text:
    DELINQUENCIES OF MEMBERS OF MUTUAL BENEFIT ASSOCIATIONS.
    [Circuit Court of Cuyahoga County.]
    W. H. Schwartz, Administrator, et al v. The St. Elizabeth Roman and Greek Catholic Union et al.
    Decided, March 4, 1907.

      Mutual Benefit Societies — Death Benefits — Delinquency .of Deceased Member — Custom of Society — Evidence—Charge of Court — Action of Husband for Wife with Reference to Membership.

    1. Membership in a mutual benefit society can not be forfeited, against the will of the member by delinquency, ipso facto; but he must first be given an opportunity to justify himself, and this must be followed by some action by the society looking to a severance of relations between the society and the member.
    2. A charge of court, which assumes that because a husband acted for his wife in applying for membership for both himself and his wife in a mutual benefit society, any false representations which he may have made with reference to his own age, etc.,' affected equally the membership of his wife, is erroneous.
    Marvin, J.; Winch, J., and ITenry, J., concur.
    Error to the court of common pleas. ,
    The parties here are as they were in the court below. The administrator of the estate of Maria Kohanczo, deceased, her husband and children, are the plaintiffs, and the defendants are the St: Elizabeth Roman and Greek Catholic Union, and the several officers of said union. The union is an unincorporated beneficial association, organized in August, 1903, with the following constitution and by-laws:
    “The Constitution and By-Laws oe the St. Elizabeth Roman and Greek Catholic Union.
    ‘ ‘ Chapter I.

      “Name, Seat and Aims of the Union.

    “Paragraph 1. The name of the union, which can not be changed while the union is in existence, will be in existence is St. Elizabeth Roman and Greek Catholic Union.

      “Paragraph 2. The seat of the 11111021 is Cleveland, Ohio. The seal of the Cleveland Union contains the following inscription: ‘St. Elizabeth is Roman and Greek Catholic Union.’
    “Paragraph 3. The aim of this union is the Roman and Greek Catholics who emigrate to America from Hungary or who were born in this country from Hungarian parents, who keep these rites or who direct the rites according to the rules and regulations of the Catholic faith, to promote their attachment to the native branch, and to aid after the decease of its members, their widows and orphans, with a sum of money as specified in these by-laws.
    “Chapter II.

      “Bights and Duties of Members.

    “Paragraph 4. Any native Roman or Greek Catholic Hungarian man or woman wall be admitted as a member of this union who has reached his or her age of 16 years and is not older than 50 years old.
    “Such persons who have been punished before or who are fugitives from justice can not be elected as members of the union.
    “If a member got into the union by false allegations or false data, and- it is found out that, for instance, he is a fugitive of justice, he wall be expelled from the union.
    “Paragraph 5. Local people or people living in this city, can report their inte2ition of joining the union by a regular member. Only branches consisting of at least 25 members will bo accepted as out-óf-towii members by the union.
    “The trustees of the out-of-town branches are the heads of such branches.
    “The union reserves its rights always to supervise such trustees and officers of the union, and these trustees are resnon-sible for their branches.
    “Should there be any complaint against a prospective member or a branch this has to be taken before the meeting and the meeting wall decide about this complaint.
    “Paragraph 6 (second section) :
    “If the prospective member of branch fully answers the. prescriptions of Paragraph 4, they may be admitted into the union.
    “Paragraph 7. Every member after receiving two votes shall bo a member and has the right to vote immediately after being admitted, bat can only be-elected officer after a membership of six months;. ■ ■'(

      “Paragraph. 8. 'The initiation fee shall be: From 16 to 25 years, $1.30; from 25 to 35 years, $1.40; from 35 to 45 years, $1.50; from 45 to 50 years (not yet reached).
    “Paragraph 9. From the money paid in advance to the secretary from the initiation fees, one dollar shall constitute the capital of the union; the rest shall cover the expenditures of the union.
    “Paragraph 10. Every member has to pay into the treasury of the union thirty cents semi-annually; the money so collected shall be used for the expenditures of the union, i. e., for the official organ, hall rent, fitting up the office, etc. The money left after such expenditures shall be added to the capital of the union.
    “Paragraph 11. After the .decease of any member of the union, the heirs shall receive as many dollars as the union has members.
    “In case of total disability, that is, if a member lost one arm, one leg or both eyes, such member has to report the accident to the board of officers of the union. The board of officers shall thoroughly examine the case and if the total disability was proved, such member shall get as half death benefit as many fifty cents as the union has members. Both the death and the accident benefit will be paid by the members, in such a way that if a member of the union died or was found totally disabled by the board of officer’s, every member must pay the one dollar death assessment, respectively, the 50 cents accident assessment to the treasurer of the union within fourteen days.
    “Paragraph 12. Should a member fail to pay the death benefit dollar after the decease of a fellow-member, then, in case of his death, his heirs could not claim any death benefit from the union.
    “Paragraph 13. Should a member of the union remove from the seat of the union and should he want further to remain a member, then he must report his moving to the president or secretary. Anyone failing to do so will not be considered a member of the union any longer.
    “Paragraph 14. Members living remote from the seat of' the union are submitted to all duties prescribed by the laws of the union.
    “Paragraph 15. If a member quits the union and wants to join it again, he can only lie accepted as a new member.
    “Paragraph 16. If any member of the union, for any cause whatever, insults the union Or causes any damage to the same, then he shall be expelled from the union, and only in such casé can he be re-taken, if he acknowledges his mistake' arid apdlrigizes to the union and if the apology was accepted, he reimburses the union for the damage caused by him.
    “Paragraph 17. Expelled members lose all their rights against the union and can not even appear at the meetings of the union.
    “The members who quit or were expelled, can not claim any damage .whatever or the re-payment of the moneys paid in by them.
    “Chapter III.

      “Election of Members and Officers.

    “Paragraph 18. Such persons who want to join the union must be recommended by regular member and must prove the state of their health by a physician’s certificate, which they must present to the secretary.
    ‘ ‘ Paragraph 19. The union shall hold a regular meeting every month and the members will be notified of the time of such meeting by the official organ.
    “Paragraph 20. The officers shall be elected for one year and it is their duty to act with the branch organization according to the best conscience in the interests of the union. Should any officer go into business then he must resign his office.
    ‘ ‘ Paragraph 21. Only such persons can be elected officers who can read and write Hungarian and who are artisans or tillers of the soil in the old country.”
    On the 6th of December, 1903, Maria Kohanczo and her husband, George Kohanczo, became members of this union. At the time they so became members they each paid to the union $1.30.
    On the 7th day of May, 1904, .the said Maria Kohanczo died, and this suit was brought to recover the amount provided by the laws of the union to be paid to the families of those dying, while members of the association.
    The defense was made on the ground that Maria Kohanczo, at the time of her death, was not a member of the association:
    First. Because it is said in the answer she made false representations as to her age when she joined.
    Second. That she was not a member of a Greek or Roman Catholic Church in good standing at the time she joined, and that she. falsely and fraudulently represented that she was such member, of..the-■di-urch.--. ■ ..........

      Third. That she was in arrears for dues to the amount of 30 cents, payable on the 1st day of January, 1904.
    As to the first of these grounds, it was abandoned at the trial, as no evidence was introduced tending to support it.
    As to the second, evidence was introduced tending to show that the deceased, at the time of her death, was not a member of the church conducting herself according to its rites, and that she had neglected her obligations as a member of the church of which she had been a member. This evidence, however, is confined to the time of her death, or so near to it that it can not be said to establish that she was not such church member, as to make any such representations she made in that regard false at the time she joined the union.
    As to the third, it is claimed by the plaintiff in error that at the time the deceased became a member of the union, the $1.30 paid was made up of $1 initiation fee and of 30 cents for semiannual dues, paid in advance. The deceased at the time she became a member of the union was more than 45 years of age, and it will be noticed that the amount to be paid as an initiation fee for one above .the age of 45 years is not fixed by the by-laws, nor is the date of payment of the semi-annual dues fixed by such by-laws, the provision as to it simply being that 30 cents shall be paid semi-annually by each member; but the secretary testifies that at the time the husband of the deceased made application for membership for himself and his wife, he was notified that the $1.30 was all as an initiation fee, and that the semi-annual dues would be payable in January and July of each year. It is claimed, too, on the part of the defendant in error that a custom had been established by which the semi-annual dues became payable on the 1st day of January and July of each year; but as the union was organized in August, 1903, and this deceased joined the union in December of the same year, no custom could well have grown up at that time for payment in January and July, because the union had not yet been in existence sufficiently long; and, at the time of her death, but one of the dates on which these semi-annual dues would become payable, as claimed by the secretary, had passed, so that it could hardly be said that any custom had been established, nor does it appear anywhere that tbe union had authorized the secretary to say that these dues should become payable on the 1st day of January and July, or that they were to be payable in any particular months. However, as the secretary was the officer to whom the application was made, and as he says he notified the husband that these dues would be payable on the dates specified, the defendant in error is perhaps warranted in the claim that as to this decedent, those were the fixed dates on which payment should have been made.
    Among the provisions of the by-laws, it will be noticed that an official organ for the union was established, and that the^nembers of the union were required to accept notices published in such official organ. The only action taken by the union, looking to the expulsion of the deceased from the association, consists of the following:
    On the 30th of April, 1904, a letter was sent to George Kohanczo, the.husband, which reads as follows:
    “St. Elizabeth’s Roman and Greek Catholic Union.
    “Organized, July 12, 1903.
    “Cleveland, Ohio, April 30, 19u4.

      “Bear Bellow Member, George Eohanczo:

    “You and your wife were reported at the meeting of the union that you joined the union by falsehood. You are not forty-eight years old, but surpassed the 51 years, too. Therefore, clear yourself and your wife with birth certificate within eight days. If you fail to do so, then you will be scratched [expelled; .both parties will agree when I use the word expelled] ; then you will be expelled from the union by resolution adopted at the meeting; and, therefore, you can- not claim anything from the union. You have lost all your rights.
    “Joseph Nameth, Secretary,

    “77 Bismark.”
    It will be noticed that this letter charges that both the husband and wife were reported at the meeting of the union as having joined the society by falsehood, but the falsehood applies to the husband alone, no suggestion being made that any misrepresentation was made as to the age of the wife.
    On the 1st day of May, 1904, at a meeting of the union, the minutes show that “-Nine members were elected in the union, two were scratched, George Kohanezo and his wife, because he declared in the presence of one controller that he already was older than the by-laws prescribe.”
    ■ These minutes are in the Hungarian language, and the translator explains that the word “scratched” as used, indicates that these parties were either suspended or expelled; but, as has already been stated, there was no evidence tending to show, nor was it claimed on the trial, that this woman was liable to expulsion because of her age; nor is it claimed that because of this resolution she ceased to be a member of the union, but really that she ceased to be because of non-payment of the dues for January, 1904. That this rule requiring payment was not regarded as so inviolable that one -ceased to be a member simply because of the failure to pay at the date, is manifested from the further minutes of the meeting, at the date already named, the language referred to being the following: “Further, the secretary was ordered to warn the members in arrears, through the official organ, by notice. This was done. ’ ’ The very day on which this resolution was passed the society recognized that one might, be in arrears for dues and still be a member until some further action was taken.
    On the 7th day of April, 1904, notice was published in the official organ, reading as follows:
    “Such members of the St. Elizabeth’s Union who still have not paid the 25 cents semi-annual dues, which were due in the month of January, are warned that they fulfill such obligation by all means until the meeting to be held on the 10th of this month, otherwise they can not claim any benefit at all. ’ ’
    As to this notice, it will be observed that the amount specified as payable is 25 cents instead of 30 cents, and also that there is here a recognition that one may be in arrears for dues and still be a member. It comes then to this: That cither Mrs. Kohanezo was a member of this union at the time of her death, or that she ceased to be a member for non-payment of dues, without any action of the union expelling her on that account. The law does not favor forfeitures, and we do not understand that without some action of the union, one who was a member, in good standing, could against his will cease to be such member without having had an opportunity to justify himself, and certainly not without some action taken by the union, looking to the severing of the relations between the union and the member. See Grand Lodge v. Brand, 29 Nebraska, 644, and the 3d American & English Ency. (Vol. 3), pages 1086 and 1087, note 1 of which reads:
    “Where a suspension for non-payment of dues is provided for in the laws of the association, and it is also provided that such suspension shall work a forfeiture of benefits, the fact of delinquency alone does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary. ’ ’
    A large number of authorities are cited in support of this proposition.
    The charge of the court in this case is complained of, and is subject to the criticism that the court seemed to assume that because the husband acted for his wife in the matter of applying for membership and negotiated the joining of the union, that whatever he did with reference to Ms own membership applied equally to what he-did with reference to his wife’s membership. An example of this is found in these words of the charge:
    ‘' So they then claim that the testimony has been offered tending to prove that the husband of Maria Kohanezo was not at the time he applied for membership, a Roman or Greek Catholic in good standing; that is, that he was not a practical member of the Greek and Roman Catholic Ohufch. The plaintiff insists that she was. They say that her husband was not in good standing at that time in either church, and testimony has been offered tending to prove that he had not performed his religious duties and that he was not eligible, and would not have been received had the truth been known. In other words, that he falsely represented; that they relied on the representations; he was admitted to the society; they were deceived and injured thereby. ”
    It will be noticed by this language that the fact that the husband was not a member of the church or made false representations when becoming a member, might in some way affect the wife, which, of course, could not be true, unless the false representations made were false representations as to the wife. What was said would be applicable if it were a claim based upon the husband’s membership, but this suit was based upon the membership of the wife, and if there is an objection to this, it is because it might mislead the jury to the extent of thinking that the wife’s membership depended upon that of her husband, which would not be true.
    The judgment in this ease is reversed, because the verdict is against the weight of the evidence, and a motion for a new trial should have been sustained for that reason.

      W. H. Schwartz, Hart, Canfield & Grolce, for plaintiffs in error.

      M. B. Putney, for defendants in error.


source: Caselaw Access Project

license: Public Domain

text:
    SMOKE AND GASES FROM BRICK KILNS.
    [Circuit Court of Carroll County.]
    Angeline Downs v. The Greer Beatty Clay Company.
    Decided, October Term, 1906.

      Nuisance — From, Burning Bride and Hollow Ware Kilns — Injunction against, on Petition of Surrounding Property Owners — Will be Refused, When — Relative Effect upon the Parties — Equitable Jurisdiction — Remedy at Law.

    1. The business of burning brick is a lawful one and whether or not it is a private nuisance depends upon the circumstances of each particular case.
    2. A court of equity will not ordinarily grant an injunction to restrain the prosecution of a lawful business on the ground that it is a private nuisance until the plaintiff has established his right, by an action at law.
    3. Where a business complained of as a nuisance is a permanent one, and the damages to adjoining property can be ascertained with reasonable certainty and assessed in solido to the complaining party, such business will not be enjoined where an injunction would be ruinous to the business of the defendant and of small benefit to the plaintiff.

      Cook, J.; Burrows, J., and Laubib, J., concur.
    • Appeal from Carroll Common Pleas Court.
    This action is before us on appeal. The defendant, the Greer Beatty Clay Company, is engaged in the manufacture of holloAV ware and glazed brick in the Sandy valley in this county. The Sandy valley was one of the richest and most beautiful valleys for agricultural purposes in Ohio, but unfortunately, possibly, under the hills which enclose it on both sides, is an inexhaustible bed of the finest fire clay overlaid with a vein of the best bituminous coal. A score of years ago this clay and coal began to be developed, and numerous brick, hollow ware and sewer pipe works were erected; among the rest the works of the defendant, of ten kilns, costing many thousands of dollars, were built in 1902-3.
    ‘ In the twenty miles of this valley situated in this county there are many large factories engaged in this business.
    In the manufacture of this ware it is necessary to use coal containing some sulphur in the burning, and salt in the glazing-process, the consequence of which is that sulphuric acid gas and hydroeloric acid gas mingle with the smoke from the smoke stacks and spread over the contiguous territory.
    The plaintiff has a life interest in fifty acres of land and a large dwelling-house, old but in fair condition, as a country home, with flower and vegetable gardens connected with it. This homstead and grounds were set off to her as her dower interest in her husband's estate at her special request soon after the factory of defendant was built. The works of defendant are situated about six hundred feet from the house and garden, and the evidence shows that at times the smoke from the stacks reaches the premises of the plaintiff, to the.injury of the shrubbery and crops, and to some extent interferes with the comfort of the inmates of the house; but the evidence does not show that the health of the occupants is affected, or that the smoke is a serious annoyance.
    This action is to enjoin defendant from operating its' works in such manner as to permit thq smoke and gases to enter upon the premises of plaintiff as herein set forth.

      It is conceded by plaintiff that the factory of defendant is of the most improved character; that the appliances used are fully up to the latest standard; that the manufacture of glazed brick and hollow ware is a large industry and conducted in all parts of the country; that the use of bituminous coal and salt are absolutely necessary and that there are no known means by which smoke from the stacks to some extent charged with these gases can be kept from spreading at times, over a large extent of territory doing some injury to herbage and causing some discomfort.
    Under these circumstances is plaintiff entitled to an injunction as prayed for ?
    The manufacture of glazed brick, hollow ware and sewer pipe has for many years been one of the most extensive industries, and is a lawful business, never having been classed among those trades that are held to lie a nuisance per se.

    That the industry may be a nuisance depending upon its location, the manner of conducting it, and other circumstances there can be no question; and each case must depend, therefore, upon its own circumstances. Wood on Nuisances, Section 515, etc.; Am. & Ency. of Law, Yol. 31, page 692 (2d Ed.).
    There are many localities where such manufactories would not be a nuisance while there are others where it would be a nuisance per se. A person or corporation would not be permitted to carry on such a business with its attendant vapors and smoke in a residence portion of a city while in other parts of the same city it would be perfectly legal to do so. Another matter of importance is the-conduct of the party complaining. Was the brick yard built close to the residence of the complaining party or did he place his residence contiguous to the brick yard? Who occupied the territory first? This may not be of much importance in an action for damages but is of importance when an injunction is sought.
    This factory was not situated in or adjoining a city, but was in a country district where other manufactories of a similar character were situated previous to its location. While the dwelling was there previous to its location, yet plaintiff saw fit to select it as her dower interest with full knowledge of the location, character and effect of ■ the business. She mot only asks damages for injury to her premises but also seeks an injunction to restrain the prosecution of this business. Under such circumstances should a court of equity hold that a business lawful in itself is a nuisance against this plaintiff?
    The granting of an injunction in cases of alleged nuisance is governed by fixed principles. The right must be clearly made out; the nuisance must be clearly established, and the legal right of the complaining party in his person or property is affected to a substantial degree.
    Furthermore the mischief to the plaintiff or right in his property must be irreparable in the sense that he has no adequate remedy at law.
    In the case of McCords. liter, 12 Ohio, 388, it is said:
    "Although the restraining of an established nuisance is an admitted ground of equity jurisprudence, that branch of the law will carefully abstain from interference where the injury will support an action at law unless the party seeking such aid brings himself within the clearest principles of equitable relief.” .
    In the ease of Goodall v. Grofton, 33 O. S., 271, it is held:
    "On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land is a nuisance, an injunction should not be granted unless a clear ease of nuisance and irreparable injury be made out.
    "When a party who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages he must establish his right to relief at law before equity will interfere by injunction.”
    In the opinion it is said:
    "It would be almost impossible to enumerate the cases in which courts of equity, in this and other countries, have interfered or refused to interfere in cases of alleged nuisance, public or private. It will suffice to say, the result of all these cases seems to be, that when the right is clearly made out, and the nuisance established, a court of equity, in case of private nuisanee, will interfere to prevent that which violates the rights of another in his property in an essential degree.
    “In this state, however, we understand the rule to be that a court of equity will only interfere to restrain an alleged nuisance, when the mischief to the plaintiff’s property, or rights in his property, are irreparable, and there is no adequate remedy' at law to make reparation. Although the restraint of an established nuisance ‘is an admitted ground of equity jurisdiction,’ that branch of the law ‘will carefully abstain from interference where the injury will support an action at law, imless the party seeking such aid brings himself within the clearest principles of equitable relief’ (McCorcl v. Iker, 12 Ohio, 388). To the end that right may be done and injury prevented, courts having jurisdiction in equity will determine each case, as it arises, upon its own facts and circumstances. When, from the nature of the case, and the right claimed to be infringed, no adequate remedy can be had in the courts of law, equity will entertain the action. Where the thing sought to be prohibited is not a nuisance per se, but may, under, some circumstances, prove so, the court will not interfere without a previous trial at law. 1 Grant’s Cases, 412; 19 Eng. L. & E., 639.”
    Considering the character of this industry, its location, the fact that it was there before the plaintiff selected the homestead as her dower interest, the nature of the injury and the other circumstances, can it be said a clear case of’ nuisance is made out? Columbios Gas Light <j& Coke Company v. Freeland, 12 O. S., 392; Gilbert v. Showerman, 23 Mich., 448.
    Again, is the injury irreparable? If the plaintiff has -an adequate remedy at law then her injury is not irreparable. What difficulty would there be in assessing plaintiff adequate and reasonably certain damages in an action at law? The injury to her premises are easily ascertainable. Diminution-of annual rental is always a proper subject of inquiry, and we think in a case of this character when the business is permanent the plaintiff might recover for the depreciation of her interest in the premises.
    But it is said the injury being a continuous one, the remedy by'injunction is necessary to prevent a multiplicity of suits.
    As we have seen, the injury, if any exists, is a permanent one and damages could be assessed in solido. Story’s Fq„ Section 55296; Goodal v. Croflon, supra. " ' '

      There is another circumstance that always appeals to a court of equity in cases of this character, and that is, what would be the relative effect upon the parties. Would the granting of the injunction entail much more injury upon the defendant than benefit to the plaintiff? If so, then the injunction should be refused and the parties left-to their action at law.
    The injunction in this case is refused, and as the plaintiff has a claim in her petition for damages, the cause will be remanded to the court of common pleas to determine whether or not her petition states a good cause of action at law, and for further proceedings.

      Hart & Kohler, for plaintiff.

      Clark & Clark and William Lynch, for defendant.


author: Per Curiam.

text:
    BREACH OF CONTRACT ON A VERBAL LEASE.
    [Circuit Court of Hamilton County.]
    C. C. Breuer v. Frederick Berold.
    Decided, February 2, 1907.

      Landlord and Tenant — Lease—Under a Verbal Contract — Part Per~ formance — Breach of Contract by Lessor — Remedy of Lessee.

    Part performance under a verbal lease, sufficient to take the same out of the statute of frauds, obtains in equity only, and will not avail to render the contract capable of being sued on in a court of law.
   Per Curiam.

The cause of action as stated in the amended petition is founded upon a verbal contract of lease of certain real estate for a term of one year at a monthly rental of one hundred dollars, and upon part performance by delivery of possession and by acts of the tenant in setting up certain machinery in the building ae: cording to the terms of the contract. The breach of the contract consisted in the refusal of. the landlord to allow other machinery to be m.oved into the premises or the operation of any of such machinery, whereby the tenant was compelled to and did abandon the premises. The relief prayed for is damages for the alleged breach of the contract..,, . ..■

Powel Crosley, for plaintiff in error.

Pogue é Pogue, for defendant in error.

The lease was within the statute of frauds, and could not be enforced, unless by part performance it was taken out of the operation of that statute. Grant v. Ramsey, 7 O. S., 158, at 167.

The only relief to which the tenant was entitled, under the allegations of the amended petition, or in any event after abandonment of the premises, was a personal judgment for money only. ITis right of action depended upon part performance of the contract, the doctrine of which obtains in equity only, and does not avail to render a contract, which is void by the statute because unwritten or unsigned, capable of being sued on in a court of law. Kling, Admr., etc., v. Bordner, 65 O. S., 86.

The court therefore erred in overruling'the demurrer to the amended petition, and in overruling the motion for judgment notwithstanding the verdict. Judgment of the court of common pleas reversed and judgment for plaintiff in error.


text:
    TAXABILITY OF yACANT LAND PURCHASED FOR. CHARITABLE PURPOSES.
    [Circuit Court of Cuyahoga County.]
    Young Women’s Christian Association v. Albert K. Spencer, Treasurer of Cuyahoga County.
    Decided, January 28, 1907.

      Taxation — Exemption from, of Property — Purchased for a Charitable Purpose — Section 2732.
    The rule that statutes exempting property from taxation • should be strictly construed does not permit the exemption of a vacant lot, owned by a charitable organization and upon which it is proposed to erect a building to be used for charitable purposes, notwithstanding the funds wherewith the lot was purchased were exempt, and the lot, as well as the building, will be exempt as soon as a building has been erected.
    Henry, J.; Marvin, J., and Winch, J., concur.'
    Appeal by plaintiff.
    In this appeal 'from. the court, of-common pleas, the sole issue is one of law, to-wit, whether Subdivision 6, or any other subdivision of Section 2732, Revised Statutes of Ohio, operates to exempt from taxation a certain vacant lot in the city of Cleveland, purchased by the plaintiff, out of moneys provided and to be used by it for acquiring a site and erecting thereon a building suited to the' public charity which said association administers.
    Said subdivision, so far as applicable, is as follows:
    “All buildings belonging to institutions of purely public charity, * * * together with the land actually occupied by such institutions, * * # and all moneys and credits, appropriated solely to sustain and belonging 'exclusively to said institutions, * * *” shall be exempt from taxation.
    It is argued here, on behalf of the plaintiff, that the moneys appropriated to the purposes aforesaid, were exempt, and the lands when occupied, and the buildings, when erected, by means of these moneys, will be exempt, and therefore it would be anomalous to hold that during the period of time between the expenditure of such money in the purchase of land and the actual occupancy of the land, with buildings or otherwise, for the charitable purposes contemplated, the particular form of property assumed by the fund as temporarily unoccupied land, should render it taxable.
    It is admitted, however, that statutes exempting from taxsution should be strictly construed, and, if we consider the frauds upon the public revenue which might result from exempting vacant property from taxation because of an intention existing only in the owner’s mind in regard to the ultimate use and occupation of such land, for purposes of purely public charity, it is sufficient reason for refusing to relax the rule of strict construction in this case. Indeed, it would require a very Liberal construction of the statute to extend the exemption to unoccupied and unused lands.
    The provisions of the law are very explicit, and we can not assume that they mean more than such words ordinarily signify. The plaintiff’s petition is therefore dismissed.

      M. B. & U. II. Johnson, for plaintiff.

      G. W. Siage, County Solicitor, for defendant.


text:
    TRUSTS FOR. CHARITABLE PURPOSES.
    [Circuit Court of Stark County.]
    James H. Hunt, Trustee, v. Charles Edgerton et al.

    Decided, 1905.

      Trusts — Created for Charitable Purposes — Class Designated, but Individual Beneficiaries Vague — Poioer of Trustee to Administer— Perpetual Trust Created — Meaning of the Word “Education”— Selection of Beneficiaries — Wills—Appeal under Section 6B02.

    1. In an action brought by a trustee of a charitable trust under Section 6202, Revised Statutes of Ohio, to construe the trust, where the common pleas court on hearing the same holds that there is no trust, it is the right of the trustee to appeal to the circuit court in the interest of the cestui que trustent.

    2. The individual beneficiaries of a charitable trust must necessarily be vague and uncertain, and it is sufficient if a class is designated from whom the trustee can select.
    3. A trustee clothed with the power of administering a trust fund for such public charity has, without special delegation thereof, incidental authority to select from the classes named the individual beneficiaries thereof.

      4. Testator provided in his will a fund to be “applied by my trustee to the education of colored children, by which I mean in whole or in part of negro blood, and in case an opportunity or opportunities should hereafter occur to unite the fund hereby bequeathed for similar purposes, it is my will that my trustee for the time being have power to unite the fund hereby bequeathed with such other fund or funds upon such terms and conditions as may to him seem best fitted to carry out the objects and purpose of this devise; and should the fund hereby devised by the addition of other funds or otherwise ever become sufficiently large for that purpose, it is my preference that a manual labor school upon a similar footing to the Charity School of Kendall as at present conducted, should be established and supported by said fund for the benefit of colored children, but this preference is not designed to be binding or controlling upon my trustee,” such bequest creates a good and valid charitable trust, and is not void for uncertainty in object or beneficiaries and a court of equity will not permit the same to fail for want of a trustee.
    5. Direction given trustee in' administration of his trust.

      Donahue, J.; McCarty, J., and Taggart, J., concur.
    This case comes into this court upon appeal. The first question submitted to us arises upon the motion of the several defendants to dismiss the appeal for the reason that the plaintiff is not prejudiced by the judgment below and is not affected thereby and has no such interest in the suit as would authorize his appealing the same.
    The plaintiff, Hunt, as trustee of the will of John Hall, deceased, brought action for the construction of an item in the will which created that trust estate. That resulted in the court finding that no trust existed in favor of the parties attempted to be described therein, and in effect held that there was no trust and nothing to be construed, and that he must account to the heirs of Hall for the funds in his hands.
    We think it clearly appears that this trustee of this express trust and the trust fund in his hands which he is required to protect for the benefit of the cestui qui trust is affected by the judgment in this case, and where the judgment is not merely a direction to him as to how he should administer the trust, but is practically destructive of the trust, it is not only his right but his duty to appeal the cause.
    ITis petition did not ask the court to declare there was no trust but simply asked the court to direct him how to administer it. It is unnecessary at this time to determine whether he might appeal or not in case it was simply a direction to him as to the manner and method of administering his trust, for that is not the question before us. It is sufficient to say that we think that he as trustee is affected by this judgment, that it is adverse to him in his trust capacity, and as such trustee he has as much right and power to appeal as if it had been adverse to him personally.
    As noted above the petition was filed in the common pleas court by James IT. Hunt, trustee of a fund created by the will of John Hall, deceased, asking the court to give judgment and direction in regard to the true construction of the will of said John Hall, deceased, and especially the eighth clause thereof, which provided the fund of which he is now the trustee. The heirs at law of John Hall, deceased, are made parties and answer claiming that the objects and beneficiaries of the trust are indefinite and uncertain, and for that reason the bequest mentioned in item eight of his will fails, and that they as heirs at law are entitled to receive the same. And this is the principal question in this ease. A great deal of evidence has been introduced touching the administration of John Hall’s estate, turning over of the fund to the trustee, the appointment of the present trustee in the place of one named in the will after the decease of that trustee, the amount of the fund, and the relationship of parties to this suit to the testator. And also evidence touching the conduct of the Charity School of Kendall mentioned in the eighth item of the will. From this evidence we find that the defendants named are heirs at law of John Hall, deceased; that John Hall died in 1854; that his widow died in 1859; that his estate was fully settled and administered in 1860; and that this final account contains an item as follows: “Paid to the John Hall trust fund, $2,480.62.”
    That Arvine C. Wales, named by said will as executor and trustee, qualified as such executor in 1859, and filed said final account in 1860; that it does not appear from' the evidence that he qualified as such trustee; nor does any voucher appear on file in the probate court with his accounts receipting by himself, or any one else as trustee for the sum stated in said account to be paid to said trust fund; that in 1884 the said Arvine C. Wales, being deceased, his wife as his executrix filed an account for him as such trustee, and thereupon the present trustee was appointed by the probate court of this county to take charge of said fund, and to control the same, and said trustee, the present plaintiff, then took charge of said fund and has held and conserved the same, but up to the time of the commencement of this suit has made no application of any of the revenues thereof to the objects of said trust, but has permitted the same to accumulate, and at the time of the bringing of this action, it amounted to the sum of about $10,000 and that the investment of the same, the augmenting of the principal by the interest, was in pursuance of the directions of the testator, and as a part of the active duties of such trustee in the administration of such trust.
    The only part of the will of importance in determining the questions at issue here is the eighth item thereof, which reads as follows:
    “8th. It is my will that the proceeds arising from the sale of my real estate, shall form a fund, the principal of which shall never be diminished or in any way encroached upon, but it shall always be kept at interest well secured by mortgage upon real estate, and when said fund by the addition of one-half of the interest arising from said principal, or such part thereof as may not be necessary for the comfortable support and maintenance of my wife, Catherine, as aforesaid, during the widowhood of my wife as aforesaid, and by the addition of the whole of the interest arising therefrom after the subsequent marriage or death of my-wife, shall in the estimation of my trustee have become sufficiently large for that purpose, it is my will that the'yearly interest arising from said fund be applied by my trustee to the education of colored children, by which I mean, in whole or in part of negro blood, and in case an opportunity or opportunities should hereafter occur to unite the fund hereby bequeathed with another fund or funds, given or bequeathed for similar purposes, it is my will that my trustee for the time being have power to unite the fund hereby bequeathed with such other fund or funds upon such terms and conditions as may to him seem best fitted to carry out the objects and purposes of this devise; and should the fund hereby devised by the addition of other funds, or otherwise, ever become sufficiently large for that purpose, it is my preference that a manual labor school upon a similar footing to the Charity School of Kendall, as at present conducted, should be established and supported by said fund for the benefit of colored children, but this preference is not designed to be binding or controlling upon my trustee.”
    The tenth item of the will mentions Arvine C. Wales as such trustee “to take charge of and manage the trust fund hereby devised in the manner and for the purpose herein specified.”
    It will be noticed that there is no suggestion in the will as to the appointment of a trustee upon the death of Wales, or upon his refusal to serve as such trustee; but there is no contention on the part of the heirs touching the right of the court to appoint a trustee to succeed this testamentary trustee, and in passing therefore it is sufficient to say that a perpetual trust fund is created by this will, and in the nature of things it must have been contemplated that no one trustee would survive the trust. There is no language in the will to show that it is a personal trust, and confidence in the first trustee named that could not be exercised by another and there is nothing in the nature of the trust to prevent its execution in accordance with the intention of the testator as well by trustees appointed by the court as by one named in the will. That being true we think the question of the right to appoint a trustee upon the death of Wales is fully covered by the case of Soivers v. Gyrenious, 39th Ohio State, page 29.
    But the serious contention is, first, that the objects and beneficiaries of this trust are uncertain, and that the trustee named is not by the terms of the will clothed with any discretionary powers to make these objects or the purposes definite and certain. First, as to object. The language of the will in that behalf is “it is my will that the yearly interest arising from said fund be applied by my trustee to the education of colored children. ’ ’
    It is suggested that no particular education is designated; that the testator may have meant a scientific or theological education, manual training, musical, literary or many other branches of education. But we think where -there is no specification as to the kind and character of -education to be given that it necessarily and naturally follows by the use of the word that an education along the lines of education given by our common schools is intended. That the word “education” in the ordinary use and the generally accepted significance of the term is sufficiently explicit to designate such an education, and that if any other were intended, or any particular branch or line of education intended, that the testator should and would have pointed it out. So that we think it clearly apparent that the education that he meant and intended was education in the common branches along the lines of education sought to be accomplished by the public schools of our state; and this fact, we think, is particularly manifested by the condition of the colored people under our laws at the time this will was executed.
    There are some other suggestions, however, in this item of the will as to how this object is to be accomplished, either by uniting with other funds for similar purposes or by establishing a school along the line of the Charity School of Kendall; but these matters are all left to the discretion of the trustee. The only thing incumbent upon him is that the income shall be expended for the education of colored children; so that upon this contention we find against the claim of the heirs at law.
    The next contention is, that the beneficiaries of the will are uncertain. Again turning to the will we find this language: “It is my will that the yearly interest arising from said fund be applied by my trustee to the education of colored children, by which I mean children in whole or in part of negro blood.”
    It is contended (1) that there is an uncertainty as to what class of children is meant in the term “colored children” because testator has not said what proportion of negro blood would constitute a colored child. At that time there were some statutes of Ohio relating to the rights and also disabilities of colored people, for instance, relating to marriage, and to vote, etc:, and these statutes uniformly designated persons of visible admixture of African blood. So that we think would furnish a fair test if one were necessary. But the language of this will is plain and specific and in no wise uncertain. If there is any negro blood in the child, it comes within the designation of colored children. If it is to be taken literally, there is no trouble about it. If it is to be taken and measured according to the laws of the state then in force, there would be no difficulty arise. In either case the beneficiary would be easy of ascertainment. Therefore we think there is nothing substantial in that contention.
    Next, it is contended that this includes not only the colored' children of Stark county, not only of Ohio, not only of the United States, but of the whole world, and that each "and all of the children having any negro blood in their veins anywhere in the world are entitled as beneficiaries under this devise and that the same necessarily fails for such uncertainty as to beneficiaries. In considering this it is necessary to examine to some extent the nature of the. trust. It is undoubtedly a public charity. If that be true then the very first element of a public charity is that the beneficiaries thereof be indefinite and uncertain. That is to say, a class may be designated, or a race may be designated, and so long as we are able to determine the class to which the charity is to be applied, that is sufficient for the purpose of a charitable trust. It is said in the 39th Ohio State, on page 35:
    “It is no objection to the validity of the trust that individuals to be benefited are not designated in the will;.for this indefiniteness is a necessary characteristic of a charitable trust.”
    In Perry on Trusts, Section 710, it is stated:
    “In order that there may be a good trust for a'charitable use, there must always be some public benefit open to an indefinite and vague number. That is, the persons to be benefited must be vague, uncertain and indefinite until they are selected or appointed to be the particular beneficiaries of the trust for the time being.
    “Without multiplying authorities we think that this is the true rule, and that this is the distinguishing feature that distinguishes a private from a public charity. If the individuals, beneficiaries of the trust are fixed, certain and definite so that their names can be ascertained, and they may receive an exact proportion of the trust fund, it is no longer a public charity. A public charity from the very nature of the thing itself must be indefinite and uncertain. And if there is any way provided by which the individuals may be selected from this vague and indefinite number, then it is sufficient for the purposes of a public trust. But of course it was not intended that this small fund should be applied to the colored children of the world. That was, and is impossible from the very nature of things and the testator must have realized that; so that it was necessarily his intention that individuals from this race should be selected as beneficiaries of the trust, and if he has provided for that then the designation of the beneficiaries is sufficient. If he has not it must fail for uncertainty. Another rule that has seemed to meet the approval of all courts of this country dealing with this question is the rule 'that gifts for charitable purposes shall always be favored, and trusts created for such purposes carried into effect by courts of equity if at all possible to do so.’ ”
    The ruLe in England is that all such charitable trusts shall be carried into effect, and that any uncertainty in the beneficiaries thereof shall be set at rest by the courts whether or not the intention of the testator can be exactly followed or not. It is said, by some authorities that this doctrine applies in this country only not under the same name, and that reduced to its elements the Cy Pres doctrine of England is a very simple judicial rule of construction, and as such, courts in all the states can and 'do apply it without usurping any prerogative powers. But we do not understand that to be the law. The definition is nicely stated by Lord Eldon in this language:
    “The general principle thought to be most reconcilable to the cases is, that where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by the sign-manual; but where the execution is to be by a trustee With general or some objects pointed out, then the coui’t will take the administration of the trust.”
    The first principle that is there announced is what is known as the Cy Pres doctrine, and not in force in this country. The second principle, that is where the execution is to be by trustee with general or some objects pointed out then the court will take the administration of the trust, is we think the law of practically every state of this union, and we do not hesitate to declare it to be the doctrine of Ohio in relation to trusts. But further than that courts of this state, at least,, will not go. So that notwithstanding the favorable view that courts may take of such public charities and the desire to enforce such trusts if it can not be done according to the intentiop of the testator it must fail, and courts will not attempt to direct an independent trust that seems right and proper to the court without regard to the directions and intention of the testator. This whole question resolves itself into a consideration of whether or not the trustee of this trust has the right of selection of beneficiaries from the class of individuals named in the will.

      The ease of Grimes’ Executors v. TIarmon et al, 35 Indiana, page 198, is undoubtedly a well considered case and is of great assistance to this court in disposing of the question at bar.
    But we do not agree with it in all its conclusions, although we agree with the result reached in that case. And Indiana has not permitted all the doctrines announced in that case to go unchallenged, and that portion announced in that case that would seem to require of us to declare this trust void is no longer the law of that state.
    But in the case of ErsTtine v. Whitehead, Executor, et al, 84 Indiana, page 360, a different rule is announced, and one we think more in consonance with the doctrine of other states, and particularly the state of Ohio, so far as the courts of this state have considered the question here involved. In that case the will provided that the annual interest or income of said trust shall forever be appropriated and applied to the aforesaid trustees and their successors forever to the following benevolent objects, to-wit: To poor families, widows and. orphans; newcomers in distress, or persons in Vanderburgh county suffering from want of clothing, food or fuel, especially in the winter; not to be paid to drunkards, but to their suffering families, if worthy; not to companies or corporations of any kind, except such associations as may be founded for the relief of the poor; not to churches of any profession whatever, but to ’those in distress, and especially to suffering families, from whatsoever country or whatever name or denomination, etc. And it was there held that the trustees appointed to administer the trust had the power and authority to select the individual beneficiaries thereof from the classes therein named.
    In the 121 Illinois, page 269, the bequest was, “that the income of the fund be distributed annually among the worthy poor of the city of La Salle in such manner as a court of chancery may direct,” and notwithstanding no trustee was appointed to distribute the fund, yet the court held that the power of distribution by the court necessarily included the power to select the individuals to whom distribution should be made and that any trustee appointed by the court for that purpose should have siich-incidental powers. And further in commenting upon the same the co-urt says, “The case stands the same as if the testatrix herself had appointed a trustee to distribute the fund. The trustee to be appointed by the court will, in fact, be a trustee of her appointment, made through the court of chancery. ’ ’ So that in such case the trustee acquired no further right than if he had been named in the will, and yet was held to have the power of selection.
    In the case of Hisheth v. Murphy, 36 New Jersey Equity, page 304, the income was to be used for “the relief of the most deserving poor of the city of Patterson, aforesaid forever, without regard to color or sex; but no person who was known to be intemperate, lazy, immoral or undeserving, to receive any benefit from said fund.” This bequest was held valid; and it was further held that the power to dispense the fund carried with it by implication the power to select the particular beneficiaries. And in this particular case many more things are to be determined than in the eas.e at bar. First, as to the1 temperance or intemperance, whether moral or immoral, deserving or undeserving, lazy or diligent, and so on, and yet without any special delegation of that power it was held to be a power incident to the other powers of the trustee. In this particular will in the case at bar a great- many things are specifically left to the judgment of the trustee. While it is true that it is not specifically stated that he shall select the individual beneficiaries from the class named, yet reading the item as a whole no other conclusion can be reached but that it was intended by the testator that the trustee should apply it as best as he could along the lines directed and for the specific purpose named, and that in doing so he should exercise all the discretion incident to the performance of such a trust.
    There are many authorities that may be cited in support of all of the propositions that we have advanced, but we think we have called attention to enough for the purpose. It is true there are some authorities to the contrary, but they are few and far between, and in many instances are clearly distinguishable from the case at bar. But at all events the great weight of American authorities on this are to the effect (1) that the individual beneficiaries of a charitable trust must necessarily be vague and uncertain, and it is sufficient if a class is designated from whom the trustee can select the same. (2) That a trustee clothed with the power of administering a trust fund for such public charity has without special delegation thereof incidental authority to select from the classes namedjthe individual beneficiaries thereof.
    Our conclusion, therefore, is that this trust is .a valid one; that the trustee has the power to select the individual beneficiaries from the classes named, and that this selection ought to be and necessarily must be fair and impartial, without reference to sex or any other qualification than required by the provision of the will, and in such number as the income of said fund will warrant, and it is his duty so to do when in his opinion, honestly exercised, the fund is sufficiently large that the income thereof will enable him to carry out the objects of the trust. And upon his failure to properly execute his trust honestly, fairly and impartially the remedy therefor is ample and sufficient.
    Motion for new trial by the heirs at law overruled. Exceptions noted. Thirty days for separate finding of fact and law and the statutory time for bill of exceptions. The costs in this court are taxed to the defendants, and the costs also in the common pleas court made upon the issue joined by the answers of said defendants and petitioner are also taxed to the defendants.
    Costs of the petition and other necessary costs for the construction of the will shall be paid out of the fund.

      Robert H.. Day and Austin Lynch, for plaintiff in error.

      John W. Graine and James Welker, for defendants in error.

       Affirmed without report by the Supreme Court, November 16, 1906.


text:
    MONEY PAID UNDER. MISTAKE OF LAW.
    [Circuit Court of Columbiana County.]
    Sarah A. Metzger v. Joseph O. Greiner et al.
    Decided, October Term, 1906.

      Money Paid under a Mistake of Law — Will not be Ordered Refunded by a Court of Equity, When — Effect of Change of Law by Judicial Decision.

    1. A court of equity will not order refunded to a trustee money paid him by another trustee under a mistake of law, except when the mistake is mixed with misrepresentation or fraud, or where the ignorance of the complainant has conferred upon the defendant a benefit which he can not in good conscience retain.
    2. Where the law is changed by judicial decision, such change will not affect transactions made with reference to the law as it stood previous to such change.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Appeal from common pleas court.
    The controversy in this action is between Byron S. Ambler, as trustee of Joseph Koll under the insolvent laws of the state, by his cross-petition and the answer thereto of John S. McNutt, receiver of Greiner & Son, who will hereafter be denominated plaintiff and defendant.
    Joseph Koll had borrowed from Greiner & Son, who were bankers at Salem, Ohio, about $6,000. To secure the loan Koll deposited a number of shares of the capital stock of the Victor Stove Company, a corporation organized under the laws of Ohio. Subsequently Koll made a general assignment for the benefit of his creditors under the insolvent laws of Ohio, and plaintiff became trustee, succeeding the assignee appointed in the deed of assignment. Difficulties arose in the firm of Greiner & Son, which was a partnership, and John S. McNutt was appointed receiver to settle up the affairs of the partnership. Koll not having paid the loan, the stock deposited with Greiner & Son as security was sold and the proceeds applied upon the claim due the bank, which was about one-third of the amount then due.
    After the appropriation of the proceeds o.f the sale of the stock to the claim of Greiner & Son, plaintiff declared a dividend in favor of the creditors of Koll, and paid the dividend in favor of Greiner & Son upon the full amount of the loan of $6,000 to the defendant, as he thought under the law he was required to do, and not upon the amount of the claim less the proceeds of the sale of the stock. This court after the payment of the dividend to defendant by plaintiff, in the case of The State National Bank v. Esterly, decided that in such a case the creditor is only entitled to a dividend upon' the balance remaining after deducting the proceeds of the collateral taken to secure the debt; and the case was affirmed by the Supreme Court by a divided court (69 O. S., 24).
    After the decision in the Esterly ease by the Supreme Court, plaintiff filed his cross-petition in this case, which is the original case in which the receiver was appointed, asking that defendant be required to pay back to him the amount so paid by mistake, as the assets of Koll were not sufficient to pay all his debts. Defendant contests this claim of plaintiff and insists that he has a right' to retain the full amount received by him. In the agreed statement of facts submitted to us, the reason assigned why plaintiff paid over to defendant the dividend upon the full amount of the claim of Greiner & Son, and not upon the amount of. the claim after deducting the proceeds of the collateral, is that it was the general custom in this state to do so, and that he understood that to be the law; as established by decisions in the highest courts of many of the states, and by the lower courts of this state, and that there was no decision of the Supreme Court upon the question. In the case of Jelite v. Stallo, 1. Nisi Prius Reports, page 29, it was decided by a very eminent judge that the creditor was entitled to a dividend upon the full amount of his claim, and this opinion is supported by many decisions of different states, as well as of the federal and English courts. Merrill v. National Bank of Jacksonville, 173 U. S., 131, and cases therein cited.

      Plaintiff was a lawyer and was familiar with, these decisions, and the payment of the dividend by defendant was a pure mistake of law with no mixture of fact. Furthermore, there is no claim that any misrepresentation or fraud was practiced by defendant, and it could not be said that defendant had any advantage in the transaction that would require a court of equity to interfere any more than a court of law.
    The rule in such cases is well stated in Eng. & Am. Enc. of L. (2d Ed.), Yol. 20, page 816:
    “It is one of the fundamental maxims of the common law that ignorance of the law excuses no one. It is a maxim founded not only on expediency and policy, but on necessity. ‘If ignorance of the law could be admitted in judicial proceedings as a ground of complaint or of defense, courts would be involved and perplexed with questions incapable of any just solution, and embarrassed by inquiries almost interminable, until the ■ administration of justice would become in effect impracticable. There would be but few cases in which one party or the other would not allege it as a ground of exemption; and the extent of the legal knowledge of each individual suitor, not his acts or words, would be the material fact on which judgments would be founded.’ It is therefore applied most rigidly at law, and is only relaxed in equity where the mistake is mixed with misrepresentation or fraud, or where the ignorance of the complainant has conferred upon the defendant a benefit which he can not in good conscience retain.”
    In note 7 it is stat.ed:
    “If one of the parties to a contract is in truth ignorant of a matter of law involved therein, and the other party, knowing him to be so, takes advantage of the circumstance, he is guilty of fraud and the court will relieve.”
    But it is hardly necessary to go outside of our own state for authorities as the case of Phillips, ExeciUor, v. McConica, Guardian, 59 O. S., 1, is directly in point except it'was an action at iaw. In that case it was held that—
    “Money voluntarily paid by an executor, upon distribution-, to one not entitled to receive the same, under a mistake of his rights and duties as executor, there being no mistake of fact, can not be recovered back,”

      That case, like this, was between trustees, the money having been pair! by an administrator in the settlement of an estate to a guardian of a minor, which minor the executor assumed was a legatee under the law, but which, in fact, was not the case. The minor had no claim upon the fund whatever, and yet the court says in the opinion:
    “The executor had the right to obtain the judgment of the court as to the proper person to receive this money, as was done in JJpson v. Noth, 35 O. S., 655, Revised Statutes, Section 6202. But, knowing all the facts, he did not seek the direction of the court, but relying upon his own judgment, paid the money at his own peril. If he intended to litigate the matter he should have litigated before payment. It is now too late, unless he can show he paid it under a mistake of fact, and this his present petition fails to show.”
    It is again contended by plaintiff that because at the -time of the payment of this dividend to defendant it was the settled law in Ohio that the dividend should be paid upon the full amount of the claim, the money should be ordered paid back. This claim is entirely too broad. At the time of payment there was no decision of our Supreme Court upon the question, and the decision of the Common Pleas Court of Hamilton County in Jelke v. Stallo, siopra, and of the United States Circuit of Appeals for the Sixth Circuit in a ease from the Western Division of the Southern District of Ohio-, 59 Federal Reporter, 372, could hardly settle the law in the state.
    But if the law had been fully settled as claimed by the plaintiff even by our Supreme Court, and a different holding was afterwards made, the result would be the same. It might be important in a controversy between Ambler and the creditors of Noll, but it would not change the question we are considering at all.
    “Certainly when the law of a state is changed by judicial decision, it does not open or annul what has been done in other cases of a like kind for years before, under a different understanding of the law. To permit such effect of the subsequent decision would lead to the most mischievous consequences. ’ ’

      In the case of Lyon v. Richmond, 2 Johnson’s Chancery Report, 51, it was held, Chancellor Kent delivering' the opinion, that—
    “1. A subsequent decision of the court of errors in a different case, giving a different exposition of a point of law from the one declared by the Supreme Court, where the parties to a suit entered into an agreement relative to such suit, can have no retrospective effect so as to destroy the operation of such agreement.
    “The court does not relieve parties from their acts and deeds fairly done, on a full knowledge of the facts, though under a .mistake of law. Every person is charged, at his peril, with a knowledge of the law.”
    This decision was made in 1816, and it seems to have been generally followed in all .the states. Pittsburg & Lake Angeline Iron Co. v. Lake Superior Iron Co., 118 Mich., 109, and cases and authorities there cited.
    Finding and decree in favor of defendant,. dismissing the cross-petition of plaintiff at his costs.

      Carey & Mullins, for plaintiff.

      S. W. Ramsey, for defendant.