author: Feaziee, J.

text:
    (Seventh Circuit—Lake Co., O., Circuit Court
    Feb. Term, 1899.)
    Before Frazier and Marvin, JJ.
    (Judge Marvin of the Eighth Circuit sitting in place of Judge Burrows. Judge Laubie absent.)
    MARJORIE WARNER ROTE v. EUGENE N. WARNER et al.

      Will contrued — Demonstrative legacy—
    •(1). A bequest of ten thousand dollars, payable as follows: twenty shares of the capital stock of the 'First National Bank of Painesvillo,Ohio, at $2,000.00. One thousand dollars in Lake Shore & Michigan Southern Railway Company at_par $1,000.00. $7,000.00 in money or good well secured notes — is a demonstrative legacy, and if the testator at his decease was not the owner of any Lake Shore & Michigan Southern bonds or stocks, the legacy does not abate, but is payable out of assets covered by the residuary bequest, as are general legacies.

      Legacies to executors in lieu of their statutory commissions—
    (2). A testator, having by his will given his two sons, Eugene and Arthur, legacies largely in excess of what they would have received had he died intestate, directed “that in consideration of the legacies herein given to said sons that, no fees, commissions or charges for administering upon my estate shall be paid to them, or to either of them, except for actual expenses properly incurred.” E. and A. administered the estate: Held they were not entitled to charge and receive the commissions authorized by sec. 6188, Revised Statutes of Ohio.

      Construction of will — Direct gift—
    ■(3). The testator having, by his will, bequeathed to his wife in trust for M., his infant daughter, until she arrives at the age of majority, the sum of ten thousand dollars; by a codicil to his will, bequeathed to his said daughter M. “in addition to the sums provided for her in my said will, one thousand dollars in moneyHeld, the one thousand dollars in money given by the codicil, is a direct gift to M., and not to his wife in trust for . until she arrives at the age of majority.
    Appeal from the Court of Common Pleas of Lake county.
   Feaziee, J.

This appeal is an action to construe the will and codicil of Elbridge O. Warner, deceased. The cause was heard in' the court of common pleas and appealed to this court. In the court of common pleas the will was construed in several-particulars, and the parties acquiesced in that construction in all but three provisions, which are the only questions-which we are asked to construe or pass upon, and we do not refer to the other questions,

The first question arises under item fourth of the will. After the devise of real estate to Marjorie, the testator-says:

“I do also give and bequeath to my wife in trust for my daughter, Marjorie 0. Warner, until my daughter arrives, at the age of majority,the sum of ten thousand dollars, payable as follows: Twenty shares of the capital stock of the First National Bank of Painesville, Ohio, at $2000.00. One thousand dollars in Lake Shore & Michigan Southern-Railway Company at par $1000,00. $7000.00 in money or in good well secured notes.”

The question submitted under item fourth of the will is, whether the bequest of one thousand dollars in Lake Shore- & Michigan Southern Railway Company at par is a specific-legacy, so that if the decedent did not possess something-answering that description the legacy fails, or whether it-belongs to that class called ‘1 demonstrative legacies” which do not abate; but if the fund fail they rank with general legacies The distinction between specific and general legacies is, that a specific legacy singles out the particular thing-which the testator intends the donee to have, no regard being had to its value, while general legacies are payable out' of the general assets, the chief element being the quantity, or its value.

There is a third class of legacies,known as demonstrative-legacies, differing from general and partaking of the nature of specific legacies, in that they are not liable to abate. A demonstrative legacy is a pecuniary legacy, or legacy of' quantity, the particular fund or personal property being-pointed out from which it is to be taken or paid. If the fund pointed out for their payment fail, they are payable out of the general assets not specifically bequeathed, or out of funds covered by the residuary bequest with legacies general in their nature.

The bequest in this case is the sum of ten thousand dollars. The main or ruling idea of the testator is the amount, and if the testator, at the time of his death, did not own one thousand dollars in Lake Shore & Michigan Southern Railway Company (bonds or stocks), — something filling the description — 'the same will be fully satisfied by the payment of one thousand dollars out of the residuum by the executors, and this, we hold, to be the true construction of this item.

The second question presented to us is the proper construction of the seventh item of the will, which reads:

“I hereby appoint my sons, Eugene Warner and Arthur E. Warner, executors of this my last will and testament, hereby revoking all former wills by me made, and I direct that in consideration of the legacies herein given to said sons,that no fees, commissions or charges for administering upon my estate shall be paid to them, or to either of them, except for actual expenses properly incurred. I request the probate court not to require bonds of said executors.”

Section 6188, Revised Statutes of Ohio, provides:

‘‘Executors and administrators may be allowed the following commissions upon the amount of the personal estate collected and accounted for by them, and of the proceeds of real estate sold under an order of court for the payment of debts, or under directions of the will which shall be received in full compensation for all their ordinary services; that is to say:
“For the first thousand dollars, at the rate of six|’per centum;
‘‘For all above that sum, and not exceeding five thousand dollars, at the rate of four per centum; and
‘‘For all above five thousand dollars, at the rate of two per centum.
“And in all cases, such further allowances shall be made as the court shall consider just and reasonable for actual and necessary expenses, and for extraordinary services, not required of an executor or administrator, in the common •course of his duty; provided however, that when provision shall be made by the will of the deceased, for compensation to any executor, the same shall be deemed a full satisfaction for his services, in lieu of his aforesaid commissions or his share thereof, unless he shall, by an instrument filed in the court, renounce all claims to such compensation given by the will. ”

The executors claim and insist that they are entitled to charge and receive the commissions allowed executors, by sec. 6188 aforesaid.

That the will does not make provision for compensation to them in lieu of the commissions provided by statute and in satisfaction for their services as such executors.

The plaintiff, who, with the sons named as executors, is entitled to the residuum, claims and insists, that they are not entitled to the commissions allowed by statute. From the will, and the evidence submitted, it appears that the testator died leaving a widow, (his wife by a second marriage), the plaintiff, then an infant of tender years, issue of the second marriage, and the two sons named as executors, children by a former wife, to whom, had he died intestate, his estate would have descended.. That the executors, Eugene N. Warner and Arthur E. Warner, by the legacies given in the will, received a much larger share of the estate of their father, Elbridge 0. Warner, than they would have inherited had he died intestate.

At common law no compensation was allowed to executors and administrators, but, in most of the American states, compensation is allowed, and in most of them it is fixed by statute.

Woerner on the American Law of Administration,. after citing the provisions in the statutes of the several states, says, in some of the states the statutes contain a provision, that when compensation is made by the will of the deceased for compensation to any executor,the same shall be deemed a full satisfaction for his services unless he shall in writing-renounce all claims to the compensation given by the will;, and in a note he states that the statutes of Ohio, New York, and other states named, contain such provisions. We have not the New York statute at hand, and hence cannot compare its provisions with ours. Nor have we been cited to any case in which our statute, or similar provisions in the-statutes of another state, have received a construction.

Counsel for plaintiff refer us to the matter of Kernochan’s will, 104 New York, 618. Neither in the statement of the-case, arguments of counsel, nor opinion of the court, is a statute referred to; but, the last paragraph of the syllabus is:

“By the will Mrs. M, was appointed executrix; she duly qualified and acted as such. The will contained a direction that each executor and trustee, other than his wife, ‘do receive and take the full rate of commissions provided by law for each executor;’ substantially the whole income of the-estate was given to her. Held, that she was not entitled to-commission as it was the intention of the testator to exclude-her from compensation.”

Danforth, Judge, in the opinion at page 631, reversing-the action of the court below, says,

“The objection raised in behalf of the remainderman-hangs upon the request of the testator contained in the will, in these words: ‘It is also my request that all persons herein named as executors will consent to act as such executors and trustees, and that each executor and trustee, other than my wife, do also receive and take the full rate-of commissions provided by law for each executor, intending thus to provide suitable compensation for their services-in and attention to duties herein devolved upon them.’ We think the intention of the testator was to exclude his wife-from compensation. Substantially the whole income of the estate, the result of the management of the executors, of whom she was one, is given to her, and it cannot be supposed that he intended she should also be paid for caring for it. ’ ’

In the case at bar, the executors were large beneficiaries, receiving under the will much more than an equal share with the plaintiff, and a proper management of the estate was largely beneficial to them.

We are of opinion the provisions in the will in lieu of compensation, was intended by the testator to be in full compensation to the executors in lieu of the commissions allowed by statute, and that, by reason thereof, the executors are not entitled to charge and receive the commissions allowed by statute.

They knew, and were informed by'the will, that the testator directed and provided by his will, that by reason of the legacies given them they should not receive the commissions allowed by statute, and after having voluntarily assumed the administration under the will, and received all the legacies therein given them, with a full knowledge of the provisions of the will and direction of the testator, and administered the estate, it being his will that in consideration of the provisions made for them in the will they should receive no compensation other than that which is provided in the clause itself, they would be estopped from claiming any compensation other than that which they are entitled to under the provisions of that clause of the will.

Hence, we think, that the proper construction of this item is, that the executors snail receive no compensation, except it be for actual expenses properly incurred in the administration, and such, we hold, to be the true construction of the will in this regard.

The third question submitted to us is as to the construc-ion of that clause of the codicil, which reads:

“And do I also hereby give and bequeath to my said daughter Marjorie O. Warner, in addition to the sums provided for her in my said will, one thousand dollars in money. ”

The executors claim that the testator, by the bequest of one thousand dollars in money to his daughter Marjorie, in addition to the sums provided for her in his will, intended that it should go to his wife in trust for her, the same as the ten thousand dollars provided for her in the fourth item of his will. That by the phrase “in addition to the sums provided for her in my said will,’’ he meant thatjt should be added to and become a part of the trust estate the same as if given by item four.

The plaintiff claims it to be a direct personal gift to her and not in trust, and is not payable to the trustee as such, but to her or her guardian.

The intention of the testator must be gathered from the words of the instrument. In the same sentence which he • gives the thousand dollars in money he adds “and the piano .1 now own.”

We cannot see how the one can be held to be in trust and the other a direct bequest, and I presume no one will claim that the piano became a part of the trust estate. He says:

“In addition to the sums provided for her in my said will.”

In item four he devises to her, at the death of his wife, certain real estate, which he had, by item one of his will, given to his wife for life, He then gives to his wife, in trust for Marjorie, ten thousand dollars, and provides that if Marjorie die before arriving at eighteen years of age and coming into possession of said trust funds, the use shall go to his wife until her death and then revert to his heirs. He then directs that the increase use or profits derived form the trust funds, or so much as may be necessary, shall be used for the support and education of Marjorie during her minority, and in case of necessity her guardian may use,, under the direction of the probate court for such purposes,, so much of the principal as shall be deemed proper.

Horace Alvord, William IS. Cushing, and A. C. Pepoon, for Plaintiff.

Geo. II. Shepherd, A. G. Reynolds, and George W, Alvord, fGr Defendants.

This latter provision was added, no doubt, by the testator in his solicitude to provide for his daughter of tender years, and recognizing the duty he owed to care for, educate and support her during her minority, and, in the course of time, when he made and executed the codicil, with the provisions of the will in his mind, and probably at that time with the will before him, he says: “In addition to the sums provided for her in my will I give her one thousand dollars in money and the piano I now own.” Not-“to my said wife in trust”, as in item four; but the language is “I give and bequeath to my said daughter, Marjorie O. Warner, in addition to the sums provided for her in my said will, one thousand dollars in money and the piano I now own.”

We are at a loss to see by what rule of construction the thousand dollars can be held to be in trust, and the piano and one-third of the residuum given her by the same codicil, not also held to be in trust.

We hold, that the thousand dollars in money is a direct beq-uest to Marjorie, and payable to her or her guardian, and not to the trustee. And we further direct that the costs of this proceeding be paid by the executors out of the assets of the estate in their hands to be administered.


source: Caselaw Access Project

author: MaeviN 'J.

license: Public Domain

text:
    (Seventh Circuit—Lake Co., O., Circuit Court
    Feb. Term, 1899.)
    Before Frazier and Marvin, JJ.
    MARJORIE WARNER ROTE v. EUGENE N. WARNER and ARTHUR E. WARNER, Executors of the last will and testament of Elbridge O. Warner, deceased.

      Gift of bonds io infant daughter by handing same to her mother to keep for her — Gift complete—
    (1). E. O. Warner, having a daughter Marjorie three years of age, and being the owner of two 7 per cent, coupon bonds of the L. S. & M. S. Ry. Co., each for $500.00, endorsed upon each of said bonds the words “This bond I give and set over to my daughter Marjorie Warner this 20 December, 1878. E. O. Warner.1,1 From the date of such endorsement said bonds were in the keeping of Marjorie’s mother until the death of E. O.Warner, which occurred in March, 1884. Held: sufficient to establish a completed gift of the bonds to the daughter.

      Will and codicil construed—
    (2). A testator,by his will,bequeathed to a trustee the sum of ten thousand dollars, to be held in trust for an infant daughter of such testator until her ma]ority,when it should be paid to such daughter, with provision as to its disposition in the event of the death of the daughter before attaining her majority, and in a codicil to such will he made a bequest to said daughter of the. sum of one thousand dollars. The executors delivered to such trustee bonds of the value of $1000.00, supposing at the time of such delivery that said bonds were a part of the testator’s estate, whereas in fact they were aireadyjthe property of the daughter, and paying to said trustee the further sum of $10,000.00 under the mistaken belief that said trustee was the proper custodian of the 81000.00 bequeathed by the codicil to the daughter. And the trustee having delivered said bonds to the daughter upon her attaining her majority, Held: that the executors had properly discharged the legacy made in the will, but that the legacy given by the codicil remained . unpaid, and that said executors must pay to said daughter said sum of $1000.00 bequeathed by said codicil, together with interest from a date one year iater than the date of the testamentary letters issued to such executors.
    Error to the Court of Common Pleas of Lake county,
   MaeviN 'J.

This Í3 a proceeding in error seeking to reverse the judgment of the court of common pleas of this county, in a proceeding tried in that court upon appeal from the probate .court.

The proceeding arose in the probate court upon exceptions filed by the plaintiff in error to the several accounts filed in the last named court by the defendants in error, as executors of the last will and testament of Blbridge 0. Warner, deceased, who was the father of all the parties to this action.

The issues in the court of common pleas were tried to the court, the case being one not triable by a jury. After the decision was made in that court, and within the time provided by' law, a motion for a new trial was filed, which was overruled by the court. A bill of exceptions, embodying all of the evidence in the case, was duly allowed and signed, a petition in error was duly filed, and we are called upon to determine whether any error was' committed by the court of common pleas to tüe prejudice of this plaintiff in error entitling her to a reversal of the judgment.

On the —'day of March, 1884, Blbridge 0. Warner died testate. His will, which was duly admitted to probate, was executed on the 19th day of January, 1882, and the codicil to such will, which was also admitted to probate, was executed on the 21st day of January, 1884. A copy of this will and codicil constitutes a part of the evidence contained in this bill of exceptions, and, in another action brought for that purpose, this court has construed its provisions, so far as they relate to any matter pertaining to the questions involved here,

At the time of his death Warner left a widow, Marian E. Warner, who is the mother of the plaintiff, in error, and he left three children, to-wit: the parties to this suit, the de- ’ fendants in error not being the children of the widow already named. Bequests were made in the will to each of 4hese members of his family. The plaintiff in error being named as Marjorie O. Warner, her present name of Rote being that of her husband, to whom she was married years-after the death of her father.

The fourth item of the testator’s will, so far as it refers-to the controversy here, reads:

“I do also give and bequeath to my said wife,, in trust for my said daughter Marjorie 0. Warner until my said daughter arrives at maturity, the sum of ten thousand dollars, payable as follows: 20 shares of the capital stock of the First National Bank of Painesville, Ohio, $2,000.00. One thousand dollars in Lake Shore & Michigan Southern, Railway Company at par, $1,000,00, Seven thousand dollars in money or in good well secured notes, $7,000.00.”

Aggregating ten thousand dollars.

In the case already referred to, we have just held at the present term that this is to be treated either as a demonstrative or a general bequest of ten thousand dollars, and that no one of the items specified, as being used to pay the' same, constituted a specific legacy, and that if, at the time of the death of the testator, he was not the owner of all of' these several items, then the item or items so wanting must be made good in money or its equivalent.

On the part of the plaintiff in error it is insisted that at the time the testator died he owned neither bonds, stocks or other property connected in any way with the Lake Shore Michigan Southern Railway Company, which could have' been intended by the second description of property named in this fourth item of the will.

The evidence establishes that if he did then own any such property, it consisted of two seven per cent, coupon bonds, issued by that company, each for five hundred dollars, and numbered respectively'312 and 393. It is certain that prior to December 20th, 1878, he did own these two bonds, and he still owned them when he died unless he parted with such ownership on the day last named.

The court below held, under the evidence, that he did not part with such ownership, but that these bonds were a part of the estate left by him, and that the executors were entitled to the credit claimed by them for the delivery of these bonds to the trustee for the plaintiff in error.

Was there error in this holding?

At the time of his death these two bonds were in the testator’s house, and each had endorsed on it, in pencil in the handwriting of the testator, these words:

“This bond I give and set over to my daughter Marjorie Warner this 20 December, 1878. v E. O. Warner.”

The plaintiff in error, at the date of this endorsement, was but three years old, and, of course, was wholly unable to act for herself in accepting or taking the custody or control of any such property Jor herself, if it should be given to her.

That her father intended ihat this property should at some time belong to Marjorie is conceded by the defendants in error; but, they say that such intention wa3 carried out by the bequest in the foregoing part of the fourth item of his will, while, on the other hand, it is urged that he did, •on the 20th of December, 1878, actually transfer the present ownership of these bonds to the daughter. If he desired and intended so to transfer the ownership,it is difficult to think of any words which he could have used to express such intention, either concisely or elaborately, more clearly than those already quoted and as we find written by him on each bond.

But, something more than intention, however clearly expressed, is necessary.to constitute a gift of a chose in action, or of chattel property. There must be also a delivery of the thing donated.

Mr. T hornton, in his work on Gifts and Advancements, at paragraph 292, says:

“In all cases of a gift of a written chose in action, delivery is as essential to the validity of the gift as the delivery of a chattel.”

Our own supreme court, speaking by Judge Brinkerhoff, in the case of Hamor v. Moore’s Adm’r, found in the 8. Ohio St. Reports, at page 242, uses this language:

“And to a valid gift inter vivos, delivery and acceptance, either actual, constructive, or symbolical, are everywhere’ held to be essential.”

In the case of Phipps v. Hope ‘Adm’r., et al., 16 Ohio St. Reports at page 586, the first paragraph of the syllabus, reads:

“To constitute a valid gift, either inter vivos or causa, mortis, a delivery, either actual, constructive, or symbolical, is essential.”

See also Flanders v. Blandy, 45 Ohio St. Reports, at page 108, and the opinion on page 113, where this language is-used:

“The donor must part not only with the possession, but with the dominion and control of the property.”

Thornton on Gifts, at page 181 says:

“In all gifts a delivery of the thing given is essential to. heir validity, for, although every other step be taken that is essential to the validity of the gift, if it was not delivered the gift must fail. Intention cannot supply it. Words-cannot supply it. Actions cannot supply it.”

Without further citation of authorities on this point, we regard it as settled law that no gift of these bonds, was or could be perfected without a delivery of them by the donor; such a delivery as took from him the dominion and control of' the bonds.

In paragraph 292, of Thornton on Gifts, from which a quotation has already been made in this opinion, this-further language is used:

“And the same rules applicable to a delivery of a chattel,, are applicable to a delivery of such chose in action”.

And again:

“The delivery may be to a third person for the donee.’’

In paragraph 129, at page 104, the same writer, under the caption “Definition of Delivery”, says:

“The delivery of a chattel, in the instance of a gift, is-a transfer of possession, either by actual tradition from hand to hand, or by an expression of the donor’s willingness that, the donee should take the chattel when it is present, and in a situation to be taken by either party.”

Judge Dickman, in his opinion in Flanders v. Blandy, supra, says:

“Gifts inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convicting evidence is required.”

That case is familiar to the profession in Ohio, including counsel in this case, The court found that the bonds, which Blandy purchased as a gift for his daughter, were' never delivered to her or to any other person for her. They remained in the keeping of the father until he sold them to obtain money to put into a business enterprise, True, while he held the bonds, he collected the interest and paid' it to his daughter — he retained them in his possession at her request; but the court held that there was no delivery, constructive, or otherwise, of the bonds to the daughter, and it is in connection with the discussion of such a state of facts, that the language, quoted from the opinion, is used.

Thornton on Gifts, at paragraph 160, states clearly the' proposition:

“That the delivery of the thing given may be made to a. third person for the donee, and that if so made, under circumstances which indicate that the donor relinguishes all right to the possession and control of the thing given, with the intention to pass the present title in the donee, the gift will be sustained. ”

And this is supported by numerous authorities cited in the notes under this section. As has already been said, words could not well have been used more effectually to declare that the bonds in question were, on the 20th of December, 1878, made the property of Marjorie O. Warner, than the words which were at that date written on each bond by Elbridge 0. Warner, and if this intention, thus unequivocally expressed, was followed by such a delivery of possession, custody and control as satisfies the requirements of the law for supporting a gift, then these bonds became then and there the property of Marjorie, and constituted no part of the estate left by Elbridge O. Warner at his death.

The fact that Mr. Warner was a man of very considerable means; that Marjorie was his only daughter, and his youngest child; that he had already aided each of his sons, certainly renders it by no means improbable that^he might make such a gift to his daughter, as she'here claims he did make.

In the writing on the bonds he says he does make this gift. If he undertook to carry out this purpose by delivery of the property to whom would we expect him to'make such delivery? The child could not be trusted with the manual possession of such property as this. The mother would seem to be the one who, above all others, it would be expected he would select as the custodian of the subject of the gift. Authorities are not wanting to the effect that in the case of an attempted gift by a parent to a child of such tender years as to be entirely unfit to have the custody of the subject of the gift, the retaining of such custody by the donor will not defeat the gift. See Hillebrant v. Brewer, 6 Tex., 24, and Ector v. Welch, 29 Ga., 443; surely then, the delivery by one parent to the other of property for their infant child, if accompanied by all the other elements necessary to constitute a valid gift, will be upheld as a valid gift.

Without considering any evidence here, as to the competency of which there can be any question, we are satisfied that from the 20th of December, 1878, up to the time when Elbridge 0. Warner died in 1884, these bonds were in the custody and control of Marion E. Warner fo her daughter Marjorie, and that they were so placed in her custody by Mr. Warner at the date of the written transfer entered on the bonds.

It is said that it is improbable that she should have kept them, as she says she did, in the bureau drawer during all of these years, when, in the next room in the same house where she and her husband and their child lived, there was a good fire proof safe. And yet if she had placed them in this safe it might be urged with fully as much reason, that the fact of their being in the donor’s safe was evidence that the gift was never perfected by delivery. Mrs. Warner says she kept other valuable papers in this drawer, and that she kept money there, and we do not think there is any such improbability in these statements as to justify us in disbelieving her.

The fact, that after the death of her husband, when the executors were preparing for an appraisement of the estate, she produced these bonds from her bureau, we think, .is clearly established, She says so; Arthur Warner, one of the executors and a defendant here, pays so, and - Eugene, the other executor, says he does not remember that she did, and, in'answer to one question, says she did not; but it seems clear to us that his memory in this regard is at fault. It is hardly possible that both Mrs. Warner and Arthur should remember this alike, if nothing of the kind ever occurred, and surely there can be no suspicion of collusion between these two witnesses- — -their interests, or rather the interests of Mrs. Warner’s daughter and the interests of Arthur, are directly adverse to each other. It is much more probable that Eugene should be mistaken about this than that both of the others should be, and we think it altogether consistent, with the entire honesty of purpose of all these parties, that Eugene should be mistaken in this, and also as to the time when he saw these bonds in his father’s safe. He undoubtedly did see them there after the safe was removed to his own house, and after the executors had taken possession of the bonds as a part of the estate. His recollection is that it was then that he first heard Mrs. Warner speak of their having been given to Marjorie. As already said, we think he is clearly mistaken as to his having then first heard this claim made by Mrs. Warner, and we think he is mistaken in saying, that after the 20th of December, 178, and before the death of his father, he saw them in the safe.

It is urged in argument that the conduct of Mrs. Warner in permitting these bonds to be taken by the executors without protest, was inconsistent with her claim now, that they were then the property of Marjorie, and especially that she should have made no claim to them during all the years that she was her daughter’s guardian — 'Something like nine years. We do not think so. She was not familiar, we may well presume, with legal principles, and . she was informed by one of the executors that the probate judge had told him that these bonds were what was meant by the second description of property named in the fourth item of the will. If these bonds were in Mrs. Warner’s possession at the time they were asked for by the executors, when they were preparing for the appraisement, as we find from the evidence they were, she either obtained them sureptitiously, or they were given into her keeping by her husband. If she obtained them surreptitiously, she did so with the dishonest purpose of making it appear that they were the property of her daughter, when, in fact, they were not, and we think her conduct thereafter is wholly inconsistent with such a hypothesis. It is hardly to be conceived that if she were endeavoring to make the claim for these bonds, on behalf of her daughter, dishonestly, that she should have so readily given them over to the executors and acquiesced in what she was told the probate judge said as to theirf constituting a part of the testator’s estate. Rather we should look to see her persist in the fraudulent scheme'jwhich^'she had undertaken.

We hold, therefore, that the court below erred in finding that these bonds were a part of the testator’sjestate,and that the executors were entitled to charge them’j as a part of the ten thousand dollars bequeathed in trust for Marjorie in the fourth item of the will. But, if the executors ;are not to take credit for their delivery under the fourthutem of the will to Margorie’s trustee, neither are they to be£charged with them as a part of the estate. As the accounts were made up they are charged with them as]a part of|the estate, and credited with them as having been delivered to the trustee. It is manifest that so far as’jthe itenrof the bonds is concerned, as between the executors and the estate, the result will be the same if you charge therewith the bonds and credit them with paying them over to the trustee, or leave them out entirely of the accounts as should have been done, as we hold they were no part of the estate whatever.

Another error is claimed in the judgment of the court below, in allowing the executors credit for one thousand dollars paid to the trustee, ostensibly under the provision of that portion of the codicil which reads:

“And I do also hereby give and bequeath to my said daughter, Marjorie 0. Warner, in addition to the sums provided for her in my said will, one thousand dollars in money and the piano I now own.”

In the case already referred to between these same parties for the construction of this will and codicil, this court, at the present term, has held that the property mentioned in the clause just quoted, does not constitute an addition to the trust fund provided for in the fourth item of the will, but constitutes a direct legacy to Marjorie, to be paid and delivered directly to her or her guardian.

The fourth item provides that the mother of Marjorie shall be the trustee, to hold the property therein bequeathed during Marjories’ minority. This trust Mrs. Warner declined to accept, and one Asa S. Stratton was duly appointed by the probata court as such trustee. He qualified, and payment was made by the executors to him in his said trust capacity.

Under our construction of item fourth of the will, as hereinbefore stated, there should have been delivered to this trustee the shares of bank stock named therein, and money or other property sufficient to make up the sum of ten thousand dollars, and, as we hold that the bonds were not a part of the testator’s estate, but were already the property of Marjorie, it follows that they cannot constitute a part of the said sum, but that, exclusive of said bonds, said full sum of ten thousand dollars should have been paid to him, The accounts and vouchers show that this was done. The executors claim credit for eleven thousand dollars delivered to this trustee, and this under their mistake in supposing that the bequest named in the codicil was to be treated as an addition to the trust estate named in item four, thus making the trustee entitled to eleven thousand dollars, and the further mistake that the bonds were to be treated as a part of the bequest of ten thousand dollars, The bonds should never have been delivered to the trustee. The mother, though declining the trusteeship, was appointed and qualified as guardian of Marjorie, and she should have held these bonds as such guardian; but, no harm has come to Marjorie by their having been placed in the hands of Stratton. She has had all the interest accruing upon them, and when she reached her majority the bonds were delivered to her. So far then as her interests are concerned, it is matter of indifference in whose custody the bonds were kept during her minority.

Under item fourth of the will, as has already been said, without any reference to these bonds, ten thousand dollars should have been turned over by the executors to the trustee. That sum was turned over by them to him, and since he received the right amount, it is wholly indifferent that both he and the executors supposed he was getting but nine thousand dollars under item four, and that the remaining one thousand dollars was paid to him under the codicil. He should have received in all, as this trust fund, ten thousand dollars. He did receive that amount, and there was no error in holding that the executors were entitled to credit for paying it to him; but, there was and is error in the record and judgment of the court below, in holding that one thous- and dollars of the sum paid said trustee was in payment of the one thousand dollars bequeathed to said Marjorie by the codicil. The court should have held, as hereinbefore indicated, that though the right amount had been paid to said trustee, such payment only satisfied the bequest in the fourth item of the will, and that the one thousand dollars bequeathed by said codicil, and which should have been paid to her guardian, has never been paid to anyone, and is still due from the executors to Marjorie, together with interest computed from a day one year after the letters testamentary were issued. For authorities as to the time from which interest is to be paid, see citations in Case School, etc., v. Gray et al., 15 Circuit Court Reports, 492, and Wheeler v. Hathaway et al., 54 Mich., 547.

It will be seen that, under this decision so far as questions are made before us, the executors’ accounts require correction, in addition to such corrections as were ordered to be made by the court of common pleas, to the extent of making payment to the plaintiff in error of this bequest of one thousand dollars, with interest, made in the codicil, thus reducing the amount to be distributed under the residuary clause by that sum. As to the one thousand dollars which the executors permitted the widow to hold as a gift to her, without reviewing the evidence, we hold that there was no error in the judgment of the court of common pleas. That one thousand dollars was properly paid to the widow, or, rather, properly treated as having belonged to her before her husband’s death.

The residuary clause of this codicil, so far as attention need be called to it here, reads:

“The surplus shall be divided equally between my sons Eugene N. Warner and Arthur E. Warner, and my daughter Marjorie 0. Warner.’’

The practical operation, therefore, of our holding, will result in the paying by the executors of two-thirds of the amount now due on this bequest of one thousand dollars, and taking no credit therefor, or, paying the entire amount to Marjorie and taking credit therefor, and so divide as a residuum that much less. The amount which each will receive in either case will be the same That is to say, if they pay to Marjorie the one thousand dollars, with the interest on it, and deduct it, and after such deduction determine the residuum and divide that residuum by three, giving to Marjorie one-third and taking each for himself one-third, or, if they simply hand over to Marjorie, without taking any credit for it, two-thirds of that one thousand dollars, with its interest, the result will be exactly the same.

We have before us all of the evidence upon which the court of common pleas acted, and, finding as we do that this judgment should be in part reversed, and having authority, under Revised Statutes, sec. 6726, to render the judgment which that court should have rendered, we here render judgment correcting the judgment of the court below, as indicated in this opinion, and remand the case to that court to carry such judgment into execution, the same as though this judgment had been entered in that court.

Horace Alvord, William E. Cushing and A. C. Pepoon, for Plaintiff in Error.

Géo. H, Shepherd, A. G. Reynolds and George W. Alvord, for Defendant in Error,

Being persuaded, as we are by the examination of this record, that the executors, the guardian, Marion E. Warner, and the plaintiff in error, have all acted in this matter in good faith, and allowing for that frailty in human nature which generally causes each to give himself the benefit of every doubt, that all have acted honestly, we deem it just, and therefore order, that the costs of this proceeding be paid by the executors out of the estate of the testator,


author: King, J.

text:
    (Sixth Circuit—Ottawa Co., O., Circuit Court
    June Term, 1897.)
    Before King, Haynes and Price, JJ. [Judge Price of the Third Circuit, taking the place of Judge Parker. ]
    BOARD OF COUNTY COMMISSIONERS OF WOOD COUNTY v. BOARD OF COUNTY COMMISSIONERS OF OTTAWA COUNTY.

      Ditch, running into lower county — Compensation from upper to lower county — Power of prohate judge to increase or diminish award made by committee—
    (1). Under the statute, 86 O. L., 128, as amended 90 O. L., 81, and 91 O. L.» 261, on exceptions to the report and award of compensation made by the committee appointed by the probate courts of the two counties to be paid by the upper to the lower county, the probate judge has the power upon the evidence to increase or diminish the compensation awarded by the committee, or to set aside the award and appoint a new committee to report.

      Same — Increased flow of water by public as well as private drainage to be considered—
    (2). The statute which authorizes the assessment for increased expense in making an outlet, while it does not apply to the expense which will be necessary to take the natural flow of water, does apply to any increase that may be made on either public or private account. If it is created in the interest of' better drainage, whether it be public ditches or private drains, if the increase comes on accounted the artificial drainage, it is that which the lower county is required to take care of, and it is that for which theygmay require the upper county to contribute the expense.

      Evidence — Hypothetical questions—
    (3). A hypothetical question must be^based upon facts assumed to have been proved in the case.
    (Affirmed by Supreme Court^without report. 39 W. L. B.,, 182; 58 Ohio St., 690.“
    See alsol Commissioners Fulton Co. v„ Commissioners Lucas Co. 12 C. C., 563.)
   King, J.

This proceeding was a case^brought before the probate judge of Ottawa county, Ohio, about the 24th of May, 1894, under the statute which is found in 86 O. L., 123, and as-amended in 90 0.*L., 81, and in 91 O. L., 261, which provides for the appointment by the probate judges of the counties interested of a joint committee of freeholders to-consist of two appointedj'by the probate judge of each county, who shall be non-residents of and not owning lands-in either county affected by the ditch. The committee in this case qualified and went out and examined the territory- and ditch, or the proposed ditch, and its location, and before them:^the|plan, profile and specifications as prepared by the engineer employed by this county to do the work, and1 made a reportgto^thejjprobate judge, finding that Wood county should pay to Ottawa county, $4,000.

Some furtherrhearinglwas atjthat time, had and proceedings in error were prosecuted to the court of common pleas, and from^that^court'lto this,“and the proceedings before the probate judge were^reversed by this court at a preceding trial, and^the[]case|sent2back[forrfurther hearing before the probate3judge,|and it came on^for that hearing and witnesses were called and evidence heard by the probate court who modified the report of the committee and increased the amount named from 14,000 to $10,000, as the sum to be paid by Wood county.

The proceeding in error was brought to this court, Judge Price sitting in the case, Judge Parker being interested in the case before it was heard here, and we have carefully gone over the record and examined the arguments of counsel, and have come to the conclusion which I will announce.

In the first place, it is claimed that the probate court had no power under the statute to increase the amount contained in the report of this committee of freeholders, This court has passed upon that question in the case of The Commissioners of Fulton Co. v. Commissioners of Lucas Co., reported in 12 C. C., 563, and a further consideration of it by the court only leads us to the conclusion that we were right in that decision, and, therefore, it will not be necessary for me to discuss the questions decided in that case. We held under the provisions of the statute that the power given to the probate judge to modify this judgment gives him power upon the evidence to increase or to diminish the amount of it, and that, therefore, it was within his authority, if he saw fit to hear evidence at that time, and consider it, as it was within his power under the statute to set aside the report and send out a new committee to report.

It is further claimed that there were errors occurring at this trial in the admission of evidence, and that the amount fixed by the probate judge is not sustained by the evidence, or is against the weight of the evidence.

The principal objection to the testimony is that made to the evidence of C. A. Judson. It is claimed that questions put to him were not proper questions. Mr. Judson was an engineer of fifteen years’ experience, living in an adjoining county, and after the first hearing by the probate judge upon this report, which, as I have said, was subsequently re* versed by this court while the case was pending on error, the probate judge appointed a second committee, and Mr. Judson was made a member of that committee, being a citizen of Erie county, and in that capacity he went along the line of the ditch and examined the territory through which it ran, and also went along some distance through the territory in Wood county which would drain into the proposed ditch to be constructed in Ottawa county.

In addition to that, at the time of the trial he had examined the plans and specifications prepared by the engineer ■selected by Ottawa county, and with this qualification he was asked to state various matters leading up to the conclusion to be arrived at, to-wit, the cost of constructing an ■outlet in Ottowa county which would be sufficient to conduct the waters of Wood county that would flow into it by reason of the increased artificial drainage provided in Wood county by its public or private ditches. The statute which authorizes the assessment for increased expense in making an outlet, while it does not apply to the expense which will be necessary to take the natural flow of water, does apply to any increase that may be made on either public or private account. If it is created in the interest of better drainage, whether it be by public ditches or private drains, if the increase comes on account of the artificial drainage, it is that which the lower county is required to take care of, and it is that for which they may require the upper county to contribute the expense.

Now Mr, Judson was asked to state what this ditch would cost, the improvements that were necessary to make it a sufficient outlet, based upon his examination of the profiles prepared by the engineer, and based upon the knowledge he had derived from an actual investigation of the ground itself, and from the general knowledge that he had of engineering under like circumstances and conditions. Now it is true that not all of these elements were raised in a single question, but W6 find them all here stated in different forms. A hypothetical question must be based upon facts assumed to have been proved in that case.

The engineer who prepared these specifications was called to testify and did testify as to their accuracy, and his judgment was to an extent also clearly a matter of opinion; so we think all questions asked of Judson were proper,and the opinion called for from him was one that might be asked of such a witness, based upon such facts as were placed before him or which he had acquired in any manner, and there was no error in the admission of that class of testimony.

The second question is whether the judgment is supported by the evidence. That is a very difficult question for us to answer from the record, but we have to apply to it the same rule we would apply in other cases; and that is, whether there is satisfactory evidence upon which the finding of the court may be sustained.' If there is not,it must be reversed or reduced; but if there is, it must be sustained.

J will not go over the evidence in this case very fully,for we find from the record here is evidence, and competent evidence, from which the court might conclude that the flow of water in Ottawa county occasioned by the artificial drainage in Wood county had been more than doubled. By that we do not mean that the total quantity of water from Wood county was twice what it was before the construction of those improvements; but it came down so much faster that it was more than double at certain times and places, and for a period of time the amount of water added was more than twice the amount it was before those improvements were made. There is abundance of evidence in the record to substantiate a finding of that character.

It appears from some of the evidence in the case that there are ten thousand acres in Ottawa county which would be drained by this improvement, and that there are about eight thousand acres in Wood county which are tributary to the ditch which leads into this. In other words, the water to be added by this outlet stands in about the proportion of four-ninths coming from Wood county, to three-ninths coming from Ottawa county. Now the estimate for the improvement is more than $49,000.00,a very large sum of money, but no attempt is made to say it is excessive except perhaps with reference to matters which I will notice later.

No attempt was made to prove that it was not necessary to construct a ditch,at least of the length which is proposed to be constructed here, for the distance from the county line to the body of water into which it is drained is not disputed. And the only dijpute is as to the dimensions of the ditch necessary for an outlet for the water from Wood county. The total cost is estimated at more than $49,000.00. If four-ninths of that is necessary to accommodate the water from Wood county, and if tne water from Wood county has been doubled by artificial drainage, the proportion which Wood county should pay is four-eighteenths of that cost substantially, and that is a sum considerably more than $10,000.00, the amount found by the probate judge; it is $11,000.00.

Mr. Judson says in his testimony that the cost of constructing the outlet for this water caused by the increased drainage from Wood county alone, would be, according to the best estimate he has been able to make, $14,526,00.

Mr. Hughes, the engineer employed by this county, makes it a very much larger sum than that.

Mr. Spafford, who was the engineer for Wood county and is a witness called by them, makes the amount considerably less. In fact, Mr. Spafford says that there is no additional amount of water created by the improvements that they have made in Wood county; but I think that tlm evidence shows, his as well as the rest, that he must be mistaken. It is barely possible he may be a little biased giving that kind of an opinion; and he closes his testimony by saying $4,000.00 would be ample for providing for the increased water caused by the improvement in Wood county; but there is a very wide difference between saying $4,000.00 would be necessary, arid saying that nothing is necessary.

I think Mr. Spafford is also mistaken in view of the testimony of the other engineers, as to the amount of the capacity required in this outlet ditch. In the first place,he testifies that there is no increase of water, and that no increase of ditch is necessary. Then he figures oat an estimate very much less than the estimate of the Ottawa county engineers, but Mr. Judsou, who is entirely impartial so far as we are able to discover, and from our own knowlege we know he is as competent as any witness that might be called on that subject to testify about it, and he testifies to the amount of material that would be necessary to remove there, and the cost of it, putting the cost and expense quite a little lower than Mr. Hughes, and yet he says it would be necessary to expend at least $14,000.00 in order to take care of the water .that would come into Ottawa county.

Of course, there are many difficulties in arriving at this, but the committee in the first instance are not infallible. They are like a board of arbitrators; they are sent out and advised by the court, and after having heard their opinion supplemented by the engineer who would know better than any one of the committee who was not an engineer, the court would be in a better position to determine the amount that should be paid.

It it »aid that the probate judge in one county would be interested in his county. We have to leave these questions to somebody, to some tribunal, and the legislature has left it to the probate judge where the proceedings are instituted. They might be instituted in Wood county, and then the probate judge of Wood county would have the decision of them. The legislature has reposed this in the probate judge, and we have to look upon his-judgment the same as that of •any other court, and see if it is supported by sufficient evidence, and we think’there is sufficient "evidence in this case to sustain the finding of the probate judge, that Wood county should pay 110,000.00, and for that reason the judgment will be affirmed.

Parker & Fries and F. G. Love, for Plaintiff in Error.

Wm. Gordon and C. I. York, for Defendant in Error.


author: Day, J.

text:
    (Third Circuit—Crawford Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Day, Price and Norris, JJ.
    THE STATE OF OHIO ex rel. LEONARD & STRATTON v. THE COMMISSIONERS OF CRAWFORD COUNTY.

      Addition to Public Building — What will amount to — Steam heating-plant — Sec. 795 R. S. controls -

    (1). When the necessary machinery, pipes, radiators and appliances, constituting a steam heating plant, is erected in a. public building and is so securely fastened to and connected with the building, as. when completed, to form part of it, such steam heating plant is “an addition to such building,’’ within the meaning of sec. 795, Rev. Stat., and the construction of such plant, by the county commissioners, is governed and controlled by the provisions of that section.

      Same — Sec. 795 Rev. Stat. mandatory—
    (2). While the commissioners of a county are bylaw clothed with full power to construct, or cause to be constructed, all necessary public buildings and additions thereto, and to let contracts thsrefor; yet they may not make a contract for the erection of any such building, until they have first fully performed the provisions and requirements of sec. 795, Rev. ~itat., in making accurate plans, definite specifications and bills, description of materials, etc., etc., and estimates of cost arid expense of such building or addition. The requirements of said section are mandatory, and their strict performance are conditions precedent to the exercise of the power.

      Mandamus to compel contract to lowest bidder—
    (3). When all the requirements of said section have been performed fully, and advertisoment for proposals duly made and proposals submitted for the construction of such building in accordance with the plans and specifications, so that nothing-remains to be done but to ascertain the lowest bidder, it becomes the legal duty of the commissioners to award the contract to such lowest bidder; and mandamus lies to compel such award. Until said requirements are so complied with, it is not an official duty to either advertise for proposals or award contract, and the awarding of a contract cannot be-compelled by mandamus.
    Same—
    (4). In such proceeding the commissioners should not, and cannot be required to, award a contract to- the lowest bidder, until a good and sufficient bond, properly conditioned, is first-given.
    Appeal from the Court of Common Pleas of Crawford! county.
   Day, J.

This is a proceeding in mandamus, and its object and' purpose is, by the mandatory order of the court to require-the commissioners of the county to award and let to the re-lators a contract for constructing a steam heating plant im the court-house and jail, on the ground and for the reasom that they are the lowest and best bidders therefor.

The substance of the complaint is, that respondents,, having determined to erect a system of steam heating for the court-house and jail, caused plans and specifications for the improvement to be made, which were duly approved by them, and upon which, by published advertisement, they solicited proposals to supply the necessary material and labor to fully construct and complete such system of steam heating; that, in pursuance to such request, relators prepared and submitted a proposal, as did other parties, including a Mr. Halley; that relators proposal was $168.00’-less in amount than that.of any other bidder; yet that respondents awarded the contract to said Halley, ata price in» excess, to the extent o£ said $163.00, of the proposal of re-lators. A peremptory writ of mandamus is prayed for.

The board of commissioners,by an answer,take issue with the material averments of the complaint; deny that relators were the lowest and best bidders, and that they are entitled to have the contract awarded to them; assert that all the bids were rejected, and that no contract was awarded to any one under the advertisement for proposals; and that the said board of commissioners have purchased the necessary material and employed the necessary labor and have caused the said plant to be constructed and fully completed and have had it in successful operation for a long time; and having fully answered respondents ask to go hence and recover •costs. By reply the relators insist that the final rejection ■of Halley's proposal, and the construction of the plant under the direction of the commissioners, was only colorable and not in good faith, and pray as in their complaint.

The case was heard and submitted on the evidence from a consideration of which the court finds and •states the following as undisputed facts: The respondents are the duly qualified and acting commissioners of Crawford county; they found it necessary and determined to build a power house and put in a steam-heating plant for the court-house and jail of said county, and for ■that purpose procured a plan and specifications to oe prepared, which were approved, and public advertisement made, inviting proposals to supply the necessary materials ■and labor and construct the said power house and heating plant, in accordance with said plan and specifications. The ■advertisement requested each bidder to specify with particularity, in the proposal submitted, the precise kind and quality and the exact amonut of material to be used in the '•construction of said plant. The plan and specifications did not contain a definite description of the kind, quality and “amount of materials to be used, nor were they accompanied by an accurate bill showing the exact amount of all the different kinds of materials to be used in the construction of the plant, nor by a full and complete estimate of each item of expense, and the entire aggregate cost, of the plant. A large number of proposals were prepared and submitted to the board in pursuance of the advertisement. Upon examination of the several bids, the'bid of relators was found to be the lowest, in the sum of $163.00, and that of-— — Halley the next lowest The proposal of relators did not specify the precise kinds and amount of materials it was proposed to use. Halley’s proposal was more definite in that respect. The board of commissioners rejected the bid of relators, and accepted that of Halley. The relators did not give, or tender, a proper bond, conditioned for the faithful performance and completion of the contract if awarded to them, but they were able and willing to give such bond, if demanded, After the lapse of about ninety days, the board, with the consent of Halley, rejected his bid also, and proceeded, in good faith, and constructed the steam heating plant, under its own direction and supervision, and has fully completed the same.

By express provision of statute, mandamus will not issue to control judicial or official discretion, but only to “require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions,” by “commanding the performance of an act which the law specially ■enjoins as a duty resulting from an office, trustor station.” Sections 6741-6742, Revised Statutes. So, that to entitle relators to the relief they seek a mandatory order on the respondents,to accept relator’s proposal and award them the contract for constructing thp steam beating plant, it is necessary that the facts appearing establish such a situation or condition that it becomes the clear official duty, on the part of the board of county commissioners, to let the contract to the relators, at their proposal. Stating it differently, such situation and condition must be established by the evidence,, that the law, acting thereon, makes it the legal duty of the-board to award the contract to the relators; and if the facts, appearing show no such legal duty, but on the contrary, shows a legal duty to not award the contract to the relators, or to any one, then relators have mistaken their remedy, and must suffer non-suit, Otherwise if a legal duty is made-manifest by competent evidence. The claim is asserted! that under the provisions of sections 795, 797 and 798, Revised Statutes, and the facts as they are proven, it became the plain duty of the respondents, as a board of com-, missioners, to award the contract for supplying the necessary materials and constructing the proposed steam heating-plant to the relators. These sections do authorize the-making of plans and specifications, and estimates of cost- and expense of constructing public buildings, additions to-buildings, etc., the advertising for proposals and the letting-of contracts for the construction of the same; and define-the powers and duties of the commissioners touching such-matters, and are relied on by relators as constituting and' fixing a definite condition, entitling them to ths relief they are demanding,

The provisions of section 795, Revised Statutes, so far as they relate to and have bearing on the proposition before, the court, are as follows:

“In all cases where it becomes necessary for the-commissioners of any county to erect or cause to be-erected any public building, * * * or where it is necessary to make any addition or alteration of' the same, whether the same is done under a general or special law passed for that purpose, such commissioners, before entering into any contract for the erection, alteration, or repair thereof, or for the supply of any materials there-, for, shall make, or may procure some competent architect- or civil engineer to make full, complete and accurate plans* therefor, showing all the necessary details of the work and1 •materials that will be required for the same, together with working plans suitable for the use of the mechanics or other builders during the constructing thereof, so drawn as to be •easily understood; and also accurate bills, showing the exact amount of all the different kinds of materials to be used in the erection thereof, addition thereto, or in the alteration •of the same, and they shall accompany the plan or plans. The architect or civil engineer shall also furnish complete specifications of the work to be done, showing the manner and style in which the same will be required to be done, and giving such directions for the same as will enable any competent builder to carry them out; afford to bidders all needful information to enable them to understand what will be required in the construction * * * thereof; he shall also make a full, accurate and complete estimate of each item of expense, and the entire aggregate-cost of the building * * * or of any addition to * * * when completed.”

Counsel for respondents urges that this particular contract for the erection of a steam heating plant, is not included or covered by the provisions of the section just quoted, as not being a building, an addition or an alteration of a building, and therefore, there is no requirement that the contract for its construction be let at public or •competitive bidding. The suggestion is not warranted by the facts, and is wholly intenable, as a legal proposition. The steam heating plant is of such character, and is attached to the building in such manner and for such purpose, that it becomes a part of it, and so is included and referred to in the section as, ‘‘an addition to a building,” and the letting of a contract for its construction is governed by the provisions of the section.

Certainly the power to make contracts for, and to secure the construction of public buildings, and make alterations and additions thereto, is, by the provisions of law, vested in the commissioners of a county; and equally certain is it that a definite limitation, or rather condition precedent to the exercise of that power, has been imposed by the provisions of section 79B, Revised Statutes, just above quoted.. “Before entering into any contract for the erection” of any-building, — -says the section, “ the commissioners shall make, or cause to be made, full, complete and accurate plans, therefor, showing all necessary detail of the work and materials that will be required for the same”; and woruing plans for the use of the mechanic, so drawn as to be easily understood; “and also accurate bills, showing the exact amount of all the different kinds of materials to be used; and these plans and bills must accompany the plans; and-there must also be made full, accurate and complete estimates of each item of expense, and the entire aggregate-cost”, of the structure to be erected. These requirements are imperative, and necessary to be observed before the-commissioners can let a contract, or properly advertise for proposals for a contract. They are also wise and beneficient, and serve the double purpose of compelling the officers to-exercise their judgments, not only as to the general plans- and specificátious of the structure, but as to all the matters-of detail, such as the quality, quantity and style of materials, and the estimated cost and expense of each item, and the aggregate cost of the whole; and affords needed protection to the public, and as well to honest contractors and builders. So we say, the making of plans and specifications, accurate bills showing precisely the different kinds- and the exact amount of materials required, estimates of cost and expense of the items and in the aggregate, all settled and approved by the exercise of the judgment of the commissioners acting as- a board, are conditions precedent to the exercise of the power to erect public buildings and ad., ditions thereto, or to advertise and let contracts for the erection thereof. Until the board does and performs all the requirements of the section it is without authority to act, and destitute of power to advertise for proposals or to let a contract.

The evidence heard upon the trial and bearing upon the, as we conceive, controlling question in the case, is practically without conflict, and is all to the effect, that while possibly a sufficient general plan was made, or caused to be-made by the commissioners, there was very little definite-specification — -certainly not such definite and clear specifications, showing all the necessary details of the work and' materials required for the work, as the section contemplates. There was absolutely no bill or bills showing the “exact amount of all the different kinds of materials to be used in the construction'1 of the plant,and there was no estimate of the cost and expense, either of the items or in the aggregate. These omissions and defects in definite specifications- and estimates, the board of commissioners undertook to cure- and supply, by requiring bidders to make and file with their proposals, accurate specifications and bills of materials, with the estimated cost thereof, as required by the statute. This would have been proper under the provisions of section-796, Revised Statutes, as such action is therein provided for. But that section has special reference to the letting-of contracts for bridges and bridge work,and is not believed to apply in the matter of letting contracts for buildings, or additions to buildings, provided for in section 795, and if' it had application, the fact would not be helpful to relators, for they omitted to make and file with their proposal, the required definite descriptive bills of material and estimates of cost and expense of the various items.

In any event and at all times, when the board of commissioners have found it necessary to erect a public building, the board is required to exercise a sound discretion in determining the character and extent of the building, in making or causing to be made, plans for its construction, and' in selecting the materials of which it is to be constructed. The hoard must exercise its judgment in all these respects. This is imperative, and may not be omitted. When that is; . done, and is put in permanent and definite form, such as by accurate plans, specifications and descriptive bills of materials, giving the precise amount, quality and kind of material required, with an estimate of the cost; with nothing indefinite or uncertain, but altogether definite and cer•tain as provided by the law, the board has exercised its dis- . cretion — the discretion lodged in it by the law, so that nothing remains but to ascertain the lowest bidder and . award the contract. In such.case it becomes the legal duty of the board to award the contract to the lowest bidder, and mandamus will lie to compel the discharge of such legal ■ duty. But until the discretion has been exercised and the decision put in proper form by definite plans and bills de- ■ scribing the precise kind, quality and amount of material, as required by section 795, Revised Statutes, it still remains a matter of discretion with the board, and its exercise • cannot be directed or controlled by mandamus.

There is another reason why the relief sought by relators in this case should not be allowed. The requirement of the law is, that before a contract can properly be awarded to a bidder, such bidder must first give a good and sufficient bond, conditioned for the faithful and proper performance .■of the contract if awarded, etc. This also would seem to be a condition precedent to the awarding of the contract, especially if the board so requires. The offer of a bond, - properly conditioned and with proper sureties, should ac- . company the proposal, as an earnest of good faith and to en- • title the bid to consideration. The relators in this case, ■ did not give or tender such a bond, and so have not put ■ themselves in such position that it becomes the legal duty of ■ the board to award them the contract on their proposal.

From any view we are able to take of the case, on the law and facts appearing, we do not find a situation or condition . established by the evidence submitted, that makes it the . official duty of the board of commissioners, respondents in this case, to give the contract for furnishing the labor and material for the construction of a steam heating plant in the Crawford county court-house and jail to the relators. In our opinion the board very properly rejected all the proposals submitted,including that of relators, and its conduct is commended as entirely proper and in accordance with law. The finding is against the relators, and their petition is- dismissed, and they required to pay the costs.

G. J. Marriott, for the Relators.

P. W. Pool, Finley & Gallinger, Beer, Bennett & Monnett, for Respondents.


author: NoReis, J.

text:
    (Third Circuit—Logan Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE TOLEDO & OHIO CENTRAL RAILWAY CO. v. SUMNER A. MARSH.
    “ Bill of Exceptions filed before overruling of r otion for new trial— Effect — What matters before reviewing court—
    (1). On April 2nd, 1898, the bill of exceptions was allowed and signed, made a part of the record, and filed with the papers in the action. All this before the motion for new trial which had been filed within the three days was overruled, and before judgment was entered upon the verdict.
    Held, that the action of the court in that regard must be challenged not before, but after the court has acted. And that the steps to save for review those matters to which the character of error can only be imparted by the trial court in its adverse adjudication of the motion for new trial, or by its decision, muse be taken after the decision is made or the motion is overruled.

      Presumption that charge responsive to evidence—
    <2). When the charge is in all things applicable to the issue tendered by the pleading, it must be presumed, in the absence of steps taken to save the case for review upon the evidence, that there was sulm'tted to the jurj at the trial evidence to support the issues in the pleadings, and that to the evidence so given, the charge is responsive.

      Ejection from R. R. train — When action on tort—
    (3). Where one is wrongfully ejected from a railway train,even in the absence of the use of excessive force by the servants of the railroad company, and whether or not the relation of the parties originated in contract, he may seek his remedy as for tort.

      Ejection — When an assault, right to be on train no element as to right to recover—
    (4). When the force used to eject amounts to wanton assault, the fact as to whether the plaintiff was rightfully or wrongfully upon the train, is not an element in the question of mere recovery.
   NoReis, J.

The defendant in error, Sumner J. Marsh, in his petition n the action which is sought to be reversed, says, that before the 23rd of September, 1896, the plaintiff in error, the Toledo & Ohio Central Railroad Company, who was defendant below, offered and advertised to carry passengers on the 23rd and 24th of September, from West Mansfield in this county, to the city of Columbus, to return on the 25th of the same month, for $1.30, and advertised that it would sell tickets for this purpose at its ticket office at West Mansfield on the 23rd and 24th, On the 23rd of September, 1896, plaintiff went to defendant’s ticket office at West Mansfield for the purpose of availing himself of this offer of defendants, to sell a ticket from West Mansfield to Columbus and return during these dates for $1.30, and found no agent of defendant there and the ticket office closed, and could not for this reason purchase a ticket for this trip. When the train came and stopped at the station of West Mansfield, he entered the defendant’s cars for the purpose of making this journey for the price advertised; he had no ticket; he offered the conductor one-half of the advertised fare from West Mansfield to Columbus and return, namely, 65 cents, and offered to purchase of the conductor a ticket to Columbus and return, and offered to buy a ticket at the first stop where a ticket office was found open, to buy a ticket to Columbus and return; but the conductor refused each of these offers, refused to allow plaintiff to continue on the train, and he and the brakeman, all agents of defendant company, violently and with wantonness, and with unnecessary force ejected him from the train at a point six miles from his home, and before the e^d of the journey, and in so doing maltreated plaintiff and injured him, and that he was thereby caused pain and suffering, and was prevented from attending to his business in the city of Columbus, in all to his damage of $2,000, which he seeks to recover.

Defendant railway company, by its answer, admits that plaintiff boarded its train at West Mansfield, which left West Mansfield at 5-18 of the morning of the 23rd of September, 1896, and offered the conductor 65 cents, which the conductor refused t,o' accept.

It admits that it advertised to sell tickets from West Mansfield to Columbus and return for $1.30, good September 23, 24 and 25, 1896, which was one-half of the regular fare for said trip, and denies that it offered to carry passengers on said trip at a price less than the regular fare, other than those who provided themselves with these round trip tickets.

Defendant says that plaintiff boarded this train at West Mansfield with full knowledge of this, and knew when he went to West Mansfield that he could not purchase a ticket at said office at that time of day, and that the defendant did not require or have its office at this point open for business of any kind at that hour. And knew when he got on the train that he would not be permitted to ride at reduced rates without a ticket permitting to do so. All else in the petition is denied by the answer.

Plaintiff says in his reply that these tickets were not on sale before the 23rd of September, and that on the day be: fore, on the 22nd of September. 1896, plaintiff informed defendant’s ticket agent at its office in West Mansfield, that he intended to take this trip on this morning train and would want an excursion ticket as offered in said advertisement, and that defendant’s agent did not inform plaintiff that no ticket would be on sale at said office for said morning train for said trip, and that defendant is precluded by this neglect of its agent from making said defense.

The issues thus tendered were snbm’tted to a jury in the trial court, which resulted in a verdict for the plaintiff for the sum of $443.75.

On the 2nd day of April, 1898, the defendant, plaintiff in error here, presented its bill of exceptions embodying the evidence at the trial and such record history of the proceedings up to that date, as it is the office of a bill of exceptions to save, which bill was on that day allowed, signed and ordered to be made a part of the record and filed with the papers in the action.

On the 4th day of April, 1898, the case came cn to be heard in the trial court upon the motion to set aside the verdict and for a new trial, which motion had been filed within the time prescribed by law. Upon the hearing of this motion, on the suggestion of the court, plaintiff submitted to entry of a remittitur, of so much of the verdict as exceeded $300, and that being entered the motion for new trial was overruled and judgment entered upon the verdict for $300, to all of which defendant excepted, and prosecutes error here for purposes of reversal.

The errors assigned in the petition in the case are:

First: Error in admitting evidence offered by plaintiff.

Second: Error in rejecting evidence’.’offered by defendant to sustain the issues on its behalf.

Third: Error in the charge to the jury.

Fourth: That the verdict is nonsupported?; bypthe weight .of the evidence.

Fifth: The verdict is contrary to law.

Error in overruling lbe‘'molion'"fonnew trial.

Ia the motion for new trial are the additional assignments, that the court erred in refusing to charge the 'jury as requested by defendant, and that the verdict-is excessive.

We are of the opinion that the parts of the record of this proceeding which are dependent for review upon a motion for new trial and a refusal by the trial court to allow the motion, are not brought into this record and presented here for investigation. The statute providing for presenting and allowing bills of exceptions and fixing the time within which the same shall be done, determines the period to be within fifty days after the overruling of the motion for new trial or the decision of the court when a motion for new trial is not necessary. So that it would appear that the steps to save for review, those matters to which the character of error can only be imparted by the trial court in its adverse adjudication of the motion for new trial or in its decision, must be taken after the decision is made or the motion is overruled, otherwise the matter has not been finally determined and the error does not exist, and it would follow surely that an exception to an error that has not been committed saves nothing as in this case; it contemplates trouble that may never present itself,and a mistake that the chances are at least even will never be made.

The right to review this case on the weight of the evidence, or on the claim of excessive damages found by the verdict which can only be determined upon examination of the evidence; or on the error claimed by refusing to charge as requested which is assigned in the motion for new trial, but not in the petition in error; or upon the overruling of the motion for new trial, should be saved in the manner pointed out; that is in challenging the action of the court not before, but after the court has acted.

So the matters assigned for error which preceded the motion and do not arise upon it for review are:

First: Error in the admission of evidence over the defendant’s objection.

Second: Error in rejecting evidence offered by defendant in its behalf.

Third: Error in the charge to the jury as given,

Fourth: That the verdict is contrary to law — that is here to say, not that it is illegal because not supported by the evidence; but that the verdict was induced by and rests upon some erroneous exposition of the law by the trial court'.

As to the assignments that there is error in the admission and in the rejection of evidence, we have examined the record carefully with this in view, and find nothing in this regard to the prejudice of the plaintiff in error.

As to the charge as given, we have inspected it thoroughly and find that it fully covers all the issues and correctly gives the law applicable to the controversy as presented by the pleadings. And this is as far as we can go in the direction indicated by this assignment of error, because the evidence is not here for review, and we may not measure how far it is or is not applicable to the facts as shown by the evidence.

The plaintiff asserts that the defendant offered by advertisement to sell him a ticket from West Mansfield to Columbus and return for $1.80, good on the 23rd, 24th and 2oth of September, 1896. That he went to its ticket agent at West Mansfield on the 22nd of September, and notified and informed defendant’s ticket agent there at defendant’s ticket office, that he would be there on the morning of the 23rd to buy a ticket of the kind offered, for the purpose of riding to Cdumbus on that morning train. That was a train upon which a ticket of that character warranted a ride. He went there before the train came, could get no ticket because the office was closed; got onto the train without a ticket, made offer of reduced rate to Columbus which was refused by the conductor, who plaintiff says by wanton and excessive violence ejected him from the train, and that he was by this act of the conductor’s physically injured. Of the salient points of plaintiff’s case as he thus states it, defendant makes denial, and we find that to these issues, the charge is in all things full and applicable. And we must in the absence of something to the contrary upon the record appearing,conclude that there was evidence which supported these issues on behalf of plaintiff and to which the charge of the court was responsive.

George E. Grane, and Doyle & Lewis, for Plaintiff in Error.

Hounstine & Huston, for Defendants in-Error.

Without commenting upon the cases cited by plaintiff in error and.which we have carefully examined and which, in the absence of excessive force, seem to point to the contract for remedy, and not to any remedy in tort. We are inclined to the contrary holding as supported by the best guarded reasons and authority, to use the language in the Railway Company v. Reynolds, 55 Ohio St., 384, that in such case, “a railway company will be made liable by the act of its agent in following its rules, where the appearances on which he acted was created by the fault of another agent of which he had no knowledge. Such a contingency is a risk incident to the privilege of making rules, and the company should suffer for the fault of its agent that causes the mistake rather than an innocent person.”

Here,in this ease,is the further element of excessive force and wanton assault, which, with all else eliminated, and whether plaintiff was in said car by right or wrong, supports the action and warrants the exposition of the law as given in the charge and the conclusion of the jury as evidenced by the verdict. Finding no error on the face of the record to the prejudice of plaintiff in error, the judgment is affirmed at costs of plaintiff in error, and the case is remanded for execution.


author: MARVIN, J.

text:
    (Seventh Circuit—Lake Co., O., Circuit Court
    Feb. Term, 1899.)
    Before Burrows and Marvin, JJ.
    LAMA R. KEWISH et al. v. WILLIAM WIRE.

      Injunction — Appeal—
    When a party desires to appeal to the circuit court, from an interlocutory order made by the court of common pleas vacating an injunction, and said last named court by its order suspends the operation o! the order of vacation of the injunction for ten days, the party desiring so to appeal may perfect the same by giving the notice and entering into the undertaking provided by law, and the refusal of two judges of the circuit court in vacation, to order a suspension of the order of dissolution, will not have the effect of defeating the appeal.
   MARVIN, J.

The case of Kewish et al. against William Wire is before us on a motion to dismiss the proceedings in this court, and though we have not seen the transcript, we learn from the statement of counsel that the action was begun in the court of common pleas, and the relief sought for was an injunction to prevent the taking off of certain timber from lands, and for damages as well.

A preliminary injunction was allowed by the court of common pleas, and thereafter a motion was made to vacate that injunction. That motion was sustained. Notice of appeal was given and an undertaking entered into, as required by statute for an appeal. The court of common pleas, when it sustained the motion to vacate the injunction, ordered that the order vacating the injunction should be suspended for the period of ten days, and within that ten days, as we understand it, a motion was made before two of the judges of this court at chambers for an order to suspend the operation of the order vacating the injunction, That was refused, and it is now urged, in support of the motion made here, that there is no case properly in this court — 'that there is no appeal here.

The section of the statutes which provides for an appeal from an order vacating a preliminary injunction, is 5226, and reads:

“In addition to the cases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judg ment or final order in a civil action rendered by the common pleas court and of which it had original jurisdiction, if the right to demand a ]ury therein did not exist, and from an interlocutory order made by the common pleas court, or a judge thereof, dissolving an injunction, in a case of which it had original jurisdiction; but such interlocutory order dissolving such injunction shall not be suspended by the appeal, except by the order of the circuit court, or two judge thereof in vacation, on reasonable notice to the adverse party; provided that the court or judge may, at the time of making such interlocutory order, upon good cause shown, suspend the operation thereof for any period not exceeding ten days, within which period the party appealing may perfect the appeal,”

It will be observed that the language of the statute indicates that there may be an appeal without any suspension of the order vacating the injunction. The court of common pleas, when it makes its order vacating the injunction which was theretofore allowed, may or may not suspend the operation of the order thus vacating the injunction, for ten days.

It is not, as it seems to us,one of the essentials to an appeal from an order of this kind that the court or judge making the order of vacation shall suspend the operation of it for ten days. The court, or judge, may or may not suspend the operation, But the order is appealable, by the terms of the statute, without reference to whether or not there is a suspension of the operation of the order, and that the supreme court have held that there may be an appeal without interference of the circuit court or any judges of the circuit court, aüd without any action on the part of such judges, we think is manifest from the case to which our attention was called by counsel on the bearing of this motion—The Trustees v. McClannahan, in the 53 Ohio State Reports, beginning on page 403. Judge Williams in the opinion, at page 407, says in reciting the.history of the case then being passed upon: “After the appeal was perfected, the operation of the order of dissolution was suspended, by two judges of the circuit court, until the appeal could be heard, ”

The appeal was perfected before the judges acted, From what has been said and from what has been read, we are of the opinion that there is a proper appeal in this case now in this court, and that the motion to dismiss the proceedings must be overruleid.

In this view we are strengthened by comparison of the statutes as they existed before the present statute was in the terms in which it now is.

In the statutes of Swan & Critchfield, at page 1157, section 694, this language is used:

“That appeals may be taken from all final judgments, orders or decrees in civil actions in which the parties have not the right by virtue of the laws of this state, to demand a trial by jury, and interlocutory orders dissolving injunctions rendered by any court of common pleas in this state in which it has original jurisdiction, by any party against whom such judgment of order shall be rendered or who may be affected thereby, to the district court, and the action so appealed shall be again tried, heard and decided in the district court in the same manner as though the said district could had original jurisdirtion of the action”.

It is provided, as will be seen, by this section for an appeal in a case where an order is made, as in the present case, without any suggestion of any action on the part of the judges of the district court, which court is succeeded by the cicruit court under the present judicial system. In the statutes published in 1880, section 5226, as it then, stood, reads:

“In addition to the cases and matters specially provided for, such appeal may be taken by the party or other person directly affected from a judgment or final order in a civil action rendered by the court of common pleas, and of which it had original jurisdiction, if the right to demand a jury therein did not exist, and from an interlocutory order made by the court of common pleas or a judge thereof dissolving an injunction in a case of which that court had original jurisdiction; but such interlocutory order dissolving such injunction shall not be suspended by the appeal except by order of the district court or any two judges thereof in vacation, on notice to the adverse party.”

Tuttle & Tuttle, for Plaintiffs.

Homer Harper, G. W. Alvord, and E. F. Blakely, for Defendant.

So it seems to have been the policy of the law in Ohio, for many years, that an order made by the court of common pleas in a proper case, dissolving an injunction which had theretofore been allowed, might be appealed from to the district court, when there was a district court, and to the circuit court when that court came into existence, and the present statute, it seems to us very clearly, did not in any way lessen that right. The right exists just the same, and except for the provision of the statute as it now is and as it existed in 1880, there would have been no suspension of the operation of the order vacating the injunction. But now a party may have the appeal, and in addition thereto may have the right to apply to the circuit court or to two judges thereof for an order suspending the operation of the order dissolving the injunction.

It seems to us clear that the case is here on appeal, that is so much of the case as is involved in the vacation of the preliminary injunction. The motion, therefore, is overruled.