the claims and liens of such persons and firms signing such waivers, it will retain in the hands of its agent the balance of the fund arising from its loan and mortgage upon said real estate to be paid out from time to time upon and fox construction and completion of said building, insurance upon the same and at least one month’s dues. Said company represents that said balance will be the sum of $1,724.50, provided that the claims as presented and included in this settlement include all the claims that can become a lien upon said real estate.
“(Signed) H. H. Barber,
“ Agent and Local Treasurer of the Southern Ohio Loan and Trust Co.”

So that if Mr. Barber was authorized to act for the company in this matter here was beyond question, a contract between the company and the lienholders that could be enforced; that on the one hand, the company would advance the balance on this mortgage of $4,500, and on the other hand the lienholders would waive their liens, the money to be held by the company or its agent and paid to the. lienholders according to their rights and claims. But it is claimed that Mr. Barber had no authority to make this contract, and therefore that it was not binding upon the company. He had theretofore been appointed the agent of the company. He had authority to solicit loans for the company collect fines and dues, and apppraise property, and to do everything necessary to make a loan, for the advantage and purposes of the company. He received his compensation, or most of it at least, in the way of commissions from those who borrowed money from the Loan Company, but. so'far as is disclosed here, he was not the representative of the borrower in any respect. It was not his duty to protect the borrower, or his interest in any manner. He did nothing for the borrower except to take- his application and send it in to the company, and take the necessary steps to protect the company if a loan was to be made. At the time this contract was made, there had been no intimation on the part of. the company that the full amount of $4,500 would not be advanced. The amount spoken of in the waiver of liens which was sent on by the company to Mr. Barber to have the lienholders sign is $4,500 and no question was made' by them or by any one but that the lull amount would be advanced. In sending on the $3,000, in their letter, they say : “ We enclose check for the sum of $3,000 on account of loan 3464, Britton W. Griggs.” It is on account of that loan. It was usual for them to withhold a' portion of the amount until the building was finished. After these contracts had been signed, in the following April, Mr. Barber wrote the company quite a long letter, going somewhat into details as to the matter of the waiver of liens. The date of the letter is April 24, 1900. He says, among other things :

“ As claims for labor and material were brought in it became evident that your loan even the whole $4,500 would not be sufficient to pay the;bills, and Hyter & Co. having the largest unsecured claim, and having confidence in the property, desired to • see the property completed and the loan made as contemplated. They called a meeting of the creditors and obtained from all some concessions on their claims and then took the title from Mr. Griggs and undertook to finish the building according to the plans and specifications. Mr. McMullen, who holds the legal title, is the manager of the Hyter Lumber Company. When everything was adjusted and first liens would be paid and waivers of liens obtained, I paid first liens and labor claims on the basis agreed upon among the creditors, and I have distributed all of the $3,000 that you sent.”

Then he says further along:

“ Before sending my report I went to Mr. McMullen and presented the bill for arrearages. He said it was all right and would be paid, but remarked that the building was just about finished and that considering what they already had in the building they would like to get their share of the $1,500 before paying the bill for arrearages. I told him you were anxious to have the account paid, and he made the remark that you ought not to feel very bad about it as you then had in your possession $1,500, most of which, with the building so near completion, belongs to the Hyter Co.”

On the same day Mr. McMullen wrote to the Loan Company, among other things:

“The building in question is only this day finished. Delayed by bad weather, etc. You have $1,500 yet in your hands, and out of this amount, Mr. Barber, your agent, advised me you would hold your first and probably second return payment.”

The company previous to that had written to Mr. McMullen to pay the dues on the loan, as follows:

“ We are advised that you are the owner of property securing loan No. 4364, Britton W. Griggs, and beg to advise you that unless arrearages in this loan are paid by the 26th inst., suit in foreclosure of the mortgage will be filed.”

That bears date of April 23,1900, and in the letter by Mr. McMullen of April 24, he refers to the receipt of this letter.

After receiving McMullen’s letter of April 24, the company, through Mr. Todd, under date of April 26, wrote McMullen:

“ If you are the owner of property securing loan No. 4364, Britton W. Griggs, it would be proper for you to pay up arrearages on the loan, which for this month amounts to $85.16. Another payment will be due May 5. The matter of closing the loan will receive due attention when arrearages have been paid on amounts already advanced.”

This was in answer to his letter of April 24, in which he stated to the company there was $1,500 coming, and they saj' the matter of closing the loan will receive due attention when arrearages have been paid.”

McMullen then sent on his check for $85.16, and subsequently sent on a check for one month’s dues, $32.50, which latter was the full amount due on the loan of $4,500. This was accepted by the company, and they requested him to pay all arrearages, as they became due.

It appears from this correspondence that the company were fully advised of what had been done by Mr. Barber and of the arrangement that had been made as to the liens that had been waived, and of the agreement that had been made, and the understanding there was that the company would advance the balance of this amount, and we think that what Barber did was fully ratified in any event by the Loan Company.

But we are of the opinion that the arrangement that Mr. Barber made was within the scope of his agent and authority. He had power and authority to negotiate this loan, and to make collections, and power to protect the interests of the company in all proper matters pertaining to the loan. At the time this arrangement was made, there had been no suggestion on the part of the company that the full amount would not be advanced. And in making this arrangement, he was simply protecting the interests of the company and making arrangements whereby this loan could be made, which was the company’s business — their business being to make loans — and whereby their interests would be protected, and their mortgage claim put ahead of the claims of the mechanics and materialmen, and by virtue of this arrangement, and relying upon the action of the agent of the company, the .mechanics and ma-terialmen waived their liens, and it seems to us that it would.be unjust and inequitable for the court to hold, under these circumstances, that the mortgage of the Loan Company should have priority over the claims of the mechanics and materialmen who finished this building. We are of the opinion, as already stated, that the representations of Mr. Griggs as to the value of this property were not of such a character as to vitiate or affect the mortgage. But if they were, they would not affect the rights of the mechanics and the materialmen. If there were any fraudulent or false representations on the part of Griggs, in his application for the loan, they were not a party to them, had no hand in them and no knowledge of them, and therefore were not affected by them ; but the Loan Company, after they had examined the property, and after a month or more had gone by from the time that the loan was agreed upon, and with full knowledge of all the material facts or with opportunity to secure full knowledge, through its agent, made this contract with the mechanics and materialmen, and by virtue of the agreement of the Loan Company, and by reason of its agreement, that it would advance the balance of the money due upon this mortgage, they released their liens for their labor and their material. We are of the opinion that they would not be deprived of their rights under this contract made with the company even if Griggs’ representations were false and fraudulent in law, to the extent claimed by the company.

We have reached the same conclusion in this case that was reached by the judge who tried the case in the common pleas court. We think that the mechanics and materialmen are entitled to priority over the Loan Company to the extent of $1,500, the balance due upon the mortgage, if that 'amount is necessary to satisfy their claims. The same decree should be entered here that was entered in the court below.

Mr. Brumback: “ May I inquire if your Honors considered the question of subrogation ?”

Judge Hull: “Yes, we considered the question of subrogation; $2,500 of this $8,000 advanced having been used to pay off the Irish mortgage, the Loan Company would be entitled to be subrogated to that amount; but the $1,500, which was the balance of the mortgage, and which the Loan Company agreed to advance, but did not, was a matter that came after and in addition to the paying off of the Irish mortgage. If the Loan Company had put into Mr. Barber’s hands the $1,500, which was agreed to be distributed among the mechanics and material-men, then you would be entitled to be subrogated to the amount of the Irish mortgage and would be entitled to the first lien to the amount of $3,000. The mechanics and materialmen having the first lien then to the amount of $1,500, the balance due upon the mortgage. But the result is the same, whether it is figured out in that way, or whether the court decrees that the mechanics and materialmen have the first lien for $1,500 as against the mortgage loan for $3,000, which the Loan Company now holds. Carrying out the views of the court in your way simply requires the Loan Company to pay into Mr. Barber’s hands $1,500 to be distributed according to the agreement and arrangement which we hold was made.”

Mr. Emery: “ Will your Honor dispose of the interest on this $1,500 from the time the building was finished and it should have been paid ? ”

Judge Hull: “ We had not considered that, but the money not having been paid when the building was finished, you are entitled to interest upon it from that time.”

Mr. Brumback : “ There should be some consideration paid to these dues and premiums which should have been kept up all the time.”

Judge Hull: Yes, up to the time the building was completed when the money was due, you can compute that and arrive at the difference. You should have credit for the dues and arrearages, which should have, been paid up to that time.”