text:
    CAPACITY TO MAKE A WILL.
    [Circuit Court of Cuyahoga County.]
    Amelia K. Rewell v. Josie R. Warden et al.
    Decided, February 4, 1903.

      Will — Oompeteney of Testator to Malte — Undue Influence — Oan Not he Inferred, When.

    1. One has sufficient mental capacity to make a valid will when he is able to enumerate his property, and remembers who are the natural objects of his bounty, and successfully conducts considerable business interests, notwithstanding he may be eighty-four years old and somewhat forgetful as to minor matters.
    2. A bequest to his wife of something over one-third of the testator’s estate is not so in excess of her rights as to raise a presumption of undue influence. Nor is undue influence shown by the fact that she was a third wife and treated him with great kindness, anticipating his wants and aiding him in his affairs.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
    Error to the court of common pleas.
   Tbe action below was brought by Josie R. Warden, wbo is a daughter by adoption of Captain Cornelius Rewell, deceased, against Amelia K. Rewell, widow of said deceased; George M. Rewell, a son of said deceased; Jessie M. Rewell, wife of said George, she being a beneficiary under tbe will of said deceased,, and John Wilson and Homer O. Stafford, executors of said will. Tbe only heirs at law of tbe deceased are tbe said Josie R. Warden and tbe said George M. Rewell.

Cornelius Rewell died March 22, 1899, at tbe age of eighty-four years. His widow was his third wife. His second wife died June 18, 1895. On February 16, 1899, be executed a written instrument purporting to be bis last will and testament. This was properly witnessed as such will and in this opinion is hereafter spoken of as a will. This will was duly admitted to probate in this county and letters testamentary issued thereon to tbe defendants, Wilson and Stafford, who are named as executors in said will. By tbe terms of said will all of tbe property of tbe testator is disposed of. His estate was worth about $32,000, of which he bequeathed to Mrs. Warden the sum of $25; to his widow a property worth about $13,500; to his daughter-in-law, 'Jessie M. Rewell, property of about the value of $18,500; this last bequest being his entire estate not disposed of to the other parties to whom bequests were made.

The petition sets out that the writing hereinbefore mentioned was not the will of said Cornelius Rewell; that at the time of its execution said decedent was not of sound mind and memory and did not have testamentary capacity, and that “he was persuaded, influenced, induced, deceived and coerced by the said Amelia K. Rewell and by others acting in her interest, and so was not free from restraint and undue influence.” The prayer of the petition is that said writing may be adjudged not to be the last will and testament of the deceased.

Proper issues being made in the ease, it went to trial in the court of common pleas to a jury who returned a verdict that the writing was not the will of the deceased. Motion for new trial was made by Amelia K. Rewell, which was overruled and exception taken, and the case comes here for review on proceedings in error. A bill of exceptions is presented in this court containing all the evidence introduced upon the trial, together with the charge of the court given to the jury and the requests to charge made by the parties in the case.

On the part of the plaintiff in error it is urged that the verdict is not sustained by the evidence. So far as the claim made by the plaintiff below, that the defendant, Amelia K. Rewell, or any one in her interest unduly influenced the deceased is concerned, we find nothing to sustain it. The evidence is that Mrs. Rewell, who was the third wife of the deceased and who was married to him, on May 24,1896, treated him with great kindness, anticipated his wants and aided him more or less in his affairs. To hold that such conduct on the part of his wife was to unduly influence him in her behalf would be to ignore what we regard as the highest duty of a wife to her husband. When she married Captain Rewell she undertook and agreed to treat him with affection and kindness; to aid him, so far as she could, in whatever was to his interest, and surely the faithful carrying out of this obligation ought not to be charged up against her as being an effort on her part to unduly influence him in her favor. She wanted his affection or she would not have married him; she was entitled to his affection, or he should not have married her; he needed her kindly offices and was entitled to receive them, and nothing in the evidence tends to show that her conduct toward him was other than in the highest degree commendable. Nor is there is any evidence tending to show that any one in her behalf tried to influence him unduly in her favor. She seems to have been affectionate and kind to him and he to have appreciated and reciprocated that kindness and affection. In this the conduct of each was commendable. We find nothing in the will itself, when taken in connection with the undisputed evidence, to indicate that he was unduly influenced by anybody, or that the will was one which, in the nature of things, should excite a suspicion of undue influence or of want of mental capacity.

Mrs. Warden, though she would have been an heir at law had he died intestate, was so only because she had been legally adopted by him as a daughter. The evidence clearly shows that he loved this daughter. He often spoke of her in the same affectionate manner which might be expected of a father speaking of his daughter. ,But there had been trouble between her husband and Captain Rewell, growing out of a loan which had been made to Mr. Warden. This loan amounted to about $4,700. Warden had not paid it, his claim being that it was money of Mrs. Rewell, the second wife of Captain Rewell and the adopting mother of Mrs. Warden. Captain Rewell claimed that the money was due to him. Without reference to which of the parties was right in the claim made as to this money, it may well explain why Captain Rewell should have a feeling against Mr. Warden and against giving any part of his property in such wise that it could benefit Warden. Whether Warden had really wronged him or not, Rewell believed that he had, and so believing, it is not extraordinary that a man of sound mind should have felt that no more of his property should go into the family of Mr. Warden.

As to his son George, it seems clear from statements made by Captain Rewell himself and from the evidence in the case that he felt that George and his family would be much more benefited by having a bequest made to his wife than by having it made to him. George had not been fortunate in business, and it was evidently the fear of Captain Rewell that property bequeathed to him might be seized by his creditors, and so his family be entirely deprived of the benefit of it, whereas, if it were given to Mrs. Jessie M. Rewell, George and his family would thereby be provided for.

The amount bequeathed to the widow of the deceased, as compared with his entire estate, is not so great as to raise a probability that he was unduly influenced, or that he was of unsound mind.

Coming now to the testimony of the witnesses as to the mental capacity of Captain Rewell:

We find, first, Captain George Stone, an old and intimate friend of the deceased. He noticed in the last years of Captain Rewell’s life that his memory was not as good as it had been earlier. He mentions the case of Rewell asking him in reference to a sister of the witness. Witness told him that she was alive. Rewell said it seemed to him that he had heard she was dead, and then this language is used by the witness: “And then perhaps he would ask the same question right over again, in a little while the same. ’ ’ It will be noticed that he does not specifically give an occasion when this occurred, as though he were following up one conversation, but as though he had noticed a general tendency on the part of Captain Rewell to forget what had been said to him on some subject and asked about the same subject again. He gives another instance of his asking several times where a Mrs. Simpson was, he having answered the first time the question was asked him that she was at Vermillion. He says that during one conversation he made inquiry about this woman at least three times.

Edward Keron, who lived in a house belonging to Captain Rewell and who saw him very often, says that he was somewhat forgetful; that he would ask the same question three or four times within a short space of time. He mentions especially the fact that Captain Rewell gave him the details of a story of a trip he made on thel akes once in going to Buffalo, when they had a great storm. Witness says Rewell told him this twelve or fifteen times during the last year of his life.

If every man who repeats a good many times over to the same persons some extraordinary event of his life were to be held of unsound mind, it would include a very large percentage of those who have passed the age of sixty years; in short, there was evidence in this only of the fact that, like other old men, he was given to reminiscence and would be very likely to repeat thé story of some remarkable incident in his life. Captain Rewell asked this man for rent at one time when the rent had been paid the day before. The captain seemed to have forgotten it. Witness says he was forgetful about making repairs on the house which he rented of him.

Witness Byers, who is a notary public and who deals somewhat in real estate and who sells coal, was well acquainted with Mr. Rewell, who frequently called at the office of the witness and frequently asked of the witness if he were doing well in his business, and how much he got for selling coal. He also asked whether he owned the property where he lived, even though he had answered him a good many times that he did own it. At one time Captain Rewell bought a load of coal of the witness - and paid for it, and next day he went into witness’s office and said, “I believe I owe you for a load of coal, don’t I?” seeming to have overlooked the fact that he paid for the coal the day he bought it.

J. H. Reed was a tenant of Captain Rewell. On two occasions he paid the rent to Rewell, and Rewell again asked him for payment. In each of these instances a receipt was given by Rewell to the witness when the money was paid. The facts as to one of these instances seems to be that Rewell went into the place of business of the witness, the rent was paid to him and he signed a receipt, put the money in his pocket, and when he went home, being unable to find the money about his person, came back, thinking that it must be that, as he had remained and talked with the witness some time, he had given the receipt without actually receiving the money. When he went back, however, on being assured that he had been paid, he made further investigation and found the money in his pocket. This 'would perhaps indicate that he was not as careful as he would have been once, but surely it is not a very remarkable thing and is far from showing that one is without testamentary capacity. On the other occasion, several days intervened between the time of the payment and the call made by Rewell for the rent, which would indicate, certainly, that the memory of Captain Rewell was not first-rate, yet it can hardly be said that one who forgets that money has been paid to him is necessarily of unsound mind. This witness says that within the last year of Captain Rewell’s life he told him of his property, telling him of his real estate, his notes and his stocks. This witness borrowed money of him and transacted business with him up to nearly the time of his last sickness.

Olive A. Allen tells of his having for a long time occupied a pew well to the front of the church which both he and she attended. After his marriage to his third wife he took a pew further back in the church which, she says, was in deference to the wishes of his wife. We see nothing in this to indicate either undue influence or unsoundness of mind. She tells of his being forgetful at the time of the last sickness of his second wife; that, after being told that she must be kept quiet, he would seem to forget it to the extent that he would go and speak to his wife when she ought to have been let alone and when he had been told she ought to be let alone.

Dr. IT. C. Eyman, at present superintendent of the state hospital for the insane at Massillon, and formerly holding the same position in the hospital at Cleveland, an expert in mental diseases, was called in consultation with Dr. Bortz, the regular attending physician of Captain Rewell, a few days before his death. He found him then suffering from an acute outbreak of senile dementia. Dr. Bortz himself testifies that in his last sickness he was suffering under delusions and was very considerably out of his mind, and of this there can be no doubt.

Mrs. Jane Sinclair, of Clinton, Michigan, a sister of Captain Rewell, and Mrs. Mary Blanchard, a daughter of Mrs. Sinclair, each-testified as to a visit made by him, in Michigan, during his widowerhood after the death of his second wife, in which he seemed very sad and depressed, and of a visit made to them shortly after his marriage to her who is now his widow, and it is clear that at the time of this last visit he manifested great pride in his new wife, and asked them frequently if they didn’t think he had just the right woman for a wife, and if they thought by any possibility he could have done better, and the like.

The testimony of these and of all the witnesses shows that during the last years of his life Captain Rewell’s mental faculties were impaired; that his memory was not as strong as it had been; that he was suffering, to some degree, at least, from what the medical men call senile dementia, a term which sounds more fearful than it really seems to be when we get the explanation of the physicians as to what is included in the term, because they say the term includes all those symptoms of mental impairment which are incident to old age. Indeed, from what is said about it, it would seem that very few men who have passed the age of sixty years but what, in greater or less degree, are afflicted with senile dementia.

When the testimony of all the witnesses who testified that, in their judgment, Captain Rewell, at the time this instrument was executed, was without testamentary capacity, is weighed with that of the other witnesses, we think it clear that the jury reached a wrong conclusion in their verdict in this case.

The man who wrote the will, H. D. Messick, was a complete stranger to Captain Rewell. Rewell called upon him at the bank and asked him to draw his will. He was accompanied by his wife. Without any suggestion from anybody made at the time, he enumerated his property, omitting nothing except certain mining stock of very little value, which, upon his wife mentioning it, he disposed of in his will. That he then remembered in what his property consisted, practically all of it, seems clear from, the testimony of this witness, and that he remembered those who would naturally be the objects of his bounty is clear from the will itself. He did not forget Mrs. Warden, for he made a bequest to her;- he did not forget his son George, for he made a large bequest to his wife; he did not forget his wife, for he made so large a bequest to her that for' that reason it is sought to set aside this will.

Mr. Keith, who was a witness to the will (Mr. Messick being the other witness), saw nothing about Captain Rewell to indicate want of mental capacity and memory. Witnesses who knew him during the years of his business life and up to the end of his life testified as to his mental faculties in such wise as to clearly indicate testamentary capacity. The fact is that up to the close of his life, or, in any event, up to the time of his last sickness, he took charge of his own business interests, which were considerable. It seems clear that he did not forget that he owned the several pieces of real estate which he did own, nor forget when the rent became due from the tenants occupying such real estate, nor did he forget the bills which he owed. It is true that in one or two instances he forgot that such bills had been paid, but he remembers that such bills had been contracted.

We are under the impression that the jury were influenced in coming to their verdict by a feeling that Captain Rewell had not done the fair thing by Mrs. Warden. We do not undertake to say that Mrs. Warden had rightly forfeited, by anything which she or her husband had done, the affection of her father. So far as appears, she seems to have been to him what a daughter should have been, but it was not unnatural that Captain Rewell, though of perfectly sound mind, should have seen fit to cut her off with the little pittance which he did because of what he believed to be the bad treatment which he had received from her husband.

If Captain Rewell had testamentary capacity, it was his right to do what he would with his own. It is a mistaken notion that children have a right to dictate what the parent shall do with his own property, and surely it is no part of the duty of a jury to determine that property shall not go as a testator desires that it should, simply because they think it would have been m'ore equitable and just to have made a different disposition of the property.

The courts of the different states and of the United States have had occasion again and again to discuss this question of testamentary capacity.

In support of what has been said about undue influence, attention is called to the case of Mears v. Mears, 15 Ohio St., 90, where it is held that the fact that one who is benefited by the will was so situated that he might have exercised great influence over the mind of the testator, raises no presumption that undue influence was exercised.

In Monroe v. Barclay, 17 Ohio St., 302, it is said that undue influence or fraud, to invalidate a will, must appear to have had some effect on the very act of making the will, by imposing a restraint upon the independent wishes and judgment as to disposition of property.

In the case of Wise v. Foote, 81 Ky., 10, the fifth clause of the syllabus reads:

“Influence obtained by proper persuasion and argument, or by mere appeals to the affection is not undue influence in a legal sense.”

On the question of testamentary capacity, it is well settled that less mental strength is required for the execution- of a valid will than is required for the making of contracts with parties whose interests are adverse to him whose mental capacity is being investigated.

In the case of Wilson v. Mitchell, 101 Pa. St., 495, there is an opinion by Mr. Justice Trunkey, who announces the law as we understand it to be. On page 502 and following of the opinion in that case, this language is used:

“A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all that .he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of a will. * * * If from any cause he is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of understanding to whom he intends to bequeath it, he is without the requisite testamentary capacity. * * * He must have memory. A man in whom this faculty is totally extinguished can not be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigor of intellect, to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. * * * The question is not so much what was the degree of memory possessed by the testator as this — had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged at the time when he executed the will? * * * Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very great degree, and yet ‘the solid power of the understanding’ remain.”

On page 504, in the same case, this language is used, speaking of the testator:

“The general character may be learned from one of the most intelligent (of the witnesses) — Mr. Dunlap; he knew Dougal (the testator) in 1815, studied surveying with him in 1835, was an intimate friend, was very frequently with him in the line of their business, and when Dougal ceased surveying he turned his business over to the witness. He testifies that Dougal was a strong-minded man, wrote rapidly and well, and was very tenacious of his opinions; a tender and feeling man, always glad to meet his old acquaintances of childhood; that in the last years of his life his mind was not so vigorous; that in 1880 his memory appeared to be right on transactions in the prime of his life; on these he conversed as well as ever; did not talk about recent transactions, but he asked about witness’ wife; asked the same question over several times, as if he had forgotten he had asked it before; saw nothing like insanity about him, and never heard an irrational or insane expression by him, and observed no hallucination or delusion, and the witness thinks that under solicitation and well-wishers, Dougal would have readily changed his mind, and doubts if he had capacity to make a will. Surely this testimony does not show want of testamentary capacity.”

In this case the testator was over one hundred years old at the time the will was made; he was blind and partly deaf; his mind was treacherous as to recent events; he would repeat th» same things several times, and slept almost constantly. In his prime his mental and physical vigor had been remarkable and he had been observant of the proprieties of life, while in old age his vigor abated and he became extremely filthy in his habits. It was held that there was not evidence to show want of testamentary capacity.

A large number of authorities, cited and quoted from in the brief of the plaintiff in error, are to the same effect as those hereinbefore quoted. Crolius v. Stark, 64 Barb., 112; Yoe v. McCord, 74 Ill., 33; Montague v. Allan, 78 Va., 592 (49 Am. Rep., 384).

The questions raised upon the admission and rejection of evidence are numerous and have been carefully examined.

We are not prepared to say that there was not error in the ruling of the court upon some of the questions of evidence, and, if the ease is retried, we suggest that the better way to ask as to the opinion of non-experts in reference to the mental condition of the testator would be to base the opinion upon the facts testified to by the non-expert witnesses.

The hypothetical question put to the physicians is very long and complicated, and, we think, can be greatly improved upon when the case is again tried. We are not prepared, however, to say that the plaintiff in' error was prejudiced by the ruling upon this question of evidence.

Goulder, Holding & Masten, for plaintiff in error.

E. J. Pinney, W. H. Boyd and Henderson & Quail, for defendants in error.

The charge of the court, on the whole, seems to us a fair statement of the propositions of law discussed, but. under the evidence, we think there was no occasion to say anything to the jury on the question of what constitutes undue influence, for, as has already been said, we find no evidence tending to show that any influence which in any proper sense can be said to have been undue was exercised by anybody upon the testator, and hence, what was said in that regard should have been omitted.

It is possible that we should not feel justified in reversing the case on account of what was said in the charge upon that subject, because it is the law as we understand it to be, but it should have been omitted for the reasons already given.

The judgment of the court below is reversed for error in overruling the motion for a new trial and because the verdict is not sustained by the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    WIDOW’S EXEMPTION.
    [Circuit Court of Sandusky County.]
    B. F. Bretz et al v. Loia A. Moore.

    Decided, May 20, 1902.

      Exemptions — Laws Relating Thereto Must he Liberally Construed— Section 5437 Construed — Widow Entitled to Lower and $500 in Lieu of Homestead, When.

    1. Exemption laws, in so far as may be necessary to effect tbe purpose of tbeir enactment, should be construed equitably and liberally.
    2. The provisions of Section 5437, relating to exemption to widow or unmarried minor child, are not limited to cases where the homestead is brought to a sale by the mortgagee, or by the administrator under legal process which compels a sale, but apply as well to a sale voluntariy made by the heirs and widow.
    3. Where the widow and heirs, all of whom are sui juris and have full knowledge of the situation, voluntarily agree among themselves to sell the homestead property, with the intention of paying ofE the mortgage thereon and delivering the balance to the administrator of the deceased husband and father for payment of any indebtedness against the estate, the widow not having waived her right thereto under the agreement, is entitled to receive in addition to her dower interest a sum not exceeding $500 from the fund in lieu of homestead under Section 5437, and her right thereto is not lost by reason of her abandonment of any claim to hold the premises as a homestead, or by reason of the fact that she had joined with the decedent in the execution of the mortgage; and the heirs are estopped from denying the purpose of the sale or the rights of the widow in the fund so created.
    Parker, J.; Hull, J., and Haynes, J., concur.

       Affirmed by the Supreme Court without report, 69 Ohio State, 524.

   TMs is a proceeding brought to obtain a reversal of the judgment of the court of common pleas.

We shall not undertake to sta/te or follow all the ramifications of the various questions that have been suggested and argued, for we think that the real controlling question can be very simply stated and comes within a very narrow limit.

Loia A. Moore, a widow, was entitled to a homestead out of certain premises of which her husband died seized, under Section 5437, Revised Statutes, and it appears that these premises were mortgaged and that the mortgage was one which precluded the allowance of a homestead — that is to say, that no homestead could be allowed as against the claim of.the mortgage, the husband and wife, afterwards the widow, having both signed the mortgage. The husband beside, leaving his widow, left certain children, who were all of age, and it fairly appears from the record that all the persons interested in this property as heirs— these children and the widow — foresaw that they would not be able to discharge this debt and lien except by the sale of the property, and therefore they agreed together that they would sell.the premises and pay all encumbrances; and thinking that the administrator of the estate of the deceased husband and father would be entitled to hold and handle the proceeds of such sale and therefrom discharge any indebtedness of the decedent, they agreed that they would turn over the residue remaining after the discharge of the mortgage debt to the administrator, and in pursuance of this agreement, they proceeded to sell the premises and derived enough from the sale to payoff the mortgage and turn over seven or eight hundred dollars to the administrator, which they did. It turns out that probably the administrator could not have brought these premises to sale as administrator, because there were no claims against the estate which would have required it. At all events, even if he might have brought it to sale for the mortgage claim (and about that we express no opinion), he was not required to take or use any of these proceeds of the sale that were turned over to him, the mortgage claim being paid directly by the widow and heirs. But they paid over the residue to him and he holds it; and the Court of Common Pleas of Seneca County has held, and we think correctly, that he never received or held it as administrator’, but, under the circumstances, he held it as trustee.

Now the widow has asserted her claim to a part of these proceeds as the value of her dower interest in this property, and that claim, I believe, is not contested. She has also asserted and here asserts her claim to the remainder of the proceeds in lieu of a homestead under Section 5437, Revised Statutes.

It is contended, however, upon behalf of the heirs, that having consented to this arrangement and sale of the premises, she thereby waived her claim to a homestead; that she thereby abandoned her homestead; and that, as a consequence, she also waived and abandoned all right to claim any of the proceeds in lieu of a homestead.

The contention by counsel for the heirs is, that it is only in eases where the property is brought to sale by the mortgagee or the administrator, or by some process of law which compels a sale of the premises, that this provision of Section 5437, Revised Statutes, relied on by defendant in error, applies, viz., “That in all cases where the homestead has been or shall be sold to pay any lien which precludes the allowance of a homestead, the residue of the proceeds, not exceeding $500, shall be paid to the widow, or in case there be no widow, to the minor child, unmarried, in lieu of a homestead, on her or said minor child’s application, in person or by agent, attorney or guardian,” and that this provision of the statute does not apply to a sale voluntarily made by the heirs and the widow. But we think that a fair and reasonable construction of this statute authorizes an application of these provisions to a ease like that at bar; that where the heirs and widow, foreseeing that a sale must be made to satisfy a claim and lien which precludes the allowance of a homestead, agree together that they can probably do better by making a private sale of the premises, and that they will do so, and that they will retain their rights in the proceeds rather than undertake to hold on to the property and allow the premises to be brought to a forced sale, as between them, it would not lie with either to dispute the equitable rights of the other arising out of such proceeding; that in a case like this, the heirs being of age, and having full knowledge of the situation, and having agreed that the premises should be sold at private sale and having participated in the sale, and agreed that the proceeds should go into the hands of the administrator, and not having required of the widow that she should waive her homestead right, or her right to the proceeds in lieu of a homestead, and it not appearing that she has waived it, but rather that she desired and still desires to retain her right, it should be held that she has not lost such right. Though she has abandoned all claim to hold the premises as a homestead, she has not thereby necessarily abandoned her right under this clause of the statute to hold a part of the proceeds in lieu of a homestead. We think the statute should receive such fair, equitable and liberal construction; that it is the policy of the law to construe these exemption statutes liberally, so as to effect this purpose, and such sale should be held to be within the purview of the statute. It was a sale to pay a lien which precluded the allowance of a homestead. Under the circumstances the heirs can not be heard to dispute that fact.

E. B. King and George H. Nithey, for plaintiff in error.

Richards & Heffner, for defendant in error.

The judgment of the court of common pleas being in accordance with these views, will be affirmed.


text:
    CLERK OF SCHOOL COUNCIL A PUBLIC OFFICER.
    [Circuit Court of Cuyahoga County.]
    The State of Ohio, on the Relation of George E. Myers, v. John Coon, Jr.
    Decided, June 1904.

      Office and Officers — Cleric of School Council — Under the New School Code — Quo Warranto.

    The clerk of the school council is a public officer within the purview of the new school code and of Section 8, R. S. O., and as such continues in office until his successor is elected or appointed and qualified.
    Winch, J.; Hale, J., and Marvin, J., concur.
   This is an action in quo warranto brought to determine whether relator or defendant is entitled to act as Clerk of the Board of Education in the city of Cleveland.

It appears that on the third Monday of April, 1902, the relator was duly elected and qualified and entered upon his duties as such clerk, under Section 3899-3, Revised Statutes, which provides, among other things, that:

“On the third Monday in April, 1896, and biennially thereafter, the school council shall elect a clerk who shall not be a member of said council, and who shall be clerk of the board of education. He shall receive a salary to be fixed by the council, which shall not exceed two thousand dollars per year.”

On the third Monday in April, 1904, the council neglected to elect a clerk; but on the following Monday night, April 25, 1904, at half-past seven o’clock in the evening, the council undertook to elect the defendant clerk of the board of education.

Meanwhile the new school code was passed by the Legislature and was signed by the governor at half-past four o’clock on the afternoon of April 25, 1904, some three hours before the election of the defendant as clerk. This new school code repeals said section under which relator had been elected, but provides that “All existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provisions of this act, but no officer elected or appointed to fill a vacancy occurring in any such office, shall be appointed to serve for a longer period than that ending on the 31st day of August, 1905. ”

As the new school code, under the recent amendment of Article II, Section 16, of the Constitution (95 O. L., 962), became a law upon the governor’s signing it, it is apparent that the school council had no authority to elect the defendant clerk of the board of education, unless said clerk is not an officer within the purview of the provisions of the school code last quoted, and of Section 8, Revised Statutes of Ohio, which reads as follows:

“Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the Constitution or law.”

In other words, relator claims that on the third Monday of April, 1902, he was elected to the office of clerk of the board of edueaton for two years, at the expiration of which time, no successor having been elected, he continued in office until the new school code took effect, and that by its provisions he is continued in office until a new board of education is elected and organized under it.

The sole question for determination in this case is, therefore, whether the relator is a public officer or occupies a mere clerical position subject to removal at any time by the school council.

Meaehem on Public Officers, Section 1, gives the following definition:

“A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or ending at the pleasure of the creating power, an individual is invested with some part of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.”

In 23 Am. & Eng. Enc. of Law, 322 (2d Edition), under title “Public Officers,” it is said:

“A public officer is an individual who has been appointed or elected in the manner prescribed by law, who has a designation or title given to him by law, and who exercises the functions concerning the public assigned to him by law. There are numerous criteria which are not in themselves conclusive, yet which aid in determining whether a person is an officer and whether his employment is an office. Thus, a public officer is usually required to take an oath, and frequently has to give a bond. Usually an officer is entitled to a salary or fees, but this is not necessary.
“The term ‘office’ also embraces the ideas of tenure and duration or continuance.
“Generally speaking, one of the requisites of an office is that it must be created by a constitutional provision, or it must be authorized by some statute. Official or unofficial character is to be determined not by the presence or absence of an official designation, but by the nature of the functions to be performed. Designation by the law as an officer is, however, of some significance. ’ ’

Consonant with these definitions are the following Ohio cases; State, ex rel, v. Kennon, 7 O. S., 546; State, ex rel, v. Wilson, 29 O. S., 347; State, ex rel, v. Anderson, 45 O. S., 196; State, ex rel, v. Brennan, 49 O. S., 33; State v. Meyers, 56 O. S., 340; State, ex rel, v. Jennings, 57 O. S., 415.

Let us examine the sections of the statutes which provide for the election of a clerk and his duties, in order that we may determine whether he is an officer, as above defined.

We have already seen that the clerk is to be elected biennially and to receive compensation “per year,” Section 3899-3, Revised Statutes. This indicates that the clerk’s term of office is fixed at two years.

He has certain duties prescribed by statute. He is the custodian of the school director’s bond (Revised Statutes, 3899-8). Certain claims must be approved by him (Revised Statutes, 3899-12); he must give notice of appropriations to the auditor and treasurer (Revised Statutes, 3899-14); he is the custodian of the auditor’s bond (Revised Statutes, 3899-16); bids for contracts must be filed with him, publicly read and entered in full upon the records of the council (Revised Statutes, 3899-21).

The above provisions of the statutes are taken from the old Cleveland code which has been repealed. The following duties of the clerk are provided for in sections of the statutes not repealed by the new school code:

All conveyances made by a board of education must be executed by the president and clerk (Revised Statutes, 3974). Process in suits against a board of education must be served upon the clerk or president (Revised Statutes, 3976, 4019). The clerk is required to take an oath that he will faithfully discharge the duties of his office, for Sections 3979 and 3980 Revised Statutes of Ohio, must be construed as including the clerk. In the enumeration of school children, the clerk is spoken of as an officer liable to a penalty for falsifying an enumeration (Section 4041).

The clerk of the board of education is required to give bond, payable to the state of Ohio, conditioned that he will faithfully perform all the official duties required of him (Revised Statutes, 4050). At the expiration of his term of office, he is required to deliver to his successor all books and papers in his hands relating to the affairs of his district (Revised Statutes, 4054). The clerk is held liable on his bond for failure to make return of certain statistics to the county auditor (Revised Statutes, 4061).

The new school code re-enacts many provisions as to the duties cf the clerk, and adds some new duties; notably, he is now authorized to call special meetings of the board (Revised Statutes, 3978), and give notice of all school elections (Revised Statutes, 3970-11 and 3991.

It thus appears that outside of the mere clerical duties the clerk of the board of education has to perform for it and as directed by it, he has many statutory duties to perform, for the faithful performance of which he must answer to the people. These independent duties involve to a certain extent the exercise of part of the sovereignty of the state, in virtue of his election to office, and not as a mere employe, subject to the direction and control of the school council. State, ex rel, v. Jennings, 57 O. S., 415.

Upon the whole we therefore conclude that the relator is a public officer and was occupying the office of clerk of the board of education at the time the new school code took effect; that there was no vacancy in said office at the time the school council undertook to elect the defendant clerk, and that his pretended election is therefore void.

M. B. & H. H. Johnson, for relator.

N. D. Baker, for defendant.

The relief prayed for by the relator is granted.


author: Per Curiam.

text:
    FORCIBLE ENTRY AND DETAINER
    [Circuit Court of Hamilton County.]
    Alonzo B. Pope v. O. E. Miller.
    Decided, December 1, 1902.

      Lease too Indefinite to Constitute a Contract — Proceedings in Forcible Entry and Detainer — Where the Justice of the Peace has Been Reversed — Surplusage.

      Henry Woost and Chas. A. Groom, for plaintiff in error.

      F. M. Gorman, for defendant in error.
   Per Curiam.

Heard on error.

The paper writing purporting to be a lease is too indefinite and uncertain as to the commencement and duration of the term to constitute a valid and binding contract of rent for a term of years, and a suit for unlawful detention may be maintained.

When the judgment of a justice of the peace in an action of forcible entry and detainer is reversed by the common pleas court and the cause retained for trial, it is the duty of the plaintiff to file a petition in that court; but if the parties proceed to trial, without objection upon the bill of particulars filed in the magistrate’s- court, it is not error to found a judgment upon the statement contained in such bill of particulars.

A notice to quit the premises, signed by “O. E. Miller, agent for Kathryn Miller,” is sufficient to sustain an action commenced by O. E. Miller, who is the real owner of the premises and rented the same to the defendant. The words, “agent for Kathryn Miller,” will, in the absence of proof to the contrary, be treated as surplusage.

Judgment affirmed.


text:
    THE RULE APPLICABLE TO A PUBLIC OFFICER AS TO UNUSUAL EXPENSES.
    [Circuit Court of Mercer County.]
    Charles A. Kloeb, Auditor, v. Mercer County Commissioners.
    Decided, November Term, 1903.

      Office and Officer — Duty of an Officer as an Agent of the Public — In the Incurring of Expenses in the Interest of the Public — County Auditor — County Commissioners — Mandamus.
    1. A public officer is an agent of tbe public, and is governed as to tbe 'expenses wbicb be may in good faitb incur by tbe same rule that would be applicable to like acts of a private agent, or of a guardian nr administrator, and is entitled to be reimbursed tberefor.
    2. A county auditor refused to draw a warrant on the order of tbe county commissioners, in payment for advertising 'the rate of taxation in that county, on tbe ground that tbe advertisement, if set up in compact form and charged at the rate fixed by Section 4366, would amount to $330 instead of $776, tbe charge made by tbe publishers and ordered paid by tbe commissioners. In resisting in tbe courts payment of tbe account as allowed by tbe commissioners, tbe auditor incurred legal expenses, wbicb were admitted to have been reasonable in amount. These expenses tbe commissioners refused to pay. Held: That tbe auditor was justified in bis action, and that tbe bill for bis expenses in so doing should have been allowed by tbe commissioners, and judgment tberefor is given.
    Norris, J.; Mooney, J., concurs; Day, J., dissents.
   This case is submitted in this court on petition in error to the common pleas of this county together with the finding of facts and conclusions of law of that court. The action was an appeal to the common pleas court from the board of county commissioners of Mercer county. In substance these are the facts:

On January 16, 1903, Chas. A. Kloeb, as auditor of Mercer county, presented to the board of county commissioners at a regular session of said board his account for expenditure by him, made in resisting certain mandamus proceedings brought against him as such auditor. Pie resisted these eases up to and in the Supreme Court of Ohio. One ease so brought against him was on relation of A. P. J. Snyder. The other was on relation of Gilburg and Chapman. Plis account is for money expended and the employment of attorneys and court costs including the making and printing of the record. The bill in the aggregate amounts to $486.65. Snyder was the editor of the democratic newspaper and Gilburg and Chapman were the editors and publishers of the republican newspaper. Both papers were of general circulation in Mercer county, and at the request of the county treasurer of Mercer county each printed for six consecutive weeks the rate of taxation in Mercer county for the year 1898. About November 4, 1898, at a special session of the county commissioners each paper presented to the board of commissioners a bill for the publication of said tax rates. Each of said bills was for more than $388.

The bills were taken under advisement by the board of commissioners and passed to the regular session. The bills were referred by the board to Kloeb, as auditor, for his examination and he was directed to measure the printed matter and ascertain the number of squares of straight printed matter and the number of squares of tabular or ruled work necessary to advertise said notice, and report the result of his examination to the board. Upon that examination he ascertained that said printed matter, for which said bill aggregated $776, had been presented at the rate fixed by Section 4366, Revised Statutes, and if set up in compact form as directed by law would not amount to exceed, but would amount to less than $165 for each paper, aggregating the total sum of $330, and the auditor so reported to said board.

Afterwards on November 7, 1898, the commissioners allowed on each of said bills the sum of $300, aggregating $600, and directed said Kloeb as such auditor to issue warrants on the treasurer of Mercer county for the sum of $300 to each, payable out of the county fund. This finding of the board was accepted by said publishers and no appeal by them or either of them was taken from this allowance.

At said date, November 7, 1898, each of said publishers presented to said auditor this order of the board of commissioners, and demanded each, a warrant for $300 on the treasurer of Mercer county. And plaintiff in error as such auditor refused to draw said warrants.

Kloeb, at the time he refused to draw the warrants, in good faith believed that there was no authority of law for said board to issue an order in payment for the unnecessary space charged in the said bills, for the publishing of said rates, and believed in good faith that all that the commissioners were required to do was to measure and estimate the size of the printed matter, and that when so measured and estimated and computed by the rate fixed by Section 4366, Revised Statutes, all else and over was illegal, excessive and void. On November 7, 1898, no certificate was filed disclosing that there was any money in' the treasury to the credit of the county fund; nor was there a certificate filed that there had been a levy made to the credit of said fund, and placed upon the duplicate in anticipation of collection and not appropriated for other purposes. Such levy however, had been made in sufficient amount and was on the duplicate for collection for the year 1898 to pay all the expenses of the county including said bills; but at said date, November 7, 1898, there was no money in the treasury to the credit of the county fund.

Said auditor in good faith believed that from all this he had no right to issue a warrant on the treasurer and charge the same to the county fund. And being of such opinion he resisted the issuing of said warrants in the Court of Common Pleas of said Mercer County and in the circuit and supreme courts. In doing so, he was put to the expense of $486.65. It is conceded that these charges as to amount are reasonable, and that in so resisting the payment of said orders, and in the incurring of this expense, he was acting in good faith and as he understood it, in the honest discharge of his duties as such auditor, and believed he was protecting the interest of Mercer county.

Upon these facts the common pleas court found for the defendant in error, the county commissioners of Mercer county, Ohio, that:

“The said board did not err in refusing to allow said claim for said expenses in resisting the payment of said orders by refusing to issue said warrant; that there is no authority of law authorizing the county auditor to resist the issuing of an order on the county treasurer, when so ordered by the county commissioners. ’ ’

The action of plaintiff in error was dismissed and the costs were adjudged against him. And upon overruling his motion for new trial the court entered its judgment on said finding.

The plaintiff in error assigns as reason for the reversal of this finding and judgment of the common pleas as follows:

First, that the court erred in overruling his motion for a new trial; second, the judgment was for defendants in error when it ought to have been for plaintiff in error; third, the finding and judgment are contrary to law; fourth, the court erred in the judgment rendered upon the facts found; fifth, the facts found do not warrant the judgment; sixth, the judgment is inconsistent with the facts found by the court; seventh, from the facts found the judgment should have been for plaintiff for the amount of his account; eighth, and other errors apparent on the face of the record.

While a county auditor “by virtue of his office, shall be the secretary of the county commissioners, except as otherwise provided by law, he shall aid them, when requested, in the performance of their duties; he shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps, and papers required to be deposited and kept in his office” (Section 1021, Revised Statutes). Yet a county auditor is a public officer, and an agent of the people, and in this sense he is in nowise the mere clerk of the board of county commissioners. Independent of the commissioners and aside from that board and its powers and its duties, the auditor has official duties of paramount importance that he may not willfully neglect to perform, for the faithful discharge of which he stands directly responsible to the people, and for the willful neglect of which he must atone by forfeiture of office and punishment at the hands of the criminal law.

The county auditor is not the disbursing officer of the county, that is to say, he is not the payer out of the public moneys of the county; but he is the auditor of the county treasury. Except money arising from the tax duplicate he certifies all moneys into the county treasury and credits the amounts to their respective funds. He keeps an account current with county treasurer, showing all moneys paid into the treasury, when paid, to what account, and to what fund paid; and of all moneys paid out, and from what funds paid out. Except money due the state, which is paid on the warrant of the state auditor, every dollar paid out of the county treasury is paid upon the warrant of the county auditor. In performing these duties he is performing official duties — public obligations —for the faithful discharge of which his offical bond, and his body standing for his oath of office, must respond. He does not act as a mere machine, without consciousness, duty, or responsibility, only to place his signature to warrants which will cause public moneys to leave the public treasury; he is not a mere automaton, there for the purpose of writing his signature to warrants on the public treasury when the button is touched. But concerning all these duties he has the right to act, and is required to act faithfully. It is his duty to exercise his judgment, concerning the official act which he is called upon to perform, to a degree commensurate with the responsibility. And it is his duty to act in good faith and with the prudence and integrity which an honest man of ordinary prudence would exercise under like circumstances; and if he willfully fails in this, then he willfully fails to perform a duty required of him by law, the penalty of which is forfeiture of office and criminal prosecution and punishment.

The very words of Section 1031, Revised Statutes, if he “willfully fails to perform any duty required of him by law, he shall, in addition to criminal prosecution therefor, forfeit his office,” imply the exercise of judgment guarded by that prudence as a public officer which confirms good faith — “If he willfully fails,” says the law.

It is the official duty of the county auditor to draw his warrants on the county treasurer for the payment of any claims against the county allowed by the board of county commissioners, when the proper order or voucher is presented therefor. It was the duty of this auditor to issue the warrants in question in the mandamus proceedings. The court has so decided.

It was his duty to issue the warrants so far as the issuing of the warrants was a mere executive act, performed as an official duty in obedience to the mandate of legal authority. In this respect his duty was a duty subservient and ministerial. But it is going very far to declare that a public officer, who is the agent of the people, placed at the door of the public treasury, mlay not legally, and with effect as an official duty,- lift his voice in protest and objection, to that which he in good faith, and in the exercise- of his judgment as a prudent and honest agent of the people, deems to be an unlawful depletion of the public treasury; and it is going just as far to say that an order of a board of commissioners upon the auditor, to draw his warrants on the treasurer in favor of a party who is more than satisfied (and from which no appeal is taken or can be taken, because there is nobody to take the appeal), has the effect of a judgment at law, and can not be questioned at any place along the line, from the hands of the board to the vaults of the treasury.

It is true as said in State v. Darke Co. (Aud.), 43 Ohio St., 311, 312:

“The performance of an official act by a public officer depends upon his legal duty and not upon his doubts; and where his duty is clear, its performance will not be excused by his doubts * # *, however strong-or honest they may be.”

This announcement, that the performance of clear official duty does not rest and is not dependent upon the doubt of the officer as to the propriety of its performance, is not new, and thus the doubts of an officer, as mere doubts, however strong or honest they may be, avail nothing. But that case falls far short of declaring that conditions may not present themselves which would justify a county auditor, and compel him, in discharge of duty required of him by law, to give ear to his prudence, judgment, and integrity as an agent of the people, as distinguished from subservient performance in blind obedience to authority in its nature judicial.

Not pertinent to the facts at bar but pertinent to the principle urged and pertinent to its application in this ease, would it not be willful failure of a duty required of him by law if a dishonest county auditor conspired with a dishonest board of county commissioners to. loot the county treasury of the public money; and in obedience to orders of the board in that behalf, for the payment of pretended claims which he knew were false and fraudulent, he drew his warrants as fast as the orders were made, and thus, under the guise of official duty, plundered the people? Yet it is said that things akin to this have been done. But if the auditor was not a beneficiary of the fraud, and simply had acknowledged that the claims were a pretense, and the orders were the act of a conspiring board, made for the purpose of placing money from the public treasury into the hands of a false claimant, would not the auditor who knew this, and issued his warrant with such knowledge, willfully fail to perform a duty required of him by law? Surely no court would declare that he made breach of duty if he refused.

It may be said that the right of the claimant relator to the writ of mandamus must be clear, and in that behalf .would be involved the honesty or the vice of his claim. But against whom would the action lie unless the official, the auditor, refused to perform the act which is urged to be to that degree ministerial, that it precludes any exercise by him of his judgment, prudence, good faith and integrity as a public servant.

In the ease of Ryan v. Hoffman, 26 Ohio St., 109, in the opinion at page 123, the court does and did recognize, and take into account the sufficiency or insufficiency of the objection made by an officer to the performance of a clear ministerial duty, as an element in determining whether or not the duty should be performed.

And in the case of State v. Yeatman, 22 Ohio St., 546, it is held that an auditor may defend against an application for a writ of mandamus to compel him to issue a warrant on the treasury upon an allowance and order of the commissioners, by showing that the order was unauthorized and that the commissioners had no authority to make it.

So it would seem that though his duty be not dependent upon his doubts, however honest and strong they may be, yet he has the right to doubt, to exercise his judgment, guarded by that prudence, good faith and official integrity, which would warrant a prudent man in his official position under like circumstances, in the conclusion that his objection and reason for refusal to issue the warrant were justified by law and would be ratified by the courts.

In the case at bar this auditor was required by the board of commissioners to measure the claims of the publishers by the rules fixed by law and to compute the space by the rate fixed by Section 4366, Revised Statutes. Tie did so, and found the amounts of each bill as thus measured to be less than $165, in the aggregate $330. He so reported to the board. In the face of this report, which is found to be true, the board allowed each claim in the amount of $300, aggregating the sum of $600, $270 in excess of the true measurement as appears in the finding of facts by the common pleas court. For those sums he refuses, as auditor, to draw the warrants on the treasury. It is also found that he acted in all regards with the utmost good faith and in the belief that all that the commissioners were required to do, to determine the amount of such claims, was to estimate the size of the printed matter and compute by the rate fixed by Section 4366, Revised Statutes; and that all the amounts allowed in excess of the sums so resulting .were excessive, illegal and void. With this belief, and so acting in good faith upon it, he refused to draw the warrants for the sums aggregating $600 and made contest in the actions for mandamus, brought to compel him to issue the warrants; and in this action, upon the finding of facts, the court defeats his claim for the expenses of that litigation, because, and upon the conclusions of law, “that there is no warrant or authority of law authorizing the county auditor to resist the issuing of an order on the county treasury when so ordered by the county commissioners. ’ ’

Courts have held that public officers, not idly and stubbornly and in bad faith, but where reasons actually exist, or when to a prudent man, acting in good faith, and with that degree of circumspection and discretion that a prudent man under like circumstances would exercise, reasons appear to exist which are grounds for refusal to perform a ministerial act that otherwise would be a clear official duty, such public officers may make contest in the eourts against the writ of mandamus to compel him to perform. It was so held in the cases which give rise to plaintiff’s claims in this action, or else those cases would have never been.

Though the refusal of the officer to act may be in violation of official duty, which requires him to perform a ministerial obligation, the contest — the appeal to the courts, the submission of the reasons for refusal, to the law — is not of itself and in itself a transgression. It is the exercise of a right, and its exercise when in good faith, and based upon the honest judgment of a prudent man, properly discharging as seem to him, under the circumstances, the functions of his office and his duties, is not and ought not draw upon him mulctary penalty, by imposing upon the individual the expense of the litigation.

If this were true, and the payment of the expenses, and whether reimbursement was to be made, followed and was dependent upon the event of the controversy, how timid would be those whose duties it is to guard the interest of the public, and to look after the honest expenditure of the public money! If the rule were thus, the people would be disarmed and nonresistent. What officer, however strong might be his convictions that the public was being wronged, and however strong were his reasons for that conclusion, would fight the battles of the public if he knew that a mistake meant the expenditure of hundreds of dollars out of his own pocket? To enforce such proposition would seem to be against public policy. If it were the law, how could these defendants in error fare in the case here and now being decided by this court adversely to them, for presuming to exercise their honest judgment, as prudent officers and honest men. The interest of the public and good government require that it be not the law, and it is not the law.

John W. Loree, for plaintiff in error.

C. E. Marsh, for defendant in error.

A public officer is the agent of the public and he is governed, as to expenses made, with the good faith I have so often defined in this opinion, by the same rule that would be applicable to like acts of a private agent or of a guardian or an administrator, and is entitled to reimbursement therefor.

The judgment of the common pleas is therefore reversed, and giving the judgment which the court of common pleas ought to have given, the court here enters judgment for the plaintiff for the amount claimed, $486.65 and costs, and the case is remanded to the common pleas for execution.-


text:
    PRIORITY AS BETWEEN JUDGMENT LIENS.
    [Circuit Court of Cuyahoga County.]
    Alphonse J. Charbonneau v. Jacob Roberts et al.
    Decided, February 23, 1903.

      Judgment Liens — Priority as Between — Priority Lost by Failure to Issue Execution Within One Year.

    The priority of the lien of a senior judgment is lost as against the lien of a subsequent judgment by failure to issue and levy execution within one year from the date of the rendition of the senior judgment.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to court of common pleas.
   July 2, 1901, Alphonse J. Charbonneau took judgment by confession against one Joseph Roberts in the Common Pleas Court of Cuyahoga County, Ohio. The judgment debtor owned lands in said county, but no execution and levy were ever issued on this judgment.

December 2, 1901, Emily Roberts recovered judgment against said Joseph Roberts by the consideration of the common pleas court of Lorain county. Execution thereon was issued to the sheriff of Cuyahoga county, Ohio, and by him levied on the lands of the judgment debtor in controversy on July 14, 1902. August 15, 1902, being more than one year after the rendition of the judgment in favor of Charbonneau, Emily Roberts brought suit in the Common Pleas Court of Cuyahoga County to subject said lands to the payment of her judgment, making Charbonneau party defendant to said suit.

Section 5375, Revised Statutes, provides that a judgment by confession shall be a lien upon" the lands of the judgment debtor within the county where the judgement is entered, from the day of its rendition, and that all other lands shall be bound from the time they are seized in execution.

From this it appears that the judgment of Charbonneau became a lien on these lands on July 2, 1901, and the judgment of Emily Roberts became a lien on July 14, 1902, but it is claimed that Charbonneau lost the priority of his lien because no execution was issued and levied on his judgment within one year of its rendition.

Section 5415, Revised Statutes, provides that “No judgment on which execution is not issued md levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of a debtor to the prejudice of any other bona fide judgment creditor,” and this has been the law of the state substantially in its present form since February 1, 1822. 2 Chase, 1234.

The statutory provision by which a judgment creditor is required to issue execution on his judgment and have the same levied upon lands of the judgment debtor within a specified time in order to preserve the priority of the lien of his judgment over that of other judgments was frequently before the courts in the early days of legislation on this subject; but of recent years there have been few decisions involving the application of this law. Although hardships have been pointed out as resulting from the operation of this statute and there are manifest inconsistencies in it, when we consider that it affects the priorities of judgment liens as between themselves, but not as regards mortgage liens and other liens, yet the courts have uniformly held that these considerations should more properly be addressed to the Legislature. McCormick v. Alexander, 2 Ohio, 65; Patton v. Pickaway Co. (Sheriff), 2 Ohio, 395; Earnfit v. Winans, 3 Ohio, 135; Shuee v. Ferguson, 3 Ohio, 136; Waymire v. Staley, 3 Ohio, 366; Sellers v. Corwin, 5 Ohio, 398; Thompson v. Atherton, 6 Ohio, 30; Corwin v. Benham, 2 Ohio St., 36, 37; Bish v. Burns, 7 C. C., 285.

W. C. Ong, for plaintiff in error.

Brewer, Cook & McGowan, Riley & McQuigg and Frank Coleman, for defendants in error.

An examination of the above authorities shows that the decisions made shortly after the passage of the act referred to were fully and carefully reviewed by Judge Eanney thirty years afterward and affirmed and have been acquiesced in ever since.

There is no question that, as between the judgment liens of Charbonneau and Eoberts, the former lost his priority by failing to issue execution and levy within a year.

Judgment affirmed.


text:
    BEQUEST OF INTEREST IN LIFE INSURANCE POLICY WITHOUT ABATEMENT FOR PREMIUMS.
    [Circuit Court of Fairfield County.]
    Jacob Claypool et al v. John R. Claypool, Administrator.
    Decided, October Term, 1903.

      Wills — Bequest of Interest in Life Insurance — Not Subject to Set-off on Account of Premiums Paid — Where the Testator Declared by Codicil — That the Bequest was Without Abatement for Such Premiums — Statutes of Descent and Distribution Not Applicable.

    Where a testator bequeaths to the children of his deceased wife'all interest which he has in a policy of insurance assigned by him to her in her lifetime, and the bequest is made “without abatement on account of premiums heretofore or hereafter paid by me on account of that policy,” such payments of premiums can not be set-off against a note executed by the decedent and held by the estate of his wife, notwithstanding the interest in said policy and by virtue of the payment of said premiums which would inure to him under the statutes of descent and distribution.
    McCarty, J.; Voorhees, J., and Winch, J. (sitting in place of Donahue, J.), concur.
    Error to the Court of Common Pleas of Fairfield County.
   This ease arose in the probate court and was afterwards appealed to the court of common pleas. The proceeding in the probate court was brought under the statute (Section 6100, Revised Statutes), for the allowance of a claim on a promissory note given by Isaac Claypool in his lifetime for the sum of $850 and interest in favor of Sarah A. Claypool, his wife, in her lifetime.

An answer was filed in this case which raises some issue as to the validity of the indebtedness on the note, and as to the question of the alleged set-offs that are sought to be interposed against the note arising from payments of annual premiums on the policy of insurance which Isaac Claypool assigned to his wife.

The situation from which this whole controversy arose was substantally as follows: In 1866 Isaac Claypool caused to be issued on his own life payable to himself, his executors or administrators, a $10,000 life insurance policy. That policy was drawn under the old form of drawing policies of insurance then existing, which provided that on failure to pay the annual premiums the policy would lapse. After some years Isaac Clay-pool married Sarah A. Claypool, and in 1883 he assigned to her this policy of insurance by a written instrument which conveyed to her, her executors, administrators and assigns this insurance policy. Sarah A. Claypool died about 1892 and Isaac Claypool died in 1902. The old gentleman kept up the premiums until he died — a period of about ten years. Had the premiums not been paid at the expiration of any one year, the policy would have lapsed. In this proceeding, which was instituted in the probate court, and afterwards came to the common pleas court, it was sought to recover from the claim made against his estate on the promissory note, the amount of those premiums paid during the period that lapsed from the death of Sarah A., Claypool to the death of Isaac Claypool, amounting in the aggregate to th'e sum of $2,300. And the claim is made that if these items had not been paid in his lifetime that the policy would have lapsed, and he therefore paid them for the benefit of his own estate, and that these payments made by him after the death of his wife should operate as a set-off: to the note, and also that whatever surplus there was between the payments made by him on those premiums and the amount of the note should be ordered to be paid to his estate by the estate of Sarah A. Claypool.

That brings us to the question as to whether those payments are proper items of set-off; and I may say in passing that there is some serious question as to whether, under the assignment made by Isaac Claypool to his wife of this policy — under that written assignment — whether he did not bind himself to keep that policy alive. That question, however, is not before us, and we need not determine it, nor discuss it at all.

Some time after the death of his wife, Isaac Claypool made what is denominated and treated here as a second codicil to his will, and it is contended that has some effect in determining this suit; in other words, that if Isaac Claypool, by virtue of the statutes (Section 4176, Revised Statutes), in that behalf made, is entitled, or his estate is entitled, to recover from the estate of Sarah A. Claypool by virtue of the statutes of descent and distribution, to-wit, one-half of the first $400, and one-third of the balance of the personal property, whether he did not deprive himself, of that by making a subsequent codicil, or second codicil to his will, and whether he did not give that part of his property to certain parties therein named as beneficiaries.

I want to call attention first to the assignment of this policy to his wife. It is contended that he having assigned the policy to his wife, had no longer any interest in it; and secondly, it is contended that if he had any interest in it by virtue of the statutes of descent and distribution (Section 4176, Revised Statutes), which came to him from the estate of his wife, that he released it by the second codicil to his will. I want to call attention to those two instruments. The assignment reads as follows:

“For one dollar to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over to Sarah A. Claypool of Lancaster, O., all my right, title and interest in this policy No. 51254 issued by the Mutual Life Ins. Co. of New York, and for the consideration above expressed, I do also for myself, my executors' and administrators guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, her executors, administrators and assigns, and their title to said policy will forever warrant and defend.
“Dated in Lancaster, Ohio, this twenty-fourth day of January, 1883.
“(Signed) Isaac Claypool.”

Under this assignment, which conveyed to the wife this policy of insurance, it is contended that at the death of the wife, she being possessed of this policy, that whatever belonged to her at the time of her death would inure under the statutes of descent and distribution to her husband who survived her. Assuming for the moment that that would be the situation, this would be the right of Isaac Claypool to his distributive share in his wife’s property, namely, that he would, under the statutes, receive one-half of the first $400 and one-third of the balance on final distribution. Then what comes nest, if that be true? We think this provision in his will — this codicil that I have called attention to — completely, carefully and we might say effectually, takes care of any further questions in this ease. Codicil number two is as follows:

“Whereas, I, Isaac Claypool, on the 9th day of July, 1895, made my last will and testament of that date, do hereby declare the following to be a codicil to the same:
“Whereas, on the seventh day of September, 1866, I obtained a policy of insurance of that date, No. 51254 for the sum of $10,000 on my own life; and afterwards on the twenty-fourth day of January, 1883, duly assigned and delivered said policy to my then wife, Sarah A. Claypool, since deceased, due notice of said assignment having been given to said company. My belief and intention were and are that her children herein named would succeed to and inherit her interest in said policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do hereby give and devise said policy and the moneys therein assured to all the children of said Sarah A. Claypool share and share alike, namely, Frank P. Claypool, John R. Claypool and Ada M. Creighton, without abatement or account for premiums heretofore or hereafter paid by me on account of that policy, and this provision is additional to the devises made in the foregoing will.”

Now let me read a portion of that again:

“My belief and intention were and are that her children herein named would succeed to and inherit her interest in said policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do give and devise said policy and the moneys therein assured to all the children of said Sarah A. Claypool share and share alike, namely, Frank Claypool, John R. Claypool and Ada M. Creighton.”

It seems to the court that this effectually disposes of all the questions that are in the ease; not only the question as to the payment of the premiums that are sought to be charged to the estate of his wife, that come to his estate, but all other interests that he might have in this policy, including the payments of those premiums that were made by him to keep the policy alive. He says so in unmistakable terms, and I want to observe that this codicil was very carefully drawn. It seems to the court to express every word that ought to be in it; nothing is omitted to cover the intention of the old gentleman in making the codicil. It is well known to the bar generally that the intention of the testator is to be gathered from the four corners of the will. He meant what he said.

“My belief and intention were and are that her children” (naming them) “would succeed to and inherit her interest in the policy. Now to avoid any question or trouble, I hereby ratify said assignment, and furthermore I do hereby give and devise said policy and the moneys therein assured to all the children of said Sarah A. Claypool share and share alike.”

He gives all the interest he had in that policy by virtue of his estate that would come to him on the death of his wife under the statutes of Ohio. That disposes of the policy, and that disposes of the interest he had in his wife’s estate in the policy. He says furthermore:

* * * “without abatement or account for premiums heretofore or hereafter paid by me on account of that policy; and this provision is additional to the devises made in the foregoing will.”

In the first place he gives her children the whole policy, share and share alike, and secondly, provides that there shall be no abatement or account for premiums heretofore or hereafter paid.

"W]e think this disposes of the whole matter, and that whatever estate he had in the policy he bequeathed to her children share and share alike, not only what he paid out to keep the policy alive, but what came from his wife at her death under the statutes of descent and distribution.

Therefore, we are of opinion that this alleged set-off can not be maintained against the promissory note which was allowed in favor of his wife’s estate.

C. W. McClery, for plaintiff.

C. D. Martin, M. A. Daugherty and George E. Martin, for defendants.

Finding no error in the judgment of the common pleas court, it will be affirmed without penalty and at the costs of the plaintiff in error.


text:
    ACCORD AND SATISFACTION.
    [Circuit Court of Hamilton County.]
    Brown-Ketcham Iron Works v. L. P. Hazen et al.
    Decided, January 14, 1903.

      Accord and Satisfaction — Liquidated Sum Due — Acceptance of Draft for Less Sum.

    The law in Ohio as to accord and satisfaction does not differ from that of other states or of the federal courts in that, where si liquidated sum is due, the acceptance of a draft for a less sum in satisfaction thereof is binding as in full satisfaction, notwithstanding a want of full satisfaction.
    Swing, J.; Giffen, J., and Jelke, J., concur.
   Per Curiam.

The facts which bear upon the question of accord and satisfaction are practically without dispute, and the question as to whether there was an accord and satisfaction or not, is the cardinal question submitted on error.

The Brown-Ketcham Iron Works made a contract with L. P% Hazen et al, whereby the latter were to do certain work for the contract'price of $1,800. When it was done, over and beyond the contract, .Hazen claimed $166.37 for extras, and Brown-Ketcham -claimed $168.35 for the use of certain tools, etc. Both items were respectively disputed. The following letter was written:

“Indianapolis, Ind., May 12, 1900.
“L. P. Hazen & Co., Cincinnati, O.
“Gentlemen: — Herein please find draft on Fourth National Bank, Cincinnati, Ohio, No. 69252, in amount $469.90 in full payment of all demands for labor and material in any way connected with the contract and extras on building being erected by the Globe-Wernicke Company at Norwood, 0., Harry Hake, architect. This draft is in full settlement.
“The accompanying papers, made out by our Mr. F. 'J. Yin-son, fully explain themselves.
“Yours very truly,
“Brown-Ketcham Iron Works,
“J. L. Ketcham, Secretary and Treasurer.”

The draft for $469.90 brought the amount paid up to within $1.98 of $1,800.

Counsel for Hazen contends that as the amount paid was less than the liquidated item of $1,800, the rule laid down in Cumber v. Wane, 1 Strange, 426, that when a liquidated sum is due, the payment of a less sum in satisfaction thereof, though accepted as satisfaction, is not binding as such, for want of consideration, applies, and hence the retention and use of the $469.90 draft did not constitute an accord and satisfaction. Counsel for Brown-Ketcham contend that it did.

As to this rule, Chief-Justice Fuller said, in Chicago M. & St. P. Ry. Co. v. Clark, 178 U. S., 353, 365:

“The result of the modern cases is that the rule only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of part of it; and while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases within it. ’ ’

Also on page 367:

“And the cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid •shall be received in full satisfaction, will be sustained as an ex-tinguishment of the whole.”

In the case at bar, while the $1,800 item was not in dispute; the “aggregate” mutual accounting was. Brown-Ketcham’s extreme claim was that they could only be charged in the sum of $1,800 less $168.35, that is, $1,631.65; while Hazen’s extreme hiaim was that they were entitled to $1,966.37. The sum actually paid was $1,798.02. That there was a latitude of dispute, even after this last payment, is shown by the charge of the court below, where it says:

Cobb, Howard & Bailey, for plaintiff in error.

O’Hara & Jordan, contra.

“I do not know, gentlemen, whether or not, if all deductions are made, which side a balance would be in favor of. That, of course, is for you. Therefore I have caused to be prepared three forms of verdict.”

But it is contended, conceding the law obtaining generally in the United States to be laid down in the Chicago M. & St. P. Ry. v. Clark, supra, that the law in Ohio is different, and adheres more strictly to the rule of Cumber v. Wane, and reliance is had upon Willis v. Bateman, 1 O. S. C. D., 570, a case by our Supreme Court not officially reported.

This latter case, on its facts, is clearly within the rule of Cumber v. Wane, and there is nothing in it to indicate a different policy in Ohio from that followed by the federal and other state courts of limitation upon that rule to cases strictly within it.

We are therefore of the opinion that the acceptance, retention and use of the draft by Hazen, under the terms of BrownKetcham’s letter, constituted an accord and satisfaction, and the court below erred in letting the case go to verdict.

'Judgment reversed.