author: SWING, J.

text:
    DEEDS — RELIGIOUS SOCIETIES — TRUSTS—MORTGAGES.

      [Hamilton (1st) Circuit Court,
    February, 1904.]
    G-iffen, Jellte and Swing, JJ.
    Methodist Episcopal Church et al. v. James N. Gamble.
    1. Conveyance fob Burial Purposes Does not Create Condition Precedent, When.
    A conveyance of real estate to church trustee, for value, in trust for burial purposes and “for any other purposes for the benefit of said church,” does not create a condition precedent, but vests in said trustees a fee simple estate, with no right of reversion or forfeiture to the grantor in any event; and under such grant, the purposes for which the land is to he used and sold is for the determination, exclusively, of the church by its proper authorities.
    2. Act of March 27, 1861 (58 O. L. 159) Construed.
    The act of March 27, 1861 (58 O. L. 159), empowering the church trustees to sell the real estate above referred to, and apply the proceeds for the use of one of its colleges, on condition that should the college ever ceas'e to exist as one of its institutions, the invested property should revert to the church trustees to be by them held according to the terms of the original trust, neither added, nor took away, any right granted by the deed to the trustees. What effect See. 2 of said act, which provided that the church trustees 'should remove the bodies buried therein and the tombstones to another suitable burial place, had upon the lotowners in that portion of the land devoted to burial of the dead, is not considered.

      3. Right of Geantee of Chubch Property Over Same — Judicial Sale Vendee Acquires Absolute Title, When.
    A conveyance of said real estate by the church trustees to one of its colleges, after its abandonment by the church as a burial ground, carried to the grantee the power to sell, mortgage and convey the same in any manner deemed best for the latter’s interest, but subject to the right of the church to see that the college was controlled by and in the interests of the church; accordingly, a mortgage having been given upon the same by the college-trustees, to raise funds for college purposes, which was subsequently foreclosed, a purchaser thereof at foreclosure sale acquired an absolute title thereto as against the church and college.
    ERROR to Hamilton common pleas court.
    W. G. Roberts and David Davis, for plaintiff in error.
    W. L. Granger and M. L. Buchwalter, for defendant in error:
    A dedication or sale of lands to a corporation for general purposes, creates a perfect fee simple estate, with complete power to make any use of it, and especially the power to alienate completely, where there is no provision for forfeiture or reverter in the event of a change of the use for which the grant was made. Reynolds v. Stark Co. (Comrs.) 5 Ohio 204; Brown v. Manning, 6 Ohio 298 [27 Am. Dee. 255]; Keyser v. Stansifer, 6 Ohio 363, 364; LeClercq v. Gallipolis, 7 Ohio (pt. 1) 217.
    Words relied on as constituting a condition to a grant must be so connected with it as to qualify it. Mere recitals in the deed that it was made upon a certain consideration will not raise a condition. Methodist Episcopal Church v. Public Ground Co. 103 Pa. St. 608; Labaree v. Carleton, 53 Me. 211; Strong v. Lehmer, 10 Ohio St. 93; Thornhill v. Hill, 2 Cl. & Fin. 22.
    Words relied upon will .be strictly construed, so as to avoid, if possible, the making of a condition, because conditions are not favored in the law, as they tend to destroy estates. The conditions must appear in terms, as, for instance, “on condition,” “provided always,” “if it shall so happen,” and the like; otherwise, there must he a clause for forfeiture or re-entry. 2 Washburn, Real Estate 4, 5; Ayers v. Emery, 96 Mass. (14 Allen) 67, 70; Raley v. Umatilla Co. 15 Ore. .172 [13 Pac. Rep. 890; 3 Am. St. Rep. 142]; 2 Washburn, Real Prop. 5.
    Limiting the use of land, or stating the purpose of the grant, does not create a condition. - Jones, Real Prop. Secs. 649, 650, 652; Watterson v. Ury, 3 Circ. Dec. 171 (5 R. 347) ; Horner v. Railway, 38 Wis. 165; Gadberry v. Sheppard, 27 Miss. 203; Memphis & C. Ry. v. Neighbors, 51 Miss. 412; Rawson v. School District, 89 Mass. (7 Allen) 125; Packard v. Ames, 82 Mass. (16 Gray) 327; Coffin v. Portland (City), 16 Ore. 77 [17 Pac. Rep. 580].

      The corporate character of a grantee does not imply a condition that the land shall be used only for the purpose of the corporation, or that the land shall revert to the grantor upon the extinction of the corporate grantee. Seymour v. Hartford, 21 Conn. 481; Heath v. Barmore, 50 N. Y. 302; Thompson, Corporations Sec. 5791, p. 4486.
    If the right of forfeiture, from the whole grant taken together, is doubtful, then the rule applies, that every grant shall be construed, in ease of doubt, most strongly against the grantor. Potter v. Burton, 15 Ohio 196, 200.
    The fact that the deed was void, or that the church had no capacity to convey by such a deed, or in such a manner, would not prevent the growth of a good title by adverse possession; a void deed may give color of title. 3 Washburn, Beal Estate 168, 176, 177.
    A restraint upon a title in fee simple, by a condition that the grantee may convey only to an educational institution of the Methodist Episcopal Church, would be repugnant to the grant, and therefore illegal and void. Gray’s Bestraints on Alienation, Secs. 41, 43; Anderson v. Cary, 36 Ohio St. 506 [38 Am. Bep. 602]; Atwater v. Atwater, 18 Beav. 330, 336; Gadberry v. Sheppard, 27 Miss. 203; Taylor v. Binford, 37 Ohio St. 262.
    A condition personal as to the first grantee does not bind his assignee; a conveyance of the land and retires the condition. 2 Wash-burn, Beal Estate 8; Emerson v. Simpson, 43 N. H. 475 [82 Am. Dee. 168]; Page v. Palmer, 48 N. H. 385; Merrifield v. Cobleigh, 58 Mass. (4 Cush.) 178, 184.
    The grantee could mortgage the land to secure the payment of its debts, and a judicial sale in foreclosure of the mortgage would vest a good title in the purchaser freed from said restriction. Magie v. German, etc. Church, 13 N. J. Eq. 77; Medical College v. Zeigler, 17 Ohio St. 52; Thompson, Corporations Sec. 5816, p. 4507; Woodworth v. Payne, 74 N. Y. 196 [30 Am. Bep. 298] ; Hardy v. Wiley, 87 Ya. 125 [12 S. E. Bep. 233]; Mead v. Ballard, 74 U. S. (7 Wall.) 290 [19 L. Ed. 190].
    Since Dumford’s Case, 2 Coke’s Littleton 558, it has been the law of every country whose jurisprudence is derived from the English common law, that a condition cannot be alienated; that an attempt to assign it destroys it, and that when it is thus released as to part of the land, it is released as to every part thereof. 2 Washburn, Beal Estate 21; 6 Am. & Eng. Enc. Law (1 ed.) 904; Sharon Iron Co. v. Erie, 41 Pa. St. 341, 349; Norris v. Milner, 20 Ga. 563; Guild v. Bichards, 82 Mass. (16 Gray) 309; Underhill v. Bailway, 20 Barb. 455; Bice v. Bailway, 94 Mass. (12 Allen) 141; Murray v. Harway, 56 N. Y. 337.

      Whatever trust was annexed to the grant, it was not a trust that would be violated by the sale of the land, or that would run with the land itself; it was a trust that reasonably anticipated the alienation of the land for the purpose of raising money for the general uses of the college, including the payment of its debts. Sohier v. Trinity Church, 109 Mass. 1; Episcopal City Mission v. Appleton, 117 Mass. 326; Magie v. German, etc. Church, 13 N. J. Eq. 77; Thompson v. Thompson, 18 Ohio St. 73, 75, 82.

    The fact that the land was actually put to the uses and the accomplishment of the purposes of the college and has been exhausted in that behalf, satisfied the trust. Mead v. Ballard, 74 U. S. (7 Wall.) 290 [19 L. Ed. 190]; Newton v. Mahoning Co. (Comrs.) 4 O. F. D. 555 [100 U. S. 548; 25 L. Ed. 710].; Hunt v. Beeson, IS Ind. 380; Harris v. Shaw, 13 Ill. 456; Hardy v. Wiley, 87 Ya. 125 [12 S. E. Rep. 233].
    A resulting trust can arise to the grantor and his heirs in a case of this kind only where the deed contains simply words of grant or transfer and does not recite nor imply any consideration, and does not, in the habendum, clause or elsewhere, declare any" use in favor of the grantee, and the conveyance is not in fact intended as a gift. Tiedeman, Real Estate Secs. 464, 475, 500; Pomeroy, Eq. Jurisp. Secs. 1032, 1033, 1035; 2 Washburn, Real Estate 420, 456, 475; Gould v. Lynde, 114 Mass. 366; Coffin v. Portland (City), 16 Ore. 77 [17 Pac. Rep. 580].
    James N. Gamble brought .his action in the court of common pleas of Hamilton county against the plaintiffs in error to quiet his title to real estate in the city of Cincinnati. The plaintiff in error by answer and'cross petition, set forth matters of title claiming that the property had reverted to it, and praying that the defendant in error be decreed tó hold said title as trustee for its benefit, to which answer and cross petition James N. Gamble’s demurrer was sustained and his title quieted.
    The answer and • cross petition averred the following facts: A conveyance of said lands from Bernard and wife by warranty deed dated January 11, 1826, to certain trustees of the Methodist Episcopal Church of Cincinnati, in consideration of $550 “in trust for a place of burial and for the use of the aforesaid * * * church and for any other purpose for the church aforesaid, and for none other;” the habendum clause provided, “To have and to hold * * * to the only proper use and behoof of the aforesaid # * * trustees in trust for the Methodist Episcopal Church of Cincinnati, and their successors in office, for a burial place for the use of the aforesaid church and for other purposes for the benefit of said church.”

      The act of the legislature passed March 27, 1861 (58 O. L. 159), reciting that by ordinance of the city of Cincinnati, burial upon said .lands was prohibited and empowering the trustees of said church to sell said real estate, and in their discretion to apply the proceeds for the use ■of the Wesleyan Female College of Cincinnati; on condition that should said college ever cease to exist as an institution of said church, the whole invested property should revert to the said church trustees to be by ¿hem held according to the terms of the original trust. And by Sec. 2 of said act it imposed the duty upon the trustees of the church to properly remove the bodies buried therein and the tombstones to another suitable burial place.
    The deed dated June 10, 1862, to said college conveyed in the words: “Do hereby grant, bargain and sell and convey to the said The Cincinnati Wesleyan Female College, its successors and assigns forever;” and specifying “This conveyance, however, is made subject to all encumbrances, if any, and to the duties imposed upon the grantors herein by Sec. 2 of said act of the legislature of Ohio passed March 27, 1861,” and-in the habendum clause, “To have and to hold the same to the only proper behoof of the said The Cincinnati Wesleyan Female College, its, successors and assigns forever, subject to the duties and encumbrances aforesaid. ’ ’
    The answer and cross petition further averred 'proceedings in the said court for the sale of portions of said lands, and investment of the proceeds in the erection and equipment of a building for said college; the giving of a mortgage by it upon the lands in controversy; the foreclosure and sale under said mortgage by decree in court; the reorganization of said college; the purchase of said property; its encumbrance by mortgage to raise funds to carry out said educational enterprise; the foreclosure of said second mortgage, and the purchase of the property by Mr. Gamble, in which foreclosure proceedings, however, the said Methodist Episcopal Church of Cincinnati was not a party.
   SWING, J.

James N. Gamble brought his action in the court of common pleas of Hamilton county against the plaintiffs in error to quiet his title to certain real estate situate in the city of Cincinnati. The case was heard in said court and a decree was granted the plantiff as prayed for. This action is prosecuted in this court to reverse this judgment.

We are of the opinion that the deed of January 11,1826, by Bernard and wife to Benjamin Mason and others, trustees of the Methodist Episcopal Church of Cincinnati, vested in said trustees a fee simple estate with no right of 'reversion or forfeiture to Bernard in any event. It. was for a valuable consideration and not on any condition precedent, and while it says it is in trust for burial purposes, it also says “for any other purposes for the benefit of said church.” The purposes for which it' was to be used and sold was for the determination of said church by it» proper authorities.

We do not see that the act of the legislature passed March 27, 1861,. added anything to or took away any right which had been granted in this deed, and it certainly did not attempt to take away from the church the interest that had been granted to it by the deed of Bernard. This would have been beyond the power of the legislature. What effect Sec. 2 of said act may have had as to lotowners in that portion of the land devoted to the burial of the dead, does not arise in this case and need not be considered, as said lotowners are not asserting any rights here.

Whatever right the Methodist Episcopal Church of Cincinnati had in this real estate was conveyed by deed dated June 20, 1862, to the Cincinnati Wesleyan Female College and its successors and assigns forever,, subject to the incumbrances and the duties imposed by Sec. 2 of the act of 1862 in regard to lotowners, none of which are involved here. 'This-right carried with it the power to sell, mortgage and convey these premises in any manner deemed best for its interests, and subject to the right of said church to see that the college was controlled by the church and in its interests. Said college borrowed money and having given a mortgage on the premises, such action was had in foreclosure proceedings that the interest of said college was sold to the Cincinnati Wesleyan College. This college also gave a mortgage and this mortgage was foreclosed and James N. Gamble became the purchaser.

We are unable to see any defect in his title; certainly whatever right defendants had passed from them long ago, and the judgment should be affirmed.

Giffen and Jelke, JJ., concur.


source: Caselaw Access Project

author: DONAHUE, J.

license: Public Domain

text:
    SCHOOLS — OFFICE AND OFFICERS.
    [Richland (5th) Circuit Court,
    June, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    State ex rel. Mowery v. Harry E. Cave.
    1. Clebk of Board of Education may Hold Over, When.
    There is no constitutional or statutory provision which prevents a clerk of the hoard of education from holding over his term of office under provision of See. 8 Rev. Stat., until his successor is elected and qualified.
    2. Term of Office of Clerk of Board of Education Commences on Day He is Chosen.
    The term of office of clerk of the board of education chosen by the hoard at. its annual organization, on the third Monday of April, pursuant to Sec. 3980 Rev. Stat., commences immediately upon his selection, and he is entitled, upon giving bond and qualifying according to law, to take immediate possession of said office, and to hold such office until his successor is elected and qualified, but his neglect to give bond until the May following (in accordance with the usual custom in the locality) does not extend his term for a year from the date he gave such bond and qualified. His delay to give such bond is a mere waiver of his rights and does not operate to extend his term.
    3. New School Code does not Deprive a Clerk Chosen Before its Enactment of the Right to Qualify After it Became a Law.
    After an individual has been chosen to fill a public office in manner and form as prescribed by the then existing laws, unless h'e forfeits the same by refusal- to accept or neglect to qualify, or is removed by due course of law, he is entitled to the office and has a legal right to the emoluments thereof during the term for which he was chosen, or until said office is abolished by the legislature, but until such office is abolished- the legislature is without authority to deprive him of the right to such office, or to exclude him therefrom by an act providing that another person shall hold such office for any portion of the term for which he is chosen, although such officer-elect has not given bond and qualified as such officer until after the enactment of the law repealing the statute under which he was chosen. Hence, the right of a person duly chosen clerk of the bpard of education under See. 3980 Rev. Stat., before its repeal by, and the enactment of, the new school code (April 25, 1904), to fill the office and enjoy the emoluments thereof, was not affected by said code, nor does it divest him of his office, notwithstanding he neglects to qualify until after such code became a law, but he is entitled to such office until the same is abolished under the provision of said new code, and See. 3 of said act does not extend the term of the old clerk, as it would have done had the new clerk not been chosen before this new code became a law.
    MANDAMUS.
    Douglas & Mengert, for plaintiff:
    Upon, the expiration of the officer’s term unless he is authorized by law to hold over his rights, duties and authority as a public officer must ipso facto cease. Mechem, Pub. Off. 398; See. 3980 Rev. Stat.
    Kerr & La Dow, for defendant:
    The legislature has unlimited power to vacate or abolish officers,'or change the terms of incumbents at pleasure, unless they are created or fixed by the constitution. State v. Choate, 11 Ohio 511; State v. Wright, 7 Ohio St. 333, 334; State v. Bailey, 37 Ohio St. 98; State v. Jennings, 57 Ohio St. 415, 423.
    There is no property right in an office, and the incumbent can be legislated out o£ it by an abolition of the office. Mason v McCoy, 58 Ohio St. 30, 55.
    . An officer is one who is lawfully vested with an office. See Bouvier’s Dictionary. ' “{!
    Relator had been elected by the old board of education, but not yet inducted into office when the code was passed; before he could become an officer, he had to take an oath and give bond. He could not do that until the term of his predecessor was ended, which did not occur until May 5. State v. Neibling, 6 Ohio St. 40; State v. Coon, 26 O. C. C. 241.
   DONAHUE, J.

This action is brought by the relator, W. Clyde Mowery, who claims to be entitled to.the office of clerk of the board of education of the city of Mansfield. There is practically no dispute as to the facts, and the-pleadings make an issue of law only.

It appears from the pleadings that H^rry E. Cave on the third Monday of April, 1902, was chosen by the board of education of the city of Mansfield as clerk of that body; that he gave bond and qualified as-such on the sixth day of May next following, and on the third Monday of April, 1903, he was again chosen as such clerk, and on the fifth day of May next following gave bond and qualified according to law. On the third Monday of April, 1904, which was the eighteenth day of said month, the relator, W. Clyde Mowery, was chosen by said board of education as its clerk, and on the third day of May next following he gave bond and qualified .as such.

The petition avers that the respondent, Harry E. Cave, usurps said office of clerk of the board of education of the city of Mansfield and deprives relator therefrom, and prays that the said respondent may be ousted from said office and that relator be given possession thereof.

It further appears that on April 25, 1904, at 4:30 p. m., the present school code, known as the Harrison school code, was signed by the governor of the state of Ohio. The -respondent contends that by Sec. 3 of that act it is provided that all existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provision.of that act, and that at the time said act went into! effect he was in fact and in law the clerk of the board of education of the city of Mansfield, and that this act extends his term until the election of new officers, under the provision of the new code.

He further claims that his term of office as such clerk did not expire for one year from the time he filed his bond and qualified, May 5, 1903, and that therefore the relator had no immediate right to the office at the time he was chosen by the board of education as such clerk; that there was then no vacancy and that relator’s term would therefore not commence until May 5, next following.

In this contention, however, we think counsel for respondent are mistaken. Section 3980 Rev. Stat. requires the board of education to organize on the third Monday of April of each year, by choosing one of its members president, and one of its members clerk, who may or may not be a member of the board. The statute does not say just when these officers shall enter upon their duties, but clearly it means immediately, or as soon as they give bond and qualify, and the neglect to qualify for ten, fifteen or twenty days thereafter, even though it had been the custom for many years, would not give the incumbent the right to hold beyond the third Monday of April, if his successor should elect to qualify as soon as chosen.

Section 3979 Rev. Stat. provides that each person elected or appointed, either as a member of the board of education or to any other-office under the title in which that section is found, shall take an oath of office.

Section 4050 Rev. Stat. provides that the clerk of the board of education shall furnish bond. So that to qualify as such an officer, it is necessary for the person chosen as such clerk to give bond and take the oath of office. i

Section 8 Rev. Stat. provides that, “Any person holding an office or public trust shall continue therein until his successor is elected or-appointed and qualified, unless it is otherwise provided in the constitution or laws.”

There is no prohibition in the constitution, of the state of Ohio preventing the clerk of the board of education from holding his office until his successor is elected and qualified, nor is there any statutory provision that would prevent him from so doing. There does not appear to be any term of office fixed in express words; but the statute expressly provides that on the third Monday of each April the board shall organize, by selecting a president and clerk. It is therefore evident that the clerk chosen at such meeting holds until the next organization of the board, as the term of his office, and until his successor is chosen and qualified.

In the case of State v. Coon, 2G O. C. C. 241, it was held that the clerk of the board of education continued in office until his successor is chosen and qualified. On page 245 the court say:

“Upon the whole we therefore conclude that the relator is a public officer and was occupying the office of clerk of the board of education at the time the new school code took effect. ’ ’

In that case the board of education of Cleveland did not organize on the third Monday of April, but on the night of April 25, at 7:30 o’clock, and after the,signing of the law by the governor of Ohio, which extended the time of office of the then present incumbents. So that unless the former clerk held until his successor was chosen and qualified, his term of office would have expired on the third Monday of April, and he would not have been in office on April 25, and the court would then not have declared him entitled to the office under the provision of the new law, pnless it in fact found that his term of office did continue until his successor was chosen and qualified. In the case at bar at the time this new law went into effect the relator had been chosen, but had not qualified, and the respondent was in office claiming and having the right to hold the. same until his suceeessor should .qualify.

The effect of qualifying later is a more serious question. Does the act of qualifying relate back to the time of his appointment, at which time his right to’the office began, or simply from the time he qualified?

In State v. Pollner, 10 Circ. Dec. 141 (18 R. 304), it is held:

“Where the statute does not fix any time when the mayor of the city of Cleveland shall take his seat, but prescribes that he shall take an official oath, that he shall file a’ good and sufficient bond, which shall be approved by the city council, the term of such mayor elect commences immediately upon his election, and if he sees fit he may immediately enter upon the duties of such office, by declaring himself to be mayor; the requiring of the oath, bond or any other thing that the statute may require, is merely directory language and is not mandatory.”

In the same case on page 145, Judge Caldwell, in the opinion says:

“And secondly, that the requiring of the oath, that the requiring of the bond or any other thing that the statute may require although the statute may be explicit, is merely directory language and' is not mandatory, and I believe the courts in this country now quite unanimously, and, I do not know but entirely, say so at this time, that language of that kind is merely directory and is not mandatory language.”

We, however, are not able to find the authorities so unanimous as suggested by Judge Caldwell.

In the case of State v. County Comrs. 61 Ohio St. 506 [56 N. E. Rep. 473], it is held that where the sheriff elect failed to give bond before the first Monday of January, next after his election, there occurs on that -day a vacancy. But it further appears in that case that while See. 1203 Rev. Stat. provides and directs the giving of the bond, See. 1205 Rev. Stat., provides that a failure to give the bond defeats the claimant’s right to the office, and the commissioners shall declare a vacancy.

The provision of Sec. 1205 Rev. Stat. of course, distinguishes that case from the case at bar, and also from State v. Pollner, supra, but See. 19 Rev. Stat. seems to us to be as imperative as Sec. 1205 Rev. Stat. so that the only substantial difference between the eases is, that in the ease of the sheriff the time in which bond shall be given is absolutely stated in the statute, but there is no such limit of time in which the clerk of the board of education must give bond and qualify. So that it would naturally be held to be within a reasonable time, and the board of education is undoubtedly clothed with discretion to determine what is a reasonable time, and it would only be for an abuse of this discretion that a court would interfere with its finding in that behalf. In this case the clerk elect qualified within the usual time customary in that city, and the board of education accepted his bond at the time it was presented. So that we are of the opinion that the delay in giving bond did not amount to a refusal to accept the office under the provision of See. 19 Rev. Stat. and therefore he had not forfeited his right to the same, and the only question remaining in this case is, can the legislature of Ohio by an act, passed after his selection, deprive him of the office to which he was chosen without abolishing the office itself?

On April 18 relator was chosen as clerk of the board of education of the city of Mansfield, and if he had qualified at once or before 4:30 p. m. of April 25, he unquestionably would be entitled to hold the office. It must also be admitted that he was entitled to qualify by giving bond and taking the oath of office at any time up until the time of the signing of the new law by the governor of the state. He was at least an officer elect with the right to the office at the time this act of the general assembly became a law by the signature of the governor. Respondent claims that Sec. 3 of this act deprived relator of this right without abolishing the office. It is true that in Ohio there is no tenure of office strictly speaking; that is to say, there is no right to continue in-office beyond that time which the legislature declares there is no further need of the office. But while there is no absolute right to the office, there is a legal title to the emoluments of the office so long as that office exists, and after an individual has been properly selected, either by the vote of the people or any authority authorized to select him, even the legislature of the state cannot say that that particular individual shall not have and hold, his office, but instead thereof some other person shall. This would certainly be true if the .officer elected had in fact entered “upon the duties of his office. Is it not equally true, if at the time of' ,'the passage of the law, he is entitled to the office ? We think it is.

We have no quarrel with the doctrine that the legislature may abolish the office, and the office once abolished the person entitled thereto, if it had continued to exist, cannot complain, nor can he claim the emoluments thereof, but so long as the office continues the incumbent or the person entitled thereto cannot be deprived of it by an act of the legislature. This relator had been selected as clerk of the board of education by the board itself, and this board was1 clothed with ample-authority to make such selection. From that time on, unless he refused to accept the appointment or neglected and refused to qualify, the office was his as matter of right. He had a legal title thereto, so far as an individual can have the legal title to an office in Ohio, and he did qualify to the satisfaction of the board selecting him, but, in the meantime, the legislature proposes to divest him of that right by saying that the incumbent then in office shall continue until a later time, but does not abolish the office now, but provides that it shall be abolished later. We think the legislature cannot do this. Where his term of office commenced immediately upon his selection, whether he qualified by giving bond and took the oath of office then or not, his right to the office and the emoluments thereof at once arose, and is good against the world so¡ long as the office exists, unless he forfeits his right by refusing to accept, or neglect or refuse to qualify, or is properly removed therefrom in manner prescribed by law for the removal of officers from public office.

We therefore hold that this act did not affect his right to the office or divest him thereof, and that he is entitled to hold the same tintil the office is abolished in pursuance of the statute.

Judgment of ouster may be entered against the respondent with costs, and the relator decreed to be the present rightful incumbent of the office. Motion for a new trial will be overruled and exception noted. Twenty days are given for the separate finding of fact and law, and statutory time for bill of exceptions.

Voorhees and McCarty, JJ., concur.


author: MARVIN, J.

text:
    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    May 16, 1904.]
    Hale, Marvin and Winch, JJ.

      Walter B. Solomon v. Anna A. Solomon.
    1. Divorce Cases Form Peculiar Class and Governed by Special Principles.
    Divorce cases form a peculiar class of cases in themselves, involving as they do questions of public policy of the gravest importance, and are governed by principles especially applicable to themselves.
    2. Divorce Decree Procured by Fraud Cannot be Opened Up After Term— Section 5355 Rev. Stat. not Applicable to Divorce Cases.
    A decree for divorce procured through the fraud of plaintiff, which consisted in his obtaining service by publication upon defendant under a false affidavit that her whereabouts were unknown, cannot be opened up after the term and defendant allowed to come in and defend under favor of Sec. 5355 Rev. Stat. Said statute is not applicable to actions for divorce.
    ERROR to Cuyahoga common pleas court.
    W. C. Rogers and E. B. Bander, for plaintiff! in error:
    Section 5355 Rev. Stat. does not apply to divorce cases. Similar statutes in other states in many well-considered decisions have been held not to apply to divorce decrees unless so expressly provided by the statute itself. O’Connell v. O’Connell, 10 Neb. 390 [6 N. W. Rep. 467]; Owens v. Sims, 43 Tenn. (3 Cold.) 544, 548; Lewis v. Lewis, 15 Kan. 181; Salisbury v. Salisbury, 92 Mo. 683 [4 S. W. Rep. 717]; MeJunkin v. MeJunkin, 3 Ind. 30; Gilruth v. Gilruth, 20 Iowa 225; Ewing v. Ewing, 24 Ind. 468; Davis v. Davis, 30 Ill. 180; Neil v. Neil, 38 Ohio St. 558, 559; See. 5706 Rev. Stat.; Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482]; Nauman v. Nauman, 26 O. C. C. 37.
    It is against the public policy of this state to allow divorce decrees to be set aside. Bascom v. Bascom, 7 Ohio (pt. 2) 125; Bingham v. Miller, 17 Ohio 445 [49 Am. Dec. 471]; Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482]; Cox v. Cox, 19 Ohio St. 502 [2 Am. Rep. 415]; John v. John, 53 Ohio St. 656 [44 N. E. Rep. 1139], an unreported case. For what was decided see John v. John, 1 O. S. C. D. 356 (34 Bull. 189) ; Casler v. Bowen, 56 Ohio St. 761 [49 N. E. Rep. 1108]; Day v. Nottingham, 66 N. E. Rep. 998 (Ind.); Yan Fossen v. State, 37 Ohio St. 317 [41 Am. Rep. 507], is not in point.
    A suit for divorce is a proceeding in rem. Thurston v. Thurston, 58 Minn. 279 [59 N. W. Rep. 1017],
    Questions of fraud and perjury ip. a divorce proceeding cannot be reviewed. 2 Bishop, Mar. & Div. (5 ed.) Sec. 755; McGill v. Deming, 44 Ohio St. 645, 657 [11 N. E. Rep. 118]; Cross v. Armstrong, 44 Ohio St. 613, 624 [10 N. E. Rep. 160] ; 12 Am. & Eng. Enc. Law (1 ed.) 149v; Freeman, Judgments Sec. 656; 1 Smith Lead. Cas. (5 Am. ed.) 823, 826, 829, 831, 837, 842.
    Proceedings in rem properly have no parties. Possession by the court of the object is sufficient notice to all, and the legislature may dispense with notice. Glover v. Ruffin, 6 Ohio 255; Scott v. Hancock, 13 Mass. 162,166; Salem Bank v. Bank, 17 Mass. 1, 32 [9 Am. Dec. Ill] ; Pillsbury v. Dugan, 9 Ohio 117, 118, 120 [34 Am. Dec. 427]; Stall v. Maealester, 9 Ohio 19; Adams v. Jeffries, 12 Ohio 253, 255, 272, 273 [40 Am. Dee. 477]; Thompson v. Steamboat J. D. Morton, 2 Ohio St. 26 [59 Am. Dee. 658] ; Keating v. Spink, 3 Ohio St. 105 [62 Am. Dec. 214].
    Residence. Black’s Law Die.; Bouvier’s Law Die. “Domicile;” 24 Am. & Eng. Enc. Law (2 ed.) 696, 697, 698; Horton v. Horner, 16 Ohio 145,147; 12 Cent. L. J. 51; 11 Cent. L. J. 421; 10 Am. & Eng. Enc. Law (2 ed.) 15, 17, 40; Bye, Matter of, 2 Daly (N. Y.) 525; Stockton v. Staples, 66 Me. 197; Bangs v. Brewster, 111 Mass. 382; Sylvester v. Sylvester, 109 Iowa 401 [80 N. W. Rep. 547]; Brittenham v. Robinson, 18 Ind. App. 502 [48 N. E. Rep. 616] ; Tiles v. Waltham, 157 Mass. 542 [32 N. E. Rep. 901; 34 Am. St. Rep. 311],
    Alimony. Woods v. Waddle, 44 Ohio St. 449 [8 N. E. Rep. 297]; Cox v. Cox, 19 Ohio St. 502 [2 Am. Rep. 415]; Weidman v. Weidman, 57 Ohio St. 101 [48 N. E. Rep. 506]; Bascom v. Bascom, 7 Ohio (pt. 2) 125; Bingham v. Miller, 17 Ohio 445, 448 [49 Am. Dec. 471]; Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482],
    The court will reopen an action only where it will benefit some one, and will never reopen an action that can only result in injury.
    Estoppel. Marthinson v. Lumber Co. 125 Fed. Rep. 633; Carson v. Hyatt, 118 U. S. 279 [6 Sup. Ct. Rep. 1050; 30 L. Ed. 167],
    Emil Joseph and E. W. Waite, for defendant in error.

       Reversing Solomon v. Solomon. 13 U«o. K17

   MARVIN, J.

The parties here are as they were in the court below.

Prior to April 13, 1901, the plaintiff and defendant were husband and wife. On said date the plaintiff filed his petition in the court of eommon pleas of this county, praying to be divorced from the defendant. Among the allegations of the petition was the following:

“The plaintiff says he has been a resident of the state of Ohio for the year last past and is at present a bona, fide resident of the said county of Cuyahoga.”

The defendant was a nonresident of the state of Ohio at the time the action was brought, and, on May 8, 1901, the plaintiff! filed his. affidavit with the clerk of said court, setting up that the defendant was-not in the state of Ohio, that her whereabouts were unknown to the-plaintiff, and that service could not be made upon her other than by' publication of notice to her. Thereupon notice was published to her' of the filing and pendency of the petition, in a newspaper published and. of general circulation in said Cuyahoga county, and such proceedings? were thereafter had in the cause that on October 29’, 1901, an order was' made in said court, in these words:

“This cause having been duly advanced, came on to be heard October 29, 1901, upon the petition and evidence, the defendant being in default of answer or demurrer, although duly served with process according to law, and upon due consideration thereof the court finds that the allegations of the petition are true; that the plaintiff was a resident of the state of Ohio for one year next preceding the filing of his petition, and at that time was a "bona fide resident of this county of Cuyahoga, and that the parties were duly married as stated in the petition. The court further finds that the defendant has been guilty of gross neglect of duty to said plaintiff as charged in the petition, and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore ordered, adjudged and decreed that the marriage contract heretofore existing between the parties hereto, to wit, said Walter B. Solomon and Anna A. Solomon, be and the same is hereby dissolved and both parties are released therefrom.” * * *

At a subsequent term of said court, to wit, on March 15, 1902, the defendant filed in said court a motion asking that the order and judgment heretofore quoted be opened and that she be let in to defend, and as cause for the granting of such motion it is stated therein:

“That she had no actual notice of the pendency of this case in time to appear in court and make a defense; that the plaintiff was not a resident of the state of Ohio, during the year prior to the filing of the petition herein, and was not at the time of the filing of the petition herein, a bona fide resident of Cuyahoga county, Ohio; that the allegations contained in the affidavit for publication herein, namely, ‘that said defendant’s whereabouts is absolutely unknown to him’ (meaning thereby the said plaintiff) was absolutely false and untrue.”

With this motion the defendant filed an answer, which admits the marriage of the parties as stated in the petition, and denies, each and every other allegation and averment in said petition contained. She also filed a large number of affidavits tending to establish the averment in her said motion, that the plaintiff was not a resident of Ohio for the year next preceding the filing of his petition and that he was not a bona fide resident of the county of Cuyahoga at the timé of the filing of such petition. The plaintiff was duly notified of the filing of the defendant’s said' motion, and, on April 17, 1903, the plaintiff filed his motion to strike from the files the motions and affidavits of the defendant, hereinbefore mentioned. This last motion was overruled by the court, and the motion of the defendant for the opening up of the original judgment and order was granted.

To the order of the court overruling the plaintiff’s motion to strike the defendant’s motion from the files exception was taken,-as also to the order of the court opening up the original judgment in the case. If error was committed by the court in its ruling upon either of these motions, then whatever was done thereafter is without avail.

We are brought, then, to a consideration of the question whether ■there was any authority in the court to hear and determine the motion made by the defendant.

On the part of the plaintiff it is urged that after the term of court at which the decree of divorce was entered the court was without authority of law, upon the defendant’s motion to open up that decree. On the other hand it is urged that such authority is vested in the court under Sec. 5355 Rev. Stat. which reads:

“A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear,, to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits. ’ ’

If this section of the statutes applies to actions for divorce, the motion of the plaintiff to strike off the defendant’s motion was properly overruled. The learned judge by whom this motion was heard was of the opinion that the section applies as well to judgments 'for divorce as _ to other judgments, and, in an opinion evidencing great care and careful consideration, he gives the reasons for so holding, premising such opinion by saying:

“The authorities are not at one upon.the question whether a decree of divorce may be opened or reviewed after the term at which it was entered.”

All courts and text writers have recognized that, in cases of divorce, questions of public policy of the gravest importance are involved, and hence courts have universally refused to interfere to set aside decrees of divorce once obtained without the clearest authority of law. Our own Supreme Court, in the well-known case of Parish v. Parish, 9 Ohio St. 534, 535 [75 Am. Dec. 482], uses this language in the syllabus:

“A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term.”

In the opinion in this case, at page 537, Judge Peck calls attention to a provision of the statute then, but not now in force, reading:

“ ‘No appeal shall be obtained from the decree, but the same shall De final and conclusive.’ ”

In'commenting upon this, Judge Peck say=¡:

“This statutory provision is nothng more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status -of married persons, by sundering the matrimonial, tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would ■endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who wrongfully, perhaps, procured its promulgation.”

As to this ease, it is said that no question of jurisdiction such as arises in the ease under consideration, was involved. It does not appear from a report of the ease whether either of the parties resided in Ohio at any time. It only appears that the plaintiff was not a resident of Brown county, in which county the decree was obtained. As we view the present case, however, we do not understand that the same question of jurisdiction was involved in that as is involved here, because the question here is, whether the court had jurisdiction, that is, authority of law, to hear and determine the rights of the parties under the motion filed by the defendant. If the court was without jurisdiction to. hear that motion, then it should have been stricken from the files upon the motion of the plaintiff. As has already been said, if such jurisdiction existed, it existed by virtue of Sec. 5355 Rev. Stat. ' If that section applies, then the court was authorized by law to open up a decree and let in-any defense which the defendant might have made upon the original' trial. There is nothing in this section which authorizes the court upon such a motion to inquire into the jurisdiction in the original case rather than to inquire into the validity of any other defense. No question, whether jurisdictional or something else, could be inquired into by the court upon this motion without the court taking upon itself the determination of questions of fact. It would seem without doubt that the section of the statute under consideration would authorize the personal representative of a party who had died after the judgment to have the same opened up in the same manner as the party if living might himself have done, and conversely, that in a proper case a judgment might be opened up against the personal representative of one in whose favor such judgment had been granted. Clearly, in a divorce case this could not be done. A party is to be let in to defend.

“Defend what,” as is said in the case of Owens v. Sims, 43 Tenn. 544, 549. “Surely not a suit for divorce, for that had abated and passed beyond the limits of revivor.” In Owens v. Sims, supra, the court had under consideration Sec. 4379 of the statutes of that state, which, after excepting certain cases, among which is not the action for divorce, this language is used:

“In all other cases, a decree against a defendant without personal service of process, who does not contest, is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant; in which ease it becomes absolute, if the defendant fails to come forward and make defense within six months after service.”

As to this the court says, at page 548:

“It has no application to cases of divorce. * * * The legal consequence of such a construction of the statute will lead to results so anomalous and absurd that it is clear the legislature never intended it to be applied to divorce cases. They rest, in our state, upon the peculiar provisions of the statutes enacted for their government; and the construction of this section of the code contended for, is at war with the spirit, if not the letter, of the statutes of divorce in Tennessee.”

In the case of Smith v. Smith, 20 Mo. 166, the court holds that the statutes of Missouri authorize the setting aside of a decree of divorce in the same manner as other decrees in chancery might be set aside. The language of the statute under which this decision was held is this r

“That the circuit court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony or maintenance, and the like process and proceedings shall be had in said causes as are had in other causes on the equity side of the court. The act regulating practice in chancery, provides that, when a decree has been rendered in a chancery canse against a defendant who has not been^summoned and has not appeared, snch final decree may be set aside, if the defendant shall appear, and by bill of review, verified by affidavit, show cause for setting ■it aside as against equity.”

Taking these two provisions of the statutes of Missouri together, a much stronger case for the setting aside of the decree is made than is made by the statutes of Ohio; yet in this case a very vigorous dissenting opinion was handed down by Judge Scott, as found at page 169 et seq. of the report.

In the case of O’Connell v. O’Connell, 10 Neb. 390 [6 N. W. Rep. 467], the court had under consideration Sec. 5674 of the statutes of that state, being Sec. 82 of the code of civil procedure, which reads:

“A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order have the same opened and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition,” etc. In commenting upon this section, this is said, on page 392:
“Do the provisions of Sec. 82 of the code apply to actions for a divorce? * * *
“It is very clear, from an examination of Sec. 82 of the code, that the legislature intended to limit its application to the cases mentioned in Sec. 77, and that it has no application to divorce suits.”

The See. 77 referred to enumerates causes in which service may be made by publication, and does not include actions for divorce, but Sec. 2865 of the same statutes provides as follows:

“A petition or bill of divorce, alimony, and maintenance may be exhibited by a wife in her own name, as well as a husband; and in all eases the respondent may answer such petition or bill without oath; and in all cases of divorce, alimony, and maintenance, when personal service cannot be had, service by publication may be made as is provided -by law in other civil cases under the code of civil procedure;”

From these sections it will be seen that the service by publication provided for in divorce cases is exactly that provided for in other eases, and that a literal construction of Sec. 82 of the code of civil procedure would make it apply as well to divorce as to other cases. The, authorities-cited in support of the opinion of the court in this case are, Lewis v. Lewis, 15 Kan. 181; McJunkin v. McJunkin, 3 Ind. 30; Gilruth v. Gilruth, 20 Iowa 225; Bingham v. Miller, 17 Ohio 445 [49 Am. Dec. 471],

In all of these cases, though the exact question here presented is not raised in all, the reasoning is to the effect that divorce cases constitute a peculiar class in themselves and are governed by principles especially applicable to such eases, a very weighty consideration being the effect upon innocent parties which may result from the opening up of decrees of divorce.

In the case of McJunkin t. McJunkin, supra, attention is called to the provision of the statute that the practice and proceedings in suits to obtain divorce shall be the same as in other cases in chancery, with certain specific exceptions. Attention is further called to the fact that under the statutes of the state it is provided that “parties against whom a decree has been rendered without other notice than by publication in a newspaper, may, at any time within five years, have such decree opened up and be let into a hearing, by giving notice to the original complainant, or his heirs, devisees, executors or administrators,” etc. This provision differs from the provision of our statute in that it in terms provides that the judgment may be opened up as against heirs, devisees, executors, etc.; but if what was said earlier in this opinion as to the rights of personal representatives under our own statute is correct, then this statute in effect is what our statute is on the same subject.

In noticing the distinction to be made between divorce and other eases, the court, in McJunkin v. McJunkin, supra, calls attention to the fact that in divorce cases the defendant is not required to make a full answer, and that a general denial made in an answer in a divorce case need not be verified by the oath of the defendant. This is equally true under our statutes; indeed, without any answer whatever under our statutes the court is not authorized to grant a divorce without full proof of the facts upon which the party obtaining it is entitled to obtain it, even though no objection is made.

The court, further, in McJunkin v. McJunkin, supra, uses this language, page 31:

“The rights of bona fide purchasers of property, sold under the decree sought to be opened, are protected by another section, but no provision is' made that children born of a second marriage, before the opening of the decree, shall be legitimate; and upon the whole, taking all the provisions of both chapters, and the consequences whch would follow a different decision, into consideration, we think the judgment of the circuit court should be affirmed” (which judgment was to deny the right to have the decree opened).

By Sec. 5356 Rev. Stat. of our own statutes a like provision is made for the protection of those who have obtained property on the faith of a decree, and there is the same omission in our statute as to children born of a marriage 'contract on the faith of such decree.

The conclusion reached by us is that the court of common pleas erred in overruling the motion made by the plaintiff to strike the defendant’s motion and affidavits from the files, and that by reason of such error •all <jf the judgments and orders made by the court after overruling such motion of the plaintiff were erroneous. The judgment, therefore, overruling the plaintiff’s said motion, is reversed, and the judgments thereafter made in the case are reversed, and, proceeding to enter the judgment which the court of common pleas should have entered, the motion of the plaintiff to strike the defendant’s motion and affidavits from the files is sustained.

Hale and Winch, JJ., concur.


author: JELKE, J.

text:
    CONTRACTS — STATUTE OF FRAUD.
    [Hamilton (1st) Circuit Court,
    1902.]
    Giffen, Jelke and Swing, JJ.

      Leopold Burckhardt v. Lewis H. Greene.
    1. Six Months’ Lease at Monthly Rental is Entire Contract — Will Support One Breach and Recovery Only.
    A lease for a term of six months, at a monthly rental of $100 per month, is an entire contract which will support only a single breach and recovery; and after a breach by the lessee in refusing to' enter and occupy the premises under the terms of the lease, the commencement of an action by the lessor wherein he seeks and recovers a judgment against the lessee for the first month’s rent only, which is satisfied, is a bar to any further actions by him upon the lease.
    2. Part Performance Must Relate Strictly to Contract to Take it out op Statute op Frauds.
    Acts relied upon to constitute part performance, so as to take a contract out of the statute of frauds, must be done strictly with reference to the contract; if referable to anything else, they are not applicable. Hence, papering a house on leased premises and putting it in a state of readiness for occupancy, letting a tenant whose term has expired vacate the premises, and tendering the keys of the house, are not such acts as constitute part performance of a parol lease, so as to take it out of the statute of frauds. The tender of keys is merely a tender of performance; the other acts are such as might have been done under any circumstances, and not with particular reference to this contract of lease.
    Error to Hamilton common pleas court.
    Goebel & Bettinger, for plaintiff in error:
    Part performance took the agreement out of the statute of frauds. Wilbur v. Paine, 1 Ohio 251, 254; Moore v. Beasley, 3 Ohio 294; Wag-goner v. Speck, 3, Ohio 293; Grant v. Ramsey, 7 Ohio St. 157; Blanding v. Sargent, 33 N. IT. 239 [66 Am. Dec. 720]; Martin v. Batchelder, 69 N. H. 360 [41 Atl. Rep. 83]; Frey, Spec. Perf. 286, Secs. 56z, 563; Pomeroy, Spec. Perf. Sec. 104; Armstrong v. Kattenhorn, 11 Ohio 265, 272; 8 Am. & Eng. Ene. Law (1 ed.) 637.
    Severance. Fox v. Althorp, 40 Ohio St. 322.
    Galvin & Galvin, for defendant in error.

       Affirmed by Supreme Court, without report, May 3, 1903, 68 Ohio St. 711.

   JELKE, J.

(Orally.)

This action was brought in a magistrate’s office for an installment of rent which it is alleged was arranged between Mr. Burckhardt 'and Mr. Greene for the occupancy of his residence in Mt. Auburn, for a period of six months, at a monthly rent of $100 per month. There are two defenses to this action. The first is that Mr. Burckhardt sued for the first month’s rent under this alleged contract, and recovered, and the judgment was paid. We are of opinion that the contract was an entire contract, although the rent was payable monthly, and that there was no occupancy upon which there could be monthly recovery for occupancy. There was but one breach of an entire contract, and there could be Dut one recovery, and the recovery of the first $100 is a bar to anything further upon this contract.

Further than that, the defendant has urged that it is a contract affecting real estate, and under the statute of frauds, it not being in writing, cannot be enforced. The reply to that is that theic was a partial performance, and the allegations are that Mrs. Burckhardt prepared the house, made some -changes preparatory to Mr. Greene’s occupancy, and let a former tenant go, Judge Thompson, and upon a certain date went and tendered the keys to Mr. Greene.

There is one general principle laid down in Ohio that anything done to take a contract out of the provisions of the statute of frauds must be done strictly with reference to the contract, and if the things done can be made referable to anything else, then they are not referable to the contract. Now, the small things done up there at the house are not of such a nature but that they might have been done under any circumstances, and it appears from the evidence that the former tenant, Judge Thompson, left at the expiration of his term, which expired some time before this six months’ period was to begin; and so far as the tender of the bey is concerned, that it is not a performance; if- it is anything, it is a tender of performance. ‘ Therefore, on the second ground, we are are of opnion that there has been nothing done which would take the contract- out of the provisions of the statute, and it being a contract affecting real estate, and not being in writing, cannot be enforced.

Therefore, on both grounds, the judgment will be affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, J.

text:
    EXECUTORS AND ADMINISTRATORS — WILLS — ESTATES.
    [Hamilton (1st) Circuit Court,
    May 12, 1904.]
    Giffen, Jelke and Swing, JJ.
    Union Sav. Bank & Tr. Co. et al. v. Elizabeth S. Smith et al.
    1. Paid Legatees hot Proper Parties in Controversy Over Residuary Estate.
    Legatees who have been paid their legacies are not necessary parties to an action involving a controversy over the residuary estate.
    2. Bill of Exceptions not Containing all the Evidence Sufficient, When.
    A bill of exceptions which recites that it contains all the testimony, instead of all the evidence offered in the case, will not, on this ground, be stricken from the files, when the weight of the evidence is not involved. In this case certain exhibits offered in evidence were not attached to the bill of exceptions.
    S. Trust Companies Appointed Under Invalid Statutes Entitled to Compensation, When — Measure of Compensation.
    A trust company which was, without objection, appointed executor of an estate by the probate court prior to the recent decision of the Supreme Court holding Secs. 3821c and 3821f Rev. Stat. unconstitutional, and which has since fully performed and the estate received the benefits of such services, is entitled to a reasonable compensation therefor. The measure of such compensation is that allowed by statute to legally appointed executors and administrators.
    4. Executor Entitled to Counsel Fees in Defending Will.
    An executor is entitled to an allowance of reasonable counsel fees incurred by him in successfully defending actions contesting the validity of the will, although the verdict and judgment were based upon a subsequent agreement of compromise between the parties.
    5. “Personal Estate” in Sec. 6188 Rev. Stat., Includes Stocks, etc.
    The phrase “personal estate” used in Sec. 6188 Rev. Stat., which allows 'executors full compensation upon the amount of personal estate collected and accounted for by them, includes stocks, bonds and other securities belonging to the estate, and an executor is, therefore, entitled to the statutory commissions thereon.
    6. No Compensation Under Sec. 6188 Rev. Stat. When Real Estate Sold Under Agreement of Heirs.
    Where real estate forming part of a residuary estate is Sold under an agreement between the heirs, and not under directions of the will, an executor is not entitled to the statutory commissions from the proceeds thereof under Sec. 6188 Rev. Stat.
   GIFFEN, J.

This action, arose in the probate court upon exceptions to the account of the Union Savings Bank & Trust Company as administrator de bonis non with the will annexed of Nicholas Patterson, deceased, and as executor of the last will and testament of Elizabeth P. Patterson, deceased. All the exceptions were overruled by the probate court, and Upon appeal to the common pleas court, the exceptions to the allowance of attorney fees to Maekoy & Lowman in a contest of the w21s of Nicholas Patterson and Elizabeth P. Patterson, and the exception to the statutory commissions credited in the-account of the administrator and executor., respectively, were allowed by the common pleas court and all other exceptions were overruled. To this judgment the trust company prosecutes error and the defendants in error, not having filed any cross petition in error, the only question for consideration in this court is the judgment of the common pleas court in sustaining such exceptions.

A motion is filed in this court to strike the petition in error from the files for want of necessary parties. The. question in controversy eoncerhs the residue of the estate of Elizabeth P. Patterson, deceased,, after the payment of certain special legacies. These having been paid,, and concerning which there is no dispute, the legatees are not necessary parties and the motion to strike the petition in error from the files will be overruled.

A motion is also filed to strike the bill of exceptions from the files, for the reason that certain exhibits offered in evidence are not attached to the bill, and that it recites that it contains all the testimony offered in the case and not all the evidence in the case. The motion will be overruled for the reason that the weight of the evidence is not involved in the determination of the case which depends entirely upon the construction of the will of Elizabeth P. Patterson,, deceased, and a written agreement dated April 19, 1901, between the Union Savings Bank & Trust Company, executor and trustee under the will of Elizabeth P. Patterson, deceased, the Old Men’s Home, the Widow’s Home, the Home of Incurables, and the Children’s Home, devisees under the will of Elizabeth P. Patterson, of the one part, and Elizabeth S. Smith and Mary E. Bishop, heirs at law of Elizabeth P. Patterson, of the other part, each of which writings are attached to the bill of exceptions.

It is further claimed that the trust company is not entitled to the statutory commissions allowed executors' and administrators, because under the recent decision of the Supreme Court in the case of Schumacher v. McCallip, 69 Ohio St. 500, it is held that :

“Trust companies are without capacity to receive and exercise appointments as administrators of the estates of deceased persons because the legislation evincing an intention to clothe them with such capacity * * * is void, being of a general nature and not of uniform operation throughout the state.”

But in that case the objection was’made at the time of the appointment, while in the case no objection was then made. The services by the executor have since been fully performed and the estate received the benefit of such services. The defendants in error ought not now be heard in complaint of .a reasonable compensation, the measure of which is that allowed by sthtute to legally appointed executors and administrators.

The residue of the estate of Nicholas Patterson, deceased, was devised and bequeathed to his wife, Elizabeth P. Patterson, and under the tenth item of the will of Elizabeth P. Patterson, it is provided that:

“Subject in all respects to the foregoing’ provisions of this my will # * * I give, devise and bequeath all the rest and residue of my property real and personal, wherever the same may be, to the Union Savings Bank & Trust Company of Cincinnati, Ohio, to have, hold, manage and control, sell, invest and reinvest, in trust nevertheless, for the uses and purposes and subject to the limitations hereinafter mentioned. ’ ’

The defendants in error, Elizabeth S. Smith and Mary E. Bishop, having commenced an action to contest the will of Nicholas Patterson, and also that of Elizabeth P. Patterson, the agreement of April 19, 1901, was made providing that said parties of the second part will forbear all further contest of said wills, and providing that:

“The said devisees and each of them, in consideration thereof, agree and consent that the said executor and trustee of Elizabeth P. Patterson shall pay over ahd convey to said Elizabeth S. Smith and Mary E. Bishop, the one-half of all property and sums which are devised to said executor and trustee for the use and benefit of each of said devisees, in pursuance of the order of the probate court, in re the estate of said testatrix, this day made.
“And is is further understood that in making the said division the real estate, or any part thereof, may be taken at an agreed value by either of said parties, or if otherwise, shall be sold at public auction, and the said devisees will unite with said executor and trustee in the conveyance thereof, the proceeds thereof to be divided as above provided.”

It is claimed by Mrs. Smith and Mrs. Bishop that under this agreement the executor is not entitled to an allowance for counsel fees in the contest of the will, nor of its statutory commissions upon the personal estate accounted for. It is contended that they are entitled to one-half of the property devised to the executor for the use and benefit of each of said devisees. Nothing, however, is devised to the executor, but under the tenth item of the will, the rest and residue is devised to the Union Savings Bank & Trust Company as trustee for the four charities. The residue could not be ascertained until the debts and special legacies were paid and the estate fully administered, when the balance, less expenses of administration, would be paid by the executor to the trustee.

As a part of such expense, the executor has credited this account with the payment of $2,000 to Mackoy & Lowman, in the contest of the two wills. In the case of Andrews v. Andrews, 7 Ohio St. 143, the syllabus is as follows:

“An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.
‘ ‘ The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.”

And on page 151, the court say:

“We find no authority to sustain the position that a party acting as trustee is bound to defend the relation of trustee whenever the rightful existence of that relation is assailed or called in question; although, should he do so, and do it successfully, it seems he would, in that case, be entitled to charge his proper expenses against the trust estate; and this for the reason that his expenditure inures to the benefit of the cestui que trust.”

In this case, both of the wills were sustained and while it is true there was an agreement of compromise, yet they were sustained by a jury and the judgment of the court, and now stand as valid wills. We think, therefore, the counsel fees should be allowed, and the court of common pleas erred in sustaining the exceptions thereto.

Section 6188 Rev. Stat. provides:

“Executors and administrators may be allowed the following commissions upon the amount of the personal estate collected and accounted for by them, and of the proceeds of the real estate sold on an order of' court for the payment of debts, or 'under directions of the will which; shall be received in full compensation for all their ordinary services.”

The words “personal estate” are broad enough to include the stocks, bonds, and other securities, and when collected together and accounted for by the executor, he is entitled to the statutory commission thereon. The real estate, however, was not sold or conveyed under directions of the will, but in accordance with the agreement of April 19, 1901. It was a part of the residuary estate to be turned over to the trustee and upon which the executor was not entitled to any commission, and in' disallowing the same the common pleas court did not err.

The judgment of the court of common pleas will therefore be reversed, in so far as it sustains the exceptions to the allowance of attorney fees, and the exception to the statutory commissions other than that upon the real estate, and affirmed in sustaining the exception to the allowance of the latter commissions.

Swing and Jelke, JJ., concur.


text:
    WILLS — EVIDENCE—CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    April 5, 1904.]
    Giffen, Jelke and Swing, JJ.
    Rosa Rapp et al. v. Magdalena Becker et al.
    1. Charge that Important Item of Evidence in Will Contest is Will Itself Erroneous.
    In a suit to set aside a will upon the ground of mental incapacity and undue influence a charge to the jury that “the important item of evidence bearing upon the condition of the mind of the testator is the will itself,” although followed by the statement that it is for the jury to determine what weight shall he given it, is erroneous because in designating the will an important item and calling the attention of the jury especially to it, the court invades the province of the jury by inviting a substitution of its opinion for that of the jury.
    2. Undue Influence not Effort to Coerce, but Effect of Coercion Upon Tes.tator.
    Undue influence, as understood in the law of wills, is not the effort or attempt to coerce, but the effect that the restraint or threats have upon the testator, and although the purpose to coerce may be ever so clear and certain, yet if the restraint or threats fail to control or affect the testator there can be no undue influence.
    3. Giving of Correct and Incorrect Charges Upon Same Matter Prejudicial Error,. When.
    Where, with reference to the same matter, the court gave both a correct and an incorrect charge, and it cannot be determined by the reviewing court which charge the jury followed, the giving of the incorrect charge will be deemed to b'e prejudicial error.
    4. Evidence of Circumstances Influencing Testator but Unknown to Him Admissible.
    It is not literally true that, “what th'e testator never knew could not have influenced him, and should not have been admitted in evidence,” because certain conditions, the cause, of which was unknown to him, might have influenced him in the execution of the will, and a purpose of influencing the testator would be all the more effective if the agency of the person entertaining such purpose was concealed.

      i. Juror not Guilty of Misconduct Because of Misstatement, When.
    A Juror is not guilty of misconduct because, in an examination touching his qualification as such, he misstated his relation to a previous case when the misunderstanding arose not from intentional misrepresentation by him, but from the mode of inquiry adopted by counsel.

      ERROR to Hamilton common pleas court.
    Burch & Johns on, for plaintiffs in error.
    Horstman & Horstman, for defendant in error:
    Evidence. Abbott, Trial Ev. Secs. 63, 68, 69, 70; 27 Am. & Eng.. Enc. Law (1 ed.) 496, 499, 501, 504, 505, 507, '508; Kinkead, Instructions & Journal Entries 484; Page, Wills Secs. 394, 401, 404, 423, 429.
    Misconduct of jurors. Wright v. Burchfield, 3 Ohio 53; Hayward v. Calhoun, 2 Ohio St. 164; Tracy v. Card, 2 Ohio St. 431; Snyder v. Beam, 1 Dayton 167, 168; Thomas v. Clark Co. (Comrs.) 5 Dee. 510 (5 N. P. 453); 17 Am. & Eng. Enc. Law (2 ed.) 1166, 1169, 1170, 1204, 1206, 1208, 1209; Fitzpatrick v. People, 98 Ill. 269, 270; Eastman v. Wight, 4 Ohio St. 156, 157; Kenrick v. Beppard, 23 Ohio St. 333; Watts, v. Buth, 30 Ohio St. 32; Drinkwater v. Jones, 7 Circ. Dec. 173 (13 B. 489); Toledo Beal Estate & Invest. Co. v. Putney, 10 Circ. Dee. 698 (20 B. 486); Ludlow v. Park, 4 Ohio 5, 44;.Hinton v. Wade, 5 Ohio 509, 513 [24 Am. Dee. 315]; Breek v. State, 2 Circ. Dec. 477 (4 B. 160).
    The cases of Thompson v. Bennett, 194 Ill. 57 [62 N. E. Bep. 321] - Butherford v. Morris, 77 Ill. 397; Mer riman’s Appeal, In re, 108 Mich. 454, 458 [66 N. W. Bep. 372]; Thompson v. Thompson, 13 Ohio St. 356; Page, Wills See. 130, eited by plaintiff in error, do not support his contentions.
   GIFFEN, J.

The original action was brought to set aside the will of Frank Bapp,, deceased, on the ground of mental incapacity and undue influence.

The evidence was insufficient to sustain the verdict setting aside the will upon the ground that the testator was of unsound mind, and could only be sustained upon the ground that the beneficiary,'Bosa Bapp, exerted undue influence over the testator at the time of the execution of the will. The testimony of the plaintiffs tends to show that the testator, through the efforts of Bosa Bapp, was estranged from his other sisters, although the only evidence that it was operative at the time of the execution of the will was the want of any provision for the other sisters by the will itself. We are unwilling, however, to reverse the judgment upon'this ground.

It is claimed by the plaintiffs in error that the court erred in giving certain special charges at the request of the defendants in error:

“If the jury find that Frank Bapp'was at the tirAe of the making of his will in a morbid condition of mind, so that his Drain was affected by disease, crazed by stimulants or other causes so as to lead him to do. things which at other times he would not have thought of doing, in the* eye of the law his feelings, desires and acts at such time are not considered to be the feelings, desires and acts of the man, and a will made by him under such influences and conditions of mind would not be his will,, if such influences affected his mind to such extent that he was unable-to understand and appreciate his relations to and obligations to his relatives and the persons who would be the natural objects of his bounty in; making his will. ’ ’

Counsel claim that the word “obligations” in this charge means' legal obligations to his relatives, but it is not so expressed, and taken in connection with the special charges given at the request of the defendants below it clearly appears that the court was referring to the moral obligations or duty of the testator to his relatives.

The court also .charged the jury as follows:

“In cases like the one at bar, the important item of evidence bearing upon the condition of the mind of the testator is the will itself and although the fact that a will is unjust, or wrong, or absurd, does not of itself prove the incapacity of the testator to make a will or that it was made by him under undue influence, yet it is an item of evidence for the jury to consider as bearing upon the question and it is for the jury to determine what weight shall be given it. ’ ’

The objection to this charge is that it gives undue prominence to the single item of evidence, to wit, the will.' It is true that the court adds that it is for the jury to determine what weight shall be given to it, but by designating it as an important item and in calling the jury’s especial attention to such item, the court invades the province of the jury by inviting a substitution of its opinion for that of the jury. We think, therefore, that there was error in giving the charge.

The following charge was also given:

“In order to constitute undue influence in the making of a will it is not required that any physical force should be used, but any restraints or threats or influence brought to bear upon the testator, or persistent importunities which he has not the strength to resist, if exerted upon him to coerce him into making a will or any of its provisions, is undue influence witián the meaning of the law. And it matters not how smalt or great the influence may be so long as it destroys the free agency of the testator;”

The clause in this charge “if exerted upon him to coerce him into making a will” is equivalent to saying, if exerted for that purpose it would constitute undue influence, but it is not the effort or attempt to coerce, but it is the effect the restraint or threats have upon the testator that constitutes undue influence.

The purpose to coerce may be ever so clear and certain, yet if the restraint or threats fail to control or affect the testator there can be no undue influence. It appears that the court gave a correct charge on this subject at the request of the plaintiffs in error, but it cannot now be determined which charge the jury followed, hence we think it was error prejudicial to the plaintiffs in error.

The next alleged error is the admission in evidence of the declaration of Rosa Rapp, at page 55 of the bill of exceptions, where, in speaking the testator associating with Carrie Heckle, she said:,

“That she didn’t think that she was a girl for Frank to go with. .Frank ought to get somebody his kind that had money like he did.”

This was said not in the presence of the testator nor was it other•wise communicated to him. We think it is therefore irrelevant and immaterial, but not prejudicial.

The next alleged error is the admission of the declaration of Rosa Rapp, page 158 of the bill of exceptions, as follows:

“Rosa told me that Jacob had $1,500, and Frank $500 in the business.”

Jacob and Frank hadFeen partners in the business and upon the death of Jacob, Frank had treated the partnership as though they were equal partners. This declaration was not competent to prove the amount that each partner had put in the business, nor was it competent as an admission against interest, it having been made during the lifetime of Jacob when Rosa had no interest under the will of Frank Rapp.

The declaration of Rosa Rapp, page 262, made to her sister, Frida Distel, when she signed a paper releasing to her father and mother her interest in the estate of her deceased brother, Jacob, was irrelevant and immaterial, but not prejudicial.

The account given by Mary Dotzauer, of the action of the mother when, it was claimed she was pursued by Rosa Rapp, tended to prove misconduct of Rosa Rapp and undue influence over her mother, but it has no tendency to prove undue influence over the testator, especially as it occurred after the execution of the will. It was, therefore, error in admitting it as evidence.

Counsels for plaintiffs in error state the following rule:

“What the testator never knew could not have influenced him, and should not have been admitted in evidence.”

This is not literally true, because certain conditions, the cause of which was unknown to the testator, might have' influenced him in the execution of the will. If Rosa Rapp created such conditions, and they influenced the testator, she is responsible therefore, although he may have been entirely ignorant of her agency. If she entertained any purpose of influencing the testator, it would be all the more effective if her connection with it was concealed.

The evidence tending to show that Frank Rapp was not an equal partner with his brother Jacob, and that therefore he obtained money which properly belonged to the estate of Jacob Rapp was admissible to show the source of that part of Frank Rapp’s estate, and as to which there was an additional obligation to his sisters.

It is further claimed that there was misconduct on the part of one of the jurors when examined, touching his qualifications as juror, it being claimed that he answered “No” to a question whether he had been a party to a suit involving the contest of a will, when in fact he was such party. The following examination occurred:

“Have you ever been parties to any proceeding in which a will has been contested! You have, Mr. Thornton? Will you kindly tell us what the nature of it was? Mr. Thornton. “Well, it was Kirby against Kirby. ’ ’
“You were a witness in the case?” A. “No, I was not a witness. I was connected with it. ’ ’
Q. “You simply had some relationship to some of the parties to the suit; that is, you were not a party yourself?” A. “No.”

The record is incumbered with a great mass of testimony upon this question alone, submitted at the hearing of a motion for a new trial. If it serves any good purpose it shows that the juror did not intentionally misstate his relation to the case of Kirby against Kirby, and that the misunderstanding was due not to any misconduct of the juror, but to the mode of inquiry adopted by counsel. He was advised by the juror that he was not a witness, but was connected with the ease, and the natural inquiry would have been what that connection was The counsel chose to ask a leading question, to which he evidently expected the juror to give his assent, which could be done by an answer of either “yes” or “no” according to his manner and tone of voice, whether with a rising or falling inflection. So likewise his dissent.

The court, therefore, did not err in overruling the motion for a new trial upon this ground.

For the reasons above stated, the judgment will be reversed and the cause remanded for a new trial.

Jelke, and Swing, JJ., concur.