text:
    EXAMINATION OF EXPERT WITNESSES IN WILL CONTEST.
    Circuit Court of Cuyahoga County.
    Michael J. Walsh, Executor of the Will of John Walsh, Deceased, et al v. James A. Walsh.
    Decided, December 30, 1910.

      Contest of Will—Cross-Examination of Experts—Evidence of Experts— Comment on Probate of Will.

    1. The rule which requires that one in putting hypothetical questions to his own expert witness must confine his hypothesis to matters upon which evidence has been introduced, does not exténd in its full force to the cross-examination of such witness. In cross-examining such expert witness questions may be put based upon some other hypothesis which the cross-examiner hopes to establish by evidence.
    2. An expert may not be called upon to say whether one was competent to make a particular will, but only whether, in his opinion, his mental capacity was such as the law requires for the making of a valid will.
    3. In a will contest case it is misleading to charge the jury that it is of no importance what the probate judge did in probating the will, and that they are not to be influenced by what he did.

      Green, Zmunt &■ Zmunt, for plaintiffs in error.

      Estep (& Gott, contra.
    Marvin, J.; Winci-i, J., and Henry, J.. concur..
   James A. Walsh filed his petition in the court of common pleas setting out that he, together with Michael J. Walsh and Alice Carey, were the only children and heirs at law of John Walsh, deceased; that Mary Walsh is the widow of said decedent; that said John Walsh died on the 21st day of March, 1908, and that a paper writing purporting to be his last will and testament was admitted to probate in tifie Probate Court of Cuyahoga County, Ohio, on the 9th day of April, 1908, and averring that the said paper writing is not the last will and testament of the said John Walsh, and praying that an issue be made up, that such paper writing may be set aside as the will of the decedent. The defendants named in the petition are Michael J. Walsh, as executor of said purported will, Michael J. Walsh, Mary Walsh, Alice Carey, Howard J. Carey and Philip Rayner, guardian of said Mary Walsh.

Upon the trial the jury found that the paper writing was not the will of the decedent; and the parties interested in the establishment of this writing as the will of the deceased, who were made parties in the original proceeding, bring this proceeding in error to set aside the judgment of the court below, which judgment was entered, upon the finding of the jury, as already stated. It developed on the trial that the decedent was severely injured in a railroad accident in the early part of the day on which he died; that immediately after such injury he was taken to St. Alexis Hospital, where he remained until his death, about half past seven o ’clock on the evening of the same day; that the purported will was drawn by Frederick Green, Esq., an attorney at law; that the decedent signed by his mark such writing; that such signature was attested by the signature of two witnesses, and this occurred about 5 o’clock in the afternoon of the day of the injury, a little more than two hours before the decedent’s death.

The defendant, as required by Section 5864, Revised Statutes, offered the paper writing, purported to be a will, together with the order of probate, and rested his case. This was sufficient to make a prima facie case, as provided in Section 5862 of the Revised Statutes, which reads: “On the trial of such issue the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil. ’ ’ Thereupon this evidence having been offered, as already stated, the plaintiff below proceeded to introduce evidence tending to show that by reason of the injury which the decedent received on the morning of this day, and from which he died in the evening, he had not mental capacity sufficient to make a valid will.

We are asked to reverse this case on the weight of the evidence. This, we can not do. The evidence was conflicting; there was a great amount of it, both expert and other evidence, and we are not prepared to say that the jury clearly went wrong in reaching the conclusion that the writing was not the will of the decedent, because of mental incapacity on his part at the time of its execution. But there was- error in this trial which requires a reversal. Among the witnesses called on the part of the contestors was Dr. Wm. F. Colling, who qualified as an expert, and testified as such, and in answer to hypothetical questions put to him, testified that he did not regard the decedent as competent to make a will at the time this was executed. Dr. Golling saw the decedent where he was in the hospital, after the injury and before the execution of the writing. On cross-examination he was asked a number of questions, as appears by reference to page 52 and following, up to 54, in the bill of exceptions, which he was permitted to answer. Among these, are the following:

“Q. Suppose for instance, that he (speaking of the decedent) should say that he wished his daughter to hold a particular piece of property in a certain manner during the lifetime of her husband, after the husband’s death to own it absolutely, what would such directions of his indicate as to his mental condition?”

The answer was:

“That would be all right; I would think that he was able to do business as far as that goes. ’ ’

That was followed by the question “That he was possessed of sound and disposing mind and memory,” which was answered by “Yes, sir, that his memory was very good.” Another question was as follows: “Your conclusion, doctor, was based upon your observation of the patient?” And the answer was “Yes, sir.” This was followed by several questions and answers, to-wit:

“Q. And the fact that he died within several hours after-wards? A. Yes, sir.
“Q. Although it is true that persons retain control of their mental faculties somewhat up to within practically the moment of their death? Is that not true? A. But this is not sickness, disease.
“Q. But in cases of shock, I take it, from what you say? A. I don’t think it would wholly come from things which you have been asking me about, that is something I can’t tell. I only saw him from the time he left Bedford. I don’t think he was able to make a will at the time I saw him, and he got worse and died soon after I saw him, and so far as these little questions you have been asking me, I am not competent to answer those questions because I didn’t see the man; I don’t know when he made the will; I don’t know anything about it.”

After answering this and other questions upon cross-examination the doctor was re-examined by counsel for the contestants, and then the court said to the jury:

“Gentlemen of the jury, the doctor was permitted to answer some hypothetical questions put to him by Mr. Green and I take it from your consideration. The questions were misleading, I think, and therefore you are not to consider them. ’ ’

To this action of the court counsel for the contestees excepted. The Mr. Green spoken of by the court was such counsel. This action of the court was erroneous for two reasons: One that it

was indefinite as to what was taken from the jury, and it was also erroneous because the contestees had a right to an answer from this expert witness on these hypothetical questions. The ■writing was already in evidence. That writing purported to make bequests such as were spoken of in the hypothetical questions.

That writing was prima facie the act of this decedent, hence there was evidence tending to show that the decedent had done the things suggested in the hypothetical questions. But even if that were not true, the rule which requires that one in putting hypothetical questions to his own expert witness must confine his hypothesis to matters upon which evidence has been introduced, does not extend in its full force to the cross-examination of such witness. In cross-examination, questions may be put to the witness based upon some hypothesis other than that which the party producing the witness has introduced evidence tending to support. If this were not true a party might introduce evidence in chief tending to support certain propositions of fact, and then introduce an expert witness and ask him hypothetical questions based upon the facts which the previous evidence had tended to establish, and the adverse party would be left without the opportunity to know what the evidence of the witness would be upon another set of facts, which it may be that this adverse party hopes to establish. Such cross-examination, too, is permissible to test the witness who has been offered as an expert. Examining the bill of exceptions at page 116 we find that Dr. Thomas A. Burke, as a witness called on the part of the contestors, was being examined. He had qualified as an expert and then various hypbthetical questions were put to him, and among them the following:

“Now doctor, suppose the case as I have stated it to you, and in the case I have stated to you it is claimed that about five o ’clock that same afternoon this man was claimed to have made a will, substantially as follows in its material aspects. Item 2 of the will he undertook to give 'to his daughter, one of his daughters, during the life of her husband the_ place in which he then lived, situated in Bedford township, in this county, except the gas well located on the place, and another parcel of land owned by him in the village of Newburgh, consisting of ten acres of land, and then on the death of her husband he said the place in which he then resided was to go to his daughter absolutely and she was also to have the place in South Newburgh, subject to the following conditions: Should she desire to dispose of the said piece of land, his son, Michael J. Walsh, was to have the right to purchase it for the sum of $1,000. That Michael Walsh was to have the use of the gas well on the place where John Walsh resided, and as long as he lived and if he should die leaving lawful issue, such issue shall have the use of it during their lives, then in the next item he gives to his son Michael Walsh the farm where he resided in South Newburgh, then in the next item he undertook to make a trust estate providing that all the rest of the household goods and farming implements shall be bequeathed to his son Michael in trust for the following provision: Converting all the goods into money and pay the income from $3,000 annually to his daughter Alice Carey during the life of her husband, the income of the balance of the property to be paid to his wife during her natural life. Then he provided that on the death of her husband, he shall pay Alice Carey $3,000. then he provided that on the death of his wife, he shall pay one-half of the balance to the son James, and retain the other half himself. Then, he provided in 'another item his daughter Alice was to have the use of the farm implements and stock, and should she not desire to use them, they shall be sold to the son Michael Walsh, and the proceeds become a part of the trust fund. Then, his wife was to have the household goods. Now, doctor, what do you say as to a man in the condition I have already described to you in my previous question, having a sound and disposing mind and memory to such an extent as to enable him to make this will I have outlined to you ? ’ ’

This question was objected to by counsel for the defendant and the objection overruled, and exceptions taken, and the witness answered: “I think it is covered in my previous answer. It is impossible to have a sound and disposing mind and memory; it would apply to that as well.” The objection to this question •should have been sustained. It assumes too much, and the answer of Dr. Burke both to this question and to the question following, showing that he understood it, and that the question involved not necessarily the capacity of the party spoken of to make a will,, but that it would require, as the doctor put it, in answer on page 118 (bill of exceptions) “A wonderful mind.” He says on the same page, that to make such a will as that would require a better mind than the ordinary man possesses. A remarkably clever mind. It was not necessary that the defendants should show here that the decedent was a man of extraordinary mind or that he was competent in making a given kind of will so far as mental capacity was concerned; it was sufficient for them to show that he had such a mind and memory as the law makes sufficient for the disposition of his property by will. It is not to be supposed that this man, who was an uneducated man, or than any uneducated man would be able to express in proper terms just how he would want trust estates held, and plan it all out by means of various things that he might want done with his estate in the way of being held for parties during minority, or being held for charitable purposes for a time, or the like, and for that reason, lawyers are called on to do the writing for one’s will. It is true that if what they write does not express what the testator wants, it is not his will, but if he learns that the testator wants property held, as suggested in this question, that the income from a certain $3,000 should be paid annually to a daughter during the life of her husband, the income from the balance of such property to be paid to his wife during her natural life, and that he wanted Alice,. Carey to have the $3,000 if she outlived her husband, and the- like, then the words to be used to carry out these various desires of the testator might be the words of the lawyer who might be called upon to write the will. It may very well be that the testator did not know how to use the words. It may be very well said that he did not know just how trusts may be created, and the like, and as Dr. Burke very well says, it would require a remarkably clever man to properly express all these things But is it possible that a man of sound and .disposing memory, though not a remarkably clever man, is not competent to execute a valid will because he is not able for want of education and for want of knoweldge of the law to know how his wishes shall be carried out, and is thereby incompetent to make a will? We know of no authority for the proposition that an expert may be called upon to say whether one was competent to make a particular will. It is only a question of whether his mental capacity was such as the law requires for the making of a valid will, as has already been stated. The experience of the lawyers in courts justifies the saying that a will which simply provides ‘ ‘ I give and bequeath all of my property of every kind :and nature to my beloved son John,” is one likely to be other than the real will of the testator, as the most complicated will that one can think of.

Again, the court erred in its charge to the jury in the use of these words (the court was speaking of the effect of the order of the probate court, the incumbent of which was Judge ITadden, admitting this will to probate) :

“So that what Judge ITadden, as probate judge, did with this will is of no importance, except that by force of the statute it became prima facie evidence of the due attestation, execution and validity of the will, and cast the burden upon the eontestor of showing that it was invalid. Except for that, this case is heard anew, and you should not be influenced by what Judge Hadden did. Counsel may not have been present, and, if present, had no absolute right to be heard, whereas in the contest here, all- parties have a full right to be heard. The proceeding here is in the nature of an appeal from the order of the probate court, and all the material facts are produced, just as if Judge Hadden had not made such an order, except as the statute directs that such an order is, prima facie, evidence of the will’s due attestation, execution and validity, the burden being upon the contestants to invalidate it.”

This language is calculated to mislead the jury, for two reasons. He has said that what Judge Pladden did is of no importance. True, he follows that by saying:

“Except by force of the statute, it became prima facie evi-. denee of 'the due attestation, execution and validity of the will, and east the burden on the eontestor of showing that it was invalid * * * and you should not be influenced by what Judge Hadden did.”

Now that may be so analyzed as to mean that except establishing the fact that the burden of showing the invalidity of the writing as a will was upon the eontestor, the order of probate was of no account, or it may be construed to mean, and was very likely so construed by the jury, that the fact that the will had been admitted to probate was not to be considered by them as establishing any proposition. The danger that it may be so understood follows from the language “and you should not be influenced by what Judge Hadden did” and then the court goes on to give the reasons why they should not be influenced by what Judge Hadden did, and states that they should be influenced to the extent that such order made by the probate judge by force of the statute established prima facia evidence of the due attestation, execution and validity of this writing, as a will.

For error in the rulings on evidence, and because of the misleading character of the charge, in the words pointed out, the judgment of the court of common pleas-is reversed, and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    SALE OF A DREDGE AND DOCK COMPANY.
    Circuit Court of Cuyahoga County.
    Louis P. Smith v. Caleb E. Gowan; and Margaret K. Smith v. Caleb E. Gowan.
    Decided, February 14, 1911.

      Agent to Sell Can Not Exchange—Acquiescence of Principal—Corporations—Estoppel.

    1. Power to an agent or trustee to sell, does not authorize him to exchange, but acquiescence therein until the other party to the exchange has changed his position and the status quo can not be re-established estops the principal from taking advantage of this lack of power.
    2. Where all the stockholders in a corporation except the plaintiff have acquiesced in certain transactions, such conduct on the plaintiffs part as would estop him from maintaining an action for his own beneft, to have said transactions set aside, will estop him from maintaining such an action for the benefit of the corporation.

      II. L. Peeke and E. J. Pinney, for piaintifls.

      Squire, Sanders & Dempsey. Kline, Tolies <& Morley and Henderson, Quail & Siddall, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Each of these cases is based on the same state of facts, and each is brought to set aside a transfer of the property of the Cleveland Dredge & Dock Company to the Great Lakes Dredge & Dock 'Company, each of which is a corporation,. which transfer was made on or about the 30th of June, 1906. The plaintiff in each of these cases was a stockholder in the first named company; the plaintiff, Louis P. Smith, owning 48 per cent, of the stock, and the plaintiff, Margaret K. Smith, owning 1 per cent, of the stock. The balance of the stock was owned, 48 per cent, by J. A. Smith, a brother of the plaintiff, Louis P. Smith, and 1 per cent, by E. B. D. Smith, wife of said J. A. Smith, and 2 per cent, by James R. Sprankle, now deceased. Indeed, Sprankle was already dead at the time of this transfer and the 2 per cent. of the stock which he had owned constituted a part of his estate. The Cleveland Dredge & Dock Company was the outgrowth of a partnership which had before its organization existed between the plaintiff, Louis P. Smith, and his brother, James A. Smith. The corporation having been first organized as the L. P. & J. A. Smith Company and then by re-organization changed to the Cleveland Dredge & Dock Company, the two brothers being equally interested in said partnership. When the corporation was organized, in order to make the number of shareholders sufficient to constitute a board of directors, a share of the stock which was purchased by Louis P. was issued to his wife, Margaret K., and a share of the stock purchased by James A. was issued to his wife, E. B. D., and then two shares were issued to Sprankle, who was a brother-in-law of the Smiths. .

It is agreed on the trial that though each of these wives and Sprankle were genuine stockholder’s, they became such simply to qualify them to act as directors, so that the corporation might be legally organized. . The purchase of the stock by Louis P. and James A. Smith was made by the transfer of the property of the partnership formerly.existing between them to the corporation. Manifestly the issue of the stock, as it was issued to the two wives and to Sprankle, was that the two brothers should practically control the corporation, each having an equal interest therein. In 1905, or the early part of 1906, the Cleveland Dredge & Dock Company was in financial straits. Its creditors were consulted and the result finally was that the management of its affairs was put into the hands of a committee, agreed upon between the corporation and the creditors, and spoken of as the .creditors’ committee. This committee undertook to tide the company over its embarrassment, believing that its assets were sufficient to pay all its debts, and much more, provided its business could be carried on and its contracts then existing and partly performed could be completed; that this and the business it was likely to get would eventually pay all the debts and leave a good surplus for the stockholders.

On the 26th of March, .1906, a contract was signed transferring the control of the affairs of the Cleveland Dredge & Dock Company to this committee, and in terms authorizing the committee to sell the assets of the company, if it should deem it best.

The clause of said contract authorizing the sale is in these words:

‘ ‘ To give to said committee, which they hereby do, full authority and discretion with respect to the management of said company and the disposition of the assets of said company by sale, liquidaiion or otherwise, in such manner and at such price, as they may deem just and proper, at any time during the continuance of this agreement.”

The committee made the transfer of the property to the Great Lakes Dredge & Dock Company, as already stated, on or about the 30th of June, 1906, the Great Lakes Dredge & Dock Company undertaking to complete various contracts for the kind of work which was carried on by the Cleveland Dredge & Dock Company, and which it had paxtly performed, and upon which there had been earned a large amount of money which had been retained as a percentage until the completion of these contracts. Of course it was of great importance to the Cleveland Dredge & Dock Company that these contracts should be completed so that this retained percentage could be realized. The transfer however made by the committee to the Great Lakes Dredge & Dock Company was not made for money, but there was taken in exchange for these assets stock of the Great Lakes Dredge & Dock Company, which stock was issued to a trustee, who still holds it.

The purpose of each of the present actions is to set aside this transfer and for an accounting on the part of the Great Lakes Dredge & Dock Company and the several members of the creditors’ committee and the trustee. Without stopping to examine the terms of the contract of transfer we hold that the authoriy given to the committee to sell the assets of the Cleveland Dredge & Dock Company was not an authority to exchange its assets for any other property, except money or its equivalent. An authority to sell is not an authority to exchange. In support of this, attention is called to the case of City of Cleveland v. State Bank of Ohio, 16 Ohio St., 236. In this ease the court construed these words:

‘ ‘ To sell said shares of any part thereof at such time or times as to them may seem expedient for not less than their par value and to do whatsoever else may seem necessary to secure and advance the interest of the city in the premises.”

Commenting on these words the court said that such words did not authorize an exchange of the shares' of stock for other property.

Certainly the language here construed was as comprehensive as the words of the contract now under consideration, giving the creditors’ committee “full authority and discretion with respect to the management of said company and the disposition of the assets of said, company by sale, liquidation or otherwise, in such manner and at such price as they may deem just and proper.”

On the part of the defendants, however, it is urged that whatever rights the plaintiffs might have asserted, if they had acted with promptness upon learning that which had been done in the matter of this transfer, they are estopped from now asserting. As early as the 13th of July, 1906,. the plaintiffs knew of this; in any event, on the 25th day of July, 1906, L. P. Smith saw the contract between the committee and the Great Lakes Dredge & Dock Company and they did nothing until the 1st day of October, 1906, when Louis P. Smith made a protest against the action which had been taken, but suits were not brought until May 21, 1907.

In the meantime the Great Lakes Dredge & Dock Company had taken possession of the assets of the Cleveland Dredge & Dock Company, which consisted of some dredges, scows and other machinery and apparatus for dredging, building docks and the like along the lakes. It had made repairs on the property, had divided it, using it with other property of the same kind which belonged to it originally, and had gone on with the completion of the contracts, which, as already stated, had been partly performed by the Cleveland Dredge & Dock Company, expending large sums of money in the completion of such work and the making of such repairs, and in short had put itself in a very different position from that in which it was with reference to these assets when it first took possession of them, and had made it impossible to restore tbe status quo. There seems very little doubt that except for the claim that these plaintiffs are stockholders in a corporation and that whatever they may secure by virtue of these several suits would be for the benefit of the corporation, they would each be estopped from maintaining an action. In support of this, see The United States Rolling Stock Company v. The Atlantic & Great Western Railroad Company, 34 Ohio State, 450, and the authorities there cited.

But it is urged that estoppel which would be effective as against these plaintiffs, were they suing simply for an infringement of a personal right, can not be asserted to the prejudice of the corporation in which they are stockholders. A complete answer to this seems to be furnished by the fact that though the corporation is a legal entity any benefit which could come to it would be a benefit simply to its stockholders; that substantially all of its stock was owned by the two Smith Brothers; that James A. Smith and his wife are content with what has been done; that so far as appears no complaint is made by the representatives of the two shares of Sprankle stock; that there is nobody but these plaintiffs who couljl be benefitted by anything that could come to the corporation, who is not satisfied with the situation as it is—in fact practically nobody but the plaintiff, Louis P. Smith. It would, therefore, seem equitable and just that what would estop these plaintiffs if each was suing for an individual right should estop them from maintaining these suits. Tn the case of State, ex rel, v. The Standard Oil Company, 49 Ohio St., 137, the first paragraph of the syllabus reads:

“That a corporation is a legal entity, apart from the natural persons who compose it, is a mere fiction, introduced for convenience in the transaction of its business, and of those who do business with it; but like every other fiction of the law, when urged to an intent and purpose not within its reason and policy, may be disregarded.”

Practically each of these suits is brought to vindicate what Louis P. Smith regards as an infringement of his personal right. The amount of stock held by Margaret K. Smith is too insignificant to make the result of this litigation of substantial importance to her; and Lonis P. Smith should be treated in this action, notwithstanding there is technically a corporation’s rights sought to be vindicated, as suing for his individual benefit. So treating him, we hold that he is estopped from maintaining the action, and that which estops him estops Margaret K.' Smith in her action, and the result is that the petitions are dismissed.


text:
    SALE OF LANDS OF DECEDENT TO PAY DEBTS.
    Circuit Court of Cuyahoga County.
    William B. Beebe, Administrator de bonis non of the Estate of John Canda, Deceased, v. John A. Canda et al.
    Decided, February 14, 1911.

      Administrator—Action to Sell Lands Fraudulently Caused to he Conveyed.

    An administrator may bring his action in the common pleas court for the sale of lands to pay his decedent’s debts and include in such action lands to which the decedent never held title, but for which he paid and fraudulently caused to be conveyed to another with intent to defraud his creditors.

      Wm. B. Beebe, W. C. Rogers, J. W. Bowes and W. 8. Kerruish, for plaintiff in error. '

      Hart, Canfield ■& Croke and George C. Hansen, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   On the 12th day of September, 1907, John Canda, theretofore a resident of Cuyahoga county, Ohio, died intestate, leaving several heirs at law, all of whom are made defendants in this action. One of said heirs at law, viz, John A. Canda, who is a son of the said deceased, was appointed by the probate court of said county as administrator of said decedent’s estate; later he was removed from said administration, and thereafter the plaintiff was appointed by said probate court to complete such administration.

At the time of his death said John Canda was indebted to various persons, and there now remains unpaid, of such debts, on the aggregate of $3,000 or more. There are no personal assets of said estate available for the payment of any part of said debts, or the costs and expenses of the administration of the decedent’s estate.

Said decedent held legal title to no real estate at the time of his death, nor had he any equitable title to or interest in any real estate, which could have been maintained by him, or which can be maintained by his heirs at law.

The petition in this case describes three parcels of real estate, which it alleges were all purchased and paid for by the decedent, and by him caused to be conveyed to the parties now holding the legal title thereto. None of these parcels was conveyed by the defendant to the present holder of the legal title.

The petition further alleges that at the several times when these parcels were so purchased and paid for by the decedent he was largely in debt and that he purchased and paid for each of them, causing the title in each ease to be conveyed to another, for the purpose of concealing his assets and to hinder, delay and defraud his creditors.

The legal title to one of the parcels described in the petition is now in Mabel G-. Hill. As to such parcel we find no evidence that she did not pay for such parcel taking the title in good faith, 'and as against her the petition is dismissed.

The legal title to another parcel is in Joseph J. Ptak; this is described as being in Cleveland^ Cuyahoga county, Ohio, and consisting of sub-lots 377 and 378 in J. M. Hoyt’s allotment. This was conveyed to said Ptak by Barbara Canda, now deceased, who then held the legal title to said-premises by devise under the will of her deceased husband, Jan Canda, who obtained his title by deed from the said decedent, John Canda; such conveyance was made for the purpose of securing payment of money loaned by said Ptak to said John Canda which said money has been paid to said Ptak, so that he makes no claim to the ownership of said premises.

The said Barbara Canda left a will, which was duly probated, by which she bequeathed her property (except her home on Iona street, which she demises to John A. Canda and Edward Canda) to the defendant John A. Canda, so that as between the defendants Joseph J. Ptak and John A. Canda the latter is the owner of the said two lots.

The legal title to the other parcel of real estate described in the petition, viz.: 1 ‘ situate in Cleveland, Cuyahoga county, Ohio, and being the westerly 40 feet of sublot No. 8, in Bateman & Ingham’s allotment of part of original lot 56 of Brooklyn township” is in the defendant John A. Canda by deed to him from William T. Ingham and wife, dated April 6th, 1907.

Having earlier in this opinion disposed of the land standing in the name of Mabel G-. Hill and having shown that Joseph J. Ptak has nothing but the naked legal title to the two lots in the Hoyt allotment, we come to a consideration of the rights of the defendant John A. Canda in the two lots in the Hoyt allotment, and the 40 feet parcel in the Bateman and Ingham allotment.

We have given careful consideration to the evidence presented as to the property used in payment for these parcels.

We do not feel that it would be profitable to go into the details by which we reach the conclusion, which we do reach, that the evidence is clear and convincing that the Hoyt lots, when they were conveyed to Jan Canda by John Canda, were not paid for by said Jan Canda, from whom the legal title went by will to Barbara Canda, and from her to John A. Canda, by will, as hereinbefore stated.

Said John Canda was then in debt to such an extent that he made this conveyance for the purpose of concealing his assets and defrauding his creditors and this- conveyance being thus tainted with fraud, the title-derived by Barbara under the will of Jan, and the title derived by John A., under the will of Barbara, each is tainted with the same fraud, and therefore said premises are liable in a proper proceeding to be subjected to the payment of the debts which John owed at the time of his death.

We also reach the conclusion that the 40 foot parcel, being the first parcel described in the- petition, was purchased and paid for by said John Canda; that the building now on said last named premises was erected at the expense of said John Canda, except to the extent that money was furnished by the defendant, the Pearl Street Savings & Trust Company, for which it holds a good and valid mortgage; it follows that, subject to said mortgage, said last named premises are liable in a proper proceeding to be subjected to the payment of the debts owing by said John Canda at the time of his death.

That this is so, is established by the decision of Shorten v. Woodrow, 34 Ohio St., 645, where it is said in the second paragraph of the syllabus:

“An insolvent debtor purchased real estate and with the fraudulent intent to conceal from his creditors his interest or ownership therein caused the vendor to convey the premises to a third person, who at the debtor’s- request conveyed the same’to the latter’s wife.
“Held: That the wife in equity holds the legal title to the premises conveyed subject to the right of her husband’s- creditors to subject the same to the payment of their claims.”

This holding is made upon the well established principle of equity that a debtor will not be permitted by fraud to cover up or conceal his property in such wise as to prevent the application of it to the payment of his debts.

The question still remains whether the present action can effect the purpose of subjecting the property named in the petition, and now held, as hereinbefore pointed out. This question is not free from doubt, and has given us much difficulty.

The statutory authority as it existed at the ■ commencement of this action, under which the plaintiff would be authorized to sell real estate, for the payment of debts, and the method of-proceeding, is found in Section 6136, Revised Statutes, to and including Section 6166.

Section 6139 reads in part:

‘ ‘ The real estate liable to be sold as aforesaid, shall include all that the deceased may have conveyed with intent to defraud his creditors, and all other rights and interests in lands, tenements and hereditaments,” etc.

Section 6140 reads:

“If land is to be included in such action which has been so fraudulently conveyed, the executor or administrator may* either before or at tbe * * * same time bring an action for tbe recovery of the possession of such land; or he may in his action for the sale thereof allege the fraud and have the fraudulent conveyance avoided therein; but when such land is included in the application, before a recovery of the possession thereof the action shall be in the court of common pleas.”

The present action was begun in the court of common pleas, and though the theory of the plaintiff in his petition seems to be that it was under the "first authority given in the section, viz., an action for the recovery of the possession of the' lands described in the petition, we think the allegations are such that if a cause of action is stated for the recovery of the possession, they are sufficient to entitle the plaintiff to an order to sell, treating the action as brought under authority of the provision in the latter clause of the section in the words, “He may in his action for the sale thereof allege the fraud and have the fraudulent conveyance avoided therein.”

Applying this to the two lots in the Hoyt allotment, which we find were fraudulently conveyed by John Canda to his father Jan Canda, as Ptak makes no claim to them, avoiding the deed from John to Jan, brings this' land within the clear provisions of the statute authorizing the sale of the land fraudulently conveyed.

As to the other parcel, the forty feet on which the business block stands, and which was conveyed to John A. Canda by Ingham, it is manifest that the avoidance of this conveyance would leave the title in Ingham, as pointed out in the case of Shorten v. Woodrow, supra, and so the administrator would, be in no better position to give a good title than he was before the deed was avoided.

In the same case it it held that the statute there under consideration, which was the seventeenth section of the act then in force, regulating the mode of administering assignments in trust for the benefit of creditors, did not include the setting aside of deeds procured by an insolvent debtor, to be made by another than himself, to a grantee for the purpose of defrauding the creditors of the insolvent. That section provided “All transfers, conveyances or assignments made with intent to defraud, delay or hinder creditors, shall be declared void at the suit of any creditor,” etc. The court said in relation to this section, as appears on page 653 of the report, that:

‘ ‘ The conveyance which lays at the foundation of the proceeding, and upon which alone the statute was designed to operate, is the fraudulent conveyance of the debtor himself. It has no application to a conveyance made by a mere trustee of the legal title, although such conveyance is made at the instance of the cestui que trust, or beneficial owner.”

Section 4196, Revised Statutes, in force when this action was brought, provides that:

“Every gift, grant, or conveyance of lands, rents, goods or chattels, tenements, * * * and every bond, judgment or execution made or obtained with intent to defraud creditors of their just and lawful debts or damages * - * ■ * shall be deemed utterly void and of no effect.”

On the part of the defendant John A. Canda it is urged that the two statutes are so nearly alike that to hold that the former includes only conveyance of the debtor himself and does not include such as he procures to be made by another, must necessarily result in holding that the same is true under the last mentioned; but even if this be true it does not follow necessarily that Section 6139 providing that the land to be sold shall include ab that the deceased may have conveyed with intent to defraud his creditors and all other rights and interests in lands, coupled with the provisions of Section 6140 as to the way in which 'the action may be brought, may not include such as the deceased fraudulently caused to be conveyed by another person. The fact that the action is to be brought in the court of common pleas, having general equity jurisdiction, when the subjecting of land fraudulently conveyed is sought, whereas the action may be brought in the probate court, having no equity jurisdiction, is significant as tending to show that in one action all the equities may be determined to the end that without unnecessary litigation the administrator may be able to work out the rights of the creditors, as against those claiming undei any title tainted with fraud.

It is true that he who fraudulently conveys, or causes to be conveyed lands for the purpose of defrauding his creditors, has no longer any interest in such land which can be enforced by him, or after his death by his heirs at law, but to the extent of their claims his creditors have an interest in such lands which they can enforce, and there seems no good reason why their rights may not be worked out by an administrator.

In Bloomingdale v. Stein, 42 Ohio St., 168, it was held:

“A executed to B a promissory note and warrant of attorney< upon which judgment was rendered, and an execution haying’ been issued on the judgment, the sheriff levied the same on A’s goods. The note was without consideration and A was insolvent when it was executed. In doing and procuring to be done these various acts, both A and B concurred, and their object was to defraud A’s creditors: Held: That the acts were within the statute which provides that all transfers, conveyances or assignments made with intent to hinder, delay or defraud creditors, shall be declared void at the suit of any creditor.”

It will be noticed that this was before that statute included the words now found in Section 6343, viz: “And every judgment suffered by him, ’ ’ etc.

In the opinion prepared in this case by Judge Okey, at page 171, there is an intimation, at least, of doubt whether the holding in Shorten v. Woodrow is sound, but without saying that it is not, he' says, “We have no hesitancy however in saying that we would not be warranted in this case in placing any strict construction upon this remedial statutory provision. The law regards the thing which the debtor has done rather than the means by which he accomplished it; for if he has placed his property in the hands of another to defraud his creditors, the creditor is equally injured whether the transfer was effected by a formal instrument of writing by means of a fraudulent execution, or by some other device, and equity in either case, looking through the form to the substance of the transaction, will not hesitate to grant relief, in accordance with the evidence!, and the object and purpose of the statute.”

In the case of Doney v. Clark, 55 Ohio St., 294, Judge Shauck in his opinion, pp. 302 and 303 says:

“Nor can it be doubted that the powers of executors and administrators are such only as may be conferred upon them by statute. This, however, does not forbid the application of remedial statutes conferring such power of the familiar rule that to the extent which their language will permit statutes of that character are to- receive such construction as will accomplish the apparent object of the Legislature.”

Applying the principles announced in the cases to the case, before us, it would seem to result in holding that the administrator should be ordered to sell so much of said real estate as is nec- • essary to pay the decedent’s debts, and the cost of the administration.

The purpose of the two sections of the statute, 6139 and 6140, is plainly to enable the administrator to obtain in one action authority to convert into money such real estate as ought in equity to be applied to the payment of the debts of the decedent, instead of making it necessary for the creditor'to bring the action. And Section 6140 provides what shall be done when it is pecessary to go into equity to do it.

True, the express letter of the statute does not authorize the subjecting of the real estate, by the administrator, to the payment of debts, where the real estate was fraudulently procured to. be conveyed by the debtor, but we think the manifest purpose of the statute does include real estate so conveyed.

In the case of Donay v. Clark, supra, it was held that though the statute does not expressly authorize it, an administrator of an insolvent, estate may maintain an action against a fraudulent grantee of the decedent, for the value of the land fraudulently conveyed, where such grantee has conveyed the land to an innocent purchaser. This, not upon the proposition that such fraudulent grantee was indebted to his grantor, or that the heirs at law had any rights in the land or against' the grantee, but that good conscience requires that creditors shall not- be deprived of their rights by the concurrent fraudulent acts of the debtor and any other person.

We reach the conclusion, therefore, that the lands now standing in the name of Pt-ak and in the name of John A. Canda may be subjected in this action to the payment of the decedent’s debts.

It appearing that the lands in the name of Ptak will not sell for enough to pay all such debts- and the costs of administration, and that the lands now standing in the name of John A. Canda will probably sell for enough for this purpose, after paying off the mortgage of the Pearl Street Savings & Trust Company, the order will be to sell the last named premises,' and the case will be retained for the purpose of determining whether it will be necessary to sell any other property.


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    SALES OF STOCKS OF MERCHANDISE OTHERWISE THAN IN THE COURSE OF TRADE.
    Circuit Court of Stark County.
    The Canton Electric Company v. Ernest Guirlinger, The Merchants Commission Company and Frank Sage.
    Decided, February 21, 1910.

      Sale of Merchandise in Bulk—Exempt Property.

    A sale of merchandise in bulk contrary to the provisions of Section 6343, Revised Statutes, as amended April 30, 1908 (99 O. D., 241), is void as to creditors of the vendor, notwithstanding all the property sold might have been claimed as exempt by the vendor.

      Lynch & Day, for plaintiff in error.

      Ed L. Smith, contra.
    Marvin, J.; Taggart, J., and Donahue, J., concur.
   Guirlinger had a small business establishment in Canton in which he sold at. retail, confectionery, fruit, ice cream and the like. The Merchants Commission Company carried on a wholesale-business, selling fruit and other commodities, such as Guirlinger sold at retail. Sage carried on a retail business at Canton, and he was also one of the directors of the Merchants Commission Company. Guirlinger became indebted to various parties, including the Merchants Commission Company, the plaintiff in this action. He was a husband living with his wife; was a resident of the state of Ohio, and was not the owner of any homestead or any property other than the goods and fixtures in his place of business, already mentioned.

In September, 1908, Guirlinger was indebted to the commission company in the sum of about $350. This was for goods which he had purchased from time tó time from the company, and though he paid along from time to time, his indebtedness continually grew. That is, his payments for the year preceding the month of September, 1908, had been less than his purchases, so that his account ivas steadily growing.' The company frequently called upon him for payments which they ought to get, and called his attention to the fact that his debt to them was increasing all the time. To this he answered on several occasions, that “whatever happens to me, you shall be paid.” In September, 1908, he went to Mr. Wachter, secretary, treasurer and manager of the Merchants Commission Company, and.said to him, “I am all in.” and he proposed to pay the company his debt to it by turning over all the merchandise and fixtures in his little store. An attachment had already been levied by another creditor of Guirlinger on this property for the sum of $75 and thereupon Wachter, acting for the company, paid the attachment creditor his $75 and took all the merchandise and fixtures in Guirlinger’s store in payment of his indebtedness to the company, together with this attachment debt.

The plaintiff was at the time of this sale a creditor of Guirlinger’s, and in October, 1908, took judgment against him for the amount of its claim, and issued execution, which was returned “no"goods. ” The Merchants Commission Company subsequently went into the hands of a receiver, and the plaintiff seeks to have the sale by Guirlinger to the commission company treated as void, and to have his claim paid out of the property which Guirlinger sold to the commission company. On the day after Guirlinger sold to the commission company, it sold all of the goods which it purchased from Guirlinger to the defendant, Prank Sage, and he paid in money the full value of the goods. The plaintiff seeks to have the sale by Guirlinger to the commission company and by it to Sage, declared void, and to have judgment against each for its pro rata share of the value of the goods which had belonged to Guirlinger. The suit is brought under favor of Section 6343 of the Revised Statutes of Ohio, as amended April 30, 1908 (99 O. L., 241), and the petition avers facts which are set out in the third paragraph of that section, on page 242, that is, that the sale was not made in the ordinary course of trade in the regular and usual prosecution of the seller’s or transferer’s business; that the sale or transfer was of'an entire stock in bulk, and therefore, in the language of the statute the sale must “be presumed to be made with the intent to hinder, delay or defraud creditors within the meaning of the section, unless the seller or transferer shall, not less than seven days previous to the transfer of the stock of goods sold or intended to be sold, and the payment of the money therefor, cause to be recorded in the office of the county recorder of the county in which such seller or transferer conducts his business, notice of his intention to make such sale. ’ ’

No such notice was given in this ease. Attention is called to this because it is urged here that the general creditors of Guirlinger suffered nothing by reason of this sale, because it is said that since he was a resident of Ohio, a husband living with his wife, and not the owner of any home or indeed of any other property, none of his creditors could have received any payment out of this property, because he could have claimed it all as exempt from execution, and that if he chose to waive that right in favor of his creditor, the commission company, there was no prejudice to any other of his creditors. Attention is called to this also, because the language is, “Every sale or transfer of any portion of a stock of goods, wares or merchandise, otherwise than in the ordinary course of trade,” etc., whereas the greater, part of the property sold to the commission company was the fixtures. But we think whatever may be said as to this paragraph of the section, the first paragraph of the section authorizes the plaintiff to have the. relief, as against the commission company, sought in this action. This reads:

“Every sale, conveyance, transfer, mortgage or assignment, made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them against himself or themselves in contemplation of insolvency and with a desire to prefer one or more creditors to the exclusion iu whole or in part of others,’ shall be declared void as to creditors of such debtor or debtors at the suit of any creditor or creditors,” etc.

It will be noticed that the transferring of property mentioned in this paragraph is not in any wise affected by the fact that the debtor transfers property to his creditor which he might have claimed as exempt from execution.

The second paragraph provides in these words:

“Provided however, that the provisions of this section shall not apply unless the person or persons to whom such sale, conveyance, transfer, mortgage or assignment be made, knew of such fraudulent intent on the part of such debtor or debtors,” etc.

We hold that the commission company when it accepted this property in payment of its claim against G-uirlinger, knew of his insolvency, and knew it from the facts which have already been stated in this opinion, and therefore, the sale to it was void as against -the other creditors of Guirlinger. The sale by the commission company to Sage was not in payment of any antecedent debt owing to him by anybody. ITe paid all that the property was worth and is entitled to hold it. The value of the property is held to be the amount which Guirlinger owed to the commission company at the time of the sale of it, and a decree will be entered for an accounting by the commission company, or its receiver, of this amount and the payment to the plaintiff of its pro rata part thereof.


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    INJURY TO PEDESTRIAN ON A DEFECTIVE WALK.
    Court of Appeals for Hamilton County.
    Mary E. Mooney v. Louis J. Hauck.
    Decided, July 16, 1913.

      Abutting Owner—Liability of, for Defective Covering Over Areaway , ■Beneath Sidewalk—Question as to Existence of a Nuisance Resulting Therefrom One for the Jury.

    The abmcing owner becomes liable to a pedestrian who is injured by a fall' caused by a defective covering of an areaway beneath the sidewalk, notwithstanding the statutory duty of the municipality to keep sidewalks in repair, and the question whether the defect in a particular instance was of such a character as to become á nuisance is one which should be submitted to the jury.

      Otis II-. Fish and Sanford Broiun, for plaintiff in error.

      Ilarmon, Colston, Goldsmith & Iloadly and Oscar Stoehr, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. IT., J., concur.
   The action below was for damages resulting from' injuries suffered by reason of a fall caused by a defect in a sidewalk, while plaintiff was walking thereon. It was brought against the owner of the prenrses abutting upon the defective sidewalk. The defects alleged consisted of an open areaway constructed and used in connection with the house of the defendant extending into the sidewalk about three or four feet and along the front four or five feet, the covering of which areaway was iron or metal containing, many round openings two or three inches in diameter, made for the purpose of being covered or filled with pieces of glass commonly called bulls-eyes; and said covering was defective and unsafe in that many of said openings or perforations were not closed up, filled or covered but were open and unprotected. Plaintiff alleged that while exercising due care as a pedestrian she stepped upon such covering whereupon the heel of one of her shoes caught in one of said unprotected openings and caused her to fall and fracture her ankle. She charges negligence against the defendant in creating and permitting said defect, in permitting, said openings to remain open and so maintaining them in this defective condition, and charges knowledge of said defendant concerning such condition, or that by the exercise of due and ordinary care and diligence on his part defendant could or would have known of said defect in time to have had same repaired and thereby avoided injuries to the plaintiff.

Defendant demurred to the amended petition, and the court below sustained said demurrer, ánd the final judgment was entered in favor of the defendant. Defendant insists that the primary duty of keeping streets and sidewalks in proper repair and condition rests upon the city and not upon the owner of abutting property, and that therefore the demurrer was properly sustained. Elaborate and exhaustive briefs have been filed by each side, in addition to the full oral argument that was made to the court, but it is not deemed necessary by the- court to discuss the numerous authorities set out by each side. The case of Morris v. Woodburn, 57 O. S., 330, seems to cover the principle of the case at bar. The syllabus is as follows:

‘ ‘ If the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statnte to keep the street in repair.”

In the opinion of the court, Shauek, J., uses the following language: Chicago v. Robbins, 2 Black, 418; same v. same, 4 Wall., 657; Rochester v. Campbell, 123 N. Y., 405.”

“But while the tort of .the city consisted in the failure to discharge a duty imposed by statute, that alleged in the amended petition against Mrs. Morris consisted in the creation of a nuisance, dangerous to those using the walk. These are concurrent and related torts, but they are not point. In view of their independent character, the plaintiff might, at her election, maintain her action against either the city for its omission of duty, or against Mrs. Morris for the creation of the nuisance which occasioned her injury. And it appears from reason and authority that the primary liability in such case is upon him who actively creates the nuisance; so that if a recovery were had against the city it might in turn recover from 'the perpetrator of the wrong.

It is urged by counsel for defendant however that the principle of this case is limited to an act of commission on the part of the owner; that the allegation must appear in the petition directly charging the property owner with the defective construction of something that becomes a nuisance, in addition to its continued maintenance. We' do not think that the language is to be so narrowed as is contended for, but that where the original construction might have been without fault, if it should be allowed by reason of accident or non-repair to become a nuisance, such failure to repair might itself become the creation of a nuisance and come within the terms of the above case.

The question raised by the petition is one of fact, and should have been submited to a jury in accordance with the principles laid down in the recent case of Gibbs v. Girard, to appear in 88 O. S. (now found in Vol. 11 Ohio Law Reporter of July 7, 1913). The demurrer to the amended petition below should have been overruled.

The judgment is therefore set aside, and the cause remanded for further proceedings.


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    PROVISION FOR SALES OF MERCHANDISE COVERED BY MORTGAGE.
    Circuit Court of Stark County.
    Assignee of J. R. Smith v. O. C. Volkmore.
    Decided, February 21, 1910.

      Mortgage of Goods With Right to Sell Reserved by Mortgagor, and Accounting for Proceeds to Mortgagee—Conduct of Parties.

    1. A provision in a chattel mortgage on a stock of merchandise that the mortgagor may make sale of the merchandise in the usual way, making an accounting of such sales to the mortgagee at the end of thirty days, intends that at the accounting the mortgagor shall pay over the proceeds of the sales to the mortgagee, and brings the mortgage within the first paragraph of the syllabus of the case of Kleine et al v. Katzenberger & Co., 20 O. S., 111.
    2. Notwithstanding such provision in a mortgage of merchandise, it will be considered void as against creditors of the mortgagor, if the circumstances and conduct of the parties shows that such accounting was never acted upon by the parties, or intended to be acted upon.

      D. F. JReinohl, for plaintiff in error.

      J. IF. Albaugh, contra.
    Marvin, J.; Taggart, X, and Donahue, J., concur.
   The facts in this case are briefly as follows: Smith was a merchant doing a small retail business in this county. On the 10th day of December, 1903, he borrowed from Volkmore, $115; on the 6th day of March, 1906, he borrowed the further' sum of $274 from Volkmore; on the 20th day of March, 1906, he borrowed the further sum of $245.29; on the 3d day of April, 1906, he borrowed the further sum of $275 from Volkmore, and on the 12th day of May, 1906, the sum of $342. For each of these several loans he gave to Volkmore his promissory note at the time of the loan, to secure the payment df which at the time of the giving of the first note he executed a chattel mortgage on his stock of merchandise and the fixtures in his store. Tn this first mortgage it was provided that Smith might go on with the sale of the merchandise in the usual way, making an accounting of such sales to Volkmore at the end of thirty days. Upon the giving of each of the other notes, he executed and gave to Volkmore a chattel mortgage on the stock of merchandise, and each contained the provision that.Smith might continue to sell the merchandise in the usual way, making an accounting to Volkmore at the end of sixty days. Nothing was ever pain upon either of the notes, nor was any accounting ever made by Smith to Volkmore of his sales. Smith continued to do business and sell goods- from his store in the usual way, up to the 19th day of May, 1906, when he made a general assignment for' the benefit of his creditors in the probate court of this county. Volkmore made an application in the probate court for an order upon the assignee to pay him out of the avails of the sale of the property, so assigned, the amount of his several claims, and the court refused to make the order. Thereupon, the case was appealed to the court of common pleas. The result of the trial in that court was an order on the assignee to pay to Volkmore the amount of his several claims, as evidenced by the promissory notes, already mentioned. To this order error is prosecuted here.

On the part of the plaintiff in error it is urged that each of these several chattel mortgages, expressly giving to Smith authority to go on in the usual way and sell the merchandise covered by the mortgage, renders the mortgage void. The general proposition that a chattel mortgage executed upon a stock of merchandise, where the mortgagor is permitted to retain possession-of the mortgaged goods and sell the same in the usual course of business, is void, is admitted by the defendant in error, and indeed is so well established by the authorities, that it could not with any force be denied. But it is urged that the provision contained in each of these mortgages that the mortgagor shall account to the mortgagee at a fixed time in each ease, takes these mortgages out of the general rule.

So far as Ohio authorities are concerned, the ease of Kleine, Hegger & Co. v. L. Katzenberger & Co., 20 Ohio St., Ill., is relied upon.

The syllabus in that case reads:

“1 A stipulation in a mortgage of goods, that the mortgagor shall retain possession and sell the goods in the usual retail way, paying over the money received therefor to the mortgagee, as the goods are sold, does not render the mortgage, per se, fraudulent and void as against other creditors of the mortgagor. The question of good faith arising upon such stipulation is one of fact, for the determination of the jury.
“2. The true rule is that a chattel mortgage, which reserves to the mortgagor possession, with a power of disposition for Ms own benefit, is void. This latter qualification must be inserted in the previous cases.”

This proposition is not denied by the plaintiff in error, but on his behalf it is urged that the facts here show that it was not the understanding between the mortgagor and the mortgagee that the mortgagor should continue to sell the mortgaged goods and account for such .sales to the mortgagee and pay over to him the avails of such sales at stated time. Indeed, it is urged in argument, that the language used in the stipulation as to accounting, does not include the paying over 'the money, arising from the sales to the mortgagee.

If this contention is - sound, it results that, applying the law as announced in the ease just cited, these mortgages are void. But we think a more liberal construction may be given to the words used in the stipulation, and hold that in and" of themselves they would constitute a provision that would require of the mortgagor not only to render a statement of his sales to the mortgagee, but to pay over to liim the avails of such sales; that all this might fairly be included in a provision that he should account to the mortgagee for such sales. But from the conduct of the parties in this' case we may well infer that neither of them understood that the latter was the construction put upon the contract by. them. The first mortgage was dated in 1903. No accounting in any sense was ever made under this contract, either by report of sales or by paying over any avails, although the business was continued by the mortgagor for two and a half years or thereabouts, after the execution of the mortgage.

It is urged as a reason why no accounting was ever insisted upon under this mortgage, that it covered not only the merchandise but the store fixtures as well, and that such store fixtures were practically sufficient to secure the indebtedness which this mortgage was given to secure, and that as the fixtures were not to be sold, the mortgagee might safely rely upon his security upon such fixtures, and so safely waive the provision for accounting. As to the others, it is urged that the sixty days had not elapsed between the giving of the last three mortgages and the time of the general assignment; that as to the giving of the mortgage of March 6, 1906, and the time of the general assignment, but little more than sixty days had elapsed, and that the defendant in error called upon Smith several times to make an accounting on that mortgage, but was put off by the statement that he would make such accounting shortly, but was too busy .just at the time required by the terms of the contract.

If the mortgagee in good faith intended that the avails of the sale of these goods should be paid to him, it seems very extraordinary that even though sixty days had not elapsed after the giving of the mortgage of March 6, 1906, when he made the loan on March 20, 1906, he should not then have insisted that what had up to that time been received from- sales made between the 6th and the 20th of March should be used as a part of the loan of March 20th, 1906. lie says that at the time of each loan Smith said to him that he must have the money to pay for merchandise which he had in the store. Smith had no right to use any of the money received from the sale of merchandise for the payment of debts other than to this mortgagee, if the avails of the sales were to go to the mortgagee, and so the natural thing for the mortgagee to have done on the 20th of March, when Smith applied for the loan on that date, was to require of him (Smith) to take what money'he had received, and then loan to him such an amount, in addition to that, as would pay the $245.29 of indebtedness, which he said he needed to borrow to pay for merchandise. This same reasoning applies equally to the loan made on the 3d of April, 1906, and applies with much greater force to the loan made on the 12th of May, 1906, because at the time of this last loan, an accounting was due under the terms of the contract for the loan made on March 6, 1906, more than sixty.days having elapsed between these two dates. If Volkmore understood that all the avails of the sale of the goods made after the giving of the mortgage of March 6, were to be applied in payment of the debt secured by that mortgage, it is incredible that he should have loaned Smith $342 after the time when that money was to be paid over to him, without requiring that whatever money had been received for sales should be used as a part of this loan. We regard the conduct of Volkmore as completely negativing the idea that it was the intention of the parties that the avails of the sales should be used in the payment of the notes secured by these several mortgages, and that, therefore,' we must hold Smith not only was noi required, but that it was never understood between the parties that he should be required to keep the avails of the sales made by him of these mortgaged goods, to be used for the one purpose of paying off the mortgage debt.

It is said that the amount of business done by Smith was very small; that the amount of money received by him, as he stated to Volkmore, for goods sold, was but a little. It is said further, that all of the money received on these several loans was used by Smith in the payment of debts for this merchandise, but that Volkmore was so informed by Smith at the time of the several loans. Volkmore must have known that it required some money for Smith to support himself and family, and that it must have required some money for Smith to carry on the business, and that if he used all the money that Volkmore loaned to him each time to pay debts npon this merchandise, he must have used some of the money that he received on the sale of the goods for his support and the carrying on of the business. Especially must Volkmore have so understood when Smith reported to him as he says, at each time when he made a loan, that.the money received on such loan would pay the debts which he owed, outside of the debt to Volkmore, and then 'when he came to make another loan, reported that he found he owed other debts which he had overlooked. It will be noticed that he borrowed a larger amount on the 3d of April than he had borrowed at any one time before then and that the loan of May 12 was considerably in excess of the loan of April 3d.

We reach the conclusion that neither of the parties understood in good faith that the avails of the sales would be devoted strictly and entirely to the payment of the debts undertaken .to be secured by these several mortgages, and that therefore, as against the other creditors of Smith, each of the mortgages is null and void, with the exception of the first mortgage covering the fixtures in the store, and that is sustained, to the extent of the avails of the sale by the assignee of the property, included in that mortgage, other than merchandise; and except to this extent, the judgment of the court of common pleas is reversed.


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    ALIMONY TO WIFE WHERE BOTH PARTIES WERE BLAMEWORTHY.
    Circuit Court of Stark County.
    Vasti A. Carr v. William A. Carr.
    Decided, February 21, 1910.

      Alimony—Separation on Account of Ill-Treatment—Both Parties to Blame.

    Small alimony will be decreed a wife on the ground of “separation in consequence of ill-treatment on tbe part of the husband” where it appears that ill-treatment on her part equals his.

      William Roach, for plaintiff in error.

      Craine & Snyder, contra.
    Marvin, J.; Taggart, J., and Donahue, J., concur.
   The parties to this action are husband and wife. The plaintiff sues for alimony only, and relies upon certain ill-treatment which she says she has received from the husband, as her cause of action. The action is brought under Section 5702, Revised Statutes, subdivision 4, which reads in part as follows:

‘ ‘ That there is a separation in consequence of ill-treatment on the part of the husband.”

The parties were married, in June, 1892. Ten children have been born of this marriage, six of whom are still living, four having died. Five of these children were born within the first three years and three months of the marriage. The children now living are: Elizabeth, 17 years old; Mary, 18 years old, and the four younger ones aged respectively, 11, 10, 7 and 6 years. The plaintiff is a better woman than her husband thinks she is, but not as. good, and certainly not as good a wife as she thinks she is. The defendant is a better man than the plaintiff thinks he is, but not as good a man as he thinks he is. The statement already made as to the birth of children in this family shows that this plaintiff has a great burden upon her, in the matter of bearing and caring for children. Not on that account, however, should her husband be censured, but attention is called to it as showing that in the condition in which she must have been the greater part of the time from the date of the marriage \rp to six years ago, she was entitled to tender treatment on the part of her husband. This large family also put a heavy burden on the husband, for which the wife is not to be blamed; but he is a man of small means and of course it was a burden to him; one which it was his duty to bear and bear patiently, to care for this large family. The parties have lived on a small farm of about thirty-eight acres, and of course close economy and untiring industry would be necessary on the part of each to care for this family. Each seems to have been rendered exceedingly irritable by the conduct of the other, and undoubtedly that was accelerated by the burden placed upon each. We listened to the testimony of those acquainted with the parties, and from it we have no doubt that the husband many times used profane language when talking to his wife, and unreasonably blamed her for things which she ought not to have been blamed. We think she makes a sufficient case to show ill-treatment such as- would entitle her to some alimony. But we can not overlook the fact that she sometimes used abusive language to her husband and that she said unseemly things to him in the prsence of their children, The two' older children, Elizabeth and Mary, are witnesses. Their appearance on the witness stand was such as to produce on the part of the members of the court a high opinion of their intelligence and of their desire to be entirely truthful. Each of these girls says (and we think the whole evidence shows it) that this family can not get on together, and that the absence of the mother from home has made it happier and pleasanter. That the household is fully as well cared for without the presence of the mother as with it, is also shown; indeed, from what the witnesses say, we are inclined to the opinion that the cleanliness of the persons and clothing of the children, and the keeping of their clothing in repair, making them look suitable for school, etc., is improved by the absence of the mother. She left her husband’s home on the 5th of January, 1909. She has been back to see the children four times; twice before the ease was tried in the court of common pleas, and twice since. It is iirged that she should be given the custody of at least the two younger children, because of1 her affection for them. She undoubtedly loves all of them, but situated as she is, we very much doubt whether .even the youngest of the children would be as well off with her as she will be remaining with the father. And the plaintiff does not seem to have worried very much about it, considering that she has been but a few miles from them,-and has made no greater effort to see them than she has. She left home several years ago for some cause unexplained to us, leaving a baby less than two years old, and was gone two months, evidently making no effort to see the children. We have the feeling that she ought not to have their custody at present, and the order of the court will be that the custody of the children shall remain in the defendant.

The defendant has a farm worth probably about $3,500; he owns a lot in the city of Alliance, worth probably $500. There is a mortgage on this farm for $2,200 and he owes other debts amounting to about $800. ITe will have a hard struggle to support this family and keep up the interest an his indebtedness. It will be hard for him to raise money to pay alimony. The plaintiff is not in first rate health, but she is a woman of some education. She is shown to have been a successful teacher prior to her marriage, and it is probable that she may still obtain employment as a teacher and be able to comfortábly support herself.

The order of the-court will be that the custody of the children shall be in the defendant, and that he shall pay to the plaintiff on or before the first day of April, 1910, the sum of one hundred dollars, and that on or before the 1st of April, 1911, another one hundred dollars, with interest thereon from the first day of April, 1910, until such payment is made, and that on or before the first day of April, 1912, he>shall pay another hundred dollars with interest from the first day of April, 1910, until such payment is made. This to be in full of alimony. This amount is small, because from the amount of property and the family which the defendant has to support, it must necessarily be small, and furthermore, because the plaintiff still has her inchoate right of dower in all of his real estate, except to the extent that she may have deeded it away by the execution of the mortgage already mentioned.


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    CHANGE OF CAUSE OF ACTION ON APPEAL.
    Circuit Court of Stark County.
    The Alliance Monumental Company v. S. Ellen Wells, Administrator of the Estate of S. Peter Wells, Deceased.
    Decided, February 21, 1910.

      Jurisdiction on Appeal from Justice—Different Gause of Action—Stated in Petition—Petition Stricken from Files.

    Plaintiff sued before a justice of tbe peace for tbe agreed price of a monument sold and delivered to the defendant at her request; on appeal be filed a petition setting forth a contract between the parties for the monument, alleging that the defendant repudiated the contract and ordered work upon the monument to be stopped, which was done, and claiming damages for the breach of the contract. Held:

    The cause of action stated in the petition in the common pleas court varied so from the cause action stated in tbe bill of particulars filed with the justice, that the common pleas court was justified in striking said petition from the files.

      John W. Craine, for plaintiff in error.

      David Fording, contra.
    Marvin, J.; Taggart, J., and Donai-iue, J., concur.
   The parties here are as they were in the court below. The plaintiff brought a suit against the defendant before a justice of the peace, setting out in his bill of particulars that the plaintiff had sold and delivered to the defendant, at her request, a certain monument, at the agreed price of $220. Before the justice of peace the plaintiff recovered. The casé was .then appealed by the defendant to the court of common pleas, and the plaintiff filed a petition, setting out that the defendant entered into a contract with the plaintiff, wherein the plaintiff undertook to erect at the grave of the deceased, a monument for $220. That before the monument was completed the defendant repudiated the contract and ordered work to be stopped upon the monument, which was done; that the plaintiff had expended in labor and material upon the monument the sum of $210; that such labor and materials were of no value, except the monument should be accepted, and it prayed judgment for the sum of $210. On motion of the defendant the petition was stricken from the files. The plaintiff then moved for leave to file this same petition, which was refused, and then, the court ■ ordered (the plaintiff, not offering to file any other petition) that the cause be dismissed at the costs of the plaintiff. The ground upon which the court acted was, that the petition set out a different cause of action from that set out in the bill of particulars before the justice of the peace. There was no error in this action of the court. This is supported by numerous decisions.

Attention is called to the case of Nicholas v. Poulson, 6th Ohio Reports, 306. In this case attention is called to the fact that when an appeal is taken from a justice of the peace “the justice shall transmit the bill of particulars,” etc.; this provision is still contained in the statute, and the court in discussing it, uses this language on page 308:

“Inquiry may. well be made for what purpose is this bill of particulars required to be certified to the common pleas unless the plaintiff is to be confined to it on the trial? The law does not intend to compel the -performance of a vain, idle or foolish thing, and this would certainly be such if the plaintiff was not confined to it by the trial in the court of common pleas. The object of this 'statute was undoubtedly to confine the plaintiff to the same cause of action on the appeal that he litigated below and- there is reason in this construction. It puts it out of the power of the plaintiff to commence his suit for one cause of action before the justice, and to entrap a defendant by proving another, as he might, in the common pleas, under a declaration containing the common counts in assumpsit, or in almost any other form of action.”

In the case of McCoy v. Thompson, found on page 649 of Wright’s Reports, the court says, after calling attention to the fact that the statute requires that the transcript be certified up with the appeal, where an appeal is taken from the decision of a justice of the peace:

“Why require the justice to send up the bill with the other papers when the case is appealed, if not intended to be used when sent up? What other use could be made of it. than to confine the evidence to it at the trial?”

In the ease of Van Dyke v. Rule, 49 Ohio St., 530, the second paragraph of the syllabus reads:

“Where an action begun before a justice of the peace is appealed to the court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the 'jurisdiction of the justice of the peace, though it is within the original jurisdiction of the court of common pleas, unless the defendant consents to the substitution, or waives, his right to object to the action of the court.”

This language, taken by itself, might apply to the amendment which stated a cause of action other than that set out in the bill of particulars, where by such change the cause is made one in which the justice of the peace did not have jurisdiction. But in the opinion, at page 535, it is said, “And it is equally certain that the appeal confers on the appellate court jurisdiction only of the cause of action appealed,” showing that the reason why a change may not be made is that it is only the case which was tried before the justice which can be tried on the appeal.

In the case now under consideration the cause of action stated in the petition was wholly different from that set out in the bill of particulars. Before the justice the action was upon a contract which the plaintiff said existed between the parties, and which, on its part, had been completed. That set out in the petition filed in the court of common pleas was a denial of the claim made in the bill of particulars that the contract had been completed.

Before the justice of the peace the plaintiff, in order to 'recover, must have shown that he performed all that by the terms of the contract was required to.be performed; whereas, if his cause had been tried upon the petition, it would have been required to show that it never did complete the contract; that the defendant wrongfully prevented it from completing the contract. The suit before the justice was for liquidated damages, an. amount fixed by contract between the parties. The petition claimed judgment for unliquidated damages, growing out of the repudiation of the contract by the defendant. The evidence necessary to establish the action before the justice would have defeated the action brought in the court of common pleas. The evidence necessary to sustain the petition would have defeated the action brought before the justice. The departure was a substantial one, and the court below was right in refusing to allow' such petition to be filed and was right in dismissing the action at the costs of the plaintiff, and the judgment is affirmed.


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    VALIDITY OF ORDINANCE APPROVED BY VICE-MAYOR.
    Circuit Court of Lorain County.
    Harry A. Pounds v. City of Elyria.
    Decided, April 29, 1910.

      Municipal Ordinances—Veto of Mayor—Approval of Vice-Mayor.

    An ordinance of a municipality which the mayor thereof vetoes and returns to the council before its next session, is not rendered valid by the approval of the vice-mayor and his signature to it, given in the interim on a day when the mayor is temporarily absent from the city.
    If. A. Pounds and P. E. Boynton, for plaintiff in error.

      E. A. Pounds, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Suit was brought by Pounds, as solicitor, on behalf of the city of Elyria, at the request of a tax-payer. The purpose of the suit is to enjoin the city authorities from paying certain officers of the city salaries to which these several officers claim to be entitled. Unless restrained by order of the court the city authorities will pay the salaries, it is claimed on the part of the plaintiff, to several officers to which salaries it is claimed the several officers are not entitled.

The whole question depends upon the validity of an ordinance passed by the council of the city of Elyria on the 14th day of December, 1909, fixing the salaries of these several officers. If that ordinance is valid, the petition in this case must be dismissed. If invalid, the injunction must be granted. On the date last mentioned, one David S. Troxel was mayor of the city of Elyria, and F. N. Smith the president of the council of said city. On the evening of that date the ordinance referred to was passed.

The statute in force at the time provides that:

“Every ordinance or resolution of council shall, before it goes into effect, be presented to the mayor for approval, the mayor, if he approves the same, shall sign it, and return it forthwith to council; but if he does not approve it, he shall, within ten days after its passage or adoption, return the same with his objections to council, or, if council is not in session, return it to the next regular meeting thereof, which objections council shall cause to be entered upon its journal.”

Another section of the statute in force at the time reads:

. '“When a mayor is absent from the city, or is unable for any cause to perform his duties, the president of council shall be the acting mayor.”

The council having passed the ordinance, as already stated, on the evening of the 14th of December, !909, it was left with the clerk, or deputy clerk of the city, in the clerk’s office, and on the morning of the 15th of December the mayor’s attention was called to it by the clerk or deputy clerk. He took no action whatever in regard to the 'matter at that time except to say that he would look into the matter. On the next day, the 16th of December, the mayor went to Cleveland in the.earty part of the day and returned home to Elyria in the evening, after business hours. Before the next meeting of the council, which wTas the 21st of December, the mayor had prepared a message vetoing the ordinance, which was sent to the council and read at its meeting on the 23st of December. Meanwhile, however, on the 16th of December while the mayor was in Cleveland, the president of the council had signed this ordinance, approving it, claiming to act under the statute as mayor, the mayor being absent from the city: If the action of the president of the council in signing this ordinance, as approved by him, constitutes it a valid ordinance, the affairs of the several municipalities in this state are in a most remarkable situation, and are very little, if any, protected in any wise by any vetoing power conferred upon the mayor. In the city of Akron the present mayor has a summer residence where he spends with his family, probably half of the year, some five miles out of the city. An electric railway passes his country home, which affords him means of going between the city and such home every thirty or forty minutes, but still, while he is at that home he is outside the city, and if it is to be held that the moment the mayor is outside of the city limits the president of the council, or vice-mayor, as we call him, can act, all that it is necessary at Akron for the vice-mayor to do, if he knows that his views and those of the mayor do not correspond, is to watch until the mayor shall get beyond the boundary line of the municipality and then approve an ordinance which has been passed, and which he knows the mayor intends to veto. Indeed, if the claim of the defendant here is sound, the mayor might have prepared a veto message on the 15th ready to be delivered to the council; the vice-mayor might have known that such a message was already prepared and would be presented to the council at its next meeting, and yet he might, by simply signing his name to this ordinance, make it valid. The claim is unsound. It is not a fair construction of the statute which provides that the president of the council shall be the acting mayor when the mayor is absent from the city, nor to say that this means that every time the mayor gets outside of the lines of the municipality the vice-mayor may at once take up the duties of the mayor and perform them without reference to what length of time the mayor is expected to be absent. It is true that the mayor was absent when this ordinance was signed. It is equally true that neither the vice-mayor nor the city clerk nor anyone else had a right to suppose that he would be absent beyond the evening of that day, the 16th of December, and it is absurd to say that the Legislature intended that in a temporary absence like that and on a matter that the mayor had a week in which to act, the vice-mayor might take it up and act on it and thereby prevent any action of the mayor from having any effect on the legislation. The reason given in the argument for the hurry of having this ordinance approved docs not commend itself to the court. It is.said that in order to get the publication of this ordinance in one of the newspapers, in which by law such publication must be had, and so have the ordinance become valid to be of benefit to the incoming officers, it was necessary that it be approved that day, but this was as well known long before, as on that particular day, and the council could have passed the ordinance at an earlier day, or those interested in it could have seen the mayor on the 15th, and if they found that he would approve the ordinance, could have obtained his signature on that date, but as it turns out that the mayor would not approve the ordinance, it is perfectly manifest that it would have been of no avail to these officers to have presented the matter to 'the mayor on the 16th, because he would not have approved it.

The injunction prayed for is alloived.


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    FAILURE OF BEQUEST TO CHURCHES—DISPOSITION THEREOF.
    Circuit Court of Medina County.
    J. Andrew, Executor of the Last Will and Testament of Mary Johnson, Deceased, v. Ernest Kling et al.
    Decided, September 26, 1910.

      Will—Construction Of.

    A bequest of "all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties,” does not carry with it money in the bank bequeathed by a subsequent clause of the will to two churches, which by reason of the statute against bequests within a year of testator’s death, can not take thereunder.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The plaintiff filed his petition under the statute, setting out that he is the executor, duly appointed, qualified and acting, of the last will and testament of Mary Johnson, deceased; that a considerable amount of money is in his hands for distribution as such executor, and his prayer is that the court construe the will of the deceased and direct him in the disposition of this money. The facts are not in dispute and are substantially these:

Mary Johnson died in Medina county, Ohio, on the 8'th day of June, 1909. On the 5th day of June, 1909, she executed a last will and testament, which has been duly admitted to probate, and of which the plaintiff is the executor.

The first, second, third, fourth and fifth items of said will are in the following words:

“First. It is my will that all my just debts1 and funeral expenses be first paid.
‘ ‘ Second. It is my will and I hereby give and bequeath to my beloved friend, Mary Yocum of Medina, Ohio, all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties.
“Third. It is my will and I hereby bequeath to my beloved friend Lizzie Miller my family Bible, the one that I brought from England.
‘1 Fourth. It is my will and I hereby give and bequeath to my beloved friend Martha Marbaeh my gold ring, the one that. I wear and also my silk quilt.
“Fifth. It is my further will and I hereby give'whatever money I have in the bank (after paying my funeral expenses and all other debts and valid claims against me) as follows: one-half thereof to the Church of Christ (formerly known as the Disciple Church) of Brunswick, and the balance to the Baptist Church of Medina; that is I want my money in said banks equally divided between said Disciple Church of Brunswick and the Baptist Church of Medina, share and share alike.” -

The only heir at law of the deceased at the time of her death was the defendant, Clara E. Kling. She is a great granddaughter of the testator and is now some two or three years of age. Shortly before the death of the testator, Clara May Kling, who was the mother of the said Clara E. Kling, and who was herself a granddaughter of the testator, died. In April, 1909, while Clara May Kling was still alive, the testator purchased, paid for, and caused to be deeded to the said Clara May Kling and her husband, Ernest J. Kling, a home in the village of Medina, for which she paid $2,400.

The property of the testator at the time of her death consisted exclusively of about $50 and about $3,800 which was deposited in one or more of the banks of the village of Medina. It will be noticed that the will was executed much less than one year before the death of the testator, indeed only three days before her death; by reason of this the attempted bequests to the two churches named are invalid, under Section 5915 of the Revised Statutes of Ohio, and the question to be determined here is to whom shall the executor make payment of the money remaining in his hands, the chattels being disposed of, as directed in the will? Tbe executor makes no claim as to either of the parties, but simply, as already said, asks the direction of the court.

Mary Yokum was represented by counsel on the hearing, as was also the infant, Clara E. Kling. The claim made on behalf of Mary Yokum is that the second item of the will is in effect a general residuary clause, and that by reason of the language there used, to-wit, “I hereby give and bequeath to my beloved friend Mary Yokum, of Medina, Ohio, all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties” is to be read as though the word “effectually” followed the word “is,” so that it would give to Mary Yokum all that is not effectually bequeathed elsewhere. This claim is, as we view the case, entirely in accord with the holding of this court in the case of Davis, Executor, v. Hutchins, 15 Cir. Ct., 174. The holding of the court in that ease was in accordance with authorities cited and quoted in tlje opinion. The judgment in that case, however, was reversed in the Supreme Court, as reported in the 62d Ohio State at page 411, where the title of the case is given as Davis v. Davis, Executor, et al.

When this case was being heard it was suggested that the Supreme Court had itself reversed itself or its holding in this case in a later case. On examination, however, it is found that this is a mistake, and that in a later case growing out of the settlement of the same estate, under the same will, in which the Supreme Court also reversed this court, it later in another ease in effect reversed that holding. The question, however, involved in the case last mentioned, is in no wise affected by the question involved in the case of Davis, Executor, v. Hutchins, reported in the 62d Ohio St., 411. We regard that holding as settling the question raised here, in favor of Clara E. Kling, and we might content ourselves with saying nothing more. However, we are disposed to give some of the reasons why this case should be decided as already said rather than to leave it upon the decision of Davis v. Davis, Executor, supra.

With some reason it can be said that the testator evidently felt that she had done what she ought and all that she ought for her granddaughter, Clara May Kling, by presenting to her the home, of which mention has already been made, and that the infant child of her granddaughter could have no greater claim upon her than the mother of such infant. That she did not therefore intend to make any further provision for the Kling family is perfectly clear by the terms of the will. She made no further provision for them in the will, nor did she intend to make any further provision for them, and she doubtless thought that she had done for them all that she reasonably ought to do. But it seems equally manifest that she did not intend to make any provision for Mary Yocum other than to give her the household furniture, not so much for its money value, as a token of the friendship which she entertained for her. She gave to her all of her personal property, except something. What did she except! What did she mean to except! Clearly the Bible, the ring and the silk quilt mentioned in the third and fourth items of the will. It seems to us equally clear that she meant to except the money in the bank. If she did mean to except it and the will is to be carried out in accordance with her clear intention, then Mary Yocum is not entitled to this money and it leaves this situation:

That as to the money, since it can not go to the churches as the testator desired that it should, there is nothing in the will to indicate what she did desire to have done with it in the event that the churches could not take it.

Of course the testator supposed'that the churches could and would take it. In this she was wrong, dying as she did within the year, and so this part of her property is left without any indication by the testator as to what she wanted done with it under the circumstances as they now exist, and which she did not forsee. That being so, the law determines where it shall go, to-wit, to the next of kin. The defendant, Clara E. Kling, is such next of kin, and the order of the court is that as to what there is of this money for- distribution, it be paid to Clara E. Kling, or rather to the duly appointed guardian of her property.

The costs of this proceeding will be paid by the executor out of the estate.