text:
    INJUNCTION AGAINST CONTAMINATION OF PERCOLATING WATERS.
    Circuit Court of Cuyahoga County.
    Ira Bassett and Ella Bassett v. Ira Osborn.
    Decided, December 23, 1912.

      Waters — Landowner Enjoined from Contaminating Percolating Waters Feeding Adjoining Landowner’s Well or Bpring.

    A landowner is liable, if, by the accumulation of filthy or contaminating matter upon his own land, he contaminates the waters percolating therein to the injury of a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated, and an injunction will be granted to prevent such contamination.

      D. E. Warner, for plaintiffs in error.

      A. W. Lamson, contra.
    Marvin, J.; Winch, J., and Meals, J., concur.
    The facts in this case are, that the plaintiffs own a parcel of iand in the village of South Newburgh. The defendant owns a parcel of land immediately north of the land of the plaintiffs in the same village.
   On the land of the plaintiffs is a spring of water which they have protected with a curb made of crocks around an excavation made about the opening of this spring, and placing a spring house over it, using the water for domestic purposes.

The defendant has built into his land, a short distance north of the line between the lands owned by the respective parties, a cesspool. Into this cesspool the refuse from his dwelling, including such refuse from the water closet and bath room, as well as from his kitchen, is conducted and held. This cesspool consists of two excavations in the earth, each extending down below the natural surface about eight or nine feet. Each is about eight feet in diameter; there is a pipe or conduit from one of these excavations to the other about four or five feet above the bottom. One of these excavations is walled up with cement or concrete, with a concrete bottom and is probably water-tight, so that any water or other liquid getting into it must remain therein, except as it may pass into the other through the conduit already mentioned, or be removed from the top. The refuse from defendant’s house is conducted directly to this tight pool.

The second of these excavations is lined with brick a part of the way up and with cement the balance. It has no bottom other than the earth itself. This is designated a leeching pool, and the term indicates what its purpose is and what it accomplishes. The water or liquid which enters the first pool passes into the second and leeches through the wall and bottom of that pool into the surrounding earth.

The spring is about 325 feet southwest from the cesspool.

Each of the parties has a house used as a family homestead, the one about a hundred feet and the other about fifty feet west of the west line of Osborn avenue, on the west side of which both properties front. Between the two properties and about on a line extending from one house to the other, is a depression, extending westerly beyond this spring, and opposite to the spring the bottom of this depression is about fifteen feet below the surface on either side. The water from the spring comes out in the south bank of this depression some feet above the bottom of the depression.

There is dispute in the evidence as to the nature of the soil along the north side of this depression, some of the evidence tending to show that there is a vain of gravel in the earth along this line, and other tending to show that the earth is composed exclusively of clay.

The cesspool was in process of construction when this action was begun on the 18th day of June, 1912. The work was suspended because of a restraining order granted by the court of common pleas at the beginning of the action and was not resumed until such order was vacated on the 16th day of July, 1912, when the work was resumed and the double pool completed and in connection with the house made soon thereafter.

The prayer of the plaintiffs is for an injunction restraining l,he defendant from constructing and maintaining this cesspool, for the reason that the water of the spring is contaminated and rendered unfit for use by reason of deleterious matter escaping from said pool, and flowing into said spring. It is not claimed and surety is not shown that the defendant has constructed this pool carelessly. On the contrary, he took pains to have it done to the satisfaction of the acting health officer of the village, and not only violated no law in its construction, but seems to have done all that could be done to prevent injury to the plaintiffs in error or others, if he is to have a cesspool, out of which the contents could leech into the ground.

Unfortunately, however, the contents do leech through the earth, to such an extent as to render the waters of the spring unfit for drinking and for culinary purposes. "We find this as a fact.

It is urged by the defendant that the contents of the cesspool can not, by percolation or otherwise, reach this spring; that the altitude of the spring opening, as compared with the bottom of the depression of the ground between the spring and the side of the depression on which the pool is located, renders this impossible. But notwithstanding this, the fact remains that somehow the contents of the pool do reach the spring. This is shown by the testimony in regard to the analine dying matter which was cast into the pool and was found to have caused a discoloration of the -water in the spring, and also by the analysis of the ■water of the spring made by Mr. Tate, the chemist. He found the water to be pure and sweet before the pool had been used, and to be contaminated with the kind of filth in the pool after the pool was used. We must find either that the plaintiff, Mr. Davis, Mr. Tate and others committed perjury, or that the water of the spring is contaminated by the pool. We think the testimony as to the facts completely outweigh the reasoning as to the improbability of the facts being as testified to. We think the contamination, too, must come from the percolation from the pool, and we are brought, therefore, to the question of the right of the plaintiffs to an injunction to prevent the defendant from permitting the filthy matter to percolate through the earth, to the injury of the plaintiffs.

Counsel for both sides of the case call attention to the case of Frazier v. Brown, 12 O. S., 294.

In that case suit was brought charging the defendant with having diverted the percolating waters upon his own lands from finding their way into the lands of the plaintiff and supplying a spring on the premises of the plaintiff. To the petition a demurrer was filed which was sustained and the Supreme Court affirmed the sustaining of such demurrer. The first clause of the syllabus reads:

‘ ‘ In the absence of express contract and positive legislation as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth; hence, where a land owner digs a ‘hole’ on his own land for purposes connected with the use of his own land, thereby cutting off or diverting the underground waters which have always been accustomed to percolate and ooze through his land to the land of an adjoining proprietor, and there to form the source of a spring and rivulet, any damage thereby occasioned to such adjoining proprietor is damnun absque injuria.”

At the close of the opinion, at page 312, the court used the following language:

“ It is hardly necessary to add, that this ease does not include, and, in deciding it, we by no means intend to preclude, questions which may arise in a class of cases in which a land owner, by positive acts, poisons or corrupts the waters which percolate from his lands to those of his neighbor. Such cases are clearly distinguishable from this, and to them the considerations of public policy which govern this case do not necessarily apply.” •

A large number of cases are cited and many of them quoted from in the opinion in this case. An examination of such cases shows that in each case the matter decided was that the owner of the land through which waters percolate, has a right to use the water for his own purposes, notwithstanding the effect on the adjacent owner may be to deprive such adjacent owner of water which nature would have furnished him, and upon the hearing of this case it is urged that surely if one may wholly prevent the percolating water from escaping from his own land, and thereby deprive an adjacent owner of any use of such water, it must be based upon his right to make such use of the water on his own land as to him shall seem best, notwithstanding such use of such percolating water may send a poisoned or contaminated flow of water upon the land of his neighbor.

We think a distinction can clearly be made between the two propositions. In the one case, the lower proprietor is wholly deprived of the water which would by nature have percolated through the lands of the defendant and into the lands of the plaintiff. In the other, the water is not prevented from going upon the plaintiff’s land, but is allowed to go in a state wholly unfit for use, and, in fact, prejudicial to health, if thus used.

Attention is called by counsel for the defendant in this action to the case of Upjohn v. The Board of Health, 46 Mich., 542. In this action the purpose of the suit was to enjoin the location of a burying ground near the residence of the plaintiff, for the reason, among others, that it would destroy his well. Injunction was denied, and the reasoning of the court in denying it is considered in the ease of Brady v. Steel & Spring Co., 102 Mich., 277, as a distinction made between the two sets of facts. In this latter case suit was brought against one upon whose premises was kept for use fuel oil, which escaped and percolated through to the premises of the plaintiff. The first clause of the syllabus in this case reads:

“The percolation of deLeterious matter, from the premises of the party who suffers it, through the soil, upon the lands of an adjacent owner, to the injury of the latter, is an actionable nuisance. ’ ’

Without stopping to further discuss this case, we call attention to the Second Edition of Am. & Eng. Enc. of Law, Vol. 30, page 319, where this language is used in the text:

“In some few cases it has been held that as a landowner has the absolute right to appropriate the water percolating under his land, he is not liable for contaminating or polluting such water in the reasonable use of his own land, though thereby a well or spring upon the land of a neighboring landowner is polluted or contaminated. Still, since one who collects filthy or offensive matter upon his land is required to prevent its escape therefrom, and is liable in damages to neighboring landowners who are injured by the percolation of such matter through the soil, and since this liability does not depend upon negligence, but the reasonable precautions which the law requires must be such precautions as will effectually exclude the filth from the neighbors’ land, it is generally held that a landowner is liable in damages if, by the accumulation of filthy or contaminating matter upon his own land, he contaminates the waters percolating therein to the injury of a neighboring landowner whose well or spring subsequently receives the percolating waters so contaminated, and injunctions have been granted to prevent such contamination.” ■

Numerous eases aré cited in the notes fully sustaining the text.

Again on page 321 of the same work, this language is used:

“The artificial collection of waters into large reservoirs has frequently caused injury to neighboring landowners by reason of the percolation of such waters through the ground, and it has been held that the owner of the reservoir is liable for the injuries so caused, without regard to the question whether he was or was not guilty of negligence in the construction of the reservoir. ’ ’

We call attention also to Section 288 of Gould on Waters, which reads:

“The foregoing rules do not apply to eases where a person poisons or corrupts the water which percolates from his land to that of his neighbor. ‘ To suffer filthy water, ’ says Foster, J., in Ball v. Nye, ‘to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well and cellar, where it is done habitually and with the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances, the reasonable precaution which the law requires is, effectually to exclude the filth from the neighbor’s land; and not to do so is of itself negligence. In the present instance, there was no pretense of a sudden and unavoidable accident which could not have been foreseen or guarded against by due care. The percolations appear to have been constant and their existence to have been known to defendant.’ In the absence of negligence or knowledge, the same rule of liability would, it seems, apply, he whose filth it is being required to keep it on his premises at his peril. Fouling an underground stream, which flows into the plaintiff’s mill stream or colliery, is an actionable injury. When it is clearly proved that a place of spulture or such a structure as a gas reservoir or privy vault will corrupt wells or springs, a court of equity may grant relief by way of injunction, and it appears to be immaterial that the nuisance was existing and noticeable, when the plaintiff dug or built upon his land. If the water of a well is rendered impure by an escape of gas therein, the fact that other causes contributed to make it unfit for use is not a bar to an action, but may be shown to affect the amount of damages.”

This is in accord with the holding of this court in the case of Krazeweski v. The Village of Berea, decided November 12, 1906, in which the following language was used:

"But it is said on behalf of the village that the mere percolation or seeping or sewage through the soil to and into another’s premises is not an actionable wrong, for the rule is analogous to that of the interception or diversion of percolating natural waters. This question is, however, expressly reserved in Elster v. Springfield, 49 O. S., 82, 94 and 101, and the clear weight of authority is against the contention made. Meare v. Dole, 135 Mass., 508; Beatrice Gas Co. v. Thomas, 41 Neb., 662; 43 Am. St., 611; Wheatley v. Baugh, 64 Am. Dec., 729; Kinnaird v. Standard Oil Co., 89 Ky., 468; 25 Am. St., 545; L. R. A., 451.

t(

From these authorities, and from what seems to us the better reasoning, we hold that the plaintiff in this action is entitled to an injunction perpetually restraining the defendant from permitting any part of the contents of the cesspool upon his land to percolate into and upon the premises of the defendant.

Upon motion for new trial it was shown that the filth from defendant’s cesspool did not and could not percolate through the soil into plaintiff’s spring; that the evidence in the original trial was manufactured for the occasion and false, and so the petition of plaintiff was dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    WHEN LIEN ATTACHES ON A CREDITOR’S BILL.
    Circuit Court of Cuyahoga County.
    The Citizens Savings & Trust Company et al v. Mary O. Palmer et al.
    Decided, December 23, 1912.

      Judgment Liens — Lien of Creditor’s Bill Bates from Service of Summons.

    A lien upon equitable interests, resulting from an action in the nature of a creditor’s bill brought under favor of Section 11760, General Code, dates from the date of service of summons upon the trustees, and is prior to liens of creditors who have secured judgments and instituted proceedings in aid of execution while the first mentioned action was pending.

      H. D. Messick, for plaintiffs in error.

      Ingersoll & Vandemark and D. M. Bader, contra.
    Meals, J.; Winch, J., and Marvin J., concur.
    On February 3, 1911, Mary O. Palmer commenced an action in tbe nature of a creditor’s bill, in tbe Court of Common Pleas of Cuyahoga County, against D. T. Palmer and the Citizens Savings & Trust Company, upon a judgment previously recovered in the court of common pleas of said county against'said D. T. Palmer, in which she sought to enjoin the Citizens Savings & Trust Company, trustee, from disposing of any funds in its hands which were then due or which would become due and payable to the said D. T. Palmer and to subject the same to the payment of her judgment.
   The Citizens Savings & Trust Company, trustee, was duly served with summons in said case on February 3, 1911, and in the April term of said court, in 1912, to-wit, on June 7th, 1912, a decree was entered in said suit which enjoined said trust company, trustee, from paying any funds in its hands as aforesaid to the said D. T. Palmer, and in which it Was ordered to pay any funds which were then due or thereafter became due to the said D. T. Palmer, to the clerk of the court of common pleas, in satisfaction of the judgment and costs in favor of Mary O. Palmer.

On June 4, 1912, the defendant D. M. Bader recovered a judgment, by confession, in the municipal court of the city of Cleveland, against the said D. T. Palmer, in the sum of $.1,000, and on June 5, 1912, an order in aid of execution was issued out of the court of common pleas of this county and served upon the said Citizens Savings & Trust Company, trustee; and on the same day, to-wit, June 5, 1912, the defendant, S. Hj. Ilerbeson, trustee, who had theretofore also secured a judgment against the said D. T. Palmer, procured an order in aid of execution from the court of common pleas of this county, which order was also served upon the said trust company, trustee, on the 7th day of June, 1912.

Whereupon, to-wit, on the 12th day of August, 1912, the Citizens Savings & Trust Company filed in the court of common pleas of this county, a petition in interpleader praying that all of said defendants be required to interplead together, asserting their claims in said funds, and be enjoined -from taking any proceedings against it'in regard thereto, and that it be allowed to pay over said funds to the clerk of the court of common pleas, or to such other person as may be designated by the court of common pleas to receive the same, and that it thereupon be discharged from all further liability in relation to said funds, amounting to $1,187.50.

In this state of the case the defendant, Mary O. Palmer, claims to have the first and best lien upon said fund. The defendants, D. M. Bader and S. II. Ilerbeson, trustee, also claim liens upon said fund and assert that their liens have priority over the lien of Mary O. Palmer.

The sole question, therefore, to be determined in this aspect of the case, is the date or dates on which these respective liens attached.

Mary O. Palmer claims that her lien dates from the 3d day of February, 1911, when service was had on the Citizens Savings & Trust Company, trustee, in. her suit commenced on that day in the court of common pleas, heretofore referred to. On the other hand, Bader and Ilerbeson claim that inasmuch as the order in aid of execution, issued at their instance on June 5, 1912, and June 7, 1912, respectively, were served upon the Citizens Savings & Trust Company, trustee, before the entry of a decree in the court of common pleas in favor of Mary O. Palmer in her suit, that their liens first attached and have priority over the lien acquired by her.

Section 11760 of the General Code provides:

“When a judgment debtor has not'personal or real property subject to. levy on execution, sufficient to satisfy the judgment, any equitable interest which he has in real estate as mortgagor, mortgagee or otherwise, or any interest he has in a banking, turnpike, bridge or other joint stock company, or in any money, contract, claim or chose in action, due or to become due to him, or in a judgment or order, or money, goods or effects which he has in the possession of any person or body politic or corporate, shall be subject to the payment of the judgment by action.”

In pursuing this fund Mary O. Palmer proceeded under this section. Her suit was in the nature of a creditor’s bill and doubtless' was properly brought. It is also clear that by this proceeding she acquired a lien upon the fund. When did this lien attach!

In Meyers et al v. Zanesville & Marysville Turnpike Co., 13 Ohio, 197, it is said “that a creditor, on filing his bill to reach equitable assets, acquires a preferable equity to other creditors, which attaches and becomes a specific lien by the filing of the bill,” service, of course, having'been duly made, and we believe that the rule as here expressed obtains in this case. It is our conclusion, therefore, that the lien of Mary O. Palmer dates from the 3d day of February, 1911. Antedating the liens claimed by the defendants Bader and Herbeson, she undoubtedly has the first and best lien.

The defendants Bader and Herbeson claim that Mary O. Palmer, by virtue of her judgment in the court of common pleas, acquired a lien on a one-third interest in a farm in this county, held by D. T. Palmer; and ask that she be required to exhaust her remedy against this land before looking to the fund in the hands of the Citizens Savings &'Trust Company, trustee.

The evidence discloses that the legal title to this land is in R. L. Palmer and that D. T. Palmer owns the equitable title only. This being true, Mary O. Palmer did not acquire a lien on the land as claimed by Bader and Herbeson. Kemper v. Campbell, 44 O. S., 210.

The evidence also shows that prior, valid and subsisting liens against the interest of D. T. Palmer in this land already exceed the value thereof. For these reasons the application must be refused.

Decree accordingly.


author: Jones (Oliver B.), J. Jones (E. H.), J.,

text:
    DETERMINATION AS TO AMOUNT OF ESTATE COVERED BY A DEVISE.
    Court of Appeals for Hamilton County.
    William Sadler et al, Executors, v. Catharine Sadler et al.

    Decided, May 24, 1915.

      Wills — Construction of the Words “All the Rest, Residue and Remainder” — Provisions of Will and Codicil Harmonised.

    The provision of the codicil of the testatrix’s will that “all the rest, residue and remainder of my estate I desire to he converted into money by my executors,” did not by implication revoke the clear and certain devise of real estate contained in Item 3 of the will, but refers to the real estate not covered by Item 3 and remaining to be disposed of.

      J. T. Rhyno, for executors and for Mary Sadler.

      DeCamp & Sutphin and Frank H. Williams, for Catharine Sadler.

       Motion for an order directing the Court of Appeals to certify its record overruled by the Supreme Court October 19, 1915,

   Jones (Oliver B.), J.

This is an action brought by the executors at the written request of Catharine Sadler, a legatee, to secure a construction by the court of the will and codicils thereto of Abigail Sadler, deceased, under the provisions of Sections 10857 and 10858 of the General Code.

The will and codicils, omitting the introduction, testatum and attestation clauses, are as follows:

Will dated September 27, 1906.
“First. I will and direct that all just debts that may exist against me at my decease may be settled.
“Second. To my daughter-in-law, Mary Sadler, wife of my son, William Sadler, I give and bequeath all my personal property of every kind.
“Third. To my daughter-in-law, Mary Sadler,;wife of my son, William Sadler, I give, devise and bequeath the farm on which she and my son, William Sadler, and family now reside, being all that certain lot of ground lying next to and on the east side of the Pippin Road, Colerain Township, Hamilton County, Ohio, containing about twenty-one 75/100 (21.75) acres, more or less, to her, her heirs and assigns forever.
“I also give, devise and bequeath to my said daughter-in-law, Mary Sadler, wife of my son, William Sadler, the following real estate, to-wit:” (description of 10 and 75/100 acres of land on the west side of Pippin Road omitted).
“Fourth. All the remainder of my real estate, wheresoever the same may be located or situated., I give, devise and bequeath to my son, Charles-W. Sadler, for and during his natural life.
“Fifth. Upon the death of my son, Charles W. Sadler, I give, devise and bequeath the remainder of the realty conveyed in Item Four, to my grand-daughter, Edith Sadler, now intermarried with one Oscar Lyman, to my grand-daughter, Mabel Sadler, to my grand-daughter, Gladys Sadler and to my grand-son Chester Sadler, share and share alike, to them, their heirs and assigns forever.
“Sixth. I hereby nominate and ask the court to appoint my son, William Sadler, and my attorney, J. T. Rhyno, joint executors of this my last Will and Testament.
“I hereby revoke all former wills by me made.”
First Codicil, dated August 31, 1910.
“Whereas, I, Abigail Sadler of Colerain Township, Hamilton County, Ohio, did on the 27th day of September, A. D. 1906, make my last will and testament of that date, do hereby declare this to be a. codicil to the same.
“I hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil.
“To my husband David Sadler I give, devise and bequeath in lieu of dower all my real estate wheresoever the same may be located or situated, to have and to hold for and during his natural life.
“I hereby revoke Item Fifth of this my last will and testament.
“Upon the death of my son Charles W. Sadler, I desire that the real estate so devised to him in Item IV of my last will and testament shall be converted into money by my executors, who also shall act as joint, trustees for this purpose, and out of the proceeds of said sale, I give and bequeath to my grand-daughter Mabel Sadler one undivided one-third interest, to my granddaughter Gladys Sadler one undivided one-third interest and to my grandson Chester Sadler one undivided one-third interest, to them, their heirs and assigns forever.”
Second Codicil, dated March 18, 19.11.
“Whereas, I Abigail Sadler, of Colerain Township, Hamilton County, Ohio, did on the 27th day of September, A. D. 1906, make my last will and testament of that date, do hereby, declare this to be a codicil to the same.
“I hereby ratify and confirm said will in every respect save so far as any part of it is inconsistent with this codicil. I hereby revoke the codicil to my will, said codicil made on the 31st day of August, Á. D. 1910.
“I hereby revoke item fourth (4th) of this my last will and testament.
‘ ‘ I hereby revoke item 5th of this my last will and testament.
‘ ‘ To my husband, David Sadler, I give, devise and bequeath in lieu of dower all my real estate, wheresoever the same may be located or situated, to have and to hold for and during his natural life.
“All the rest, residue and remainder of my real estate,. I desire to be converted into money by my executors and after the payment of all my debts, funeral expenses and costs of administration, I give and bequeath to my grand-son, David Sadler and to Catherine Sadler, the wife of my son Chas. Sadler, share and share alike, to them, their heirs and assigns forever,”

The question to be determined is what real estate was intended to be included by the language contained in the last paragraph of the second codicil in the following words:

“All the rest, residue and remainder of my real estate, I desire to be converted into money by my executors, ’ ’ etc.

It is contended on behalf of Catharine Sadler that this language includes all of the real estate of which testatrix died seized, subject only to the life estate therein devised to her husband, David Sadler, and that in effect it operated as an implied revocation of Item Third of the original will which devised two tracts, aggregating more than thirty-two acres, to Mary Sadler.

On the other hand, the executors and Mary Sadler insist that Item Third remains in full force unrevoked, and that the clause in question is a residuary clause and applies to and includes only that portion of testator’s real estate which remains after taking out the devise to Mary Sadler covered by Item Third, and the life estate given to the husband.

Abigail Sadler died August 6, 1912, at the age of eighty-five years, leaving her husband, David Sadler, ninety-seven years of age, who has died since the hearing of this ease in the common pleas court. They had two sons, William and Charles W. William lived with his wife, Mary, on the farm devised to her in item third of the will, and testator and her husband lived with them in the same house. William and Mary have four sons, all of whom are married, David, Jr., Clarence, Albert and Joseph, and William has a married daughter whose deceased mother was his first wife. Charles W. Sadler and his wife, Catharine, have four children, whose names are given in Item Fifth of the will. About 1909, Charles W. Sadler, being in financial difficulties, left his wife and family and has not been heard from since.

Plausible arguments are made by counsel on each side why the will and codicil should be construed as they desire, because of the personal relations between testator and her respective daughters-in-law, and counsel urge considerations that should move her to provide for them, and in that way for their families. It is argued on the part of Catharine that the- original will practically divided the two farms into equal shares, giving one to each branch of the family; that the first codicil did not change this division as between the two families, and therefore a construction of .the second codicil which would result in a practical division of the bulk of the proceeds of the property between Catharine, wife of Charles, representing his branch, and David, Jr., oldest son of Mary and William, representing that branch, would be in keeping with this idea of substantial equality between the two branches, and must be considered as the real intention of the testator.

On the part of Mary, it is argued that because she and her husband and family remained on the farm and took care of testator and her husband, who lived with them, and looked after their property, and David, Jr., was especially attentive in nursing and looking after the wants of his grandparents, that the construction sought on her behalf should obtain.

Such arguments can be of little avail. It is not for the court to consider reasons why testator might wish to favor one of her family or refrain from giving to another. She had the right to dispose of her property by her will as she saw fit under the law, without regard to moral obligations and without reference to the needs or merits of the several natural objects of her bounty. It is the duty of the court to determine her intention from the language she has seen fit to use in the will, not to speculate from surrounding circumstances as to what her real intentions might have been.

The law of Ohio as to the construction of wills has been clearly stated in numerous cases by our Supreme Court, and in none more so than in Townsend v. Townsend, 25 O. S., 477, the syllabus of which is as follows:

“1. In a construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
“5. If a dispute arises as to the identity of any person or thing named .in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

In Collier v. Collier, 3 O. S., 369, the law is thus stated:

“A will and codicil are to be taken and construed together, as parts of one and the same instrument, and the intent of the testator gathered from the whole.
‘ ‘ A codicil will not be held to revoke the disposition of a will, further than is clearly expressed or necessarily to be inferred from it. ”

The will and the second codicil must therefore be considered together as though they were parts of one and the same entire instrument.

The first codicil having been entirely revoked by the second., it will only be considered, if necessary, for the purpose of aiding to determine the meaning of the language used in the will and the second codicil.

Items fourth and fifth of the will are both expressly revoked by the second codicil. These are the only items expressly revoked. The other portions of the will all remain operative just as they originally stood, except where modified in some respect by the codicil, unless the language used in the will should compel the court to find a revocation by implication. If the will and codicil can be construed together giving force and effect to every part, they must be so construed that all may stand, and no part will be invalidated or set aside except by clear and decisive terms.

As was stated in Parker v. Parker, 13 O. S., 95, at page 110, quoting from Thornhill v. Hull:
“ ‘ It is a rule of the courts in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument, in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt, upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate. ’ In pronouncing the opinion in that case the Lord Chancellor Brougham said: ‘I hold it to be a rule that admits of no exception, in the construction of written instruments, that where one interest is given, where one estate is conveyed, where one benefit is bestowed in one part of the instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by termá upon which, if they stood alone, no man breathing, be he lawyer, or be he layman, could entertain a doubt — in order to reverse that opinion, to which the terms ■would of themselves and standing alone, have.led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a douTat; it is not sufficient that you should show a possibility; it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument, which is as decisive the one way as the other terms were decisive the other way; and that the interest first given can not be taken away either by taciturn or by dubium or by possibile, or even by probabile, but that it must be taken away by expressum et cerium.’ ”

The first item of the will stands subject only to the further direction that the debts be paid out of the proceeds of the real estate, provided for in the last paragraph of the second codicil. The second item is not changed, though it is agreed that there is practically no personal estate. Likewise it is agreed that there is no change in the sixth item appointing the executors.

The third item is clear and decisive. There can be no mistaking its purpose to devise two specific parcels out of the real estate in fee simple to Mary Sadler. There is, however, no question that this was modified by the grant of a life estate in all the real estate to David Sadler, as made in the next to the last paragraph of the second codicil. This life estate has now been terminated by the death of David Sadler pending these proceedings. But it is claimed that the entire item is revoked by the final paragraph of the second codicil, because by the words “All the rest, residue and remainder of my real estate” — there directed to be sold — it is intended to include all the real estate owned by the testator at the time of her death, subject only to the life estate of her husband.

To require this construction it is argued that the word “remainder” is used in its technical sense of a remainder of an estate in land depending upon a particular prior estate created at the same time and by the same instrument and limited to arise immediately on the determination of that estate; that because the will and codicils were drawn by a lawyer this technical meaning must be .supposed to have been intended, particularly so, because the paragraph in which the word is found follows immediately that in which the life estate is given to the husband, and an interest in remainder in land is most frequently made to take effect after a life estate.

If this meaning had been intended, in the nice use of language by one learned in the law, the words “all the rest and residue” would hardly have been used in connection with the word “remainder,” which would have expressed the intention, alone. And he would have said “the remainder in my real estate,” not “of my real estate.”

The words all the “rest, residue and remainder” are general words commonly employed in a residuary clause of a will, to embrace every species of property (40 Cyc., 1567). The three words, “rest,” “residue” and “remainder” are given as synonyms in the Century and other dictionaries, and each is defined as being “that which remains after a part is taken, separated, removed or dealt with in some other way.” The Century Dictionary further states: "Rest is the most general term; it may represent a large or small part. Remainder and residue generally represent a comparatively small part, and remnant a part not only very small but of little or no account.” The use of these three words “all the rest, residue and remainder of my estate” must be deemed to provide an ordinary residue clause for the disposition of so much of her real estate as had not been disposed of by other parts of the will and codicil.

It is a general rule where the same words are used in different parts of a will, relating to the same subject-matter, they must be presumed to be used always in the same sense, if the context of the will does not show a contrary intention (40 Cye., 3402). The word “remainder” is used in the will, both in the fourth and in the fifth items, and it is not used in. either in the technical sense claimed for it in the codicil, by counsel for appellants. They concede' this as to its" use in item fourth, but they claim that its use is technical in item fifth. With this we do not agree. The words “the remainder of the realty conveyed” used in the fifth item, devised “upon the death of my son,” surely mean the same property as “all the remainder of my real estate” used in the fourth item. The word “remainder” is used in its ordinary and not in its technical sense in both these items. And applying the general rule, it must be considered to have been used in its ordinary and not in its technical sense in the last codicil, and more especially so, as before stated, because it is there coupled with “rest” and “residue.”

Counsel for appellants rely upon the portion of the clause giving the life estate to the husband in the second codicil, in that it immediately precedes the residuary clause and, as they contend, aids the construction sought by them. It will be observed that this clause giving the life estate to the husband is identical with a similar clause in the first codicil, and that it was there followed by a changed disposition of the real estate devised for life to Charles, providing for its sale, and that the real estate there ordered sold is the same real estate which is ordered sold by the second codicil, if it is so construed as to permit item third of the will to stand, thus evidencing a desire to change her will by codicils only as to that part of the real estate originally left to Charles.

The testator in her last codicil has expressly ratified and confirmed said will in every respect save so far as any part is inconsistent with the codicil. She proceeded to revoke items fourth and fifth which dealt with' the real estate left originally to Charles and his family, and revoked the first codicil, which had made a change in the same property, and without revoking or changing in any way the third item, which gave the other part of the real estate to the wife of William, she proceeded to order the rest of the real estate converted into money. Can it be said if she intended to include all of her real estate she would not have expressly revoked item third and provided for the sale of all her real estate in clearer terms than “all the rest, residue and remainder of my real estate ? ’ ’ The use of this residuary phrase implies that a portion has been previously disposed of, and with the clear, decisive and important language of item third in full force, unrevoked, and the declaration ratifying and confirming the will, it can not be said that the gift of the life estate to her husband was alone taken out to leave this residuary estate, or that any revocation of item third can be implied.

■ Counsel for Catharine Sadler, in argument for the construction they seek, rely largely upon the case of Newcomb v. Webster, 113 N. Y., 191, but in the opinion of the majority of the court that ease is not controlling. In that case, as said in the opinion of the court, the testatrix “so dealt with the principal real estate described in it as by sale to revoke the gifts mentioned in the second and fourth clauses. She also acquired real estate and entertained a desire that beneficiaries other than those first selected should share in her bounty. These circumstances would naturally require a redistribution of her estate, and in view of them, we think it clear that the testatrix intended to make new disposition of her entire property. Such is, at any rate, the effect of the language employed by her. ’ ’

In that case also, as the court stated, “there was an express revocation of so much of the will as is inconsistent with the provisions of the codicil,” while in the case at bar the will is expressly ratified and confirmed save so far as any part of it was inconsistent with the codicil. That case also, on page 197 of the opinion, construes the word “remainder” in the phrase “all the rest, residue and remainder” as we have construed it.

In the case of Griggs v. Griggs, 80 App. Div. (N. Y.), 339 (aff. 178 N. Y., 540), where the will and the language employed are more similar to the ease before us than in Newcomb v. Webster, the court distinguished that ease and construed the will before it as the majority of the court construe this one.

Numerous authorities have been collated in the exhaustive briefs of counsel, which might be discussed if time and space permitted, but it is sufficient to say that their careful consideration convinces us that the will and codicil should be construed to give full force and effect to item third in the devise there contained to Mary Sadler, and that the residue of the real estate should be sold by the executors under the provisions of the last paragraph of the second codicil, and a decree may be taken accordingly.

Gorman, J., concurs; Jones (E. PI.), J., dissents.

Jones (E. H.), J.,

dissenting.

The second codicil disposes of all the real estate owned by testatrix. This is my understanding of the language there used.

The devise to Mary Sadler made by item third of the will is therefore inconsistent with the codicil and is revoked by it. This construction is supported by the Court of Appeals of New York in Newcomb v. Webster et al, 113 N. Y., 191, in which the precise question before this court was determined.


text:
    INSURANCE POLICY VOIDED BY FACTORY REMAINING IDLE.
    Court of Appeals for Brown County.
    A. R. Watson and G. E. Kratzer v. The Norwich Union Fire Insurance Society.
    Decided, December 12, 1913.

      Fire Insurance — Manufacturing Plant Permitted to Remain Idle — Provision of Policy MaMng it Void Under such Conditions Held Valid— Rider Permitting the Closing of the Establishment Not to Exceed Thirty Days Construed.

    1. Where a policy of fire insurance covering a manufacturing establishment contains the provision that the entire policy, shall be void if the establishment cease to be operated for more than thirty consecutive days unless consent thereto shall be endorsed on the policy, and a fire occurred after the establishment had been idle for more than thirty consecutive days, the insured is not relieved from this contractual provision by a rider attached to the policy, reading: “privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”
    2. Nor does it avail the insured that the agent who wrote the policy knew that the establishment was idle at the time the policy was written and remained idle until the occurrence of the fire, where there was a further provision in the policy that no agent 'should have power to waive any condition of the policy except as such waiver is endorsed thereon?
    O. E. Young and J. W. Bagly, for plaintiffs in error.

      J. W. Mooney and J. B. Moore, contra.
    Walters, J.; Jones, J., and Sayre, J., concur.
    Error to Common Pleas Court of Brown County.
   This was an action brought by the plaintiffs in error in the court below to recover of the defendant upon an insurance policy alleged to have been issued to them, insuring certain property therein described, which property had theretofore been destroyed by fire.

The insurance company, in its third defense, alleged that there was a provision therein that:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the subject of insurance be a manufacturing establishment and it be operated, in whole or in part, at night later than ten o ’clock, or if it cease to be operated for more than thirty consecutive days. ’ ’

It is also alleged in said third defense that said policy also contained the following:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. * * *
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by tire terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. ’ ’

It is further alleged that the subject of insurance was a manufacturing- establishment, and the same was not being operated at the date of the fire and had ceased to be operated for more than thirty consecutive days prior thereto, and that no agreement was endorsed upon said policy or added thereto consenting that said manufacturing establishment should cease to be operated for more than thirty days, or providing that said policy should not, as provided by the foregoing provisions eontained in said policy of insurance, be void.

The reply of the plaintiffs to the third defense alleges that they deny the policy contained the provisions as therein set forth, and they deny that no agreement was endorsed upon said policy or added thereto consenting that said manufacturing establishment should cease to be operated for more than thirty days or providing that said policy should not become void.

The case proceeded to trial, and at the close of plaintiffs’ testimony the defendant moved the court to direct the jury to return a verdict for the defendant, which the court did. Thereupon, a petition in error was filed in the court of appeals, to which was attached a bill of exceptions containing all of the evidence and proceedings in the court below, asking a reversal of the case chiefly because the court erred in directing a verdict on the issues presented by the third defense and the reply thereto.

The evidence, pleadings and record show that the insured property was a manufacturing establishment; that at the date of insurance it was not running, nor was it at the date of the fire, nor had it been in operation at any time from the issuance of the policy up until the fire.

The question presented is: Does the language set up in the third defense constitute a bar to the right of the insured to recover at the time plaintiffs rested their case?

There was a slip or rider attached to the policy which is as follows:

“Privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”

Counsel for plaintiffs in error contend that no proof was in evidence that a notice had not been given.

The policy itself was in evidence and it provided that—

“* * * nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

No written permission to cease operations during the time of the fire was written on or attached to said policy.

It is further stated in the policy that:

“* * * no agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by tlie terms of this policy may be the subject of agreement endorsed hereon or added hereto.”

The policy, itself, provided how permission should be given to cease operations and required that it should be endorsed on the policy or added thereto; and the policy not disclosing any such privilege entered thereon or added thereto, it follows that as no notice was legally given to the company, as disclosed by plaintiffs’ evidence, the policy became void and the defendant was not required to do any affirmative act declaring a forfeiture. Betcher v. Ins. Co. (Minn., 1889), 80 N. W., 971; Johnson v. Ins. Co., 43 N. W., 59, 143 S. W., 703; Reduction Co. v. Ins. Co., 121 Fed., 937; Day v. Ins. Co., 70 Iowa, 710.

The fact that the establishment was not in operation to the knowledge of the agent at the time the policy was issued can not deny to the company the right to provide by contract that it should become void if it ceased to operate for thirty consecutive days thereafter unless privilege attached to the policy or endorsed thereon should be granted.

It is contended by plaintiffs in error that the rider or slip attached, being a part of the contract, so modified the clause in the printed or body part of the same as that it overcome the clause of forfeiture and it did not become void, by its terms, as it did in the body of the contract.

This contention we can not subscribe to. The language of the slip is:

“Privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company. ’ ’

The words, “without notice to the company,” must be held to apply to the privilege of cessation of operations within the fhirfy days and not that the non-operation in excess of thirty days should be without notice to the company.

The words “cessation of operation” means a “period of idleness — wanting in operation,” and these words, and also the following, “cease to be operated,” which is prohibited by the provisions of the policy, is a condition of idleness or non-operation of a manufacturing establishment beyond the period permitted. Reduction Co. v. Ins. Co., 121 Fed., 938.

The court in this case holds:

“Upon April 20 the first permit was issued: ‘Privilege is hereby granted to cease operations for one month from date.’ The effect of that was simply to extend the time of permitted idleness from ten days to one calendar month. In other\words, instead of being allowed to have the plant idle for ten days plaintiff was allowed to have it idle for thirty days. ’ ’

Nothing is said in the privilege rider about the effect which non-operation beyond thirty days should have upon the policy; that is contained in the policy contract proper, which provides it shall be void if the plant ceases to be operated for more than thirty consecutive days.

The printed provision in the body of the policy must be construed together with the same subject in the rider; to do otherwise would render meaningless a part of this contract. Whenever there are two constructions to be placed upon a written contract, one of which will give force to all of its provisions that one must be observed and followed.

Counsel for defendant in error has cited the case of Happ v. Insurance Co., 85 O. S., 473, which was an affirmance of the circuit court, without opinion. In that case, however, the conditions of the policy violated were:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if illuminating gaS or vapor be generated in the described building, or adjacent thereto, for use therein.”

And also:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if there be kept, used or allowed on the above described premises * * ® gasoline. ’ ’

The insurance company in that ease contended that there could be no recovery because illuminating gas was being generated and used therein. The plaintiffs in error contended that because illuminating gas was being generated when the policy was written and the soliciting agent knew that fact, and because, in addition, the policy in that case expressly covered “gas and heating apparatus,” the above quoted conditions were not violated. But the Supreme Court, in affirming the circuit court, repudiated that contention.

The ease of Gump v. Insurance Co. [15 C.C.(N.S.), 428; 24 C. D., 36] seems, by the second syllabus therein set out, to hold a contrary view to this opinion. This case was decided by the circuit court of the fifth circuit, and appears to have been affirmed by the Supreme Court in 86 O. S., 325, without opinion. The facts, as disclosed by the opinion of the circuit court, do not clearly show what the conditions and circumstances were; and, therefore, we may surmise that the facts and circumstances in that ease, when fully disclosed, would not warrant the second syllabus therein reported. It would seem at least, from the case in the 85 O. S., 473, which was also an affirmance of the circuit court without opinion, that that case would be in direct conflict with the affirmance in the Gump case.

At least, we are persuaded by the current of authority that the rule laid down here is the one that has been followed and should govern this action.

AVhat we have said in respect to this proposition dispenses with a further examination or discussion of the other questions made in the case; and,

The judgment of the common pleas court will be affirmed.


author: Gorman, J.

text:
    RIGHT TO APPOINTMENT OF A NON-RESIDENT AS EXECUTOR.
    Court of Appeals for Hamilton County.
    Clifford Seasongood v. Philip L. Seasongood, Albert Seasongood, as Executors under the Last Will and Testament of Lewis Seasongood, Deceased.
    Decided, November 8, 1915.

      Executors and Administrators — Non-Resident May he Named as Exeexitor, But an Administrator Must he a Resident of the State — Rules of Court Must Give Way to Valid Statutes.

    A non-resident who has been named in a will as executor is entitled to appointment if he be of age and of sound mind and untainted by conviction of crime, notwithstanding a rule of court to the contrary.

      Clifford Seasongood and Murray Seasongood, for plaintiff in error.
    , Paxton, Warrington Seasongood and Robert P. Goldman, contra.
   Gorman, J.

It appears from the record that on November 29, 1914, Lewis Seasongood, a resident of Cincinnati, Hamilton county, Ohio, died testate, leaving a large estate, part of which was located in Ohio and part in New York. In his will he named as his executors his three sons, Philip L., Albert and Clifford, and his nephew, Murray Seasongood, and also nominated all of his executors, except Albert, as testamentary trustees. All of these were appointed as nominated in said will, by the Surrogate Court' of New York, on February 8, 1915. Clifford Seasongood is now and was at the time of his father’s death and when the will was executed a resident of New York City, which fact was well known to the testator at the time he nominated him as one of his executors and testamentary trustees. He had for several years prior to his father’s death managed his father’s realty and personalty in the state of New York and had been his father’s personal advisor for many years and up to the time of his death, lie is of legal age, a lawyer in good standing at the New York bar, and is in every way suitable, competent and well qualified to act as executor and testamentary trustee of his father’s estate.

It appears that the Probate Court of Hamilton County, Ohio, on the presentation of said will for probate and record, and on the application of said Clifford Seasongood to be appointed as one of the executors and testamentary trustees thereof, refused and declined to appoint him solely on the ground that he, the court, could not appoint a non-resident of Ohio as executor or co-executor, however suitable and well qualified he might be, although it appears from the record that the widow and all the next of bin of the testator, as well as the other three executors, joined in the request for the appointment of said Clifford Season-good. The court appointed the other three executors named in the will; and Clifford prosecuted error to the common pleas court to reverse the judgment of the probate court in refusing to appoint him. The common pleas court affirmed the probate court, and the plaintiff in error, Clifford Seasongood, is here asking this court to reverse the common pleas and the probate courts.

The sections of the General Code touching the appointment of testamentary trustees are 10591 and 10600 inclusive and 11029 to 11036 inclusive. The sections governing the'appointment of executors are 10605 and following, of the General Code.

By the provisions of Section 10605, General Code, the probate court, when a will is duly proved and allowed, shall issue letters testamentary thereon to the executor, if any be named therein, if he be legally competent and accepts the trust and gives bond if that be required.

Section 10591 provides that every trustee appointed in a will, before entering upon his duties, must execute a bond payable to the state, to the satisfaction of the probate court, conditioned for the faithful discharge of his duties as trustee, except that when the terms qf the will provide that no bond need be given the court may grant permission to the trustee to execute the trust with or without bond; but when granted without bond the court may thereafter, upon the application of an interested party, require a bond.

It appears from the record that there has been of long standing a rule of the Probate Court of Hamilton County — not especially authorized by statute — that executors, administrators, guardians and trustees must reside in Hamilton county.

The circuit court of this county, in the case of Sargent v. Corbley, 7 C.C.(N.S.), 226, held that notwithstanding this rule of the probate court a non-resident of Hamilton county, if a suitable person, might be appointed administrator.

It needs no citation of authorities or extended argument to satisfy us that a rule of court is not binding or valid unless in accordance with the law, either statutory or the common law, or is a reasonable exercise of the court’s power to make and promulgate the rule. The rule of court must always give way if in conflict with a statute. Van Ingen v. Berger, 82 O. S., 255.

If the court refused to appoint Clifford Seasongood because of this rule of court, it would appear that this refusal on this ground can not be justified in the face of the statute, Section 10605, General Code, which requires the executor named in the will to be appointed if he be legally competent and will accept.

If we were to apply the rule at common law, that is, that part of it known as the ecclesiastical law, the executor named in the will, if not incompetent, must be appointed. The wishes and will of the testator were respected and enforced whenever possible. Slaters v. May, 2 Lord Raym, 1071; Williams on Executors, 7 Am. Ed., 270; Smith’s Appeal, 61 Conn., 420.

In Borland on Wills ami Administration, page 495 Section 189, the author says:

“By the theory of the common law the executor derived his powers directly from his appointment by the testator. The ecclesiastical courts could probate the will, but the executor did not need an appointment by them and they had very little control over him. * * * The testator might appoint any one as executor, whether qualified or not.”

In Rex v. Raines, 1 Lord Rayme, 361, Carth. 457, 1 Holt, 310, it was held by Lord Holt that the appointment of the executor named by the testator was mandatory, even though the person named was improvident, dishonest and suspected by the legatees.

This decision was approved in Marriott v. Marriott, 1 Strande, 666.

When we come to examine and construe our statutes we should do so in the light of the common law rules and principles in force at the time of their enactment, and bearing upon the rules promulgated by the statutes under consideration.. The Legislature will not be presumed to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention. State, ex rel, v. Sullivan, 81 O. S., 79.

Our statute, Section 10605, does not expressly forbid a nonresident of the state being appointed executor. It says that the probate court “shall issue letters testamentary thereon to the executor * * * if he is legally competent,” etc.

Who are competent persons and what is meant by “legally competent?” One is legally competent if he is of legal age, of sound mind and has not been convicted of a crime which renders him infamous.

In the case of Clark v. Patterson, 114 Ill. App., 312 (affirmed by Supreme Court of Ill., 214 Ill., 533), the court, in construing the words “legally competent” in a statute providing for the appointment of an executor if he be legally competent, said:

“The words ‘legally competent’ mean that the person named as executor must be of legal age, of sound mind and memory and untainted by conviction for crime which renders the convicted person infamous. ’ ’

If the person nominated in the will as executor be not a minor, an idiot, a lunatic or insane, he is in contemplation of law legally competent. In the matter of the appointment of an administrator the statute further limits the qualification of the applicant beyond the requirements of an executor. While the probate court shall issue letters testamentary to the executor named in the will when it is admitted to probate, if he is legally competent under Section 10605, the provisions relating to the appointment of administrators found in Section 10617, General Code, after setting out the persons entitled to administer the estate, subdivision 3 reads as follows:

‘ ‘ If the persons entitled to administration are incompetent or evidently unsuitable for the discharge of the trust * * * the court shall commit it to one or more of the principal creditors if there be any competent and willing to undertake the trust.”

It will thus be seen that in the appointment of an administrator the court must take into consideration not only the competency of those entitled to administer the estate under the law, but must also determine whether or not- the applicant for administration is a suitable or unsuitable person. He might be perfectly competent in law, or legally competent, so for as any legal disabilities are concerned, and yet be totally unsuitable or unfit to have the administration committed to him.

In the case In re Ulhorn, 12 C. C., 765, decided by the circuit court of this county in 1894, the court held that the probate court of this county in refusing to appoint a son of the testator as administrator with the will annexed, because he was a non-resident of this state, did not err, inasmuch as there was a discretion vested in the probate court to refuse or grant letters of administration to a non-resident applicant otherwise entitled to the appointment, because the removal statute, Section 10629, General Code, gave that court power to remove an administrator or executor among other grounds for removal from the state. If after appointing a person entitled to administer the estate the court could, under said Section 10629, remove him because he removed from the state, then manifestly it would not be an abuse of discretion on the part of the court to refuse to appoint him in the first instance if he was at the time of the refusal a nonresident of this state. Furthermore, in that case the applicant, the son of the testator, was not named in the will as executor, but he sought to be appointed administrator with the will annexed under Section 10612, General Code, and by the express provisions of Section 10617, General Code, administration of the estate could be granted to residents of this state only.

Furthermore, for all that appears in the record of the Ulhorn case, the son applying for administration may have been an unsuitable person, and if so the court could refuse to appoint him on that ground. Non constai, but if in the Ulhorn case the son had been named as executor in the will and had been a competent person the circuit court might have held that his appointment as executor would be mandatory on the court. Indeed, the Ulhorn case can not be cited as an authority which is conclusive on this court in a ease, as the one under consideration, where the testator with full knowledge of the fact of his son’s non-residence names him as one of his executors. In the Ulhorn ease the circuit court might with much better reason have based its decision on the provisions of Section 10617, General Code (then 6005, R. S.), which requires administrators (but not executors) to be residents of this state. No such limitation is found in the executor’s statute, Section 10605.

The removal statute, Section 10629, does not require the probate court to remove an executor or administrator because of his removal from the state. This statute furnishes grounds for removal only. It says the court “may remove,” etc. It is discretionary with the court to remove or not remove him because of non-residence after appointment; and even before the court may remove him on this ground the executor or administrator is entitled to twenty days’ notice. We apprehend that if the probate court refused to remove an executor or administrator after his appointment because of his subsequent removal from the state, it would not ordinarily be held to be an error or abuse of the court’s discretion.

In other states having provisions similar to ours with reference to the qualifications of executors and administrators and similar limitations on the appointing power, as well as removal statutes analagous to ours, the courts have in many instances held that the appointment of a legally competent executor named in the will is mandatory unless there is some statutory disqualification imposed, such as non-residence in the state. McGregor v. McGregor, 40 N. Y., 133; Berry v. Hamilton, 51 Ky., 191; In re Banquire, 88 Cal., 302; Holliday v. Halliday, 16 Ore., 147; Stevenson v. Cameron, 191 S. W., 791.

In Stevenson v. Cameron, 191 S. W., 791, the probate court refused to appoint an otherwise competent person named in the will as executor, on the ground that he was a non-resident of the state, and the statute provided that absence from the state for three months furnished grounds for removal. The upper court on appeal reversed the lower court and held that he had a right to be appointed executor because the testator had named him as such. To the same effect are the cases of: Corrigan v. Jones, 14 Col., 311; Fulgham v. Fulgham, 119 Ala., 403; In re Brown’s Estate, 18 Cal., 384; Hecht v. Carey, 13 Wyo., 154; Walker v. Torrence, 12 Ga., 604.

We think that our Supreme Court has at least inferentially held that it is the duty of the probate court to appoint as executor the person named in the will. In Bank v. Telegraph Co., 79 O. S., 89, the court, on page 99, uses this language:

“When the plaintiff died, being at that time a resident of Clark county, and left a will nominating the plaintiff in error to be executor of the will, and the will was offered for probate in the probate court of that county, it became its duty to appoint the person named in the will to be executor, if there was no obstacle in the law as it then existed.”

Again, in the ease before us it appears that there were three other co-executors of Clifford Seasongood, all residents of Ohio, named jointly with him as executors of this estate, and surely if it were necessary to protect the executor’s estate in Ohio from any mal-administration the probate court of this county would at all times have three executors out of the four citizens and residents of Hamilton county, Ohio, who would be answerable at any and all times to the beck and call and citation of the court. It appears also from the record that there is a large part of the testator’s estate located in New York state, and it would appear to be eminently proper and helpful to the three resident co-executors of Clifford Seasongood that he should be a co-executor so that he could with less inconvenience to all and with much greater facility and economy to the estate look after that part of the estate in New York. Evidently the testator carefully considered the benefits, desirability and even necessity of having his son, versed in the laws of New York, to act as co-executor of his will with the other three named by him. lie saw, and we see, no legal impediment to his appointment; and from the standpoint of fitness and competency perhaps no better selection could be made. It was the testator’s will that Clifford should be one of his executors, and that will should not be thwarted unless there be found some statute prohibiting this appointment or some rule of common law forbidding it. No statute disqualifies or forbids this son from acting as his father’s executor or from being appointed by the court, and, as we have before said, the common law made his appointment mandatory. The mere fact that the probate court, under the removal statute, Section 10629, General Code, may remove an executor or administrator for removal from the state after his appointment, does not preclude the appointment of one named as co-executor with others in the will in the first instance. There is no irreconcilable inconsistency between the two Sections 10605 and 10629, General Code; the latter section merely rests a discretion in the probate court to remove for non-residence, whereas the former statute, 10605, appears to make the appointment of the person named in the will mandatory.

Clifford Seasongood is also named in his father’s will as one of the testamentary trustees of the estate, and it would appear that the testator in law has the right to create a trust in his estate and name his trustee in his will. Indeed, the testamentary trustee does not get his authority to act by virtue of an appointment by the probate court, but through his designation as trustee by the testator in his will.

It is true the statute requires testamentary trustees to give bond before entering upon their duties unless excused from so doing by the terms of the will. But there is nothing said in the statutes • about an appointment as testamentary trustee, or the issuance of letters to him as testamentary trustee, as there is in the ease of an executor under Section 10605, General Code. If the testamentary trustee fails to give bond as ordered by the court he shall be removed from the trust or be deemed to have declined it (Section 10592-). The court has power to appoint only in case the testamentary trustee fails to give bond, declines to accept, dies, resigns, becomes incapacitated or is removed from the trust, and the will has made no provision for his successor (Section 10596, General Code).

Trustees created by will executed outside of this state, whether residents of this state or non-residents, are recognized by our laws, and have the right to administer their trust in this state, being required only to give bond as resident trustees are required to do where the trust is created by will in this state. It ■ would seem unreasonable to suppose that the Legislature intended to prohibit a resident of this state from designating a non-resident of this state as a testamentary trustee, and yet permit a non-resident of this state to make a will outside of this state, and designate therein a non-resident testamentary trustee to act in this state and hold, control and dispose of property in this state. The provisions with reference to testamentary trustees recognize foreign testaments and foreign testamentary trustees, but put them on the same legal footing as resident trustees appointed under domestic wills. The probate court’s jurisdiction over all testamentary trustees is regulatory only, and it may not refuse to recognize a trustee designated in a will because he is a non-resident of the state, but only if the trustee fails to accept by giving bond or declines the trust. We conclude, therefore, that Clifford Seasongood should have been allowed to give bond as one of the testamentary trustees of his father’s estate, notwithstanding the fact of his non-residence. No statute forbids it any more than it is forbidden to a non-resident testamentary trustee appointed under a foreign will to act as such trustee in this state.

The conclusion of the court is that Clifford Seasongood’s appointment as co-executor and co-trustee'under his father’s will is mandatory and should be recognized by the probate court by accepting a proper and sufficient bond and issuing to him in conjunction with his co-executors and co-trustees letters testamentary on his father’s will.

Judgment of the common pleas and probate court reversed.

Jones (E. PI.), J., and Jones (Oliver B.), J., concur.


author: Kinkade, J.

text:
    CREATION OF BONDED INDEBTEDNESS BY A MUNICIPALITY.
    Court of Appeals for Williams County.
    J. H. Schieber, a Tax-payer, v. Village of Edon et al.

    Decided, January 23, 1915.

      Municipal Corporations — Poioer to Issue Bonds Not Repealed 6y Limitation on the Taxing Power — DeM Creating Power Distinguished from Powers with Reference to Taxation.

    1. Section 3939, General Code, authorizing legislation by municipal councils for the issue of bonds for street improvements without a vote of the people, is not repealed by implication by Sections 5649-2, et seq., fixing limitations with reference to taxation. Rahe v. Board of Education, 88 Ohio State, 403, distinguished.
    2. The debt creating power -which has been conferred upon municipalities is in nowise affected by the tax limitations which have been imposed, and an issue of bonds to meet the costs of street improvements will not be enjoined because not authorized by a vote of the people, where payment thereof can be made without violation of the tax limitation fixed by the Smith one per cent. law.

      R. L. Starr, for plaintiff.

      C. A. Bowersox and Newcomer & Gebhard, contra.

        Reversing Schieher v. Village of Edon, 18 N.P.(N.S.), 94.

   Kinkade, J.

Appeal from common pleas court.

The plaintiff brought an action in the court of common pleas to restrain the village of Edon from issuing bonds in the sum of $5,200, the proceeds of which were to be used to pay a portion of the cost of paving streets in the village of Edon.

The contention of the plaintiff is that the village council had no power or authority to issue these bonds without a vote of the people. There is no question of irregularity in the proceedings to which we need give any attention if it be found that the council had authority under the law to issue the bonds.

The claim of the village is that under Section 3939, General Code, and the following sections covering the same subject, the council had full power and authority to issue the bonds mentioned. On the other hand, the plaintiff contends that Section 3939, General Code, was repealed by implication by Sections 5649-2 to 5649-6, General Code. Counsel for plaintiff to sustain his position that Section 3939 has been repealed by implication, cites and relies upon the ease of Rabe v. Board of Ed., 88 Ohio St., 403. It is insisted that in all material respects Section 7629, General Code, relating to the power of school boards to issue bonds, is analogous to the like power conferred upon the village council in this case by Section 3939, General Code, and it is said that the authority thus conferred to issue obligations by the school board having been withdrawn by the repeal by implication of Section 7629 through the enactment of Sections 5649-2 and following, that a like result must be held here with respect to Section 3939. As has been well said by counsel for the village, we think this is a very marked difference between the scope of the power conferred upon school boards by Section 7629 and that conferred upon municipal councils by Section 3939, and, as has also been stated by counsel a careful examination of the Rabe case cited, will disclose that the court did not say that Section 7629, General Code, was repealed by implication. The court did say that Sections 7591 and 7592, General Code, were repealed by implication and added that Section 7630 necessarily fell with the other two, but the case will be searched in vain for a statement that Section 7629. was repealed by implication, and we think the omission of the court to so state is a significant fact. Section 7629, General Code, is a section conferring power on school boards to issue bonds and corresponds with Section 3939, General Code, which is the section conferring upon municipal councils the power to issue bonds.

"We think the point made by counsel for the village that there should be a clear distinction observed between the debt creating power conferred by statute and the limitations upon taxation provided by statute is well taken. This principle is ably discussed by the Supreme Court of Illinois in the ease of Coles Co. v. Goehring, 209 Ill., 142, to which our attention has been called in the brief of counsel.

This case has been very fully and ably briefed by counsel on both sides with the whole history of the legislation touching every section involved set out in detail. We have examined these various enactments and given the subject the fullest attention possible. It does not seem that any useful purpose would be served by an extensive review of the various points to which our attention has been called. AVe will state- only the .conclusion at which we have arrived after a thorough consideration of the questions submitted and it is this: That Section 3939, General Code, in so far as it confers power upon the village council to issue these bonds, was not repealed by implication by Sections 5649-2, General Code, and the following sections upon the same subject, as shown by the latest amendments of these acts.

We think the evidence in the case shows that the legislation enacted by the village council with respect to this issue of bonds is in accord with the requirement of the Constitution with respect to the payment of the bonds by taxes to be levied and we see nothing to indicate that the village council may not cover the situation of payment without any violation of the statutory restrictions as to amounts that may be levied.

Repeals by implication not being favored, the claim of the plaintiff in this action that the provisions of Section 3939 are thus repealed can only be sustained if that section is found to be clearly repugnant to the later enactments of the Legislature. The provisions of Section 3939 are not necessarily in conflict with the later enactments of the Legislature with respect to the limitation of tax levies. There may be many cases in which that power can be exercised by municipal councils without any violation of other statutes as to limitation.

We hold, therefore, that the village council of Edon is clothed with power to issue the bonds in question without a vote of the people and that the plaintiff is not entitled to the restraining order prayed for, and such will be the decree of the court.

Richards, J., and Chittenden, J'., concur.


author: Jones (E. H.), J.

text:
    KNOWLEDGE AS TO THE CONDITION OF A FAILING BANK.
    Court of Appeals for Hamilton County.
    The Second National Bank of Cincinnati v. C. J. Enright and the Superintendent of Banks of the State of Ohio.

    Decided, July 12, 1915.

      Banks and Banking — Check Deposited in a Failing Bank — Payment' Stopped by Maker — Check Passes to Another Bank with Notice of Defective Title Against which all Defenses are Held Available.

    A check on a Newport (Ky.) bank was deposited by E in the Metropolitan Bank of Cincinnati fifteen minutes before its doors were closed not again to be reopened. The check was turned over by the Metropolitan to the Second National, which credited the amount of the check on an overdraft of the Metropolitan. The president of the Second National had full knowledge of the condition of the Metropolitan. E stopped nayment on the check, and the Second National sued him.

      Held: That the Second National had notice of the defective title of the endorser of the check, and moreover did not take the check for value, but for collection, and its claim against the maker of the check fails on both grounds.

      Jelke, Clark & Forchheimer, for plaintiff in error.

      Cogan, Williams & Ragland and H. A. Reeve, contra.

       Motion for an order directing the Court of Appeals to certify its record overruled by the Supreme Court October 9, 1915.

   Jones (E. H.), J.

This action was brought in the common pleas court by the Second National Bank against C. J. Enright, on a check for two thousand dollars drawn by him on the Newport National Bank in favor of the Metropolitan Bank & Trust Company.

Mr. Enright deposited the check to his account in the latter bank on Saturday, September 16, 1911. At that time he had a balance in said bank to his credit of $433 and owed the bank nothing. The Newport bank was ordered by Mr. Enright not to pay the cheek, and payment was accordingly refused; hence this suit.

For a week or more before said day an inspector from the state banking department had been in daily conference with the officers of the Metropolitan National Bank which, on account of its impaired assets and irregular and illegal methods of business, was to be closed by the hand of the law, unless certain prescribed conditions were complied with. The time for compliance had been fixed. September 16th was Saturday, on which day of the week this bank and other similar institutions closed at noon. It had been decreed by lawfully constituted authority that the bank could not be reopened on Monday morning unless certain conditions and requirements be met. The bank officials failed to comply, and the doors were not again opened for business after noon of that day. It was 11:45 when Mr. Enright deposited his check with the teller of the bank, fifteen minutes before the bank ceased business for all time.

There probably was no design on the part of the bank or its employees to defraud Enright. But the acceptance of the cheek by this toppling, tottering bank at such time and under such circumstances was a fraud, and the title to the check thus secured was defective. 5 Cye., 499; General Code, Section 8160.

On the afternoon of the day it was deposited, the cheek, together with other commercial paper, was deposited by the Metropolitan with the Second National Bank. On the following Monday morning the last named bank (plaintiff in this action) credited the Metropolitan Bank with $2,000 and applied same to the reduction of an overdraft of $9,000 shown to have existed against the Metropolitan Bank at the close o£ business on Saturday the 16th. From this it is contended that plaintiff is a “holder in due course” as same is defined in Section 8157, General Code. This section provides that one is a “holder in due course” of an instrument when he takes “it in good faith and for value” and when ‘ ‘ at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

The evidence shows plainly that the plaintiff in error fails to meet these conditions and is therefore not a holder in due course. The condition of the Metropolitan Bank at the time it received the cheek was well known to Mr. Galbreath, president of the plaintiff bank, who had attended one meeting, if not more, where the condition of the bank was under discussion by its officers and Mr. Romer, representing the State Banking Department. And on September 18th, when the check was applied by plaintiff to the overdraft of the Metropolitan Bank, the latter concern had been seized by Romer on behalf of the state. This action closely followed a midnight meeting like the one above mentioned which, too, was attended by Galbreath.

These facts, it seems to us, dispose of the claim that the Second National Bank had “no notice of the defect in the title of the person negotiating” the check to it. We think the evidence establishes with equal clearness that plaintiff did not take the check “for value.”

The cashier of the plaintiff bank testified that the check was received by it “for collection.” This, is strenuously denied by counsel for plaintiff, who contended that this evidence of their own witness is refuted by other evidence and all the circumstances of the transaction. While there may be some doubt as to the accuracy of the statement of the cashier when considered in connection with the relation between the two banks and the custom and practice prevailing between them as to similar deposits, yet we are inclined to the view that the cashier’s testimony was correct, and that he truthfully could not have testified otherwise.

Under ordinary conditions and in the usual course of business we have every reason to believe that the Second National Bank upon refusal of payment of a check received by 'it, as this Enright check was, would immediately upon report that the check was not honored by the bank upon which it was drawn, cancel any credit that might have been given the depositor of thé check and charge same to his account.

We think, therefore, that the acceptance of the check and credit given the Metropolitan by plaintiff, were conditional. In other words, it was received "for collection” as the cashier said, and no such title vested in the plaintiff as is claimed in this ease and as would entitle it to sue Enright thereon. The transfer of the check to the plaintiff was not, therefore, a negotiating of it but rather a bailment.

If, however, it was negotiated "for value,” then plaintiff had notice of indorser’s defective title, and took the check not "in due course,” but subject to all the defenses which are available to Enright as against the original holder.

Upon the admitted or uncontroverted facts of the case the court below might well have instructed a verdict for defendant.

Its judgment will be affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    INTEREST OF A LIFE TENANT IN A STOCK DIVIDEND.
    Circuit Court of Summit County.
    Charles B. Raymond, W. E. Slabaugh and Mary F. Perkins, as Executors of the Will of George F. Perkins, Deceased, v. Mary F. Perkins et al.
    Decided, December 2, 1912.

      Wills — Construction of — StocTc Dividends on Stoclc Belong to Remainder-man.

    1. Where a will gives the income from an estate to a certain person for life, a stock dividend issued upon certain stocks belonging to the estate is capital and not income and does not go to the life-tenant, but to the legatees in remainder.
    2. A stock dividend does not increase the interests of the shareholders in the property of a corporation; it is only new evidence of their interests.

      Francis Seiberling and J. B. Huber, for Mary F. Perkins and Mary P. Raymond.

      A. H. Cummins, for D. D. Brown.
    Niman, J.; Winch, J., and Marvin, J., concur.
    This action was begun in the court of common pleas by the plaintiffs, as executors of the will of George T. Perkins, deceased, to secure a construction of said will on the matters hereafter indicated.
   The principal question submitted to the court relates to the disposition to be made under the will of $80,000 par value of preferred stock of the B. F. Goodrich Company, received by the executors in the form of a stock dividend on 4,000 shares of the common stock of said company held by them under the will.

George T. Perkins, the testator, was a resident of the city of Akron, Ohio. He died on the 8th day of September, 1910, leaving surviving him Mary F. Perkins, his widow, Mary B. Raymond, his daughter, and certain grandchildren, who are the children of Mary B. Raymond. By the terms of the will and a codicil thereto, both duly admitted to probate in the Probate Court of Summit- County, Ohio, the widow became entitled to receive, during her lifetime, the income on the “rest and residue” of the testator’s property left after certain portions thereof were otherwise disposed of and, upon the widow’s death, the daughter, if she survives her mother, is to receive such income during her lifetime. The words used in the will, descriptive of the income, are: “Use, profit and income;” and those used in the codicil are: "Income, profits and proceeds. ’ ’

Upon the death of both the testator’s widow and daughter provision is made for the disposition of the rest and residue of the testator’s estate by dividing the same among the testator’s grandchildren.

Included in the residuary estate are the four thousand shares of common stock of the B. F. Goodrich Company, of the par value of $100' per share, of which the stock dividend in question was received by the executors.

It appears from the agreed statement of facts before us that the B. F. Goodrich Company is a corporation, organized under the laws of Ohio in 1880 for the purpose of manufacturing rubber goods; that the company enjoyed great prosperity; that it has been the policy of the company since it was organized to use a large proportion of its earnings for increasing its plant and working capital and developing its business; that the surplus and profits of the company not used for cash dividends have been put into the business and from time to time stock dividends have been declared and charged against the surplus and profits; that the original capital stock was $100,000, which was increased by the sale of additional stock and the issuance of stock dividends so that in the year 1905 the authorized and outstanding capital stock was $5,000,000; that in 1906 the capital stock was increased to $10,000,000 and $5,000,000 thereof distributed among stockholders in the form of a stock dividend, out of the accumulated surplus and profits of the company; that in 1910 the capital stock was increased to $20,000,000, the increase of $10,000,000 being in cumulative preferred stock; that in October, 1910, a stock dividend of twenty per cent, was paid in the preferred stock of the company to the holders of common stock and charged against surplus profits; that in November, 1910, after the payment of this stock dividend, there remained to the company a surplus and profit of $1,600,000; that on January 1st, 1912, the company had in its surplus and profit account $3,700,000; that on January 17, 1912, the company again declared a stock dividend of twenty per cent, upon its common stock, payable in preferred stock, and after the payment of $2,000,000 in this preferred stock dividend it still had remaining in its surplus and profit account $1,700,000.

Out of the stock dividend declared on January 17, 1912, the executors received on the common stock held by them $80,000 of'preferred stock. It is this stock dividend that is in controversy in this action.

The question, therefore, presented to the court in construing the will is, whether the preferred stock dividend of January 17, 1912, or any part thereof, goes to the widow, Mary E. Perkins, one of the life tenants under the will, or whether such dividend belongs to the corpus of the trust estate and goes to the remaindermen.

In our opinion no part of this stock dividend belongs to the life tenant, but the whole should be treated as belonging to the corpus of the trust estate.

In the absence of bad faith, a corporation has power either to distribute its earnings among its stockholders, in the form of dividends, or to retain them and employ them in the conduct, of the business as a part of its capital. Until distributed, such earnings are the property of the corporation and not of the stockholders.

The declaration and issuance of a stock dividend do not change the interest of stockholders in the corporate assets. Each stockholder has the same proportionate interest after the stock dividend -is declared and paid, as before. As was said by Mr. Justice Grey in Gibbons v. Mahon, 136 U. S., 549:

“A stock dividend really takes nothing from the property of the corporation and adds nothing to the interests of the shareholders. Its property is not diminished and their interests are not increased. After such a dividend as before, the corporation has the title in all the corporate property; the aggregate interests therein of all the shareholders are represented by the whole number of shares and the proportional interest of each shareholder remains the same. The only change is' in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of new ones.”

The testator must be deemed to have had in contemplation the power of the corporation to accumulate its earnings and employ them in the extension and improvement of its business. When he made provision in his will for the payment of the income on his investment in the stock of the B. F. Goodrich Company,' his intention with respect to a stock dividend, such as is involved here, must be arrived at by considering that he acted with the lawful power of the corporation to appropriate its earnings to the enlargement of the business in mind.

The question before us has been considered in many other jurisdictions. There is great conflict in the views of the different courts which have considered the matter.

In the Case of Miller et al v. Miller et al, arising in Cuyahoga county, and just decided by this court, we have considered some of these conflicting decisions and have discussed the principles involved. We therefore deem it unnecessary, in this opinion, to review the authorities, or to discuss at any considerable length the principle which we conceived should control in deciding the question before us.

The language in Bryan v. Aikin, 82 At. Rep., decided by the Court of Chancery of Delaware, April 1st, 1912, where the rule which we adopt here was approved, expresses our view. On page 823 in the opinion it is said :

“The rule here adopted lias merit, not only as being concededly simple and direct, but represents a logical conclusion from established premises. It gives weight to the action of the company, because the corporation has the power to settle the premises upon which the question is to be decided. It avoids an investigation into the transactions of the company to determine the period within which the earnings were made and on numerous occasions it has been pointed out by courts which have rejected the apportionment rule of Pennsylvania that this is always troublesome, usually expensive, seldom satisfactory and sometimes practically impossible, as in the case of a foreign corporation. _ Of course, these references to some of the difficulties o f adopting a rule as to apportionment according to when the earnings were made in whole or part, during the life of the testator, or wholly or partly thereafter, do not apply in the ease at bar, because it affirmatively appears that all the earnings represented by the stock dividend in question were made since the life tenancy began. Still, a plain, simple rule is sought, and one that is workable in all eases, to prevent controversies and to guide in the administration of other estates respecting other distributions of capitalized earnings. The rule has been criticized because it gives too much weight to the action of the corporation, but this is a necessary result of the character of the investment and of the necessary power of the corporation respecting the management of the assets of the company. The rule here adopted is clear, easily applied and logical, and as fair to present interests as the nature of the case will permit, in view of the corporate control of corporate property.”

Another question propounded in the petition is whether the costs and expenses of a certain former suit brought to obtain a construction in certain respects of the will of the testator should be paid by the plaintiffs out of the income, profits and proceeds of the trust estate, or out of the body or corpus of the trust fund.

No argument has been devoted to this feature of the petition and we will devote no time to its consideration, beyond indicating that the same direction will be entered as to this matter that was given in the court of common pleas.