author: Per Curiam.

text:
    LIABILITY OF AN ADMINISTRATOR. AFTER. CONFIRMATION OF HIS FINAL ACCOUNT.
    Circuit Court of Putnam County.
    The State of Ohio, ex rel D. T. McCullough, v. Joab Moffitt et al.
    Decided, 1908.

      Estates of Decedents — Administrator Submits Resignation and Wiles Winal Account — Account Confirmed and Administrator Discharged —Such Discharge Held to be General — And Administrator Not Guilty of Maladministration in Wailing to Answer in a Suit Thereafter Brought.

    1. Where an administrator submits to the probate court his resignation to become effective on a certain day named, and"files what he denominates “an account of final distribution,” and an entry is made reciting that the account has been found correct and is allowed by ,the court, and the “-administrator is discharged,” the discharge will -be construed to he general and final, and not simply a discharge as to -matters found in the account.
    2. An administrator so discharged can not be held liable for maladministration, in that he failed to answer when thereafter served with summons in a proceeding involving among other things a chose in action belonging to the estate of his decedent, and in consequence of such failure default judgment was taken against the estate.

      Handy & Unverferth, for plaintiff.

      Ross Kinder and J. W. Smith, contra.
   Per Curiam.

In May, 1888, Daniel U. McCullough, then the owner of certain lands in Putnam county, Ohio, entered into a written contract with the New York, Mahoning & Western Railroad Company agreeing to convey to said company a right-of-way for its railroad over said lands in consideration of certain things to be done by the company, in the way of removing and placing on new foundations buildings standing on said proposed right-of-way, etc., and the payment by said company to him of $2,150.

In pursuance of said agreement, said company took possession of the part of said lands to be so used by it for railroad purposes, removed and placed new foundations under said buildings as agreed, built its railroad on said lands, the same forming part of a continuous line of railroad ever since in operation between Ottawa, Ohio, and Findlay, Ohio, but neither said company nor any of its successors in interest, hereinafter mentioned, ever paid said consideration price nor any part thereof.

On May 22d, 1889, David F. McCullough died intestate, in Putnam county, Ohio, leaving several children (among them the relator) his heirs at law.

On June 17th, 1889, the defendant, Joab Moffitt, was duly appointed and qualified as administrator of the estate of said decedent, in the Probate Court of Putnam County, Ohio.

On November 25th, 1891, said administrator filed in said court what he denominated his “second and final account,” in which he stated certain items of debit and credit between himself and said estate, and showed a balance of $346.25 in his hands for distribution, followed by a statement, to-wit:

“Said administrator states that there is an unsettled claim against the railroad company, whose road passes through the lands of said D. U. McCullough, deceased, arising by virtue of a contract made by said defendant and one Ii. E. McClure, the agent of the railroad company, and which is wholly uncollected, and which said administrator has so far failed to collect or compromise, and he further states that so far he has made no effort to collect the same by law by reason of difference amongst the heirs with regard to the same. * * *
“Said administrator hereby tenders to this court his resignation as administrator of the estate of D. U. McCullough, deceased, to take effect January 20th, 1892, for the reason that it will be necessary to have some litigation to settle said estate in full, and he has not the time to attend to the same, and therefore asks that the same may be accepted.
“Ottawa, 0., 11-25, 1891.
“Joab Moffitt.”

On January 2d, 1892, the probate court took action in the matter set forth in this account, as shown by its journal of January, 1892, as follows:

“Joab Moffitt, administrator of the estate of D. U. McCullough, deceased, having on the 25th day of November, A. D. 1891, filed in this court his second and final account, and notice of the filing and of the time of hearing thereof having been given, for not less than three weeks prior thereto by publication in thePutnam County Sentinel, a newspaper of said county, the said account is now here" heard.
“Whereupon the court finds said administrator chargeable with the assets of the estate of said D. U. McCullough, deceased, to the amount of $3,129.26, and that he is entitled to credits in the sum of $2,783.01, leaving due said estate the sum of $346.25, which said amount said administrator is hereby ordered to distribute to the heirs only, and not to widow of said decedent, according to law.”

Said administrator also filed in said court what he denominated an “account of final distribution,” showing how he had distributed and paid out said balance of $346.25.

The record of the probate court sets forth that this account was “produced to this court” on the 16th day of January, 1892, but all the items are dated November 25th, 1891, and the verification thereof bears the same date, and this account was doubtless filed on that day, i. e., the same day as the “second and final” account.

The record of that court of January 16, 1892, further shows as follows:

“This day came Joab Moffitt, administrator of the estate of D. U. McCullough, deceased, and produced to this court his account of final distribution of assets of the personal property and estate of said decedent, remaining in his hands after his final settlement heretofore made, and the same being found in all respects correct, was allowed by the court, ordered filed and duly recorded, and the administrator is hereby discharged.”

This suit in the court of common pleas was brought by the relator under favor of Section 6212, Revised Statutes, and an order of the Probate Court of Putnam County, Ohio, made in pursuance thereof, on behalf of himself and others interested in the estate of David U. McCullough, deceased, against Joab Moffitt, as principal and the other defendants as his sureties on the bond of said Joab Moffitt, as administrator of the estate £>f saiid David U. McCullough, deceased, for and on account of alleged maladministration.

A jury was impanneled for the trial of the issues, but at the conclusion of the introduetio'n of the evidence in chief on behalf of the plaintiff, the jury, on motion of the defendants and under direction of the trial judge, returned a verdict against' the plaintiff; upon which verdict judgment was entered against the plaintiff, and to that judgment the plaintiff prosecutes error in this court.

The evidence submitted on behalf of the plaintiff tended to establish certain facts (most of which were not controverted by the pleadings or otherwise), which plaintiff contends entitled him to have the cause submitted to the jury, and to have a verdict in his favor.

The facts investigated upon the trial making up the history of the transactions above outlined, and other matters related thereto, were many and were somewhat complicated, but only such facts will be stated herein (in addition to those hereinbefore stated) as may be deemed vital and controlling and such as may be essential to an understanding of the views and opinions of this court.

It appears that by judicial sale the property of the N. Y., M. & W. R. R. Co. was acquired by one Dorwin in 1890, and that it was thereafter transferred by Dorwin to the Findlay, Ft. Wayne & Western Railroad Co., but these sales and transfers did not affect the claim in favor of the estate of Daniel U. McCullough, or any right in or lien upon the right-of-way that might have existed in favor of his estate or his heirs.

Afterward a suit was brought in the Court of Common Pleas of Putnam County, Ohio, against the Findlay, Ft. Wayne & Western Railroad Co. et al, by one Sands, to enforce a lien and marshall all liens upon the property of said company so acquired, .and a like suit was brought in said court by one Josephine Mass, for a like purpose. These suits were consolidated.

In November, 1893, one Charles G. Patterson, a party defendant therein, set forth in an amendment to his answer and cross-petition, that Joab Moffitt, as administrator of the estate of D. U. McCullough, deceased, had a claim for right-of-way against the railroad company, but that the claim was not valid, and he asked that said administrator might be made a party defendant, and be compelled to set up said claim or be forever barred from asserting the same. Moffitt, as administrator, was duly served with the summons, but he failed to answer, and ultimately a decree was entered in the ease which contained a finding that the estate had no valid claim against the company or interest in or lien upon the property.

The alleged maladministration of said administrator in making such default and in permitting such decree to be taken against the estate in the basis of the action the judgment wherein is now under review.

There is a question made as to whether the administrator was not excused from asserting the claim in that suit and as to whether the plaintiff in the case under review are not estopped from now complaining of such action by reason of the assertion and prosecution of the claim in that suit by certain of the heirs, and by certain circumstances connected therewith, but we do not deem it necessary to consider this question.

A general demurrer to the petition was sustained and judgment for defendant was given by the Court of Common Pleas of Putnam County, on the ground, it is said, that the petition discloses that if there was a cause of action against the said railroad company on the right-of-way contract, it was in favor of the heirs who inherited the lands affected by the grant, and was not in favor of the administrator. This judgment was reversed by the circuit court of that county, whereupon an answer was filed and the trial.to which we have referred took place, resulting in the judgment now under review. But counsel for defendant in error has urged us to examine into that question de novo, and we have done so, and we concur in the conclusions announced Joy the circuit court of the third circuit. Upon this question counsel for both parties place much reliance upon the case of Railway Co. v. Lawton, 20 O. S., 401. We are unable to see that the decision in that case necessarily supports either contention. The precise question here presented, i. e., whether suit to enforce the contract either specifically or by foreclosing a lien, must be brought by the personal representative or the heirs, does not seem to have been involved in that case. There the litigation was between the original contracting parties. In our judgment this contract resulted in an equitable conversion of the interest in real estate into personal property, so that the claim was one for money enforceable by the personal representative only, and for the benefit of the estate he represented. It was a chose in action, and constituted an asset of the estate. Without discussing the question in extenso, we cite in support of our views, and as an expression of our views upon this question the case of Isham v. Buckeye Stave Co., 2 C.C.(N.S.), 1, and especially the authorities cited in the opinion in that case, including quotations from Pomeroy’s Equity Jurisprudence, and a decision by Judge Wildman in a case which on that point is quite like this in principle, found in 6 N. P., 60.

Manifestly this suit can not be maintained against the administrator and his sureties on the bond, if at the time of the alleged default or misfeasance Moffitt had been discharged as administrator, and released of all responsibility with respect to the trust.

The action of the judge of the trial court in directing a verdict for the defendants was based (as we are advised) upon his conclusion that the administrator had been so discharged and exonerated.

Upon the introduction in evidence of the record of the probate court discharging the account of the administrator, and especially his tender of his resignation of November 25th, 1891, and the order of discharge on January 16th, 1892, it devolved upon the trial judge to put a construction thereon,' and to determine whether (as contended by counsel for defendant in error) such discharge was general and final and relieved Moffitt from further or future duties respecting said estate; or whether (as contended by counsel for plaintiff in error) it was simply a discharge as to the matters involved in his account of final distribution.

This duty the trial judge. discharged when he directed the verdict for the defendants. Was he correct in his conclusion that the discharge was general and final? If so, that was an end of the controversy.

In the ease of Weyer et al v. Watt, Exr., 48 O. S., 545, which was an action by an executor to collect a note which was an asset of the estate, it was held, in support of the authority of the executor to maintain the suit, that an entry based upon what he denominated his final account, that the executor “had well and faithfully discharged his duties, and paid out to the proper person or persons all moneys coming to his possession as executor,” and ordering that the account he made final, and said “executor discharged from his said trust,” and that he “distribute among the legatees and distributees of the estate of said decedent all the uncollected assets of said estate,” was not a final discharge as to the notes (one of which was the note sued on) reported by him in his final account to be uncollectable.

The Court, speaking through Williams, C. J., after quoting the statutes relating to the question, said, inter alia:

“Under our legislation * * * an executor or administrator may be removed by the probate court for cause, or he may resign his trust with the consent of the court. But we find no power conferred upon that court to discharge an executor or administrator from his trust, upon the settlement of what is called a final account, and thus extinguish his authority as trustee.”

And in the absence of a tender of a resignation, or charges or findings justifying removal, the court held that there was not in that.case a final discharge as to the assets unadministered. The court thought it obvious that the order was not intended to have such operation.

But, in 'the case at bar it appears that a resignation had been tendered, and was before the court for its consideration when the entry was made approving the account and concluding, “and the administrator is hereby discharged,” and the record of the probate court is to be construed in the light of that important circumstance.

This tender of his resignation is dated November 25th, 1891, and was “to take effect January 20th, 1902.” That is, it was the expressed desire and purpose of the administrator that it should take effect at that time. The date of the discharge is January 16th, 1892. Whether it then took effect, or was ineffectual until four days later, we need not consider, as nothing depends upon the solution of that question.

It seems to us quite apparent that, in thus ordering the discharge of the administrator under those circumstances, the probate court was acting not only upon the final account, but upon the tendered resignation as well.

It is true that the phrase, “the administrator is hereby discharged,” is appropriate to a discharge respecting an accounting only; but we think it is sufficient to effect the acceptance of a resignation, though doubtless more explicit — perhaps more appropriate terms — could have been chosen for that purpose.

While Section 6015 provides that the court may receive the resignation “if it thinks fit, and upon good cause shown,” the absence of a specific finding that the court thought it fit or thought the cause sufficient can not defeat what was actually done. Such findings are not essential to the validity or effectiveness of the order.

The provision in Section 6015, that the court upon receiving such resignation shall “appoint an administrator in his place,” and that in Section 6016, that “the acceptance of such resignation and the appointment of another administrator, shall not affect the liability of such former executor or administrator,” etc., we do not regard as making the appointment of a successor essential to the taking effect of the acceptance of the resignation.

The matter of appointing a successor is something not at all within the control of the administrator. He has no duty to perform with respect thereto, and the fact that none was appointed in this case we regard as wholly immaterial.

We conclude and hold that the attempt of November, 1893, to obtain jurisdiction over this estate, and over Joab Moffitt as administrator thereof, was futile and ineffectual because he was no longer the administrator of the estate. That therefore he had no duty to perform in the premises, and could not have been' guilty of misfeasance in failing to attempt to prosecute the claim on the right-of-way contract.

It is suggested that thereafter Joab Moffitt allowed the prosecution of a suit on this claim in his name as such administrator, whereby he is estopped to deny that he was such administrator at the earlier date.

We are unable to see how in any event such action after his discharge could bind his sureties on his administration bond, or how a suit for misfeasance in an earlier transaction could be supported by a showing that after being discharged he represented that he was still the administrator.

But, aside from this, we do not find in the circumstances disclosed enough to have made it the duty of the court to submit the ease to the jury on the theory that this defendant might be. bound under the principles of estoppel, notwithstanding his final discharge before the happening of the event supposed to raise the claimed estoppel.

We find no error in the record prejudicial to the rights of the plaintiff in error, and therefore the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    THE WEIGHING OF EVIDENCE.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Edward J. Ruthman, a Minor, by His Next Friend.
    Decided, May 28, 1910.

      Evidence — Preponderance of,-in a Negligence Case — Charge of Court— Care. Required of a Motorman.

    In a case where the pleadings and evidence require a determination as to whether the plaintiff himself exercised due care, a charge of court is erroneous which directs the jury to find for the plaintiff in the event his evidence outweights that of the defendant, if they are not at the same time told that before weighing the evidence for the plaintiff they should separate out, without regard to its source, such evidence as tends_ to prove the -essential facts of plaintiff’s case from that which tends otherwise.

      Frank Seinsheimer and Thomas L. Michie, for the plaintiff below.

      Kinkead & Rogers, for the traction company.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
    Although counsel for plaintiff in error does not urge the ground stated in the petition in error that the verdict is not sustained by sufficient evidence, we have read the same .to ascertain whether the alleged errors in the charge of the court are prejudicial.
   The pleadings- and the evidence make a case where the plaintiff’s exercise of due care is presented for determination, and a charge which misleads the jury to its conclusion upon that issue without considering all the evidence is erroneous.

The court charged as follows:

“Preponderance has reference to something that has weight, or that may be weighed. You can not, of course, by a pair of scales, weigh the evidence in this case as you would a material solid substance, but' you can in your minds weigh the evidence by putting into one side of an imaginary scale or balance all the evidence offered by the plaintiff and into the other side of the scale or balance all the evidence offered by the defendant, and then in your minds determine which evidence, the plaintiff’s or the defendant’s, is the weightier or heavier.
“Before the plaintiff can recover in this action the evidence offered in his behalf must outweigh in your minds the evidence offered on .behalf of the defendant.”

The law recognizes and experience teaches that the" evidence offered by the plaintiff'in an action founded upon negligence, often shows that he himself is at fault; but if such evidence is placed on plaintiff’s side of the scales it will add nothing to the weight of defendant’s side. Before proceeding to weigh the evidence the jury must separate that which tends to prove the essential facts of plaintiff’s case from that which tends otherwise, without regard to its source. A charge similar in effect was condemned in the case of Robinson & Weaver v. Gray, 28 O. S., 24.

The motorman was bound to exercise ordinary care only, and the court so told the jury in a special instruction given at request of the defendant; but in the general charge he said “It was his duty to make every effort to check his car or stop his car, if necessary, in order to avoid injury.”

The jury would be liable to construe this as meaning “every possible effort,” which is more than the law requires in an emergency like the one presented by the evidence. The first and highest duty of the motorman was owing to the passengers on his car. Railroad Co. v. Kistler, 66 O. S., 326.

The cross-examination of the motorman was proper as reflecting on his conduct at the time of the collision and his" version of it. There was no purpose to introduce a new element of negligence.

The judgment will be reversed for errors in the general charge and the cause remanded for a new trial.


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    CLAIM FOR. INSURANCE AGAINST AN INSOLVENT.
    Circuit Court of Lucas County.
    Bertha Koch v. The St. Charles Hotel Company.
    Decided, February 11, 1910.

      Fire Insurance — Promissory Not Given for, an Evidence of Debt Only— Assertion of Claim Against an Insolvent Corporation — Partially Executed Contracts — Payment—Pleading—Trial.
    1. In an action against an insolvent corporation for a receiver and the winding up of its affairs, a creditor may come in by leave of court and assert his claim by a motion in proper form.
    2. Where a promissory note is given for insurance, it does not constitute payment of the premium, but during the term of the insurance is a mere evidence of indebtedness arising under a contract not yet completed; and where a receiver comes in-and takes possession of the property covered by the insurance, he is chargeable with the cost thereof for the remainder of the term the policies have to run.
    Kinkade, J.; Parker, J., and. Wildman, J., concur.
   This is a proceeding in error involving a controversy between parties other than the nominal plaintiff* in error. The case was originally instituted by her against the St. Charles Hotel Company and a receiver for that company was appointed. ' He subsequently resigned, I believe, and another receiver was appointed in his place.

The questions before us are raised in a controversy between a firm known as Barker, Frost & Chapman, who 'are insurance agents, and who, prior to the receivership, had obtained for the St. Charles Hotel Company certain insurance and had charges against the hotel company for the amount of premiums therefor. Shortly before the appointment of the receiver this firm obtained from the St. Charles Hotel Company two notes in evidence of settlement of the amount at that time supposed to be due. After the receiver was appointed some question arose as to whether the insurance should be terminated, the policies having the usual provision as to their being void by change of ownership,'and as a result of the discussion between the parties the insurance was permitted to remain upon the property as controlled and held by the receiver, the receiver however insisting that the note which had been given operated as a full payment for the insurance for the entire term which it was to run, while on the other hand the St. Charles Hotel Company being insolvent, the firm of Barker, Frost & Chapman claimed that they were entitled to treat the contract on the part of the insurance company as an executory one, and claimed that the notes were not payment of the insurance but only evidence of the indebtedness, and surrendered the notes and made a claim as a preferred charge against the receiver of the amount of the insurance premium which would accrue for the insurance from the time the receiver was appointed until the end of the term of the insurance period. The firm came into the case by motion upon leave of court and thereupon filed another motion asserting their claim. It is insisted in behalf of the plaintiff in error that they could not properly do this; that they should interpose by a cross-petition or as intervenors by pleading upon their claims, so as to submit them to an issue by a pleading on the other side. It is said that the court erred in not striking out or refusing to consider this motion as an assertion of the claim of Barker, Frost & Chapman, and in overruling the request of the receiver to file an answer.

The whole matter, however, was litigated in the court below as if there had been a pleading filed by Barker, Frost & Chapman and an answer to it traversing the allegations of such pleading.

We are inclined to think that the motion was proper in view of the circumstances as seeking a direction from the court of the appointment, requiring the receiver to allow this claim, and that it fairly tendered the issue for the consideration of the court.

There are some other preliminary questions which may be considered, all questions incidental to the principal one, but the one which has addressed itself to us as fundamental to the case is the one :as' to whether the giving of the note constituted a payment of the insurance for the full period, and whether Barker, Frost & Chapman would have any authority to terminate the insurance, to shorten the term, and thereby lessen the amount of the premium which the insurance would earn. There is a good deal of able and very lucid discussion of the question in the brief presented to us, and we think that the question as to whether these notes in fact constituted a payment or only evidence of an indebtedness on the part of the St. Charles Hotel Company to Barker, Frost & Chapman has been substantially decided in one or two eases to which I will refer.

In the case of J. Weller & Company v. Washington, Gordon & Company, 7 C.C.(N.S.), 303, at the January term, 1903, this court held, Judge Hull announcing the opinion, that the giving of an order, check or other instrument is not absolute payment, unless it is shown that it is understood and agreed by the parties to be accepted as absolute payment and satisfaction of the amount, and the burden is upon the person claiming the payment to show these facts. The other cause was by another circuit court, and is perhaps a little more precisely in point as to what constitutes a payment where the instrument is given based upon an indebtedness and where under such circumstances the burden of the proof rests' to show the intention. The case is that of Martha Rosculp, Admx., v. Ohio Southern Railroad Company, 19 C. C., 436, and 10 C. D., 621, and the 8th paragraph of the syllabus is as follows:

“As a general rule giving a note is not payment but. merely evidence of the debt and in the absence of proof to the contrary must be so regarded. ’ ’

I'might say that the case to which I have referred, 7 C.C. (N. S.),303, decided by our own court was subsequently affirmed by the Supreme Court, without opinion, 70 O. S., 489.

We may take it then as an established rule governing us that the giving of the note by the St. Charles Hotel Co., in the absence of satisfactory proof to the contrary, was to be treated as mere evidences of the state of the indebtedness at that time between the hotel company and Barker, Frost & Chapman. They have offered to surrender .these notes, and they are claiming that the contract for insurance is not like a contract, where, even if there had been full payment, there was nothing still to be done in the way of rendering of the service by the .party to whom the notes were given or to whom a payment is made, and the argument made by counsel -in .this regard is absolutely conclusive upon the subject. There is no question that a transaction of this kind is to be distinguished from the purchase of supplies or the purchase of a suit of clothes or any other article, where the contract is completely executed on the part of the one who receives the money or receives the note. The insurance company here had nothing to do; it was to carry a hazard for a term of years, or for a particular period, and during the entire period it was expected to be performing that service.

Now a large part of that service was to continue after the appointment of this receiver, and as has been well urged upon us, if there had been no insurance, it would have been the duty of the receiver under the circumstances to ask the court for authority to take out insurance upon the property for its protection, or for the protection rather of the persons beneficially interested in the estate. Instead of that, this insurance was permitted to remain. There is no question as to the validity of the insurance or the reasonableness of the premium paid, and it would seem to be entirely inequitable that the property in the hands of the receiver should receive this protection and should pay nothing for the benefit.

We think under all the circumstances that the receiver is justly ' chargeable for the amount of the insurance, for the amount which the insurance should draw from the time of the appointment of the receiver;' that it is like a charge against an administrator, or against any receiver, as a part of the expenses of administration or expenses of the receivership, and consequently that it is a preferred claim, having priority over other claims of general creditors of the estate. Our judgment is that the court below did not err in so holding.

' It is contended with some earnestness that there is no authority to moke this sort of an order without a showing that the receiver has funds in his hands out of which to make the payment ; but the order of the court below was that he should make payment out of funds in his hands then or thereafter, and all things are to be presumed in a proceeding in error in favor of the regularity of the proceedings below, and we may fairly presume that the court, having knowledge of the condition of the assets in the hands of the receiver, was aware that there was something in his hands out of which he could at least ultimately make payment of the claim. The judgment of the court below will be affirmed.


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    WRONGFUL DEATH OF A LOCOMOTIVE ENGINEER..
    Circuit Court of Hamilton County.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Gussie Francis, Administratrix.
    Decided, April 23, 1910.

      Defective Railway Equipment — Construction of the Qualifying Liability Act — Charge of Court — Negligence—Proof of Legal Appointment of Administratrix — Sections 9011 and 10110, General Code.

    In an action for damages on account of the wrongful death of a locomotive engineer, alleged to have been due to a defective engine and a defective track upon which to operate it, it is proper to apply the provision of paragraph 2 of Section 9017, General Code, qualifying the liability of railway companies for injuries to their employes.

      Maxwell & Ramsey, for plaintiff in error.

      Sherman T. McPherson and Wm. M. Coffin, contra.
    In this case a judgment was recovered below of $5,000 on account of the wrongful death of the intestate, a locomotive engineer.
    Giffen, P. J., Swing, J., and Smith, J., concur.
   The testimony of the plaintiff that she is the administratrix of her husband, is not proof that she was duly qualified and acting as such administratrix at the time the petition was filed; but if there was no evidence at all of her legal capacity to sue, we would hesitate before reversing the judgment on that ground only, when the defendant knew, or had good reason to believe, that she had such capacity. Packet Co. v. Fogarty, Administrator, 9 C. C., 418.

It appears from the evidence that the defendant company was negligent in furnishing the deceased a defective locomotive engine, and a defective track upon which to operate it, and that by reason thereof he lost his life.

The court did not err in charging the jury in substance that the provisions of Section 9017, General Code, embodied in para graph 2 of the act “-To qualify the liability of railroad companies for injuries to their employes,” passed February 28, 1908 (99 O. L., 25), applied.

Whatever doubt may exist as to the application of Section 1 of the act to a cause of action under Section 10770 (6134, Revised Statutes), there can be no doubt that the clear and broad terms of paragraph 2 of the act apply to such a cause of action.

We find no prejudicial error in the record and judgment will be affirmed.


author: By the Court.

text:
    NEGLIGENT RUNNING OF CARS AT STREET CROSSINGS.
    Circuit Court of Clermont County.
    The Interurban Railway & Terminal Company v. John M. Hines, Administrator.
    Decided, June 1, 1910.

      Passenger Alighting from Electric Car — Fatally Injured 6y Car of Another Company — Duty of Car Companies Toward Persons at Street Crossings — Negligence—Presumption as to Looking and Listening.

    An interurban car company, entering a municipality over the tracks of another company, is bound by the rules of that company with reference to the speed of cars at crossings; and where it appears that due care was not exercised the interurban company is liable for striking a passenger alighting from one of the cars of such other company.

      Prescott Smith and D. W. Murphy, for the administrator.

      Frank F. Dinsmore, contra.

      The plaintiff below in the above entitled case brought suit in the common pleas court of this county for damages on account of the death of his wife, who was struck and fatally injured by an in-bound interurban car as she alighted from an out-bound ear of the Cincinnati Traction Company. The case was removed to Clermont county for trial, where a verdict was returned for the husband of $3,000. Error was prosecuted to the circuit court by the interurban company, and the following opinion in the case has been filed in that court:
   By the Court.

From a consideration of the evidence as disclosed by the record in the above case, the court is of the opinion that the judgment of the trial court should be affirmed.

The act of negligence charged against the railway company in the petition are fully sustained by the evidence, and we do not think that there is anywhere disclosed contributory negligence upon the part of the decedent. From all the circumstances surrounding the decedent at the time she was struck by the ear of plaintiff in error, it would seem that the railway company did not exercise the care that it should.

The congestion of the cars on the outbound track, the lack of warning either by headlight or sounding of the gong, together with the speed at which the interurban car was proceeding, as well as the fact that the night was dark, would seem to indicate that the care necessary under the existing conditions was not taken by the servants, of the railway company.

While the decedent was not a passenger upon the car of the plaintiff in error company, yet we think the rule laid down in the case of Street Railway Company v. Snell, 54th O. S., 197, might well apply to the ease at bar, for the railway company, in operating its cars upon the line of the Cincinnati Traction Company, seems to us would be bound by the rules of that company applicable to the speed of running of ears at a crossing; but beyond this, under the circumstances of the present case, it 'was the duty of the railway company to have approached the point of accident with due care, as it owed this ordinary care to any pedestrian who might wish to cross the street.

As to whether or not the decedent stopped, looked and listened before attempting to cross the track of the railway company, we are not prepared to say bnt that she did, and she at least had the right to assume that the plaintiff company in the handling of its car would exercise ordinary care towards her at this particular time and place under all circumstances. But if the evidence would not justify such an inference and was wholly lacking upon this point, there is the legal presumption in her favor that she did look and listen. B. & P. R. R. Co. v. Landrigan, 191 U. S., 461.

The court is of the opinion, therefore, that decedent was not guilty, either in fact or law, of contributory negligence, and as the amount of' damages assessed by the trial court is not excessive the judgment will be affirmed.


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    COMPENSATION FOR. PIKE USED FOR STREET PURPOSES.
    Circuit Court of Hamilton County.
    The Cincinnati, Columbus & Wooster Turnpike Company v. Village of Milford.
    Decided, December 4, 1909.

      Turnpikes — Action by Company for Compensation — Where Section of Pike is Used as a Street — Situs of a Village Situated in Two Counties — Venue—Section 1536-136.

    1. An action by a turnpike company for recovery of compensation for that portion of its roadway which lies within the corporate limits of a village and has been taken possession of and is being used for street purposes is transitory in character and must be brought in the county in which the defendant village is situated.
    2. Where a village is situated partly in one county and partly in another it must be sued in the county in which it has its situs.

      Thorne Baker, for plaintiff in error.

      D. W. Murphy, for the village.
    The plaintiff in error brought an action for recovery of compensation for something over a mile of roadway, which it was claimed the village had taken possession of and is using as a street without first making compensation therefor. The defendant denied that it was liable to be sued in Hamilton county, for the reason that it is an incorporated village situated in both the county of Hamilton and the county of Clermont, but has its principal seat of government, mayor’s office and place of business in Clemont county, and has no seat of government, mayor’s office or place of business in Hamilton. The court below held for the village.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   An action under Section 1536-136, Revised Statutes, to recover from a city compensation for a turnpike included within the corporate limits, is under the code, not local, but transitory in character, and must be brought in the county where the defendant resides or may be sumoned. The defendant in error is situated partly in two counties,- but has its situs in Clermont county, where it must be sued in such action. City of Fostoria v. Fox, 60 O. S., 340.

Judgment affirmed.


author: Wildman, J.

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    CIRCUMSTANCES RENDERING ANSWER. TO LETTER INCOMPETENT AS EVIDENCE.
    Mary W. Tolerton, Executrix of Estate of E. W. Tolerton, v. Clementine B. Robinson.
    Circuit Court of Lucas County.
    Decided, December 4, 1909.

      Evidence — Action Against Estate of Decedent — Plaintiff Offers in Evidence Answer to Letter Written Toy Decedent — Answer Held Incompetent.

    It is not competent for a plaintiff, wbo is disqualified from testifying in tbe case by reason of the decease of the defendant, to offer in evidence the answer to a letter written by the decedent concerning the subject-matter of the suit, where the original letter is not in court and the answer contains a self-serving declaration and would, if received in evidence, be in effect permitting the plaintiff to testify.

      Kinkade, J.; Parker, J., concurs; Wildman, J., dissents.
   This is an action below against the estate of E. W. Tolerton to recover a sum of money said to have been retained by Mr. Tolerton belonging to the plaintiff. The plaintiff below recovered a judgment for $674.16, and Mrs. Tolerton, as executrix, is here to reverse that judgment of the court of common pleas.

Numerous errors are assigned, but only two are relied upon in the arguments of counsel, and those are the error of the court arising by reason of having admitted two letters, one Exhibit No. 7 and the other Exhibit No. 10. Exhibit No. 7 is a copy of a letter written by Mrs. Robinson to Mr. Tolerton in his lifetime, and Exhibit No. 10 is a letter written by Mr. Brumback, counsel for Mrs. Robinson, to Mr. Tolerton. Demand was made upon the executrix of the estate to produce the original letter that Mrs. Robinson is said to have written, and they replied that they had no such letter, and on the trial the plainiff first offered in evidence an answer to that letter, which was a denial of all that was contained in it, and then made the proof that demand had been made for the original letter sent and inability to procure the original, and offered the copy, and the copy was objected to on the ground that it was permitting the plaintiff through her own letter to put into the case a self-serving declaration, and thereby in effect testify in the case, although she was herself disqualified from testifying because the action was against an administrator. It is contended here that because she had a reply to the letter it is competent, and that the form of the reply is of no moment; that the reply shows that Mr. Tolerton got some form of letter from her, and no matter whether he said he admitted the statements in the letter or whether he denied the statements in the letter, that the letter is competent because it is a part and parcel of the correspondence. Mrs. Robinson, as I say, introduced the reply of Mr. Tolerton herself as the basis of making her own letter that she proved by a copy to be competent, and then she put before the jury a full statement of her claims in that case, stating in the letter what Mr. Tolerton said to her and so on, although it is flatly and squarely denied by Mr. Tolerton in his reply.

We think upon a full consideration of the case that it would be a most dangerous rule to adopt -that a party might put into ^the case a letter that he had written where the contents of the letter were clearly denied by the answer, or where he had no answer at all. If that may be done, it seems to us that it would open up a very dangerous bar through which unscrupulous parties might reach the assets of an estate, to the great detriment of the estate. It is not intended by anything said here to intimate that Mrs. Robinson is an unscrupulous 'person, or is seeking to do anything of that kind.' There is nothing in the record that would justify such statement, and we wish it distinctly understood that we are not intimating anything of the kind. But the rule laid down must be applicable to everybody as well as Mrs. Robinson, and her contention broadly is that if she writes a letter and is able to prove that she wrote a letter of a given tenor, that it was mailed bearing the usual postage,- and probably received, that she has the right to prove that letter in a trial against the estate where she herself is incompetent to testify, no matter to what extent it is a self-serving declaration in her behalf; and I think her counsel goes to the length of claiming that she might do this, even though she has no reply. In this case we think she stands no better than she would stand had she no reply, because the reply is a flat denial of the claims made in the letter.

The court below admitted both letters. Mr. Brumback’s letter was one, addressed to Mr. Tolerton, making some claims against him, setting out certain figures of the state of the bank account, etc.” They were both admitted in evidence. We think that the court erred in admitting each of them. The majority of the court is of this opinion, and for that reason the judgment of the court of common pleas will be reversed.

Wildman, J.

I do not deem it proper to enter into any discussion in the case in which the opinion has just been announced by Judge Kinkade, but I will content myself by saying I do not concur in the judgment of the majority of the court.


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    ACTION FOR. RECOVERY UNDER A CONTRACT.
    Circuit Court of Hamilton County.
    C. H. Monroe & Company v. The Jos. R. Peebles Sons Company.
    Decided, June 11, 1910

      Contracts — Evidence—That Which is Incompetent Distinguished from that Which is Prejudicial — Self-serving Declarations.

    In an action for recovery under á contract, tbe admission of statements by tbe defendant wbicb have no bearing upon tbe question of bis liability are not prejudicial, notwithstanding they were not made in tbe presence of tbe plaintiff and were self-serving.

      Powel Crosley, for plaintiff in error.

      Froome Morris, contra.
    Swing, J.; Giffen, P. J., and Smith, J., conenr.
    This case is here on error to the judgment of -the court of common pleas.
   It is claimed that the court erred in admitting statements made by the defendant in error not made in the presence of the plaintiff in error and that the declarations were self-serving.

Conceding that these statements were not competent, we are of the opinion that their admission was not prejudicial. Monroe sought to recover on a contract with the defendant company for the erection of a booth at Music Hall. There is no .evidence which tends to prove that at the time he erected this booth he ever had any conversation with Mr. Peebles or any one authorized by him by which the Peebles Company was to become liable to pay for the same. On the contrary, the evidence shows without contradiction that the booth was erected by Monroe under a contract with one Buckley, or Mrs. Haight, who represented Buckley. In fact, Monroe had never met Mr. Peebles, or Mr. McLean, the general manager of the Peebles Company, until after the erection of the booth. Before the booth was fully completed Mr. Peebles visited Music Hall and gave some directions about the completion of the booth, and it is on what took place at this time that Monroe bases his right to recover.

The' statements admitted were as to what Peebles and McLean said to Buckley and Mrs. Haight, and further as to Mr. Peebles’ intention about exhibiting at the pure food show at Music Hall, for which this booth was erected. These statements could have no bearing on the question whether Mr. Peebles at the time he visited Music Hall and after the erection of the booth made a binding contract with Monroe for payment for the same. Neither do we think their admission can be regarded as prejudicial, especially so as the weight of the evidence is clearly with the defendant.


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    EXAMINATION OF MEDICAL STUDENTS.
    Circuit Court of Hamilton County.
    The State of Ohio, ex rel Eric R. Twachtman, v. The State Medical Board of Ohio et al.

    Decided, June 7, 1910.

      Examination of Applicants for Certificates to Practice Medicine and Surgery — Abuse of Official Discretion in Appointment of Places for Bolding Such Examinations — Mandamus—Section 1273, General Code.

    The delay for more than three years on.the part of the State Medical Board to appoint a time for holding, in other cities than Columbus, examinations of applicants for certificates to practice medicine and the failure to fix a date for such examinations in June, which is the month when medical students complete their studies and desire to apply for certificates, is an abuse of the discretion vested in that board, and unless the said board desires to set forth by answer a reason for its inaction in that respect, a peremptory writ of mandamus will issue against'it.

      Sanford Brown, for plaintiff.

      U. G. Denman, Attorney-General, W. H. Miller and G. F. Williams, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.

       For a previous opinion involving the same subject and statute, see 12 C.C.(N.S.), 189.

   Although the statute (Section 1273, General Code) requires that examinations of applicants for certificates to practice medicine and surgery in this state be held in the city of Cincinnati as well as in Columbus, no such examinations have been held in Cincinnati during the last three years, and the defendants now declare that they will hold no such examination during or near the month of June, 1910, when a large majority of the students complete their course of instruction.

The only reasonable time for holding the examinations would, under the allegations of the petition, be when the students have finished the course of instruction or soon thereafter, and if the defendant board for its own convenience or other good reason prefers a later date, it ought by answer to set forth such reason. The objection to the present policy of the board is that no time' whatever .is fixed for an examination in Cincinnati, and that the practical effect of it is to coerce the students to take the examination at Columbus, lest by refusing they will be deprived of every opportunity to be examined and to obtain certificates. It would be a clear abuse of the discretion vested in the board to indirectly nullify the statute and deprive the students of Cincinnati and vicinity of the privilege conferred.

The motion to quash the alternative writ will be overruled, and unless the defendants wish to plead, a peremptory writ may issue as prayed for.


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    DECLARATION OF A TRUST.
    Circuit Court of Highland County.
    Charles C. Redkey, as Executor of Martin Redkey, v. William Worthington, as Administrator de bonis non with the Will Annexed of Joseph Worthington, Deceased, et al.
    Decided, October Term, 1909.

      Passing Title hy Declaration of Trust — Gifts Inter Vivos and Causa Mortis — Trust in Property Can Only he. Created hy Unequivocal Terms — Elements Necessary to Constitute a Trust — “My Trustee” Construed to Refer to the Beneficiaries Named, and not to an Agent or Trustee of the Donor — Power of Revocation — Formalities of a Testamentary Disposition not Necessary, When.

    On October 14, 1905, J. W., being seriously ill, transferred by writing the sum of $6,200 to one M. R. as trustee to receive and hold and after the donor’s death to distribute the same to designated beneficiaries therein named, in various amounts. The written instrument provided that, if M. R., the nominated trustee, should die, that the probate judge should nominate his successor, but reserved the right to “revoke this appointment at any time” during his life. J. W. drew a check payable to M. R., trustee, for the amount, and said trustee deposited the same in bank in the name of himself as trustee for J. W. Action by J. W’s. administrator to recover from M. R’s. executor the amount named as part of J. W’s. estate. The beneficiaries named in the instrument, by interpleader, also seek to maintain their respective rights to the fund. Held:

    1. Under the terms of the instrument M. R. became the trustee for the beneficiaries therein named, and not the agent or trustee of the donor.
    2. The written instrument was a valid declaration of trust and passed a present legal title to the trustee, under a trust to deliver the amounts named to the designated beneficiaries after the death of the donor.
    3. The requirements and formalities of a- testamentary disposition are not necessary where the corpus of the property is transferred to a trustee by an instrument containing plain and unequivocal declarations of the trust and its uses, although its ultimate distribution is not- to be made until after the death of the donor.

      4. The power of revocation in the instrument is construed to mean a veto upon the appointment that might he made hy the prohate judge; hut should it he construed as a power reserved hy the donor to revoke the trust, inasmuch as the power was not exercised in the life of the donor, the trust remained absolute, and at the death of the donor the property and the right of possession passed to the heneficiaries named.

      D. C. Morrow and Boyd & Slutes, for the Board of Home Missions and Church Extension of the Methodist Episcopal Church, the Woman’s Home Missionary Society of the Methodist Episcopal Church, and the’ Board of Foreign Missions of the Methodist Episcopal Church.

      D. Q. Morrow and Philip & S. C. Roettinger, for the Woman’s Foreign Missionary Society of the Methodist Episcopal Church.

      D. Q. Morrow and Wm. W. Prather, for the Methodist Home for the Aged.

      S. P. Steel, for plaintiff.

      George L. Garrett, for trustee and East Monroe Methodist Church.

      John Logan, Post & Seed and Irvin McD. Smith, for defendants in error.
    Walters, J.; Cherrington, J., and Jones, J., concur.
    Charles C. Redkey, as executor, plaintiff in error, against William Worthington, as .administrator, defendant in error, is in this court on petition in error to reverse the judgment of the court of common pleas.
   Joseph Worthington, a resident of this county, died on May 28th, 1906, testate. He appointed Martin Redkey executor of his will. Martin Redkey died March 18th, 1907, before the completion of the settlement of his trust under that will. Charles C. Redkey was appointed executor of Martin Redkey’s will. On October 13th, 1905, by the testimony as it is shown here, a will was executed by Joseph Worthington. Martin Red-key was present .and wrote the will. On the morning of October 14th, 1905, Martin Redkey repaired to the residence of Joseph Worthington and informed him that after thinking the matter over he was doubtful as to whether or not certain clauses in the will, by which certain associations, which are to be hereafter named, and which were named in a contract or declaration of trust, would be valid, and that there might be some trouble after his death in regard thereto by virtue of the provisions of Section 5915 of our statutes, which provides that bequests, where persons have lineal descendants, to charitable associations, unless executed within a year before the death of the testator, are invalid. Thereupon the old will was destroyed and it was suggested that these associations or beneficiaries that were named in the will of October 13th, should be provided for by what they please to term a "trust instrument.”

Thereupon the following instrument was drawn up and signed:

"I, Joseph Worthington, of Highland county, Ohio, hereby appoint Martin Redkey a trustee in trust to receive and hold and after my death disburse the following sum of money and other valuable assets, to-wit: six thousand two hundred dollars, which sums are to be disbursed as follows, to-wit:
• "To the Trustees of East Monroe Methodist Church, one thousand dollars in perpetuity.
"To the Foreign and Home Missionary Societies and Womens Home and Foreign Societies of the Methodist Episcopal Church, one thousand dollars each.
"To the Wednesday Club Library Association of Leesburg, 0., the sum of two hundred, in perpetuity, the proceeds to be used to pay expense of keeping up said library. In the event the society disbands I direct my said trustee to collect and pay over to the Methodist Church of Leesburg,' 0., the said sum for the support of the church.
"Also in the event of the dissolution of the Angeline Johnson Altruistic Society, to recover the one thousand dollars previously given to it and pay the same to the Methodist Church of Leesburg for the benefit of the poor as provided for in another paper now on record in the recorder’s office, Hillsboro, O.
"To the Methodist Home for the Aged at Cincinnati, 0., one thousand dollars.
"In the event of the death of said trustee, I request the probate court to appoint a .trustee to serve in his stead and complete the trust as above set forth. - .
"I reserve the right to revoke this appointment at any time during my life.
“In testimony whereof I have subscribed my name this 14th day of Oct., 1905.”
Signed “Joseph Worthington.” “Attest: J. W. Rains. Hattie Leaverton.”

Upon the death of Martin Redkey, the plaintiff below, William Worthington was appointed administrator de bonis non with the will annexed of Joseph Worthington’s estate, and he, as such administrator, brought suit against Charles C. Redkey and the different associations that are named in the paper which I have just read, for the purpose of recovering for the estate of Joseph Worthington the sum of sixty-two hundred dollars named therein.

Issues were made up and the whole contention rests upon the construction the court will be pleased to give to this instrument called a “declaration of trust,” and signed by Joseph Worthington.

It is claimed on behalf of the administrator for Joseph Worthington that this siim falls back into his estate, because the instrument is not such a one as is recognized by law to pass to the beneficiaries named the several sums of money therein provided, and the first question that presents itself for the consideration by the court is:

Did the instrument executed by Joseph Worthington create a valid trust, or did it fail by reason of some incompleteness or some informality ?

It is.claimed on behalf of the attorneys of the personal representative of Joseph Worthington’s estate that the instrument is invalid to pass title to those beneficiaries named,- because it is in the nature of a testamentary disposition, and not being executed according to the formalities prescribed by the statutes for the execution of wills, that it is for that reason invalid.

It is claimed on behalf of the attorneys for the beneficiaries named in the instrument that it is a valid declaration of a trust and that the money should be paid to them as indicated therein.

The Supreme Court of Ohio, in the 46 O. S., Mannix v. Purcell, has defined the elements of a trust as follows:

“Wherever there is a trustee there is necessarily a subject of the trust — the estate; an object of the trust — the use, and a eeshd qyd trust — the beneficiary of the trust.”

And in the same case defines a trust thus:

“A trust is where property is conferred upon and accepted by one person on the terms of holding, using or disposing of it for the benefit of another.”

The counsel for the representative of the estate of Joseph Worthington rely upon three cases that have been cited, and decided by the Supreme Court of Ohio, as settling the construction that should be given to this instrument, and the learned trial judge below based his decision of the invalidity of that instrument upon those three cases.

It will therefore necessitate an examination of those cases to determine whether or not the learned judge below was correct in his conclusioh.

The first case is Phipps v. Hope, reported in 16 O. S., page 586, where one Joseph Hope had a note secured by mortgage in the sum of $4,000 and attempted to give that note to a young man by the name of Phipps, his nephew, who had worked for him and labored for him on his farm for a long time. He attempted to give it to him by the following language:

“The contents of this envelope is to be given to Thomas H. Phipps, in payment of wages‘for services rendered since he has been living ivith me on the farm.
“N. B. He is also authorized by me to indorse this note, and to collect and enter satisfaction at the recorder’s office in Chillicothe, when paid. Joseph Hope.”

The writing on each envelope is in these words and figures:

“January 13th, 1862. This is to be given to Phipps by the person legally authorized to examine contents. J. Hope.”

After the execution of this paper or these papers, the decedent, Joseph Hope, about March 26th, 18.62, received one year’s interest on said note, and the said note, together with the memorandum that he “ had upon the same and the envelope, were continued in the possession of the attempted donor until after his decease.

On that state of facts, the Supreme Court say, in an action brought by Phipps to recover, that he can not do so; that the directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as to law would prescribe in ease of intestacy, are of no validity unless made through the medium 'of a last will and testament. ’ ’

The decision is planted upon the idea and principle that there was an attempted gift to be made by the donor in this case, and that it failed for want of delivery; that it was neither •a gift inter vivos or causa mortis, and the decision is planted upon that ground..

There is no suggestion either in the syllabi or in the opinion delivered by the court which negatives the idea that a valid declaration of a trust in Ohio may not be made.

We think, therefore, very little light is shed upon this ease by the decision of the Supreme Court in that case.

The next case relied upon is a case of Gano v. Fisk, reported in the 43 O. S., at page 462.

Mr. Gano, an.old gentleman, believing that death was near, .said to his daughter, "My notes are in a little box on the bureau there; I want you to take them and divide them equally among you children.” He told her to get the key to the box, and she got the key and tried it in the box, and gave the key to her husband for safe-keeping. After his death intestate, she took the box and did not divide the notes, but returned them to the administrator, and they were appraised and held as part of the estate. In an action by the daughters, claiming for themselves and the son, the notes and their proceeds, as against the administrator and the widow, Held: "1. Those facts do not show such a delivery as constitutes a valid gift causa mortis

The whole decision in that case was planted upon the fact that there was no valid delivery of these notes (there were quite a good many of them, some thirty-eight notes for various amounts), and the Supreme Court in delivering the opinion says, among other things, how were these notes to be divided; some of the notes were supposed to be good and some not good, and the different amounts, how were they to be divided? No directions were given, and the donee or the person to whom they were given for distribution did not distribute them, but delivered them to the administrator, together with the box wherein they were contained; and they were appraised, and after that the action was brought, and the court says, in delivering the opinion :

‘ ‘ To constitute a valid gift the transfer must be consummated, and not remain incomplete, or rest in mere intention; and this is so whether the gift is by delivery only, or by the creation of a trust in a third person, or in the donor; enough must be done to pass the title.”

The only thing said about.a will is in the last paragraph of the opinion, in which the writer of the opinion says: “This attempt to make a will for the father, and to dispose of his property, ‘different from such as the law would prescribe in case of intestacy,’ is ‘of no validity.’ ”

So that case passed off on the fact that there had been no delivery.

It is confidently claimed by counsel for Joseph Worthington’s estate though, however that case may be decided, that the 45 O. S. at page 110, Flanders v. Blandy, comes more nearly deciding the question in this case.

In that case it seems a father set apart some United States bonds as a gift to his daughter. The bonds were never delivered to her, but he collected the interest and paid over the interest to her, and while she was away in a distant part of the country he took these bonds and had them cashed and put them in a Cashmere goat business, and he wrote his daughter a letter telling her what he had done, and had the letter stamped as a contract, and he promised her if she did not elect to accept the investment in lieu of the bonds, that he would retain it himself and pay her $2,000 with interest in lieu thereof. She concluded to take the $2,000 and after his death she brought an action to recover. In that case the Supreme Court held:

“1. That there was no good and sufficient consideration to support the promise on which the suit was brought.
“2. That the transaction between the father and daughter was not a valid gift inter vivos.
“3. That there was no valid declaration of trust of the bonds in favor of the daughter.”

As we look at this case, it was certainly decided right on the particular facts of that case. The bonds were never delivered; they were susceptible of easy and quick' delivery; they were never delivered to the daughter. The donor (the father) held possession, and while it is true he collected the interest and paid her the interest, yet in her absence he exercised such dominion over them as that he converted them into money and put them in a separate business, and then made this proposition to give her an interest in the business or pay her $2,000.

In the opinion is found the following memorandum from the case of Young v. Young, 80 N. Y., 430.

“The transaction,” says Rapallo, J., in delivering the opinion of the court, “is sought to be sustained in two aspects. First, as an actual executed gift, and secondly, as a declaration of trust. These positions are antagonistic to each other, for if a trust was created, the possession of the bonds and the legal title thereto remained in the trustee. In that case there was no delivery to the donee, and consequently no valid executed gift, while if there was a valid gift, the possession and legal title must have been transferred to the donee, and no'trust was created.”

The Supreme Court now say:

“ It is manifest that there was an inchoate gift of the bonds by the decedent which he never completed; but we find nothing that can be construed into a declaration that he held them in trust, or that he regarded himself as standing, in reference to the bonds' in a fiduciary relation to his daughter.”

On page 116 it is said:

“It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee, not that the owner should use technical words or language, but he should declare in unmistakable terms that he means to stand in a fiduciary relation to the object of his bounty. The record shows no such declaration by the decedent, and his acts were wholly inconsistent with the idea of making himself a trustee.”

The Supreme Court in the opinion, while not in the syllabus, recognizes that a trust in property may be declared in Ohio if it is done in unequivocal terms.

It is evident to our minds that these three cases furnish no authority for the decision of the case at bar.

In this case at bar the undisputed testimony, and in fact the admissions in the pleadings by the parties, show that there was a delivery of the $6,200 and therein is the distinction between these three cases and the one at bar. The three cases going off on the proposition that there had been no delivery, and in the late ease of Flanders v. Blandy that there had been no declaration of trust, which was very apparent from the statement of the facts and the pleadings in the case; and if there had been, there was an inconsistency, as the Supreme Court say, and the claim first, it was a gift, and next, a declaration of trust, were wholly antagonistic and inconsistent with each other, and they could not be maintained.

So we are of the opinion that the learned court below was in error in basing his decision in this case upon the decisions just adverted to, and for the reasons we have already stated.

Now, can a trust of this character be made or declared in Ohio and be legal, as is set forth in the instrument which I have just read?

In the case found reported in 9 O. Dec., at page 594, is an interesting decision by the Superior Court of Cincinnati in 1886, and the facts in that ease are, briefly, that A, being solvent and childless, had a wife who was hopelessly insane, and by an instrument he created himself and another trustees, to pay the income to himself during his life, and upon his dying in the lifetime of his wife, the surviving trustee was to hold for certain designated kindred; -but in case of the death of his wife during A’s life, the trust thereupon to determine and cease, and the property to be retransferred to him. He died leaving his insane widow surviving. The guardian of the widow brought suit to recover the sum so alleged to be in trust, being in the sum of $100,000.

The superior court, in deciding the case against the guardian of the widow, says:

"By the deed Mr. Adams transferred .and assigned outright, to the trustee named, all the property named in the deed. It passed outright to them, and, after that, was no longer in his control. He was one of the trustees, but both of the trustees were to act, and therefore it passed away from his control. It is true it was a'voluntary act, it was a gift, a settlement; but it was a settlement for uses named in the deed, for one use in his lifetime, for other uses after his decease; Certainly since the ease of Keelceivich v. Manmng, 1 D., M. & G-., 176, it can not be disputed that this was an irrevocable distribution of his property. And while the case In re Lady Way’s Trust, 2 D., J. & S., 365, is not .a leading case, it is more clearly explicit that the disposition made by this deed of trust is an irrevocable disposition.
‘ ‘ Hence, during the life of the trust, this property was beyond the control of Mr. Adams. He could not revoke the trust by any subsequent deed or by will. During the life of that trust the property was to be disposed of according to the terms of the deed. It is true,’ if his wife had died during his life, the property would go to him; but it would go to him, not because he, by any subsequent deed, could bring it back to him, but because it came to him by the terms of the trust itself.
"Then the property was in the hands of the trustees; the legal title was in them; the beneficiary interest in the beneficiaries named in the deed. He dying, therefore,-during the continuance of the trust, could not be said to be, at the time of his death, the possessor of that property, or the owner, and, therefore, the property could not be considered as part of the assets of his estate, and therefore can not be distributed as part of his estate.”

This judgment was affirmed by the Supreme Court, Minshall, J., dissenting, without report, March 2, 1892.

In Martin v. Funk, 75 N. Y., 134, it w.as held:

‘‘To constitute a valid gift the transfer must be consummated, and not remain incomplete, or rest in mere intention; and that is so whether the gift is by delivery only, or by the creation of a trust in a third person, or in the donor; enough must be done to pass the title.”

And in the opinion the court says:

“The intestate, Mrs. Boone, in 1886, deposited in the Citizens Savings Bank $500, declaring at the time that she wanted the account to be in trust for Lillie Willard, who is the plaintiff. The account was so entered, and a pass-book delivered to the intestate, which contained these entries: ‘The Citizens Savings Bank in account with Susan Boone, in trust for Lillie Willard. 1886, March 23, $500.’
‘‘A deposit of the same amount, and in the same manner, was made in trust for Kate Willard, now Mrs. Brown. This money belonged to the intestate at the time of the deposit.”

Quoting at page 138 from Lord Ch. J. Turner in Milroy v. Lord, 4 DeGex, F. & J., 264, the ruling general principles, he says:

‘‘I take the law of this court to be well settled, that in order to render a voluntary settlement valid and effectual the settlor must have done everything which .according to the nature of the property comprised in the settlement was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intended to provide, and the provisions will then be effectual, and it will be equally effectual if he transfer the property to a trustee for the purposes o'f the settlement, or declare that he himself holds it in trust for those purposes, and if the property be personal, the trust may, I apprehend, be declared in writing or by parol.”

Again at page 141, he says:

‘‘Mr. Hill in his work on trustees, after saying ‘that it is' extremely difficult in the present state of authorities, to define with accuracy the law affecting this very intricate subject,’ lays down the following as the result: ‘When the author of the voluntary trust is possessed of the legal interest in the property a clear declaration of trust contained in, or accompanying, a deed or act which .passes the legal estate, will create a perfect executed trust, and so a declaration or direction by a party, that the property shall be held in trust for the object of his bounty, though unaccompanied by a deed or other act divesting himself of the legal estate, is an executed trust.’
‘ ‘ If there is a valid declaration of trust, that is sufficient of itself, I apprehend, to transfer the title, but the difficulty is in determining what constitutes such a declaration, and whether a mere formal transfer of the property, as in the case of the medical attendant, is sufficient, is a question upon which there is some difference of opinion. No particular form of words is necessary to constitute a trust, while the act or words relied upon must be unequivocal, implying that the person holds the property as trustee for another. ’ ’

So in Young v. Young, 80 N. Y., 422, it is said:

“To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must -be shown. ”

And Rapallo, J., says, on page 438:

‘‘ To create a trust, the acts or words relied upon must be unequivocal, implying that the person holds the property as trustee for another.”

So, in Barry v. Lambert, 98 N. Y., Ruger, Ch. J., says at page 306:

“It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply, that the party making them intended to divest himself of his interest in the property, and to hold it in trust for the use and benefit of another. ’’

So, in Wadd v. Hazelton, 137 N. Y., Peckham, J., says:

“While it is true that no particular form of words is necessary to create a trust of this nature, and while it may be created by parol or in writing, and may be implied from the acts or words of the person creating it, yet it is also true that there must be evidence of such acts done or words used on the part of the creator of the alleged trust, that the intention to create it arises as a necessary inference therefrom and is unequivocal; the implication arising from the evidence must be that the person holds the property as trustee for another. The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a'trustee or .declare that he holds it himself in trust. An intention to give, evidenced by writing, may be most satisfactorily established and yet the intended gift fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its nondelivery, the court will not and can not give effect to an intended absolute gift by construing it to be a declaration of trust and valid, therefore, without delivery.”

In Hiserodt v. Hamlett, 74 Miss., 37, it is held:

“We must not allow ourselves to be confused by the fact that the event upon the happening of which the interest to be enjoyed was death. It is as competent for one to make the event in the future upon the happening of which the estate is to come into possession, the death of the donor, as any other event. The fact, in such case, that the event named is death, rather than some other selected event, is not at all determinative of the quality or legal character of the trust. There is no testamentary feature here. 'One may do what he will within legal lines with his own.”

So there are quite a large number of other authorities, and it is unnecessary to quote more from them, holding that a trust may be created. The question now is, whether or not this attempted declaration of a trust here is really one which comes within the definition in the 46 O. S., and within the principles laid down in the decisions which we have just referred to.

In this case, in this instrument there is a trustee — Martin Redkey; there is a subject-matter. — the money; there is a use— the holding of the money for the use of these people, and there are beneficiaries; so that every element that is necessary to constitute a trust within the definition referred to by the Supreme Court, is contained within this written instrument.

The money, $6,200, was delivered to the trustee, and it seems as though everything that was necessary to be done to create a distinct, perfect trust, fully identified and complete, and passing beyond the control of the donor or creator of this fund, is declared within this instrument, and that it fully comes within the definition of a trust as fully defined by all of the authorities.

It must not be lost sight of, and we think may be it has been to some extent in this case — it must not be lost sight of that the delivery in law of this $6,200 to the trustee, Martin Redkey, was a delivery and passed the legal title to the $6,200 effectually beyond the control of the creator of the trust.'

That is the difference between the Ohio cases that the learned counsel rely upon, and this case, and it is a very important distinction. There is no question here about the object to be attained. It is fully set out, the beneficiaries are named, the amount and terms appear, and'the use.

It is said, however, that by the very language of this instrument it shows that Martin Redkey was the agent of Joseph Worthington; that he called Martin Redkey “my” trustee, and that when he gave him the check, he gave him the check as trustee of Joseph Worthington, and Martin Redkey, when he deposited it in the bank, the deposit slip shows the account was opened by Martin Redkey, as trustee for Joseph Worthington.

It may be said so far as the entries in the book of the Lees-burg bank are concerned, made by Martin Redkey after the instrument was executed, would give no character to that instrument one way or the other. Its character was fixed upon its execution, and so far as Joseph Worthington using, the language “my trustee” as conveying the idea he was his trustee, and not the trustee of the beneficiaries, is concerned, it is simply an expression denoting that he, Redkey, is the person he has chosen to carry out this trust. And'in a strict sense, as he used it, he was his trustee; that is, in the sense he had selected him, and that is what he means by “my trustee,” but the whole instrument shows that there wasn’t one single thing that Martin Redkey, his trustee, was to do for Joseph Worthington with the $6,200; everything that is to be done by the written instrument shows that Joseph Worthington considered it passed entirely beyond his control and possession, and that the legal title passed to his trustee; everything that was to be done was to be done for the benefit of these beneficiaries, and not for the benefit of Joseph Worthington; not a single act,'as agent or otherwise, that Martin Redkey was to do, that is not referable to the turning over of the funds to these beneficiaries.

Now, it is said they were engaged in a testamentary act at the time this instrument was executed; that on the 13fh of October, 1905, Joseph Worthington made his will, and Redkey appeared the next morning and talked the matter over, and was afraid these provisions would not be legal, and there would be some trouble about it, and that instead of incorporating it in the will, or leaving it there, they then devised this scheme by which they would evade the law by way of passing property under will, but would pass it under the name and title of “trustee,” and that being so engaged at this time in a testamentary act for the disposition of his property, that that same character is imparted to this. On the other hand it may be argued from the testimony in this case that what they were doing at that time was to get away from the testamentary act, because they discussed that, and while they were executing this paper writing, they, by their own declared intentions, were not engaged in a testamentary act; they were engaged in something other than making a will, and if they have not accomplished what they desired to do, viz., to not make this instrument a will, then they have not succeeded in carrying out their intentions.

We can hardly see how an instrument can be more effectual to create a trust than this. The very object and purpose of it was that Redkey should act as trustee for these people; that he should hold this money, and' it was delivered to him, and the legal title passed.

It is said, however, that Joseph Worthington reserved in the paper a right to revoke this during his life.

In what you may call a “granting clause,” if such a thing is applicable to a declaration like this, he used the word “appoint” —I “appoint Martin Redkey”; and after, in the instrument, he has made the disposition creating the trustee and the beneficiaries, and directing what his trustee shall do, then he says:

“In the event of the death of said trustee, I request the probate court to appoint a trustee to serve in his stead and complete the trust as above set forth.
“I reserve the right to revoke this appointment at anytime during my life.”

We are inclined to think that what he means there is, that he reserves the right to revoke the appointment that the probate court may make in case Martin Redkey died before Worthington, and the probate judge appoint somebody that he didn’t like. It couldn’t have reference very well to the whole trust or instrument. He doesn’t say “I reserve the right to revoke this trust,” but only the appointment that the probate judge might make. He probably wanted some one that was satisfactory to himself.

It is claimed, however, that if he reserved the power to revoke the appointment, that it would therefore carry with it and include with it, the revoking of the trust.

It is a well known rule of law, and needs no citing of authorities, that the court will never allow a trust to fail for want of a trustee; that the court, when applied to, will appoint a trustee rather than the trust fail. •

Martin Redkey was simply the vehicle, the instrument, that Worthington made use of to carry out this trust, and the trust would not fail for the want of a trustee.

We are of the opinion that the language used by the settler or creator of this trust, being at the close, and wholly separated from the whole disposition of the. trust property, shows an anxiety on his part that in no event the trust should fail for want of a trustee, and the whole instrument shows that the word ‘ ‘ appoint” could not refer to, in his mind, nor include the trust.

The appointment is one thing, and the trust is another. But, however that may be, even supposing that clause does refer to and give the creator of this trust in his lifetime a right to revoke it, does that extinguish the trust? Does that show that Martin Redkey was simply the agent or trustee or attorney in fact of Joseph Worthington, and that he could recall this at any time?

Thornton on Gifts, Section 436, says:

“When a trust has been completely created, by no act of the donor can it be revoked without the consent of the donee, unless he has reserved the power to do so. This is true even though by some accident the estate has become revested in the donor. The donor is bound, if the trust be completed, though some contingency was forgotten and unprovided for; and if the trust is created by deed a mental or oral revocation is void. But the donor may reserve the right to revoke the trust; and the trust will remain until he exercise his authority under the power reserved. ” •

Now, here is the syllabus in Stone v. Hackett, 12 Gray, 227, which was relied upon by the Superior Court of Cincinnati in the Umer v. Yager case:

“A delivery, without consideration, of shares of railroad corporations, with blank assignments endorsed thereon, upon -trust to pay the income to the settler for life, and at his death to transfer the shares to certain charitable objects (the settler reserving the right to modify the uses or revoke the trust) is valid, and will be upheld in equity against the settler’s widow, claiming the share which -the law allows her in property of which he died possessed.”

So, in the case of Van Cott v. Prentice, 104 N. Y., at page 46, the following clause was in the declaration of trust:

“Subject in the meanwhile to my direction and wish, and to be returned to me in the event of my surviving him; and absolutely subject to my direction and control until the event of my death. ’ ’

Now, the Supreme Court say in that case, in respect to that portion of it, in the syllabus:

“That a valid trust was fully and completely constituted, and as the same was not revoked by the settler during his life, the trustee was entitled to the possession of the trust -property; that it was immaterial that the grant was voluntary, and without consideration; that the declaration that the beneficiaries should have no legal or equitable right to enforce the trusts as against the -trustee while the settlement should remain unrevoked, but only as a denial of any right as against the settler; also that the validity of the title of the trustee was not affected by the fact that he held subject to the control and direction of P; that while the trust continued and existed only at the will of the settlor, it was good and effectual, until revoked.”

There are á large number of other authorities that go to the same effect, and it seems to be held by an unbroken line of decisions that even where the settler has provided in the declaration •of trust that he has the power of revoking during his life, that it he doesn’t exercise it, the trust is still valid. .

There are some other objections that the counsel have urged, upon us- as to the construction to be placed upon this instrument. We have gone over the cases thoroughly and read all the briefs, and we think that the construction aimed to be given to this paper writing by the learned counsel for the Worthington estate is worthy of consideration, but that we can not overlook the plain provisions of the instrument itself and the words used. That which the words declare is the meaning of an instrument.

When he says, “I, Joseph Worthington of Highland county, Ohio, hereby appoint Martin Redkey a trustee in trust to receive and hold,” he don’t call him “my” trustee.

He appoints him “a” trustee. It is said, however, that these beneficiaries had no knowledge of this, and never consented to it.

We think that is wholly without merit. Our Supreme Court has decided in the Ryan case in the 3 O. S., that where the instrument is for the benefit of the donee or grantee, that his acceptance is not only a presumption of fact, but a presumption of law.

The judgment, therefore, will.be reversed and remanded to the court of common pleas below for further proceedings.

I will note on the docket that the judgment is reversed because same is contrary to law, and for the reason the judgment below should have been for plaintiffs and cross-petitioners in error, instead of for said Worthington, administrator, defendant in error. Cause remanded to common pleas court for further proceedings according to law. Exceptions.


text:
    PROCEEDINGS IN ATTACHMENT.
    Circuit Court of Hamilton County.
    The E. A. Kinsey Company v. John H. Heimerdinger et al.
    Decided, December 24, 1909.

      Attachment — Service by Publication — Failure of Justice to Wait One Hour — Voidable Judgments — Appeal—Suing by Initials Instead of Full' Name — Section 6J¡S6.

    1. Where a judgment by a justice of the peace is rendered voidable by reason of the fact that tbe justice did not wait one hour for the defendant to appear after the time appointed, and the judgment is reversed by the common pleas court for that reason, the case remains in the common pleas as a case on appeal.
    2. Jurisdiction is not defeated in a suit in attachment by reason of the fact that the defendant has been sued by his initials instead of his full name.

      Herron, Gatch & James and Roy M. McLaughlin, for plaintiff in error.

      Cobb, Howard & Bailey, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The justice of the peace had jurisdiction of the subject-matter and of the person of the defendant by publication under Section 6496, Revised Statutes; and if the record shows that the justice rendered judgment by default without allowing one hour to the defendant in which to appear after the time mentioned in the continuance order under such section, the same was voidable and not void for want of jurisdiction.

The court of common pleas having reversed the judgment of the justice for the reason that one hour was not allowed to defendants, the case is, by force of Section 6733, Revised Statutes, still pending in that court as in cases of appeal.

If it be urged that the justice had no jurisdiction of the defendant because sued as “J. H. Heimerdinger, whose first name is unknown, ” it is sufficient to say that without any notice being served upon the defendant, the court would still have jurisdiction in an attachment suit (Paine v. Moreland, 15 Ohio, 430), although the proceedings would be irregular and reversible.

The petition in error will be stricken from the files.