author: SMITH, J. JONES, J.,

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    December 9, 1911.]
    Smith, Swing and Jones, JJ.

       George Clifford, Exr. v. Mary Foster et al.
    1. Bequest of Nonancestral Realty to Widow “Secured” to Widows of ■ Intestates by Ohio Laws, Remainder to His Brother Absolutely, Passes All Personalty and Realty in Ohio to Widow, and Realty Outside Ohio to His Brother.
    A bequest to his widow by an aged and childless man, possessed of personal and real property in Ohio and Kentucky, all acquired by purchase, of “all that part and interest in my estate, real, personal and mixed, which is secured to her, as my widow, by the laws of distribution of the state of Ohio, in the cases where wives survive husbands who dies intestate,” with a bequest of “absolutely all the remainder” to his brother, gives all his personalty and his real estate in Ohio to his widow, and all his realty outside of Ohio to his brother; the word “secured” is construed to mean what she would “obtain” or “have” as his widow at his death.
    2. Testimony of Scrivener of Will as to Declarations of Intention of Testator Incompetent in Absence of Ambiguity.
    Testimony of an attorney drawing a will as to declarations of intention of testator is not competent in the absence of ambiguity in the provisions of the wilt
    Error to common pleas court.

      Kramer & Bettman and II. A. Bayless, 'for plaintiff in error.

      Oliver B. Jones and Morse, Tuttle & Harper, for defendant in error.

      Reversed, Foster v. Clifford, 87 O. S. 000; 58 Bull. 58.

   SMITH, J.

In the above case this court is called upon to construe the following will: '

“In the name of the Father of All, Amen. I, Thomas Foster of Cincinnati, Ohio, being of sound mine and memory, and well knowing the uncertainty of all life, do make, publish and declare the following for, and to be, my last will and testament, hereby revoking and cancelling all former wills by me made.
“1. I desire and direct that all my just debts be first paid out of my estate.
'“2. I give and bequeath to my beloved wife, Mary Foster, all that part and interest in my estate, real, personal and mixed, which is secured to her, as my widow by the laws of distribution ■of the state of Ohio, in the eases where wives survive husbands who died intestate.
“3. I give, devise and bequeath absolutely all the remain•der of my property, real, personal and mixed after the dispositions in items one and two herein have been made, and wherever the same may be situated, to my dear brother, James E. Foster, now of Chicago, Illinois.
“4. I hereby nominate and appoint my said brother, James E. Foster and George Clifford, of Cincinnati, Ohio, to be the executors of this will, and my faith in each justifies me to request herein, as I do, that they be not required to give bond.
“In testimony whereof, I have hereunto set my hand and seal, this first day of March, 1906.
“(Signed) Thomas Foster [seal.]
' “Signed, sealed, witnessed and declared, this first day of March, 1906, by the said testator, Thomas Foster, in our presence as his last will and testament, and signed by us as witnesses at his request, in his presence and in the presence of each other.
“(Signed) M. W. Conway,
“Joseph Clifford,
“Edwin Kelley.”

In the case of Townsend v. Townsend, 25 Ohio St. 477, the rule of construction of wills is as follows:

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

The evidence discloses that the testator, Thomas Foster, a resident of Cincinnati, Ohio, died in December, 1908, leaving as his widow', Mary C. Foster, to whom he had been married thirty-three years at the time of his death; he was eighty-three years old; he left no children. An older brother, James Foster, survived him.

The property owned by the testator consisted of personal and real property, the latter being in Hamilton county, Ohio, and Campbell county, Kentucky; he had acquired all.of this by purchase, no property that he left being ancestral.

With this evidence before us, under the rule above cited, we do not find any ambiguity in the will of the testator. It is apparent that he gave to his wife all of his personal property and real estate that would go to her by the statutes of Ohio had he died without making a will and she survived him, and this is to be governed by the laws of distribution contained in Gen. Code 8573, 8574, 8578, 8592, and 8606 of this state.

He, therefore, devised to his widow all of his personal property and all of his real estate within the state of Ohio; and to his brother all of his real estate lying outside of this state.

Some argument has been made upon the use of the words “secured to her” by the testator, but it is evident that in the use of these words, he meant what she would “obtain” or “have” as his widow.

We do not think the evidence of the attorney who drew the will, as to the declarations of intention of the testator, is competent.

Judgment affirmed.

JONES, J.,

dissenting.

The question in this ease is: What portion of the estate of testator goes, under his will, to. the widow ?

It is conceded that James E. Foster, under the third item of the will, is made residuary legatee and takes the remainder of the estate after the widow’s bequest is taken out.

Item two gives to the “wife Mary Foster all that part and interest in my estate, real, personal and mixed which is secured to her, as my widow by the laws of distribution of estates, of the state of Ohio, in the cases where wives survive husbands who die intestate.”

I fail to see any ambiguity in this provision. No extrinsic evidence is necessary to explain it and it was error to have admitted such evidence in the lower court.

The widow takes what “is secured” to her by the laws of 'Ohio “as widow.” Not “will be secured to her” but “is secured to her,” meaning, of course, at the time the will was made.

Now, what portion of a man’s estate is secured to his wife during his-lifetiine ? The word “secure” as used here means “make safe,” “make fast.”

Nothing is secure to a wife, i. e., “safe” to her or “made fast,” except her dower interest in real estate and distributive portion of personal property. As to the balance of the consort’s estate, even where there are no children, she is only the prospective heir at law. The remaining two-thirds of the estate is not secured to her in any way. Pier coming into possession of it at his death is dependent upon the existence or nonexistence of a will. If there are no children and he dies intestate she gets this two-thirds of the property, not by virtue. of her being the widow, but as heir so designated by statute.

This portion of the estate is no more secured to her during coverture than a child’s prospective share in his or her parent’s estate is secured to such child.

The widow, therefore, takes under this will, in my opinion, an allowance for support for one year, free occupancy of the mansion house,one year, one-half of the first $400 of the personal property and one-third of the remainder, one-third of the real estate for life and any other interests, if any, in decedent’s estate which were secured to her on the date of the execution of the will by the laws of Ohio.

Assuming that the will is ambiguous and that it is proper to resort to the evidence as contained in the bill of exceptions herein to explain its provisions, it seems to my mind that the above construction becomes the more manifest as the true intention of the testator.

It appears that testator was over eighty years of age and childless; that the wife was also far advanced in years; that.the estate consisted of real and personal property valued at $165,000. There is real estate in Kentucky worth $20,000 and the balance of the property is in Ohio.

According to the construction contended for by counsel for the widow and adopted by the majority opinion of the court, the widow takes all the property in Ohio and the residuary legatee takes the Kentucky real estate.

To me, it is inconceivable that an attempt to express such an intention by the language employed in this will would be made by a man who possessed the business ability to accumulate this fortune, when such desire could have been expressed so briefly and clearly that a child could understand.

There is one more consideration leading me to the conclusion here recorded that I will briefly refer to.

Testator says that his wife is to have the portion “that is secured to her” by the laws of Ohio in “cases where wives survive husbands who die intestate.”

There are several different statutes or sections making provision for widows and the widow’s portion differs with differing facts and circumstances. It is dependent in amount upon whether the real estate is ancestral or nonancestral and upon the decedent leaving children surviving. The construction which my associates favor can not be given without adding at the end of the second clause of the will the words “and child- . less” or words of the same import.

It is necessary to add to or supply nothing in this will.. A portion of a man’s estate “is secured” to his wife and can not be affected by the manner in which the property was acquired, or by his leaving or not leaving issue, or in any other way except by her own act.

It was this portion that was given to the wife in this ease.'

Swing, J., concurs.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    April 6, 1912.]
    • Smith, Swing and Jones, JJ.
    F. M. Burdsall v. George M. Burdsall et al.
    “Are Deceased” in Will Devising Estate to Testator’s Children at Death of Widow Speaks from Widow's Death.
    The words “aré deceased” as used in an item of a will reading: “If my wife should marry or at her natural death, I devise and bequeath my property to be equally divided among my children, except those children who are deceased,” limit the devise to children living at the time of the death of the > widow.
    Error to common pleas court.

      Charles 8. Burdsall and 8cott Bonham, for plaintiff in error:
    Cited and commented upon by the following authorities: White v. Boiuland, 67 Ga. 546 [44 Am. Rep. 731] ; Willis v. Jenkins, 30 Ga. 167; Walker v. Williamson, 25 Ga.' 549; Jarman, Wills 52; Clark v. Clark, 19 S. C. 345; Boundtree v. Roundtree, 26 S. C. 450 [2 S. E. Rep. 474] ; Winter, In re, 114 Cal. 18& [45 Pac. Rep. 1063] ; Fargo v. Miller, 150 Mass. 225 [22 N. E. Rep. 1003; 5 L. R. A. 690] ; Stewart,-In re, 147 Pa. St. 383 [23 Atl. Rep. 599]; Kenyon’s Petitioner, 17 R. I. 149 [20 Atl. Rep. 294]; Arnold v. Alden,. 173 111. 229 [50 N. E. Rep. 704] ; Patchen v. Patchen, 121 N. Y. 432 [24 N. E. Rep. 695]'; Heard v. Bead, 169 Mass. 216 [47 N. E. Rep. 778] ;. Knowlton v. Sanderson, 141 Mass. 323 [6 N. E. Rep. 228] ; Delaney v. McCormack, 88 N. Y. 174; Robison v. Orphan Asylum,, 123 U. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293] ; Shanks v. Mills, 25 S. C. 358; Thompson v. Ludington, 104. Mass. 193; Frey v. Thompson, 66 Ala. 287; Underhill v. Boden, 2 Ch. Div. 496; Cliappel v. Avery, 6 Conn. 31; Bigley v. Watson, 98 Tenn. 358 [39 S. W. Rep.-525]; Barr v. Denney, 79 Ohio St. 358 [87 N. E. Rep. 267].; 4 Kent 207; Richey v. Johnson, 30 Ohio St. 288; Crane, In re, 164 N. Y. 71 [58 N. E. Rep. 47]; Sinton v. Boyd, 19 Ohio St. 30 [2 Am. Rep. 369]; Hamilton v. Bodgers, 38 Ohio St. 242; Banmster v. Bull, 16 S. C. 220; Olney v. Hull, 38 Mass. (21 Pick.) 311.

      David Davis and Wm. M. Tugman, for defendant in error.
   JONES, J.

Moses Burdsall died in the year 1858 leaving a widow and seven children. He had been married four times and was the father of eighteen children. Some of the children by former wives were dead at the time of his death and others survived him. It appears, too, that some of his deceased children left issue surviving them.

He died testate and we are called upon to construe the following paragraph from his will:

“Item 3d. If my wife should marry or at her natural death, I devise and bequeath my property to be equally divided among my children, except those children who are deceased. ’ ’

The widow did not remarry and died in 1908, fifty years after the death of testator. Her seven children survived her, all his children by former wives having died in the meantime.

The controversy arises over the meaning of the excepting clause in said item three — whether the verb “are deceased” relates to the time of his death or to the time of her death. It is argued that “are deceased” being in the present tense relates to the time of his death and that all the children then living and their descendants wall take per stirpes; and, that if it was intended to have a future signification the future tense of the verb would have been used.

t We think this view erroneous. The action or operation of the devise is placed in the future, namely: “ at her death. ’ ’ To say “at her death I devise my property to my .children, except such children as are deceased,” is equivalent to saying as are deceased at that time.

Again, if it was the intention to make the devise to the children living at the time the will was made, why the exception of deceased children?

Such intention would be clear without the exception. The living children only could be beneficiaries.

It must be presumed that the testator meant something by the exception. If it were his intention to give the property to the children living at the time the will was written, the exception is useless.

Without the exception all children or their issue would be devisees finder that item of the will.

The only way force and effect can be given to the excepting clause is to limit the devise to the children who survived the widow, and this, we think, is the correct construction.

Smith and Swing, JJ., concur.


author: SMITH, P. J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    February 3, 1912.]
    Smith, Swing and Jones, JJ.
    Cincinnati Traction Co. v. Morgan Charles, Admr.
    Pedestrian at Street Crossing Required to Look and Listen for Street Cars Approaching and Failure to Sound Gong is not Recoverable ..Negligence.
    • A pedestrian before crossing a street on which a street railway is operated is required to look and listen for approaching cars; failure to sound its gong as a car is about to cross a street is not negligence upon which recovery of damages may be predicated, especially if the pedestrian crossing at night and looking had an unobstructed view of its approach with headlight burning, or listening would have heard the noise of its approach. ,
    [Syllabus aproved by the court.]
    Error to common pleas court.

      Miller Outcalt, for plaintiff in error.

      Theodore Horstman, for defendant in error:
    Cited and. commented upon by the following authorities: Lake Shore Elec. By. v. Majeiuski, 25 O. C. C. 55 (1 N. S. 305) ; Toledo Elec. St. By. v. Westenhuber, 12 Cire. Dec. 22 (22 R. 67); Cincinnati Trac. Co. v. Johnson, 30 O. C. C. 702 (10 N. S. 467); Cincinnati, H. D. By. v. Eassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674].
   SMITH, P. J.

Anna Charles, the decedent, about 5 o’clock P. M., on November 23, 1909, while crossing Broadway from the.west side to the east side thereof at New street in Cincinnati was struck by the right front end of the car of plaintiff in error running north on the east side of Broadway, receiving injuries from which she subsequently died.

The petition alleges several grounds of negligence as follows: that the ear was running at an excessive rate of speed; the lack of proper control of the car; the failure on the part of the motorman to sound the gong, to drop the fender, and to slow up the car after he saw her; the lack of proper appliances to stop the car speedily.

The answer denies these acts of negligence and sets up that if she received the injuries complained of that caused her death, the same were due to her own negligence.

Upon the trial of the above issues a verdict and judgment were rendered in favor of the defendant in error, to reverse which this action is brought.

The evidence of the plaintiff discloses that at the time the decedent stepped from the curb to cross Broadway, the ear that struck her was at Sixth and Broadway, about 200 feet distant, and that no wagons, other cars or any obstruction was in the street to prevent her from seeing the approach of the car.

One witness testifies that she saw the deceased during all ■ the interval before and up to the time that she was struck by car, and that she did not look to the south or the north before attempting to cross. Another, who was just at her side, testified that she did look up and down Broadway and then started across.

All the witnesses agree that the headlight was burning, that the car was lighted inside, and that in running it made a noise like other ears; one witness saying that it made a great deal of noise and that the ear could be plainly seen by its headlight. The evidence further discloses that she was a strong woman, never had been sick and “nothing was the matter with her.” There is no evidence that her senses of sight or hearing were impaired.

It was the duty of the decedent to look for a car- before crossing the street, and if she did not so look as testified to by one of her witnesses, then she was negligent.

On the other hand, if she did look as another testified, then she was again guilty of negligence, because from the evidence, her view being unobstructed, she must, and necessarily would have seen the car approaching; and if her looking had been effective, which it should have been, then no injury would have resulted. Besides, it was her duty to listen, and had she done so, she would have heard the noise made by the car as it approached equally as well as the witnesses who testified in her behalf, notwithstanding the fact, if true, that no gong was sounded.

As to the remaining acts of negligence complained of, they are not borne out by the evidence, the great weight thereof being against their existence.

It was’ erroneous for the' court to charge the jury that it. was the duty of plaintiff in error “to ring its gong at street crossings.” All that is required is that a warning be given as a car approaches, and this duty only arises when an ordinarily prudent person would give such warning under similar circumstances.

From the pleadings and particularly the evidence, we can not see that the doctrine of last chance was involved in the case, and the charge of the court in this respéct is also erroneous.

For the above reasons the judgment of the court below is reversed.

Swing and Jones, JJ., concur.

       Affirmed, no op., Charles v. Traction Co. 87 O. S. 000; 57 Bull. 448.


author: SHIELDS, J.

text:
    DEEDS — DESCENT AND DISTRIBUTION — WILLS.
    [Stark (5th) Circuit Court,
    February Term, 1912.]
    Powell, Voorhees and Shields, JJ.
    Anna Knisely v. Perry H. Young, Exr. et al.
    1. Power Given Executors to Confer Title is Coupled with an Interest and Vests Fee in Executors until Termination of Life Estate.
    Where a testator vests in his widow a life estate in his lands, with the provision that within a reasonable time after the death of his widow certain land shall be sold by the executors named in the will and the proceeds divided equally between his five children, or if any of his children should decease before distribution the share of such child or children should go to his or their heirs, “so that the proceeds of said lot may vest in my children and their heirs forever,” the power given to the executors with respect to conferring title is a power coupled with an interest and vests the fee in the executors.

      2. Quitclaim Deed Executed by Testator’s Son Before Termination of Life Estate Invalid.
    In such a case the law of succession with respect to the proceeds from the sale of said land when finally made by the executors is not found in the statute of descent but of distribution, and the time of the distribution determines who are the legatees; and a quitclaim deed given by one of the sons to his divorced wife of all his right, title and interest in said, land, executed during the lifetime of their mother, is void and without effect.
    [Syllabus by the court.]

      D. F. Reinoehl, for plaintiff in error.

      Lynch & Day, for defendant in error.
   SHIELDS, J.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas.

It appears that Perry IT. Young, as executor of Hiram K. Dickey, deceased, filed his petition in the court of common pieas of Stark county, Ohio, setting forth, in substance, that on the — day of May, 1884, the said Hiram K. Dickey 'died, leaving his last will and testament, unrevoked and in full force; that on the — day of May, 1884, said will was duly probated and admitted to record in said Stark county; that the said Perry H. Young and T. J. Reed were named in the said will as executors thereof, and that on the — day of May, 1884, the said Perry H. Young, with said T. J. Reed, duly qualified as such; that said T. J. Reed died on the — day of March, 1909, leaving the said Perry H. Young the sole surviving executor of said will; that the said Hiram K. Dickey, deceas'ed, died possessed of real and personal property, leaving as his widow, Elizabeth Dickey, and the following named persons, his children and his only heirs at law: Hiram W. Dickey, Kate Webb,. Belle Reed, William C. Dickey and Lizzie N. Young; that Elizabeth Dickey, widow, died July 10, 1909; that after the death of the said Hiram K. Dickey and before the death of said Elizabeth Dickey, widow, the said William C. Dickey, one of the children and heirs at law of the said Hiram K. Dickey, on June 11, 1884, by quitclaim deed conveyed and transferred all his right, title and interest in and to the real estate of the said Hiram K. Dickey to Anna L. Knisely, the plaintiff in error herein, who claims to own whatever share the said 'William C. Dickey would he entitled to receive were he living at the time of the distribution of said estate as provided by the terms of said will; that immediately upon the execution and delivery of said deed to the said Anna L. Knisely, on the — day of-, 1884, the said William C. Dickey disappeared, and is believed to be dead, and was and is believed to have died before the death of the said Elizabeth Dickey, widow as aforesaid; that the said William C. Dickey left surviving him Grace Walters, his daughter and only heir at law; that Hiram W. Dickey, one of the children and heirs at law of the said Hiram K. Dickey, died January 25, 1907, devising his estate and property to his widow, Clara L. Dickey; that by reason of the attempted conveyance of his said interest in said estate by the said William C. Dickey, and his probable death before the time of vesting and distribution provided for in said will, and the death of the said Hiram W. Dickey, leaving a will disposing of his interest in said estate to others than those mentioned in the will of the said Hiram K. Dickey, deceased, it is impossible for said executor to determine to whom the said estate of the said Hiram K. Dickey should legally be distributed; that as such executor he has in his hands the proceeds of sale of the real estate of the said Hiram K. Dickey, ready for distribution, but that he can not safely make such distribution without a construction of said will, and he therefore prays the direction and judgment of the court.

It 'appears that all of the defendants in said proceeding entered their appearance by waiver ; that answers were filed by Clara L. Dickey, widow of Hiram W. Dickey, deceased, and William M. Dickey, as guardian of Thomas W. Dickey, and Grace Walters, the daughter and only child and heir at law of William C. Dickey, deceased, filed an answer and cross petition in which she sets up that she has no personal knowledge as to whether William C. Dickey conveyed or undertook to convey and transfer to Anna L. Knisely, on or about June 11, 1884, any interest in said Hiram K. Dickey’s estate, as averred in the plaintiff’s petition, and she therefore denies that any such conveyance ever was in fact made, and denies that the said Anna L. Knisely now has any interest in or claim to the real estate described in said petition. She further sets up that the said William C. Dickey died long before the death of his. mother, Elizabeth Dickey; that it was not necessary to sell or dispose of the real estate referred to in said petition to pay said testator’s debts and legacies, and that said real estate was not sold during the lifetime of the -widow, Elizabeth Dickey, but was sold since the death of the said Elizabeth Dickey, widow. She further sets up that upon the death of- said testator’s widow the said Grace Walters became seized under the provisions of testator’s will, as the only child of the said William C. Dickey, of an undivided one-fifth interest in the real estate of said testator, and in the proceeds of the sale thereof, and she prays that she be adjudged and decreed to be the owner of and to be entitled to receive one-fifth of the proceeds of the estate of the said Hiram Dickeyr arising out of the sale of the real estate described in said testator’s will, and referred to in said petition.

Said cause was submitted to the court below upon the pleadings and evidence, and it was adjudged and decreed by the court that:

‘‘The plaintiff as executor of said last will and testament be, and he hereby is instructed and directed to proceed to distribute the proceeds of the sale of said real estate described in Item 6 of said will, subject to distribution, after the costs of this proceeding and costs and expenses of administration had been paid, and the net rents, issues and profits of said real estate, accruing since the death of the widow, Elizabeth Dickey, as follows: to the defendants Grace Walters, Belle Reed and Lizzie N. Young each a one-fifth part thereof; to Frank Webb and Arline Pratt, as executors and legal representatives of Kate Webb, the one-fifth part thereof; and to the defendants William M. Dickey, Clara M. Whittier, Belle V. Rahles and Thomas W. Dickey the one-fifth thereof subject to distribution.”

Anna L. Knisely, the plaintiff in error herein, filed her motion in said proceeding to vacate said judgment .and decree rendered against her for irregularity in' taking the same against her, when she was not in default, upon the cross-petition of Grace Walters upon which -the decree against her was taken, which said motion was by said court overruled, to which action of the court in overruling said motion the said Anna L. Knisely excepted.

Error is prosecuted in this court for a reversal of the judgment and decree of the court below, and the petition in error contains the following assignments of alleged error for such reversal:

First, said court erred in its judgment and decree in the construction of the last will and testament of the said Hiram K. Dickey.

Second, said judgment and decree is contrary to the law and the facts of the case.

Third, said court erred in overruling the motion of the plaintiff in error to set aside and vacate said decree for irregularities mentioned in said motion.

It appears that the provisions in Item 6 in said will prompted the executor to seek the aid of the court for instruction and direction as to his duty in making a distribution of the proceeds of sale of the real estate of the said testator. Said Item 6 reads as follows:

! ‘ It is my will that within a reasonable time after the death of my wife my executors proceed to sell said lot above described at public or private sale as they deem best, and divide thfe proceeds equally between my five children — Hiram W. Dickey, Mrs. Kate Webb, Mrs. .Belle Beed, W. C. Dickey and Mrs. Lizzie N. Young, and should any of said children be deceased at the time of my death or the distribution of said proceeds of sale, then the share of any such to go to the heirs of such deceased child or children, so the proceeds of said lot may vest in my children and their heirs forever.”

(1) A reading of the will shows that after directing his executors to erect a family monument on his lot in the Massillon cemetery, and after making certain specific bequests of personal property to one of his grandchildren and to his wife, the testator gives to his wife a life estate in his real estate which is followed by the provision in said Item 6.

Without stopping to discuss the primary principle that a will should be considered in all its, parts with the view of ascertaining the intention of the testator, let us proceed at once to an analysis of the clause of the will in dispute, for it is conceded that 'the main controversy here depends upon the construction of Item 6 in said will.

The first inquiry arises as to where the,title to the property in question is cast by the terms of the will. It is well settled by the courts of this state that title to real estate must rest somewhere. It can not rest, in nubibus.

In some jurisdictions it is held that the title may be in abeyance, but it is otherwise held in this state. Gilpin v. Williams, 25 Ohio St. 283, 295.

It is clear that the title to said real estate, upon the death of said testator, did not pass to the widow of the testator, because her only title was to an estate for her natural life. Did it pass, to and invest in the children and heirs at law of the testator, or did it pass to and invest in the executors named in the testator’s will?

The fee simple title was in the testator until his death, and it would either pass, under the laws of descent, to his children and heirs at law, or perforce of the legal effect of the provisions of Item 6, to the executors.

The ordinary rules of construction leave no room for doubt that the directions to the executors -in Item 6 in the will to sell said real estate is imperative, and that the duty of making said sale either at public or private sale is expressly enjoined upon the executors is likewise clear, with an unlimited discretion to dispose of it as they may think best. It is true that the executors are not designated by name in this connection, but we regard this as immaterial. A somewhat similar case in this respect was passed upon by our Supreme Court in the ease of Collier v. Grimesey, 36 Ohio St. 17, where the executors were not expressly named as the persons who should make sale of the real' estate under a will, and where the court held:

“The duty of making the sale and'dividing the proceeds is imposed on the executors, ’ ’ and ‘ ‘ as one of the executors refused to act, the duty of executing the trust devolved under the statute upon the other executor.”

Here, as there, the direction to sell is not optional, but mandatory. Under the direction contained in said Item 6 in the will the executors are not only required to make sale of said real estate, but they are also required to divide the proceeds of sale equally between the said testator’s children or heirs, after such sale. Here, then, the executors are not only authorized and required to sell said real estate, but after converting it into money they are directed to distribute such moneys between the testator’s children or heirs then living. What is the legal effect of such power thus given in respect to conferring title? Is it not a power coupled 'with an interest, and vests the fee in the executors ? Where, in a will, a testator confers power upon, his executors to sell his real and personal property at public or private sale, and distributes the proceeds of sale among beneficiaries designated in the will, it is a power coupled with an interest, and will be so construed, if the other parts of the will seem to require it, in order to carry out the intention of the testator, and in such ease, by force of the will, the title to the real estate is vested in fee simple in the executors, and does not descend to the heirs. Williams v. Veach, 17 Ohio 171 [49 Am. Dec. 453].

Applying the. principle of law laid down in this case to the facts before us, the conclusion is clear, in our judgment, that the title to the- real estate in question vests in the executors named in the will of the testator.

(2) Looking at the phraseology employed in said Item 6 in the will, it appears that the testator intended to devolve the making of the sale and distribution of the proceeds of the sale of his real estate upon the executors named in his will. At the time of the execution of the will there was apparently in the mind of the testator a fixed purpose to keep the estate intact, after the termination of the life estate therein provided for his widow, by a continuing supervision and control over it by the executors until it was converted into personalty and distributed among his children. First, he directs a sale of his real estate by the executors, then that they divide the proceeds of said sale equally between the testator’s children.

In our judgment, no rule of construction need be invoked to elucidate the meaning of the language here employed. The execution of this trust, by the express terms of the will, is confided exclusively to the executors, and rests wholly with them, independent of his children and heirs.

(3) But the executors, in Item 6 in the will, are not only directed to sell the real estate and divide the proceeds of said sale between his children, but said item contains the following limitation:

“And should any of said children be deceased at the time of my death or the distribution of said proceeds of sale, then the share of any such go to the heirs of such deceased child or children so the profits of said lot may rest in my children and their heirs forever. ”

As before stated, the testator at the time of the execution of his will seems to have framed up in his mind a scheme or purpose which, when carried out by his executors, would secure to his children an equal- distributive share in his estate. "Whatever may have been in his mind as the underlying cause in limiting the distribution of his estate to the heirs of any one of his children who might be deceased at the time of his death, or at the time of the distribution of his estate, is not known, the natural inference being, however, that he desired, none but those of his own blood to share his estate."

Obviously there could be no distribution until after the sale of the real estate, and after such sale the fund in the hands of the executors became personal property, and therefore whatever the beneficiaries take under the will they take as a bequest of personalty and not as a devise of land. The thing to be distributed was money, not land. It makes no difference that the fund to be distributed is the proceeds of that which was land at the date of the will, or at the testator’s death. The bequest is nevertheless the legacy, and when vested in interest in the legatee, whatever may be the time for its payment, the law of succession in respect to it is to be found in the statute, not of descent, but of distribution. Richey v. Johnson, 30 Ohio St. 288.

Now, under the clause of the will referred to, who are, or were, the legatees under the will at the time distribution was made by the executors? For, in our judgment, the time of distribution, under the terms of the will, determines who were such legatees.

Was Grace Walters one of such legatees? It appears that she is a daughter and only child and heir at law of William O. Dickey, one of the children of Hiram K. Dickey, deceased, and that the said William C. Dickey died prior to the death of Elizabeth Dickey, widow of the said Hiram K. Dickey. It further appears that the said William C. Dickey on or about the 11th day of June, 1884, after the death of the said Hiram K. Dickey, and before the death of his widow, by quitclaim deed conveyed and transferred all his right, title and interest in the real estate of the said Hiram TL Dickey to the plaintiff in error herein. Having found that the title to said, real estate, under the terms of said will, vested in the executors therein named, said conveyance was and is, therefore, invalid and void.

The direction to the executors is, “should any ®f said children be deceased at the time of my death or the distribution of said proceeds of sale then the share of any such to go to the heirs of any such deceased child or children.” In view of the conclusion already reached that the bequest herein' did not vest until the time for distribution, and Grace Walters being the only child and heir at law of the said William G. Dickey, then deceased, it follows that she takes and inherits the share of said estate that the said William C. Dickey would have taken and inherited had he been living at the time of the distribution of said estate by the executors.

In addition to the authorities referred to herein, the following are also cited as sustaining the conclusions reached: Barr v. Denney, 79 Ohio St. 359 [87 N. E. Rep. 267]; Hamilton v. Rodgers, 38 Ohio St. 242; Sinton v. Boyd, 19 Ohio St. 30 [2 Am. Rep. 369].

Counsel for plaintiff in error contends that under the terms of the will of Hiram K. Dickey a fee simple title vests in the children upon the death of the testator, while the right of possession is postponed until the termination of the intermediate estate, which here is the life estate of the.widow, and he relies principally on the case of Linton v. Laycock, 33 Ohio St. 128, to sustain his contention. In the ease of Barr v. Denney, supra, already referred to, which is a case wherein the facts are very similar to those in the case at bar, the judge announcing the opinion of the court in the case refers at length to the case of Linton v. Laycock, supra, and holds that the rule laid down in the latter case does not apply to the ease of Barr v. Denney, supra. It might also be noted that the case of Linton v. Laycoch, supra, was one involving a devise of real estate, in respect to which a rule of law which favors the vesting of estates applies. It does not apply with the same force to personal estates.

It is also urged upon the attention of the court that the court below erred in overruling the motion of the plaintiff in error to set aside and vacate the decree entered as against her in this proceeding because she was not in default upon the cross petition of Grace Walters.

It appears that all the parties interested in this proceeding were made parties and were before the court below for the purpose of having theif several interests determined. In the petition filed by the executor, Grace Walters is made a party, and her relation to the estate of Hiram K. Dickey, deceased, is fully set forth therein. In her answer and cross petition she substantially sets up the same state of facts. The view we take of this motion renders any further discussion of it unnecessary, in the light of the construction already given to the will, for whatever might have been the action of Anna L. Knisely under a summons issued upon said cross petition, the construction of the will by the court below shows that she was not prejudiced in her legal rights by failure to be served with sueh.summons, said court in effect holding that the said William C. Dickey at the time of the execution of the quitclaim deed to Anna L. Knisely had no vested interest in the estate of the said Hiram K. Dickey.

The same decree may therefore be entered herein as in the eourt below, with a judgment for costs against the plaintiff in error.

Powell and Voorhees, JJ., concur.


author: VOORHEES, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Ashland (5th) Circuit Court,
    March 22, 1911.]
    Powell, Voorhees and Shields, JJ.
    In re Estate of Wm. F. Hess, Deceased.
    Allowances to Widow on Sale of Real Estate to Pay Debts to Which Error or Appeal Was not Prosecuted Cannot Be Impeached on Exceptions to Account as Administratrix.
    Allowances to a widow hy way of dower and homestead exemption, made in a proceeding to sell real estate belonging to her deceased husband to pay debts, to which no error was prosecuted or appeal taken, cannot he collaterally attacked by exception to her account as administratrix of the said estate. i
    [Syllabus hy the court.]
    Error ,to common pleas court.

      McCray & McCray, for exceptor.

      Chapmm & Taggart, for administratrix.
   VOORHEES, J.

On or about February 1, 1910, Lydian Hess, as administratrix of the estate of William F. Hess, deceased, commenced a proceeding in the probate court of this county to sell certain real estate for the payment of debts of said estate, in which proceeding Lydian Hess, James Hess, Roy Hess, Cora Switzer, Nettie Kopp and Christian V. Kagey were made parties defendant.

In this proceeding the said Lydian Hess filed an answer and cross petition as the widow of said decedent, claiming dower and allowance in lieu of homestead, and setting up her claim to be allowed a lien upon the real estate of said decedent, s ' in the sunt of $600 for moneys alleged to have been loaned by her to her husband, William F. Hess, in hié lifetime.

Christian Y. Kagey, one of the defendants, filed an answer and cross petition, setting up his certain mortgage for $1,500 with interest from October 1, 1909,- upon said real estate.

Such proceedings were had in said court, as that the said real estate was ordered to be sold, by said court, and a finding was made by said court, in favor of Christian Y. Kagey, for the amount of his said mortgage, and said sum of $600 was found to be due the said Lydian Hess from said estate, on account of moneys loaned to her said husband, William F. Hess, during his lifetime, and the same was declared a lien on said decedent’s real estate; that the said Lydian Hess was entitled to be paid the sum of $500 for allowance in lieu of a homestead, and that the sale of said real estate was necessary to pay the debts of said estate.

Now, pending these findings, no error was prosecuted or appeal taken, but said findings remain unreversed, and in full force, but when said administratrix filed her account in said probate court, taking credit for said sums so allowed to her, as aforesaid, exceptions were filed to her account, which exceptions were overruled.

Thereupon an appeal was taken to the court of common pleas, and the court of common pleas affirmed the finding of the probate court, and error is prosecuted to this court to reverse the judgment of said courts.

We hold that said finding and judgment of the probate court upon said claims was final, and can not be collaterally attacked by exceptions to the account, after said allowance is made. Therefore, we are of the opinion that the judgments of the probate court and the common pleas court are affirmed with costs, and the said cause remanded to the probate court for execution.

Powell and Shields, JJ., concur.


author: ROCKEL, J.

text:
    ERROR — PLEADING—RELEASE.
    [Franklin (2nd) Circuit Court,
    February 28, 1911.]
    Rockel, Dustin and Allread, JJ.
    Nelson P. Robinson et al. v. Cornelius V. Easton.
    1. Tender Back of Amount Alleged Received not Necessary upon Denial of Release Pleaded.
    Where, in an action for damages for personal injuries a-release is pleaded by the defendant and the plaintiff denies in his reply that he ever entered into such a contract of release, the plaintiff is not bound to tender back, before action is brought, the amount paid to him by the defendant in consideration of the alleged release.
    2. Finding for Plaintiff not Reversed when Evidence Tends to Support Issue of Negligence Raised in Pleadings.
    A claim that the injuries received were due to the breaking of a chain which contained an open link, of which the defendant is alleged to have had knowledge and the plaintiff supposed had been repaired, raises a question of negligence which is peculiarly within the province of the jury to decide, and where the testimony tends to support the claim a determination by the jury in favor of the plaintiff will not, without strong reasons, be set aside on the weight of the evidence.
    [Syllabus by the court.]
    Error to common pleas court.

      Seaton é Paine, for plaintiff in error:
    Cited and commented upon by the following authorities: Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41] ; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666] ; Conrad v. Brick Co. 19 Dec. 593 (8 N. S. 523), affirmed, Conrad v. Brick Co. 31 O. C. C. 700 (12 N. S. 126); Toledo & O. C. By. v. Coleman, 32 O. C. C. 746 (12 N. S.. 497) ; Jackson v. Ely, 57 Ohio St. 450 [49 N. E. Rep. 792]; Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. Rep. 795] ; Van Arsdale v. Brown, 9 Circ. Dec. 488 (18 R. 52); Atchison, T. & S. F. By. v. Vanordstrand, 67 Kan. 386 [73 Pac. Rep. 113] ; McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705].-

      M. L. Boyd, for defendant in error:
    Cited and commented upon by the following authorities: Perry v. O’Neil, 78 Ohio St. 200 [85 N, E. Rep. 41]; Decamp v. Eamma, 29 Ohio St. 467; Gibson v. Railway, 164 Pa. St. 142 [30 Atl. Rep. 308; 44 Am. St. Rep. 586] ; Julius v. Traction Go. 184 Pa. St. 19 [39 Atl. Rep. 141] ; Pioneer Cooperage Co. v. Romanowicz, 186 111. 1 [57 N. E. Rep. 864] ; Indiana, D. & W. Ry. v. Fowler, 201 111. 152 [66 N. E. Rep. 394; 94 Am. St. Rep. 158] ; Chicago, R. I. <& Pac. Ry. v. Lewis, 109 111. 120; Dixon v. Railway, 100 N. Y. 170 [3 N. E. Rep. 65] ; Blair v. Railway, 89 Mo. 383 [1 S. ¥. Rep. 350]; Cassilly v. Cassilly, 57 Ohio St. 595 [49 N. E. Rep. 795]; Missouri Pac. Ry. v, Goodholm, 61 Nan. 758 [60 Pac. Rep. 1066] ; 34 Cyc. 1064; Thompson, Negligence Sec. 7280; Illinois Cent. Ry. v. Vaughn, 33 Ky. L. 906 [111 S. W. Rep. 707] ; Insurance Co. v. Eull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571] ; Pawnee Coal Co. v. Royce, 184 111. 402 [56 N. E. Rep. 621]; Mullen v. Railway, 127 Mass. 86 [34 Am. Rep. 349] ; O’Donnell v. Clinton, 145 Mass. 461 [14 N, E. Rep. 461] ; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am.' St. Rep. 666] ; Toledo cfi O. C. Ry. v. Coleman, 32 O. C. C. 746 (12 N. S. 497), affirmed, no op., Coleman v. Railway, 81 Ohio St. 522; Conrad v. Brick Co., 19 Dec. 593 (8 N. S. 523); McGiU v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705]; Manufacturing Co. v. Morrissey, 40 Ohio St. 148 [48 Am. Rep. 669].

   ROCKEL, J.

The plaintiff below brought an action against the defendant below for damages alleged to have occurred by the falling of a derrick upon the plaintiff, whereby the plaintiff was injured, said derrick having fallen by virtue of alleged negligence of the defendant below in not repairing or having a proper guy.

To the petition the defendant filed an answer of general denial and also alleged contributory negligence, and as a third defense set up the following:

“That before this action was brought and that no alleged cause of action having accrued for plaintiff’s said injuries, to-wit, on the 4th day of February, 1907, these defendants paid to the plaintiff herein in compromise and satisfaction of any and all claims or causes of action arising out of said injuries, the sum of $29.25. That said plaintiff accepted the same in full satisfaction and discharge of any and all claims or causes of action arising out of his said injuries; that said plaintiff executed and delivered to defendants a release in writing, a true copy of which is as follows: ‘Received of the Columbus Hoop Company this 4th day of February, 1907, the sum of $29.25 in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 15th day of January, 1907, while in the employment of the above.
“ ‘Witness: C. Y. Easton.
“ ‘Winifred Altwater,
“ ‘Address, 276 E. 11th Avenue.’ ”

To this answer plaintiff filed a reply admitting that on or about February 4, 1907, he signed some instrument of writing and admits that he received about $29.25 at-said time. Plaintiff denies that he ever agreed to accept said money in full satisfaction and discharge of any 'claims or causes of action arising out of said injuries, and alleges that if the said writing which he did sign purports to be a receipt in full satisfaction and discharge of any or all claims for causes of action arising out of his said injuries, he was ignorant of that fact; that his signature thereto was obtained by false and fraudulent representations on the part of defendants in this, to wit:

‘ ‘ That defendants represented to plaintiff that said writing was merely a receipt for wages due him from said defendants; that plaintiff relied upon the said representations, and, believing them to be true, signed said writing without reading the same or knowing what it contained.”

The ease' was tried to a jury and a verdict returned for the plaintiff. A motion was made by the defendant for a new trial which w'as overruled, and error was prosecuted to this court.

The principal errors relied upon by the plaintiff in error for reversal of judgment are two: The first being that the issue raised by the pleadings upon the matter of the release would not warrant a judgment for plaintiff, because there was no tender pleaded of the amount received in the release, and that neither the pleadings nor the evidence showed that it was that kind of a contract that could be set up as a defense without pleading tender of the money received or having the instrument first reformed by a court of equity.

In the case of Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41], we have this in the syllabus:

“A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he cannot maintain his action until the release is set aside.”

This decision of the Supreme Court is unfortunate in not making clearer what is intended to be included or necessary to constitute a void contract within the. language of the syllabus. That it might be meant to include such a contract as the one under consideration, even though it were not what is ordinarily considered as a void contract is borne out from the opinion in the case as well as the construction that has been given thereto by other courts.

In the ease of Toledo & O. C. Ry. v. Coleman, 32 O. C. C. 746, 749 (12 N. S. 497), affirmed, no op., Coleman v. Railway, 81 Ohio S.t. 522, in considering a ease somewhat similar to the one at bar, we have this language of the court:

“If what I have read were established it would appear that the release was absolutely yoid. If it were true that Coleman at the time was unable to read by reason of these injuries to his eye, and if he was deceived by Mr. Latta, his superior in the employ of the company, as to the contents of the paper, if he signed the paper under such circumstances, supposing it to be one thing, whereas it was an entirely different thing, that is to say, a mere matter of form that he must sign before he began work again, whereas it was a release of all claims against the company, if his signature to the release was obtained under such circumstances and by such method, the release would be absolutely void; and under the authorities, this issue of release might be raised by a reply setting forth the facts showing that the release was void.”

So, we are constrained to believe that what was intended by the Supreme Court was, that if the contract were such, in this kind of cases, that a court of equity could or would set it aside, that the defense could be made that the contract was invalid without pleading a tender of the money received. That this was the idea that pervaded the mind of the judge rendering the opinion in Perry v. O’Neil, supra, is clear from this language:

“If a party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action, when he denies the execution of the release, or that it is his act, on the ground of want of ihental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void, he may ignore it in his petition, and if it is plead as a bar in the answer, he may in his reply plead the facts that make it void; if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation.”

And quoting further, he says, p. 210:

“ ‘At common law it has been held incompetent to a defendant suing at law on a specialty to plead that the instrument was obtained by false representation; it is a case, it is said, for equity alone. It is clearly otherwise of the execution of the instrument, as where the bond is misread to the obligor, or where his signature is obtained to an instrument which he did not intend to sign. In such eases fraud may be alleged at law.’ ”

In this opinion a large number of cases are given and quoted from where a release has been set aside without pleading tender of money received. In the case at bar, it was shown by the testimony that during the time that the plaintiff was confined to his home by reason of the injury suffered in the accident, that the defendant gave some money to his wife and also furnished him some coal; that when the plaintiff got so he could be on his feet, although suffering considerably, he went to work again. After he had been at work a few days, the defendant called him into the office and while the plaintiff was there sitting by the fire to get his feet warm, the defendant came in and called to the plaintiff and said to him something about the money that “we have paid you”; that defendant, hesitated a few moments, and that plaintiff said that, “I can’t pay you all at one time. You will have to take it out a little at a time until I get you paid as my wages is not large enough that I could pay it all at one time.” “Well,” he says, “As far as that is concerned the only thing we want is something to show where the money has went, and we have prepared a little receipt here that we would like for you to sign so as to make us good.” Plaintiff spoke up and said, “Alright.” Defendant turned to Altwater, his son-in-law, and said, “Winifred, get that paper.” lie got the paper, put it on the writing desk, clipped the pen in the ink, and handed it to plaintiff,-who signed it.

Plaintiff says that he understood that this was for money that had been advanced in the past, and that he thought for lost time, that they would keep him on the pay-roll during the time that he had been laid off by reason of the accident. He denies absolutely that it was a receipt to. relinquish all his right and claim against the defendant for the injuries resulting from the accident; that-he had, no intimation or knowledge whatever that the paper he signed was anything more than merely an acknowledgment of the money that had been paid to his wife, or for necessaries furnished, him and his family during his illness; that he did not read it but relied entirely on the statement that was then made in reference to the character of the paper that he was signing. Whether or not'he was fraudulently led to believe that the paper he signed was a different one from what it was, ivas a question of fact for the jury. The defendant below testified that he explained to him that it was a release in full.

There are some circumstances, however, which tend to support the plaintiff’s version of the giving of this release, and that is, tha,t it was for a peculiar sum, to'wit, $29.25, and that it would hardly be likely that a sum of dollars and odd cents would be given for a release in full of injury, and that it was probably what plaintiff contended, a mere release or receipt for the money that had already been paid, and, as he claimed, was requested by the defendant below for the purpose of showing on their books or something of that character.

Both by the pleadings and the evidence in the case at bar plaintiff denied absolutely that he made or entered into a contract releasing the defendant from liability for the injuries that he had received, and that ^n fact no contract of that kind had ever been entered into, and as no new inducement was, even by the admitted facts,, given him to sign the paper he did sign, other than the mere extinguishment of a past obligation, it might be in fact held that no consideration moved to him for. the execution of the release. Other states have held that releases might be set aside or held for naught in such actions without pleading a tender. A very strong ease is that of Chicago, R. I. & F. Ry. v. Lewis, 109 Ill. 120, where it is said:

‘ ‘ If such a release is procured by fraud and circumvention, it will be void as to the party so induced to execute the same. Fraud vitiates everything it touches, and a party will not be allowed to avail of an undue advantage obtained over another by fraudulent purposes.”

In Cleary v. Electric Light Co. 65 Hun. 621 [19 N. Y. Supp. 951], is a case very much similar to the one at bar. Here it is said:

: ‘ A release from liability for personal injury signed by the injured employe under his statement that it was a mere receipt for wages or gratuity is no bar to a future action.’-’

In the opinion, it is said:

Therefore, m this case, if' the plaintiff had admitted the compromise or his execution of the release, but claimed that he had been induced to make the compromise by fraud, duress or imposition, he would have been bound to return the consideration received before he could maintain the action. But that was not the issue in the ease. Plaintiff did not seek to avoid the contract of compromise. He denied making any such contract. ’ ’

So, in the case at bar, the plaintiff denied that he made any such contract, and we think, therefore, that the plaintiff was not bound to tender a return of the payment made.

The plaintiff in error contends this ease is controlled by Manhattan L. Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666]. But the decision in the case is on a different state of facts, as the following from the opinion indicates, p. 306:

"There being in this case a controversy between the parties, a disputed claim which the parties, being sui juris at the time deliberately settled, the one executing a full and sufficient release, intending to do just what he did do, and the other paying a money consideration therefor, the release, whether obtained by fraudulent representations or not, is binding until set aside, either by a tender or return of the money received, or by a direct proceeding in a court of equity for that purpose.” etc.

In the case at' bar there was no dispute or controversy between the parties. The plaintiff below had made no claim for injuries. There was no dispute or controversy about anything. The plaintiff did not intend to do what the release purports. Neither is the case at bar similar to Conrad v, Keller, 31 O. C. C. 700 (12 N. S. 126); Wertheimer v. Korte, 19 Dec. 617 (8 N. S. 535). In this latter case there was1 a settlement, although it was fraudulently entered into. In the case at bar plaintiff denies there ever was a settlement concerning his injuries, and the evidence seems to sustain his contention. The admitted settlement is upon another matter, to wit: money paid previously on wages or furnished as a gratuity.

Upon the second question as to whether or not the verdict is against the manifest weight of the evidence, we think it is not. The evidence clearly shows that th§ accident was caused by the breakage of the chain which was attached to a cable or guy and extended from the cable or guy to the derrick pole, and was a means of fastening the guy to the pole. This chain was several feet in length and the cable or guy was for the purpose of giving support to the derrick. On the day of the accident the plaintiff was forking at a windlass or something of that character at the derrick pole, and this was used to raise logs and place them in different positions. A few days before the time of the accident, according to the plaintiff’s testimony, he had learned that there was an open link in this chain and called attention to the fact that the fastening of this guy to the derrick pole by means of this chain, etc., was dangerous and unsafe, and that the defendant promised to fix the same. Plaintiff was then laid off a day or two and when he came back to work he assumed that as the defendant had promised to fix the same, that it had been fixed. This pole was some thirty-five or forty feet high, if we remember right, and the chain being at the top of the pole, the plaintiff could not by observation have seen whether it was fixed or not.

The defendant denies this matter as to his being informed of its defective condition and his promise to remedy it. Defendant further contends that the plaintiff was guilty of contributory negligence — 'that the log the men were moving at the time the cable gave way was a large one, and that he had instructed the men working at the same to saw it in two before they attempted to move it.

The plaintiff denies that he heard any such conversation, and from the work that he was doing at the time the accident occurred it is not clear that he had much to do with selecting the log or fixing the fasteners thereto.

We think the evidence clearly shows that the accident was caused by the breakage of this chain, and that the breakage did occur by reason of this open link pulling apart and breaking. Slater’s testimony is clear upon this question, and there is no testimony that shows the contrary. The question of negligence is one which is peculiarly within the province of the jury to decide, and we are not able to say that the verdict of the jury is against the manifest weight of the evidence or that the judgment is contrary to law.

We, therefore, find no errors of record prejudicial to the plaintiff in error, and the judgment of the court below is affirmed.

Dustin and Allread, JJ., concur.


author: METCALFE, J.

text:
    WILLS.
    [Portage (7th) Circuit Court,
    March Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.
    Sarah Jane Lacey v. George N. Birdsall.
    Personal Property Exonerated by Specific Direction in Will to Pay from Realty.
    A testator devised a farm to her son “upon consideration that he pay to my daughter, S J L, the $1,000 which I have bequeathed to her in item three, and which sum until paid I hereby make a charge upon said farm.” The son accepted ■ the legacy.
    Held: The payment of the legacy to the daughter is a charge upon the legacy to the son, and the personalty of the testator’s estate is exonerated from its payment, at least to the extent of the son’s legacy.
   METCALFE, J.

The only question in this case is whether by the terms of the will of Abigal Birdsall the personalty belonging to her estate is exonerated from the payment of a legacy of $1,000 given to the plaintiff, Sarah Jane Lacey. Item three of said will is as follows:

“I give, devise and bequeath to my daughter, Sarah Jane Lacey, $1,000 and I direct that the, same shall be paid to her within eighteen months after my decease.”

There is no specific direction here as to what fund shall be used in paying this legacy. Without anything further to throw light on the intention of the testator the personalty would be primarily liable for its payment. But the will must be construed m the light of all its provisions. Item four is as follows:

' ‘ I give, devise, and bequeath to my son, George H. Birdsall, my farm located in Streetsboro township, Portage county, Ohio, upon consideration that he pay to my daughter Sarah Jane Lacey within eighteen months from my decease the $1,000 which I have bequeathed to her in item three and which sum until paid 1 hereby make a charge upon said farm.”

This provision of the will makes' it clear that the intention of the testator was that George should pay the legacy to Mrs Lacey. He is to receive the farm ‘ ‘ upon consideration, that he pay” the $1,000 legacy. This is clearly a personal requirement of George, and makes him personally responsible for its payment, if he accepts the bequest of the farm, and in order to make the payment secure it is made a charge upon the farm.

Item two also throws some light on the question: “I give, devise, and bequeath to Isadore Birdsall $300 and direct that the same be paid out of my estate within, eighteen months after my decease.” The specific direction in this item requiring the payment of the legacy to Isadore out of her estate is entirely consistent with the direction that the legacy to Sarah Jane be paid by George.

We, therefore, hold that the intention of the testator being clear to make the payment of the legacy to Sarah Jane a personal requirement of George that that intention must prevail.

Counsel for the defense have cited many English and some American eases which seem to hold to the doctrine that a specific direction in a will to one of the legatees to pay a legacy to another does not exonerate the personal property. But we think this is contrary to the established doctrine in Ohio that the intention of the testator must be gathered from the will itself, and when ascertained must govern, .even though it is contrary to a technical rule of law. To hold otherwise would, in our judgment, be a departure from well grounded doctrines which prevail in this state.

Judgment affirmed.

Norris and Pollock, JJ., concur.


author: -GIFFEN, J.

text:
    INJUNCTION.
    [Hamilton (1st) Circuit Court, —,
    1906.]
    Giffen, Jelke and Swing, JJ.

      Louisville & Nashville Ry. v. Jacob Baum.
    Adjoining Building as Interference with Railroad.
    Th© construction near a railroad viaduct of a building which is necessary to th© enjoyment of the land and which will not unreasonably interfere with the operation of the viaduct, although it may cause some interference, will not be enjoined.

      Kinkead, Rogers & Ellis, for appellant.

      Albert Bettinger and Jacob Shroder, for appellee.

       Affirmed, no op., Louisville & Nashville Ry. v. Baum, 78 O. S. 427.

   -GIFFEN, J.

The most liberal construction, contended for by counsel for plaintiff, of the indenture of February 19, 1906, does not confer greater rights than would be acquired by proceedings to appropriate the land for the use of a single track viaduct such as the •one already constructed; and the ultimate question therefore is whether the contemplated building of the defendant is meees.sary for the convenient use of his land on either side of the right of way, and will it unreasonably interfere with the maintenance and operation of such viaduct? Cincinnati, H. & D. Ry. v. Wachter, 70 Ohio St. 113 [70 N. E. Rep. 974]; Gibbons v. Ebding, 70 Ohio St. 298 [71 N. E. Rep. 720; 101 Am. St. Rep. 900].

The necessity of the building to the convenient use of the land on both sides of the right of way can hardly be denied, and it seems further, from the deed of June 30, 1905, that the parties had the same in contemplation.

It does not appear from the evidence .that the building will unreasonably interfere with the maintenance and operation of the viaduct, but at worst will cause some inconvenience.

The petition for an injunction will therefore be dismissed.

Jelke and Swing, JJ., concur.


text:
    WILLS.
    [Jefferson (7th) Circuit Court,
    December Term, 1911.]
    Norris, Pollock and Metcalfe, JJ.
    Joshua Moores, Exr. v. Olive Holmes Gwynne et al.
    Legacy Rendered Invalid by Conditioning its Enjoyment ppon the Separation of Husband and Wife.
    A condition in a will making the receipt of a legacy dependent on a separation of husband and wife is contrary to public policy and void, and the legatee takes the legacy absolutely.

      Mansfield & Merryman, for plaintiff.
   METCALFE, J.

The plaintiff, as executor and trustee of the will of Sarah Viers Croskey, seeks a construction of a clause in said will.

The fourth item in the will giv§s one-half of the residue of the testator’s property to her brother, James M. Viers, during his life. Then follows this provision:

‘1 The remaining half of the residuum of my property shall be invested in a fund, the income of which shall accumulate from year to year and be added to the principal thereto for and during the natural life of Lenore Boyer Viers, or so long as she remains the wife of my brother, Basil W. Viers; then at her death, if my brother Basil W. Viers be living, or at her legal separation from my brother Basil W. Viers, if such occurs, my brother, the said Basil W. Viers, shall receive the accumulated income of this one-half of the residue of my estate absolutely, and thereafter shall receive the income of this said fund for and during his natural life.”

By the provisions of this clause Basil W. Viers can only receive the legacy therein given upon the happening of one of two events, that is to say, at the death of his wife or his separation from her. She must either die or he must get a divorce. He is offered a pecuniary inducement to separate from her. A condition in a will designed to effect the separation of husband and wife is contrary to public policy and is absolutely void. The authorities are practically unanimous in so holding. Conrad v. Long, 33 Mich. 78; Hawke v. Euyart, 30 Neb. 149 [27 Am. St. Rep. 391]; Cooper v. Carson, 3 Johns. Ch. (N. Y.) 521; Cooper v. Remsen, 5 Johns, Ch. (N. Y.) 459; 2 Jarman, Wills 524; 29 Am. & Eng. Enc. Law (1 ed.) 445.

We, therefore, hold that the provision in item four of the will making the legacy to Basil W. Viers dependent upon his separation from his wife is void and he takes the legacy absolutely. 1

Norris and Pollock, JJ., concur.


text:
    EMINENT DOMAIN — RAILWAYS.
    [Hamilton (1st) Circuit Court,
    May 25, 1912.]
    Smith, Swing and Jones, JJ.

      Louisville & Nashville Ry. v. Cincinnati (City) et al.
    1. Judicial Determination of Municipal Absence of Power to Convey Easement Across Public Landing Held Inability to Agree.
    Inability of a municipality and railway company to agree upon compensation for an easement across a public landing, sought to be condemned by the latter by virtue of R. S. 3283a (Gen. Code 8768), must be held to exist as a matter of law, since it has been judicially determined that the municipality has no power to convey the easement without condemnation or the legislature to authorize such conveyance.
    2. Necessity of Appropriation of Easement Across Public Landing Solely in Discretion of Corporation Directors.
    The necessity for an appropriation of an easement for an elevated railroad structure across a public landing, is a question solely for the, board of directors of the company seeking to make the appropriation, and no other judgment than that of the directors exists or can be substituted.
    Error to Hamilton common pleas.

      Kvnkead & Bogers and J. B. Foraker, for plaintiff in error.

      Albert Bettinger, Walter Schmitt, Alfred Bettman and Rosea & Knight, for defendant in error:

       Reversing, Louisville & N. Ry. v. Cincinnati, 56 Bull. 317 (10 N. P. N. S. 649), and Louisville & Nashville Ry. v. Cincinnati, 22 Dec. 363 (12 N. S. 65).

   SMITH, P. J.

It would seem that the right of the plaintiff in-error to ap-. propriate an easement over the property described in its application for railroad purposes is determined by the case of Cincinnati v. Railway, 17 O. F. D. 000.

Speaking of R. S. 3283a (Gen. Code 8768), the court says:

“ A public ‘exigency’ exists for the ‘common preservation,’ when the legislature declares that for a bona fide public purpose there should be a right of way for a common carrier across a particular piece of property. The uses to which R. S. 3283a authorizes a condemnation of a right of way are undeniably public, and not private, uses. When that is the case, ‘the propriety or expediency of the appropriation can not be Called in question by any other' authority. ’ United States v. Jones, 109 U. S. 519.”

Upon the record of the case as presented to this court, the question for determination seems to us to be, has the plaintiff complied with the provisions of the law relating to the condemnation of private land, and does the evidence so disclose?

If it has, then plaintiff in error is entitled to proceed with this appropriation proceeding. If it has not, then such proceeding can not be maintained. An examination of the record, we think, shows that plaintiff in error has complied with all the conditions establishing its right to maintain this suit for the condemnation of an easement across the public landing or wharf of the city.

Under the ruling in Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. Rep. 983], the inability to agree with the city upon the compensation to be paid the owner by the company seeking the easement, without condemnation, has already been determined, as in that case the Supreme Court held that the municipality' was without power to convey any such easement, and the legislature was without authority to authorize-such conveyance, therefore the inability to agree exists as a matter of law. The ordinance does not embrace more than one subject but relates in its entirety to acquiring an easement across the public landing or wharf.

So far as the terms and conditions upon which the company might occupy the easement sought to be appropriated is concerned, these are sufficiently provided for and set out in the ordinance and the plans and specifications for the building of the viaduct.

The necessity for the appropriation was established by the action of the board of directors of plaintiff in error company by the resolution of such board passed’ September 17, 1908.

This is in conformity with the language of the statute which leaves the question of necessity solely to “the judgment of the board of directors.” It would seem that no other “judgment,” or power to determine the necessity for the appropriation can exist or be substituted.

As plaintiff in error has fully established its right to proceed, it is the conclusion of the court that the judgment below be reversed and the cause remanded for further proceedings according to law.

- Swing and Jones, JJ., concur.


author: SMITH, J.

text:
    CONTRACTS — EVIDENCE—WILLS.
    [Hamilton (1st) Circuit Court,
    December 3, 1910.]
    Giffen, Smith and Swing, JJ.
    Bernard Feltrup, Exr. v. Helene Schloemer.
    1, Attorney Drawing Will May Testify as to Conversations with Testatrix Concerning Other Matters.
    An attorney having drawn the will of testatrix, but performing no other services for her, is not debarred by Gen. Code 11494 from testifying as to conversations occurring between them other than in connection with the drawing of the will.
    2. Past Services Sufficient Consideration for Promise.
    A contract is not rendered unenforcible by reason of the fact that the consideration for the promise upon which it was based was service rendered in the past.
    Error to common pleas court.

      H. G. Busch and Powell & Smiley, for plaintiff in error.

      Thorne Balter, for defendant in error.
   SMITH, J.

E. S. 5241 (Gen. Code 11494) provides:

‘ ‘ The following persons shall not testify in certain respects: First, an attorney concerning a communication made to him by his client in that relation, or his advice to his client. ’ ’

■ This is applicable only where the communication is of such a character that it would not have been made except for that relation. Smart v. Nova Caesarea Lodge No. 2, 27 O. C. C. 273 (6 N. S. 15).

The witness, Frank J. Dorger, whose testimony was objected to at the trial of the case, was not therefore an incompetent witness. He distinctly states he was only the attorney of Mrs. Niehoff in the drawing of her will; this, therefore, would not'foreclose him from being called to testify upon any other subject of conversation between them, but only as to those things and conversations which came to him as attorney by reason of and in connection with the matter for which he was acting as her attorney.

We think the evidence sustains the claim of the defendant in error, and the court sitting as a jury having so found and instructed a verdict in favor of defendant in error, the same should not be set aside. First Nat. Bank v. Hayes, 64 Ohio St. 100 [59 N. E. Rep. 893].

Upon the question argued by counsel that the contract could not be enforced for the reason that the services rendered were past and therefore there was no good consideration for the promise, the court is of the opinion that under the rule set forth in the case of Irwin v. Lombard University, 56 Ohio St. 20 [46 N. E. Rep. 63; 36 L. R. A. 239; 60 Am. St. Rep. 727], this contention can not be maintained.

'We find no errors in the record and the judgment will be affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    LANDLORD AND TENANT — SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    December 3, 1910.]
    Giffen, Smith and Swing, JJ.
    St. Xavier College v. Frances F. Briggs et al.
    1. Notice by Lessee of Election to Purchase of Realty Leased with Such Privilege Sufficient to Compel Sale.
    Notice by the lessee, under a lease containing a privilege of purchase of election to purchase, is sufficient to bind the lessor to sell, and in exercising the privilege it will be presumed that payment and delivery of the deed will be concurrent.

      Z. Court may Supply Pertinent Description of Land in Decree of Specific Performance.
    Specific performance is not required to be in 'the very letter of the contract; if the contract renders it obvious what land it was proposed to convey a pertinent description will be inserted by the court in its decree.
    Appeal from common pleas.

      Denis F. Cask and Worthington & Strong, for plaintiff.-

      Kufus B. Smith, Chas. A. Groom and Black & Black, for defendants.
   GIFFEN, P. J.

The plaintiff seeks- specific performance of a contract to convey certain real estate, under a lease with privilege of purchase executed by the defendants’ testator and delivered to Geo. P1. Meyers for the use of plaintiff. Two parcels of land are involved, each being a part of in-lot No. 72, as known upon the original plan of the town, now city of Cincinnati, one being the west half of the west half of the in-lot, and the other being a strip thereof fronting twenty-five feet on Sixth street. The parties supposed at the time the lease was executed and the plaintiff was put in possession, that the two pieces were adjacent, one to the other; but it developed by survey that there was a surplus in the original in-lot, part of which lay between the two parts described in the lease.

"When the plaintiff elected to purchase it demanded a deed with a description by metes and bounds, including such surplus, and made a tender of the purchase money, $30,000; but the defendant refused to execute such deed, and tendered one with the same description as contained in the lease.

The privilege of purchase is as follows:

"Said lessor will on the first day of January, A. D. nineteen hundred and eight (1908), convey the said premises to said lessee his heirs and assigns by a good and sufficient deed of general .warranty with release of dower upon the payment to her by said lessee his heirs or assigns of the sum of thirty thousand dollars ($30,000), provided said lessee his heirs or assigns gives sixty days notice in writing to said lessee her heirs or assigns of his intention to purchase the fee of said premises for said sum of thirty thousand dollars ($30,000).”'

The notice of election to purchase was duly served on the defendants, October 12, 1907.

It is claimed by counsel for defendants that the service of this notice did not make a contract binding upon the parties, because the payment of the consideration as well as the notice was a condition precedent; but we think it a strained construc-r tion to hold that the lessee -was bound to pay the mpney first, and to rely solely upon the covenant of the lessor to deliver a good and sufficient deed of general warranty. A more reasonable construction is' that payment and delivery of deed were to be concurrent. It is further claimed that the notice of intention to purchase created no obligation to pay the money; but we think it did. It implies a promise to pay just as an express acceptance of an offer would. Were it otherwise there would be no substantial advantage in such notice, as the lessor could not act upon it except at his own peril or risk. This notice, itself was in effect an acceptance of the offer to sell. Gilbert v. Port, 28 Ohio St. 276.

Even though a contract did not thus arise, it was completed by the tender, on the day appointed, of the consideration money, unless such tender was made upon a condition not warranted by the lease. The only condition attached was that the plaintiff received a deed with a plain and pertinent description by metes and bounds of the land purchased, and it is now admitted that such deed would convey the same land, less ten and three-fourths inches in width, that would be conveyed by the deed tendered by the defendants which contained the same description as did the lease. The objection to the latter description is that upon its face the surplus land between the two parcels is not included,'and the deed would not convey title to such strip of ground except when aided by external evidence of adverse possession for the statutory period and by judicial construction. It was not the purpose of the plaintiff to acquire any land not intended by the defendants to be conveyed; but the very purpose was to make definite and certain upon the face of the deed the intention of the parties to the lease.

We do not consider this a conditional or equivocal acceptance of the offer, nor a modification of the contract, but enduring evidence of what the contract was as understood by the parties.

When the defendants by their counsel admit that the deed tendered by them would convey all the land embraced in the proposed description of plaintiff they place themselves in the position of insisting on mere form and ignoring substance, and especially so when the effect of their deed is not apparent on its face.

In the case of Maud v. Maud, 33 Ohio St. 147, it is said in the syllabus:

“The contract, specific performance of which is sought, must so far describe the premises claimed, as that the court may be able to ascertain what they are. ’ ’

’ And at page 148, Wright, J., says:

“Under such a contract if proved, it would be difficult for a court to determine what particular farm or tract of land Wm. Maud claimed or was entitled to, and it would be quite as difficult to determine what metes and bounds could be put in a decree for specific performance.”

It is apparent from this case that no hard and fast rule, requiring specific performance to be in the very letter of the contract, prevails in this state, and that the court in its decree may insert a pertinent description .of the land which the contract- clearly entitles the plaintiff to have. The land intended to be conveyed being once ascertained the description becomes mere matter of form. The plaintiff may'have a decree prayed for without terms other than the payment of the consideration money with interest.

Smith and Swing, JJ., concur.


text:
    COURTS — QUIET TITLE — WILLS.
    [Hamilton (1st) Circuit Court,
    November 19, 1910.]
    Giffen, Smith and Swing, JJ.
    Helen Betts Hamilton v. Thomas B. Stone et al.
    1. Superior Court has Jurisdiction to Quiet Title to Which Construction of Will is But an Incident.
    In an action to quiet title, in which the construction of a will, provided for by Gen. Code 10857, is but incidental to the main issue, the superior court of Cincinnati has concurrent jurisdiction with the common pleas. - . ,
    2. Judgment of Probate Refusing to Remove Administrator de bonis non Does Not Determine Right to Act as Testamentary Trustee of Undivided Interest in Life Estate.
    A judgment- of the probate court, overruling exceptions to the account of an administrator de bonis non and denying a motion to remove such administrator, does not determine the right of the administrator to act as testamentary trustee' of a life estate' vested in tenants in common, although the court may have passed upon the right of the administrator to act as such trustee or found that there was no trust estate to be administered.
    3. Title to Undivided Interest in Rea) Estate Quieted Against Control by Testamentary Trustee.
    One provision of a will devising a life estate to testator’s children providing for a testamentary trustee, and another item empowering executors to sell part thereof are repugnant to and inconsistent with each other; "while no good reason exists for allowing the latter provision to defeat the express devise which precedes it, same ground appears for upholding. the devise which entitles plaintiff to a decree quieting her title as against control by the administrator de bonis non.
    Error to superior court of Cincinnati.

      Charles B. Wilby and Charles Phares, for the plaintiff in error.

      Sayler & Sayler, for defendant in error.
   GIFFEN, P. J.

The prayer of the amended petition, as well as the cause of action stated, is to quiet the title of the plaintiff to an undivided interest in a life estate in certain real property, and the construction of the will of Smith Betts is but an incident of the main issue, the will being evidence of her title; hence the action is not brought under R. S. 6202 (Gen. Code 10857), which gives exclusive jurisdiction to the court of common pleas, but one in which the superior court of Cincinnati has concurrent jurisdiction.

The judgments of the probate court relied upon as a bar to this action embrace the overruling of exceptions to the account of the administrator de bonis non with the will annexed and of the motion to remove him as such administrator. The decision of the court upon the exceptions did not determine the right of the administrator to act as a testamentary trustee in controlling the life estate in which the plaintiff has an undivided interest. It did determine however that the appointment of Thomas B. Stone as administrator was necessary and made by authority of law. There is no item excepted to’ which shows that he collected rents or controlled or managed the real estate of the plaintiff. The probate court had jurisdiction of the subject-matter, and every presumption, in the absence of evidence to the contrary, is in favor of the validity of its judgment.

The decision of the court upon the motion to remove the administrator may have' been based upon a finding that there were assets of the estate not yet administered, and at the .same time the court may also have found that there was no trust estate to be administered by him as trustee. In neither decision do we find that the court necessarily passed upon the question of the right of the executors or the administrators to act as testamentary trustees in controlling the real estate described in the petition. It follows, therefore, that the court erred in overruling the demurrer to the second and third defenses of the answer.

The question still remains whether, upon issue joined by the amended petition and the first defense of the answer, the will 'of Smith Betts authorized and empowered the executors or administrator to manage and control, as trusteés, the real estate devised to plaintiff and the other children of the testator 'by item four, to-wit:

‘ ‘ On the death of my said wife, Cynthia A. Betts, I give, devise and bequeath my entire remaining estate for use during their natural lives to my children, Mary Helen, Stanley, Fannie, Edwin, William and Charles.; at their death to .their children in fee simple, my estate to remain intact and not to be divided until all of my said six children are dead; the children of any of my said six children to take their parent’s share and my said six children to take share and share alike. In the event of the death of any of my said six children leaving no children then my surviving children named in this item to take said child’s share, share and share alike and my executor and executrix are trustees under this will for all its purposes.”

This is a complete disposition of the estate for and during the natural lives of the children, although restricted in its use by forbidding a division of the same. The last clause relating to trustees does not in terms, nor by implication' give the executors control of the real estate.

The sixth item of the mil empowered the executors to sell or lease any part of the estate and is repugnant to and inconsistent with the devise to the children. The two provisions can not stand together, and there seems to be no good reason why the later provisions should defeat the express devise made before, while there is some reason for holding that the testator intended to make this provision operative during the life of the widow only or as to such contracts and privileges of purchase as were made and granted by him during his lifetime.

The plaintiff is therefore entitled to have her title quieted as against the control of the same by the administrator de bonis non with the will annexed. The judgment will be reversed and judgment entered for plaintiff in error.

Smith and Swing, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — PARTIES.
    [Hamilton (1st) Circuit Court,
    November, 1909.]
    Giffen, Smith and Swing, JJ.
    August Glaeser v. Cincinnati (City).
    1. Lien for Sewer Assessment not Discharged by Foreclosure Pro. ceedings.
    A municipality is not a proper party to an action in foreclosure brought by a building association, and the decree in such a case does not discharge the lien of a sewer assessment.
    2. Negligence in Enforcing Sewer Assessment does not Discharge Lien While Action is Pending.
    It is gross negligence for a municipality to fail to prosecute an action to enforce a sewer assessment for thirteen years after the answer was filed, but the lien of the assessment is not discharged so long as the action remains pending.

      Drausin ~Wulsm and Wm. J. Reilly, for plaintiff.

      John J. Gasser, for defendant.
   GIFFEN, P. J.

The city was not a necessary or proper party to the foreclosure suit brought by the building association in which the lien for the sewer assessment involved in this ease was set np, nor did the court in that suit render any decree in favor of the city. It--is true that upon distribution a sewer assessment was ordered paid, but it does not appear that it was the particular assessment here involved. The sum so ordered to be paid never was in fact paid to the city or the contractors for the use of whom this action was commenced. There was nothing therefore in the record of the foreclosure suit upon which the plaintiff in error could rely when he purchased the property upon which the assessment was a lien.

There was gross negligence on the part of the city in failing to prosecute this action for a period of thirteen years from the time answer was filed, and in the absence of R. S. 2297 [Gen. Code 3906], the rule stated in the ease of Fox v. Reeder, 28 Ohio St. 181 [22 Am Rep. 270], would be enforced; but that section provides that the lien of an assessment shall continue so long as the action is pending and the right to enforce necessarily follows.

The judgment must be affirmed.

Smith and Swing, JJ., concur.


text:
    INJUNCTION — PLEADING.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smith, and Swing, JJ.
    Commercial Tribune Bldg. Co. v. Rapid Electrotype Co.
    Procedure for Recovery of Damages on Account of an Action for Injunction Dissolved.
    Where the only relief sought in the original petition was an injunction, and upon appeal the injunction was dissolved and the cause retained for an assessment of damages, the filing of a supplemental answer and cross petition setting forth the specific damages sustained by reason of the injunction is proper procedure; and-it is within the discretion of the court to determine the issue as thus presented or to remand tho defendant to an action at law upon the bond.

      Appeal from common pleas court.

      Johnson & Levy, for plaintiff.

      Mallon <& Vordenberg, for defendant.
   GIFFEN, P. J.

The only relief sought by the plaintiff in the original petition was an injunction restraining the defendant, as its tenant, from removing a partition and certain fixtures. Upon appeal to this court the injunction was dissolved, petition dismissed, and cause retained for assessment of damages, if any sustained by the defendant in consequence of the injunction. Commercial Tribune Bldg. Co. v. Electrotype Co. 31 6. C. C. 361 (11 N. S. 488). A supplemental answer and cross petition has been filed setting forth the specific damages sustained, the original «aswer containing a general prayer for damages. The defendant could not, until the injunction was finally dissolved, know to what extent it would be damaged, and this supplemental pleading in no way changes the nature of the relief asked for in the original answer. The question of damages is incidental to the main issue, and prises only upon dissolution of the injunction.

The plaintiff invoked the jurisdiction of a court of equity, and it is eminently proper that such court should determine all the issued in the case, although it might, in its discretion, remit defendant to an action at law upon the bond. Roberts v. Dust, 4 Ohio St. 502.

The motion to strike the' supplemental pleading from the files and the demurrer filed in the alternative are overruled.

Smith and Swing, JJ., concur. .


author: SWING, J.

text:
    CONSTITUTIONAL LAW — JURY—TRIAL.
    [Hamilton (1st) Circuit Court,
    March, 1911.]
    Smith, Swing and Jones, JJ.
    Security Insurance Co. v. Michael et al.
    1. Demand for Jury Trial Upon Question of Fact Improperly Refused.
    Filing an answer in an action at law for money which is no more than a defense to the petition does not change the action to one in equity, but the issue unless waived is triable to a jury under Gen. Code 11379; the fact that demand for trial by jury was not made until after trial had begun and apparently made for purposes of delay, does not affect the right.
    2. Statutory Provision as to Waiver of Jury in Certain Counties Invalid. '
    Gen. Code 11466, providing when a jury shall he deemed to have been waived, pertains to a subject of a general nature, and is rendered invalid by reason of the fact that by its terms it applies to Hamilton and Cuyahoga counties only.
    Error to common pleas court.

      J. Louis Kohl, for plaintiff in error.

      G. A. J. Walker, for defendant in error.
   SWING, J.

The ease went to trial in the court below on the answer and cross petition of Michael, the insurance company having dismissed its petition. This petition was by consent of parties then filed as an answer to the answer and cross petition of Michael, which petition was for money only. The answer of the insurance company was nothing more than a defense to Michael’s petition for money and could not in any way change Michael’s action, which was one in law, to an action in equity. The case was therefore on,e to be tried by a jury unless a jury was waived. Gen. Code 11379.

Gen. Code 11466, by its terms applies to Hamilton and Cuyahoga counties only. Its subject is of a general nature and it should apply to all the counties of the state and have a uniform operation. For lack of uniformity of operation we think the law is invalid.

The Security Insurance Company demanded a trial by jury, which the court refused to grant. We are unable to see how this right of trial by jury can be held to have been waived by the consent of the parties in this case. After the trial was commenced the jury trial was demanded. The real purpose of the company may have been for delay, but in demanding trial by jury the company insisted only on having the trial in accordance with the terms of the statutes, and the purpose with which it was made can not affect the right. The insurance company went further than the requirements of the statute. The language of the statute is that it shall be tried by a jury unless a jury is waived.

No doubt a waiver of trial by jury may be done without an express waiver, but here a jury trial was insisted on.

In denying to the insurance company a jury trial we think the court committed error, for which the judgment should be reversed.

Smith and Jones, JJ., concur.