text:
    BILLS AND NOTES — EVIDENCE—PARTIES.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    (Judge Wildman of the sixth circuit, sitting in place of Judge Winch.)
    Eldoras S. Tucker v. Alma S. Sherman.
    1. Right to Change Character of Party by Amendment.
    Allowing a plaintiff to amend his petition so as to substitute himself as executor for himself in his personal capacity is not error. ‘
    [For other cases in point, see 6 Cyc. Dig., “Parties,” §§ 514-630. — Ed.]
    2. 'Necessity of Denial of Genuineness of Signatures.
    That the signature of an indorser of a note is genuine need not he expressly proved by one claiming through such indorsement unless expressly denied.
    [For other cases in point, see 1 Cyc. Dig., “Bills, Notes and Checks,” §§ 1753-1799. — Ed.].
    3. Sufficiency of Denial of Ownership of Notes.
    The facts by which the plaintiff as executor claims title to a promissory note being specifically set up in the petition and not expressly denied by the defendant, it is not necessary for the plaintiff to show that the note was sold to the testator and delivered to him in his lifetime and that they belonged to him at his death, but the note itself with its in-dorsement may be offered in evidence.
    4. Effect of Unlawful Indorsements on Notes by Third Persons. ,

    When it is proved that notes belonged to a person at the time of his death, proof that unlawful indorsements have been made after his death cannot affect the right of his executor to recover on such notes.
    E. .Charges to be Taken by Jurors in Their Retirement.
    It is only such charges or instructions to the jury as are requested to be given in writing before the argument is commenced that are required by Rev. Stat. 5190 (Lan. 8699) to be taken by the jurors in their retire- . ment.
    [For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 181-200. —Ed.]
    [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]

      ERROR to Cuyahoga common pleas court.
    C. S. Bentley, for plaintiff in error.
    N. H. Bostwick, for defendant in error:
    Averments of amended petition not denied by answer and therefore deemed to be true. Abbot, Trial Ev. (2 ed.) 550; Da/ois v. Bartlett, 12 Ohio St. 534 [80 Am. Dec. 375]; Allen v. Johnson, 11 Cire. Dec. 42 (20 R. 81.
    If on the admitted facts and the proof the verdict is clearly wrong, a new trial should be granted. If the court only doubts its correctness, it should be left as it is. Palmer v. Coioie, 27 O. C. C. 617; French v. Millard, 2 Ohio St. 44; McGatrich v. Wason, 4 Ohio St. 566; Cincinnati Trac. Co. v. Wooley, 17 Dec. 19.
    Refusal of court to allow charge to go to the jury. Pittsburg & L. E. By. v. Bishop, 7 Circ. Dec. 73 (13 R. 380).
   MARVIN, J.

The defendant in error brought suit against the plaintiff in error upon two promissory notes, setting out each one as a cause of action against the defendant. This suit was brought by her in her individual personal capacity. The notes sued upon are alike except that one is payable two years after its date and the other .three years after its date. The first note reads:

“Painesville, Ohio, March 18, 1896.
“$1,500.
' “Two years after dáte I promise to pay to the order of IT. C. Walton fifteen hundred dollars, at Boughton, Ford & Co., Burton, Ohio, with interest at 6 per cent annually, value received.
“Secured by mortgage.
“E. S. Tucker/-’

The following is written on the back of said note:

“Pay to Alma S. Sherman or order. TJ. S. WeltoN.”

There are no credits indorsed on said note.

This suit was begun on June 10, 1902. On December 31, 1904, on motion of the plaintiff, she was permitted by the court to amend her petition, substituting herself as executor of the will of Roger Sherman, deceased, for herself in her personal .capacity, and alleging that by reason of the facts set out in said amended petition she was the owner of said notes as such executor. This amendment was made over the objection of the defendant. . The plaintiff was also allowed to amend by making a new party defendant in the case, but nothing that was done by the court in reference to such new party in any wise affects any of the parties now before this court, and nothing need be said as to that amendment. As to the amendment substituting herself as executor, an exception was taken. We think that the action of the court in that regard is fully justified by the case of Becker v. Walworth, 45 Ohio St. 169 [12 N. E. Rep. 1], On pages 174 and 175 this language is used (It should be said, however, before reading this, that a suit was brought against a person in his personal capacity and that thereafter application was made for leave to amend, letting the suit stand as against the defendant as executor.) :

“The filing of the first petition in the case is claimed to contain an election. In- the caption to that pleading the defendant was described as ‘Michael Becker, executor of the estate of Abram Rafenstein. deceased,’ and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
“Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of t'he action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. ’ ’

That reasoning applied to this ease would justify the court in permitting the amendment to be made, and there was no error in that regard.

It is further claimed that the court erred in admitting the. notes in evidence. I read certain allegations in the amended petition and certain parts of the answer. In each cause of action this language is used:

“There are no credits indorsed on said note; said note was duly indorsed in blank by said U. C.' Welton and sold and delivered to said Roger Sherman by him long beforeAts maturity, and said Roger Sherman was the owner and holder of said note at the time of his death.”

In answer to this the defendant sets out that there was a fraud perpetrated upon him in the procuring of these notes ; that he was induced by certain fraudulent representations and conduct on the part of the payee of the notes to give the notes in part payment of the purchase price of certain lots near the city of Chicago; that the lots were not the ones shown to the defendant at the time he made the purchase; that they were not such lots at all as they were. represented to be, and that Sherman (the deceased) was a party to that fraud, but the only denial contained in this answer is in these words:

“This defendant denies that said notes are owned by the plaintiff; and he says that if and so far as said plaintiff may on the trial hereof produce evidence of her ownership, she took whatever title she has or .shall show, with notice of this defendant’s said claim and defenses to said notes, and after the same each became due by the terms thereof and her said testator at the time he received said notes and at the time of the giving of the same was interested with said Welton in said transaction and in said lots and in said transaction the said Welton acted in whole or in part as agent for said Roger Sherman, deceased, who was then in full life.”

The plaintiff said sne owned-the notes as executor. The defendant denied it. Plaintiff said she owned the notes because they were duly indorsed in blank by U. C. Welton and delivered by him to said Roger Sherman long before maturity, 'and said Roger Sherman was the owner and holder of said notes at the time of his death. This is not denied, the only denial being as hereinbefore quoted, ‘ ‘ this defendant denies that said .notes are owned by the plaintiff. ” It is urged that it is a sufficient deni.R, and in a brief submitted to-day attention is called to Booco v. Mansfield, 66 Ohio St. 121 [64 N. E. Rep. 115], and especially to page 135; Chamberlain v. Railway, 15 Ohio St. 225 and the language of the court on page 250; Boggs v. Wann. 7 O. F. D. 439 [58 Fed. Rep. 681] ; Stoutenburg v. Lybrand, 13 Ohio St. 228. In each of these cases, it is held that it is a denial of the right of the plaintiff to recover when one denies the ownership of a note sued upon. He need not set up the facts upon which he relies as showing that the plaintiff is not the owner. But here the plaintiff has set out the facts upon Avhich she relies to show that she is the owner, to wit, that the notes were owned by her testator long before they were due and that they were indorsed in blank and delivered to him and that they were his property at the time of his death. So that under the pleadings it was not necessary for the plaintiff to show that the notes were sold to the testator and delivered to him in his lifetime and that they belonged to him at the time of his death, but she offered the notes in evidence, and it is said that there was error in admitting them in evidence.

She had testified that the notes were in her possession. She testified where she found them, one in the safe with her husband’s papers, and the other in a bank at Titusville, Pennsylvania. There is nothing to indicate how it came to be there. The allegation of the petition is, that it belonged to her husband when he died; this is not denied. Now, when she produced the notes in evidence it is a sufficient showing — at least it tended to show — that she as executor was the owner of the notes. Indeed, I think it was enough that they were the property of the testator when he died and that she had them as the executor of his will, and there need be no other showing about it. It certainly could not prejudice the defendant below that she produced ■ the notes as tending to show her ownership of them as executor.

In the brief of counsel for plaintiff in error, it is urged that there was no evidence that the name of the payee on the back of the note was his genuine signature. It was not necessary to show that that was a genuine indorsement because it was not denied. The plaintiff testified to the fact that the indorsement as it now appears upon the notes was not upon the note at the time of the death of her husband but that the only indorsement upon the note at that time was simply the name of the payee and that the words appearing above that name now on the notes, “Pay to Alma S. Sherman or order.” “I hereby waive demand of notice and protest, ’ ’ were written after the death of Roger Sherman. Remembering that the notes belonged to Roger Sherman when he died, no action of the payee could take away the ownership of these notes in the representative of Roger Sherman. For as they did not belong to Welton, he could not make any indorsement after the death of Sherman which could change the ownership.

It is said, however, that there was error in the charge of the court in these words:

“It is the claim of the plaintiff that after the death of Roger Sherman these notes were found among his papers, or were found under such circumstances or in such place as indicated that they were under his control at the time of his death, and in his possession, actual or constructive, and it is also claimed by plaintiff that at that time the only indorsement on the back of the note was the name “TJ. C. Welton.” Now, if that be true, if these notes were found in his possession, actual or constructive, and by constructive I mean that they were found where he had placed them for some purpose without intending to part with the ownership of them, the presumption, I say, would be, that they belonged to him at the time of his death.”

There was nothing in the evidence that could justify this language, as applied to the note found in the bank at Titusville, but there being no denial of his ownership at the time of his death, there was no prejudice in that. The same may be said as to other language of the court in regard to establishing the ownership of the notes. It was admitted that they belonged to Sherman when he died.

Again complaint is made of the action of the court, in refusing to send certain written instructions to the jury. The facts, as shown by the bill, are, that after argument the court said that plaintiff had submitted twenty-one requests; that the court,declined to give these requests except, as given in the general charge, and then the court said, 'as appears on page 27 of the bill:

“The requests of the defendant to charge the court will give, all except the eighth; but I have great doubt, Judge Bentley, whether I ought to give the eighth one — the last one; I don’t know whether it would be fair to the other party to give that request in this case.
“Mr. Bentley. I think fairness to the defendant, Tucker, requires something in the nature of that request, or something of an equivalent nature should be given.
“The Court. I will give it.”

Then follows two requests. The language is:

“1. The defendant, Tucker, moves the court to dismiss this action i upon the pleadings herein.
“This request is refused.
“2. In case said first request is refused, said defendant, Tucker, requests the court to direct the jury to return a verdict for the defendant, Tucker.
“This request is also refused.
“Then comes the charge proper to the jury.”

This is followed by numbered paragraphs, beginning with No. 3 and ending with No. 8, and then follows what is further said to the jury.

It is nowhere said that the numbered paragraphs were in writing, and only by implication is it said that they were the instructions requested by anyone. "We think, however, it is fair to treat them as being in writing and as requested by the defendant. At the close of the charge the bill shows the following:

“Counsel for defendant, Tucker, asks that the requests to charge^ that were given,, go with the jury on their retirement. Said request was refused. ’ ’

As already said, the implication is, that these were in writing and we treat them as though they were. It cannot be assumed that these requests were made before the argument. We must treat them as being made at the conclusion of the argument.

This brings us to the construction of Rev. Stat. 5190 (Lan. 8699), the fifth and seventh subdivisions of which read:

5. “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
7. “The court, after the argument is concluded, shall, before proceeding with other business, charge the jury, any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written or given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

These subdivisions read substantially as the fifth and seventh subdivisions of old Sec. 33 of the criminal code, found in 74 O. L. 349 (Rev. Stat. 7300, Lan. 11054). There is no difference in the reading insofar as the written instructions to the jury are concerned.

In the case of Griffin v. State, 34 Ohio St. 299, the second clause of the syllabus reads:

“Under Sec. 33, title 2, Chap. 6 of the penal code (74 O. L. 349), special instructions given to the jury in writing, after argument, are not required to be taken by the jury, in their retirement, where the principal charge is not’ required to be in writing. ’ ’

The opinion of-the court bears that out. On page 303 the court say:

“The only charges that the court is required to reduce to writing, under either clause of the section, are such charges or instructions as it is requested to reduce to writing before the argument is commenced; and it is too late to make the request after the argument is commenced. ’ ’

To the same effect are the cases, Foy v. Railway, 6 Circ. Dec. 396 (10 R. 151, 153-4) and Caldwell v. Brown, 6 Circ. Dec. 694 (9 R. 691). In each ease the opinion was delivered by Judge King and it is said that the requests which must go to the jury are those mentioned in Subd. 5, to wit, requests to charge before argument. Entirely consistent with these authorities are the cases in Cone v. Bright, 68 Ohio St. 543 [68 N. E. Rep. 3], and Householder v. Granby, 40 Ohio St. 430.

Following the construction given to these several statutes, we find no error in the action of the court in this regard, and no error in the record of the case.

Judgment affirmed.

Henry and Wildman, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    HEALTH — SCHOOLS AND SCHOOL DISTRICTS.
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch and Henry, JJ.
    State, ex rel. Milhoof, v. Barberton (Bd. of Ed.).
    •Boabd. of Education mat Enfoece Reasonable Rules as to Vaccination.
    By the provisions of Rev. Stat. 3986 (Lan. 6464) a board of education is clothed with an express grant of power over the subject of vaccination, and may enforce all reasonable rules with reference thereto.
    [For other cases in point, see 5 Cyc. Dig., “Health,” §§ 38-41; 7 Cyc. Dig., “Schools and School Districts,” §§ 435-439. — Ed.]
    Appeal from Summit circuit court.
    Rogers, Rowley & Rockwell, for plaintiff.
    Stuart & Stuart and H. M. Hagelbarger, for defendant:
    A board of education may require the vaccination of children as a condition precedent to their enjoyment of school privileges. Revised Statute 3986 (Lan. 6464).
    Courts will take judicial notice of the facts that the common belief of the people is, that vaccination is a preventative of smallpox. ’ Viemeister v. White, 179 N. Y. 235 [72 N. E. Rep. 97; 70 L. R. A. 796; 103 Am. St. Rep. 859].
    A rule requiring vaccination is not in conflict with any constitutional right, and may be adopted when smallpox is not prevalent nor threatened. Hutchins v. Durham, Sch. Committee, 137 N. C. 68 [49 S. E. Rep. 46]; Commonwealth v. Jacobson, 183 Mass. 242 [66 N. E. Rep. 719; 67 L. R. A. 935]; Bissell v. Davison, 65 Conn. 183 [32 Atl. Rep. 348; 29 L. R. A. 251]; Fields v. Robinson, 198 Pa. 638 [48 Atl. Rep. 873]; Abeel v. Clark, 84 Cal. 226 [24 Pac. Rep. 383]; Morris v. Columbus, 102 Ga. 792 [30 S. E. Rep. 850; 42 L. R. A. 175; 66 Am. St. Rep. 243].
   MARVIN, J.

The petition sets out that the relator resides in Barberton, and has two children of school age who are entitled to be admitted as pupils in the schools, and that they are excluded for the reason, and only for the reason that they have not been vaccinated for smallpox, and he seeks a mandamus compelling the board of education to admit these children into the schools.

The ease was heard and some evidence introduced, and it appears that the facts are as stated in the petition. The board has a rule which it adopted at a time when smallpox was prevalent in the village of Barberton; that prevalence does not now exist, nor is there any smallpox in the vicinity of Barberton — in Akron, or any other place connected with Barberton, but the rule is still there and still in force. Revised Statutes 3986 (Lan.- 6464) provides that—

“The board of each district may make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of smallpox.among the pupils attending or eligible to attend the schools of the district, as in its opinion the safety and interest of the public require; and the boards of health and councils of municipal corporations, and the trustees of townships, shall, on application of the board of education of the district, provide at the public expense, without delay, the means of vaccination to such pupils as are not provided therewith by their parents or guardians.”

In accordance with that statute the board adopted this rule; it is still in force. In numerous cases which were cited on the hearing in other states such rules have been upheld. It is urged that in view of the fact that there is compulsory education in this state, the policy of the state is to encourage, indeed, to enforce education upon the children, that there ought not to be a rule which will exclude children from the schools because they have not been vaccinated, but the' statute says they may, or, rather, that they may enforce the vaccination and make such rules as in the judgment of the board are necessary. They have adopted this rule. There is nothing in the decisions to which our attention has been called, or of which we have any knowledge, nor is there anything in the facts which would justify us in holding that the rule of the school board is unreasonable, and the petition is therefore dismissed at the costs of the plaintiff.

Winch and Henry,.JJ., concur.


author: DONAHUE, J.

text:
    APPEALS — CHARITABLE TRUSTS.
    [Stark (5th) Circuit Court,
    1906.]
    Donahue, McCarty, and Taggart, JJ.

      James H. Hunt v. Charles Edgerton et al.
    1. Right of Trustee to Appeal in Interest of Cestui que Trust.
    In an action brought by a trustee of a charitable trust under Rev. Stat. 6202 (Lan. 9743), to construe the trust, where the common pleas court, on hearing the same, holds that there is no trust, it is the right of the trustee to appeal to the circuit court in the interest of the cestui que trust.

    [For other cases in point, see 7 Cyc. Dig.,- “Trusts and Trustees,” §§ 439-443. —Ed.]
    2. Certainty of Beneficiaries of Charitable Trusts.
    The individual beneficiaries of a' charitable trust must necessarily be vague and uncertain, and it is sufficient if a class is designated from whom the trustee can select. j

    [For other cases in point, see 2 Cyc. Dig., “Charities,” §§ 18-26, 61-66. — Ed.]
    3. Power of Trustee to Select Beneficiaries of Charity Fund.
    A trustee clothed with the power of administering a trust fund for such public charity has, without special delegation thereof, incidental authority to select from the classes named the individual beneficiaries thereof.
    [For other cases in point, see 2 Cyc. Dig., “Charities,” §§ 61-83. — Ed.]
    4. Sufficiency of Bequest Creating Charitable Trust.
    Testator providing in his will a fund “to be applied by my trustee to the education of colored children, by which I mean in whole or in part of negro blood, and in case an opportunity or opportunities should hereafter occur to Unite the fund hereby bequeathed for similar purposes, it is my will that my trustee for the time being have power to unite the fund hereby bequeathed with such other fund or funds upon such terms and conditions as may to him seem best fitted to carry out the objects and purpose of this devise; and, should the fund hereby devised by the addition of other funds or otherwise ever become sufficiently large for that purpose, it is my preference that a manual labor school, upon a similar footing to the Charity School of Kendall as at present conducted, should be established and supported by said fund for the benefit of colored children, but this preference is not designed to be binding or controlling upon my trustee,” such bequest creates a good and valid charitable trust and is not void for uncertainty in object or beneficiaries and a court of equity will not permit the same to fail for want of a trustee.
    [Syllabus by the court.]
    Appeal from Stark common pleas court.
    R. H. Day and Austin Lynch, for .plaintiff.
    J. W. Craine and James Welker, for defendants.

       Affirmed, without report, Edgerton v. Hunt, 75 Ohio St. 000; 51 Bull. 575.

   DONAHUE, J.

This case comes into this court upon appeal. The first question submitted to us arises upon the motion of the several defendants to dismiss the appeal for the reason that the plaintiff is not prejudiced by the judgment below and is not affected thereby and has no such interest in the suit as would authorize his appealing the same.

The plaintiff as trustee of the will of John Hall, deceased, brought action for the construction of. an item in the will which created that trust estate. That ’ resulted in the court’s finding that no trust existed in favor of the parties attempted to be described therein, and in effect held that there was no trust and nothing to be construed, and that he must account to the heirs of Hall for the funds in his hands.

We think it clearly appears that this trustee of this express trust and the trust fund in his hands which he is required to protect for the benefit of the cestui que trust is affected by the judgment in this case, and where the judgment is not merely a direction to him as to how he should administer the trust but is practically destructive of the trust, it is hot only his right but his duty to appeal the cause.

His petition did not ask the court to declare there was no trust but simply asked the court to direct him how to administer it. It is unnecessary at this time to determine whether he might appeal or not in ease it was simply a direction to him as to the manner and method of administering his trust, for that is not the question before us. It is sufficient to say that we think that he as trustee is affected by this judgment, that it is adverse to him in his trust capacity, and as such trustee he has as much right and power to appeal as if it had been adverse to him personally.

As noted above the petition was filed in the common pleas court by James IT. Hunt, trustee of a fund created by the will of John Hall, deceased, asking the court to give judgment and direction in regard to the true construction of the will of said John Hall, deceased, and especially the eighth clause thereof which provided the fund of which he is now the trustee. The heirs at law of John Hall, deceased, are made parties and answer, claiming that the objects and beneficiaries of the trust 'are indefinite and uncertain, and for that reason the bequest mentioned in item eight of his will fails, and that they, as heirs at law, are entitled to receive the same. And this is the principal question in this case.

A great deal of evidence has been introduced, touching the administration of John Hall’s estate, turning over of the fund to the trustee, the appointment of the present trustee in the place of one named in the will after the decease of that trustee, the amount of the fund, and the relationship of parties to this suit to the testator. And also evidence touching the conduct of the Charity School of Kendall mentioned in the eighth item of the will. From this evidence we find that the defendants named are heirs at law of John Hall, deceased; that John Hall died in 1854; that his widow died in 1859; that his estate was fully settled and administered in 1860; and that this final account contains an item as follows: “Paid to the John Hall trust fund, $2,480.62;” that Arvine C. Wales, named by said will as executor and trustee, qualified as such executor in 1859, and filed said final account in 1860; that it does not appear from the evidence that he qualified as such trustee; nor does any voucher appear on file in the probate court with' his accounts receipted by himself, or anyone else as trustee for the sum stated in said account to be paid to said trust fund; that in 1884 the said Arvine C. Wales, being deceased, his wife as his executrix filed an account for him as such trustee, and thereupon the present trustee was appointed by the probate court of this county to take charge of said fund and to control the same, and said trustee, the present plaintiff, then took charge of said fund and has held and conserved the same, but up to the time of the commencement of this suit has made no application of any of the revenues thereof to the objects of said trust, but has permitted the same to accumulate, and at the time of the bringing of this action, it amounted to the sum of about $10,000 and that the investment of the same, the augmenting of the principle by the interest, was in pursuance of the directions of the testator, and as a part of the active duties of such trustee m the administration. of such trust.

The only part of the will of importance in determining the questions at issue here is the eighth 'item thereof, which reads as follows:

“Eighth. It is my will that the proceeds arising from the sale of my real estate, shall form a fund, the principle of which shall never be diminished or in any way encroached upon, but it shall always be kept at interest well secured by mortgage upon real estate, and when said fund, by the addition of one-half of the interest arising from said principle, or such pai’t thereof as may not be necessary for the comfortable support and maintenance of my wife, Catherine, as aforesaid, during the widowhood of my wife as aforesaid, and by the addition of the whole of the interest arising therefr.om after the subsequent marriage or death of my wife, shall in the estimation of my trustee have become sufficiently large for that purpose, it is my will that the yearly interest arising from said fund, be applied by my trustee to the education of coloi'ed children, by which I mean, in whole or in part of negro blood/ and in case an opportunity or opportunities should hereafter occur to unite the fund hereby bequeathed with another fund or funds, given or- bequeathed for similar purposes, it is my will that my trustee for the time being have power to unite the fund hereby bequeathed with such other fund or funds upon such terms and conditions as may to him seem best fitted to carry out the objects and purposes of this devise; and should the fund hereby devised by the addition of other funds, or otherwise, ever become sufficiently large for that purpose, it is my preference that a manual labor school upon a similar footing to the Charity School of Kendall, as at present conducted, should be established and supported • by said fund for the benefit of colored children, but this preference is not designed to be binding or controlling upon my trustee.2 ’

The tenth item of the will mentions Arvine C. Wales as such trustee “to take charge of and manage the trust fund hereby devised in the manner and for the purpose herein specified.”

It will be noticed that there is no suggestion in the will as to the appointment of a trustee upon the death of Wales, or upon his refusal to serve as such trustee; but there is no contention on the part of the heirs touching the right of the court to appoint a trustee to succeed this testamentary trustee, and. in passing, therefore, it is sufficient to say that a perpetual trust fund is created by this will and in the nature of things it must have been contemplated that no one trustee would survive the trust. There is no language in the will to show that it is a personal trust, and confidence in the first trustee named, that could not be exercised by another and there is nothing in the nature of the trust to prevent its execution in accordance with the intention of the testator as well by trustees appointed by the court as by one named in the will. That being true, we think the question of the right to appoint a trustee upon the death of Wales is fully covered by the case of Sowers v. Cyrenius, 39 Ohio St. 29 [48 Am. Rep. 418].

But the serious contention is, first, that the objects and the beneficiaries of this trust are uncertain, and that the trustee named is not, by the terms of the will, clothed with any discretionary powers to make these objects or the purposes definite and certain. First as to object— the language of the will in that behalf is,

“It is my will that the yearly interest arising from said fund be applied by my trustee to the education of colored children.”

It is suggested that no particular education is designated; that the testator may have meant a scientific or theological education, manual training, musical, literary or many other branches of educktion. But we think, where there is no specification as to the kind and character of education to be given, that it necessarily and naturally follows, by the use of the word, that an education along the lines of education given by our common schools is intended; that the word “education” in the ordinary use and the generally accepted significance of the term is sufficiently explicit to designate such an education, and that, if any other was intended, or any particular branch or line of education intended, the testator should and would have pointed it out. So that we think it clearly apparent that the education that he meant and intended was education in the common branches along the lines of education sought to be accomplished by the public schools of our state; • and this fact is, we think, particularly manifested by the condition of the colored people under our laws at the time this will was executed.

There are some other suggestions, however, in this item of the will as to how this object is to be accomplished, either by uniting with other funds for sindlar purposes or by establishing a school along the line of the Charity School of Kendall; but these matters are all left to the discretion of the trustee. The only thing incumbent upon him is, that the income shall be expended for the education of colored children; so that upon this contention we find against the claim of the heirs at law.

The next contention is, that the beneficiaries of the will are uncertain. Again turning to the will we find this language: '

“It is my will that the yearly interest arising from said fund be applied by my trustee to the education of colored children, by which I mean children in whole or impart of negro blood.”

It is contended (1) that there is an uncertainty as to what class of children is meant in the term of £ ‘ colored children, ’ ’ because testator has not said what proportion of negro blood would'constitute a colored child. At that time there were some statutes of Ohio relating to the rights and also disabilities of .colored people, for instance, relating to marriage, and to vote, etc., and these statutes uniformly designated persons of visible admixture of African blood. So, that, we think, would furnish a fair test if one were necessary. But the language of this will is plain and specific and in no wise uncertain. If there is any negro blood in the child, it comes within the designation of colored children. If it is to be taken literally, there is no trouble about it. If it is to be taken and measured according to the laws of the state then in force, there would no difficulty arise. In either case the beneficiary would be easy of ascertainment. So we think there is nothing substantial in that contention.

Next, it is contended that this includes not only the colored children of Stark county, not only of Ohio, not only of the United States, but of the whole world, and that each and all of the children having any negro blood in their veins anywhere in the world are entitled as beneficiaries under this devise and that the same necessarily fails for such uncertainty, as to beneficiaries. In considering this, it is necessary to examine to some extent the nature of the trust. It is undoubtedly a public charity. If that be true then the very first element of a public charity is, that the beneficiaries thereof be indefinite and uncertain; that is to say, a class may be designated or a race may be designated, and so’long as we are able to determine the class to which the charity is to be applied, that is sufficient for the purpose of a charitable trust. It is said in Sowers v. Cyrenius, 39 Ohio St. 29, 35 [48 Am. Rep. 418] :

“It is no objection to the validity of the trust that the individuals to be benefited by it are not designated in the will, for this indefiniteness is a necessary characteristic of charitable trusts.”

In Perry, Trusts Sec. 710, it is stated:

“In order that there may be a good trust for a charitable use, there must always be some public benefit open to an indefinite and vague number. That is, the persons to be benefited must be vague, uncertain and indefinite until they are selected or appointed to be the particular beneficiaries of the trust for the time being.”

Without multiplying authorities we think that this is the true rule, and that this is the distinguishing feature that distinguishes a private from a public charity. If -the individuals, beneficiaries of the trust are fixed certain and definite «so that their names can be ascertained, and they may receive an exact proportion of the trust fund, it is no longer a public charity. A public charity from the very nature of the thing itself must be indefinite and uncertain. And if there is any way provided by which the individuals may be selected from this vague and indefinite number, then it is sufficient for the purposes of a public trust. But of course it was not intended that this small fund should be applied to the colored children of the world. That was, and is impossible from the very nature of things and the testator must have realized that; so that it w’as necessarily his intention that individuals from this race should be selected as beneficiaries of the trust. And if be has provided for that then, the designation of the beneficiaries is sufficient. If he has not it must fail for uncertainty. Another rule that has seemed to meet the approval of all courts of this country, dealing with this question, is the rule,

“That gifts for charitable purposes shall always be favored, and trusts created for such purposes carried Into effect by courts of equity, if at all possible to do so.”

The rule in England is, that all such charitable trusts shall be carried into effect, and that any uncertainty in the beneficiaries thereof shall be set at rest by the courts whether or not the intention of the testator can be exactly followed or not. It is said by some authorities that this doctrine applies in this country only not under the same name, and that reduced to its elements the cy-pres■ doctrine of England is a very simple judicial rule of construction, and as such, courts in all the states can and do apply it without usurping any prerogative powers. But we do not understand that to be the law. The definition is nicely stated by Lord Eldon in this language:

“The general principle thought most reconcilable to the cases is, that where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by the sign manual; but wheré the execution is to be by a trustee with general or some objects pointed out, then the court will take the administration of the trust.”

The first principle that is there announced is what is known as the cy-pres doctrine but has never been adopted in this state although some inferior courts have held to the contrary. The second principle — that is, where the execution is to be by trustee with general or some objects pointed out — then the court will take the administration of the trust, is the law of practically every state of this union, and we do not hesitate to declare it to be the doctrine of Ohio in relation to trusts. But further than that courts of this state, at least, will not go. So that, notwithstanding the favorable view that courts may take of such public charities and the desire to enforce such trusts, if it cannot be done according to the intention of the testator it must fail, and courts will not' attempt to direct an independent trust that seems right and proper to the court without regard to the directions and intentions of the testator. This whole question resolves itself into a consideration of whether or not the trustee of this trust has the right of selection of beneficiaries from the class of individuals named in the will.

The case of Grimes v. Harmon, 35 Ind. 198, is undoubtedly a well-considered ease and is of great assistance to this court in disposing of the question at bar.

But we do not agree with.it in all its conclusions, although we agree with the result reached in that case. And Indiana has not permitted all the doctrines announced in that case to go unchallenged. That portion announced in that case that would seem to require of us to declare this trust void is no longer the law of that state.

But in the case of Erskine v. Whitehead, 84 Ind. 357, 360, a different rule is announced, and one we think more in consonance with the doctrine of other states, and particularly the state of Ohio, so far as the courts of this state have considered the question here involved. In that case the will provided that the annual interest or income of said trust shall forever be appropriated and applied to the aforesaid trustees and their successors forever to the following benevolent objects, to wit: To poor families, widows and.orphans; newcomers in distress, or persons in Vanderburgh county suffering from want of clothing, food or fuel, especially in the Avinter; not to be paid to drunkards, but to their suffering families, if worthy; not to companies or corporations of any kind, except such associations as may be founded for the relief of the poor; not to churches of any profession whatever, but to those in distress, and especially to suffering families, from whatsoever country or whatever name or denomination, etc. And it was there held that the trustees appointed to administer the trust had the power and authority to select the- individual beneficiaries thereof from the classes therein named.

In Hunt v. Fowler, 121 Ill. 269 [12 N. E. Rep. 331], the bequest was, ‘ ‘ That the income of the fund -be distributed annually among the worthy poor of the city of La Salle, in such manner as a coui't of chancery may direct,” and notwithstanding no trustee was appointed to distribute the fund, yet the court held that the power of distribution by the court necessarily included the power to select the individuals to whom distribution should be made and that any trustee appointed by the court for that purpose should have such incidental powers; and further in commenting upon the same the court says, “that the case stands the same as if the testatrix herself had appointed a trustee to distribute the fund. The trustee to be appointed by the court will, in fact, be a trustee of her appointment, made through the court of chancery.” So that in such case the trustee acquired no further right than if he had been named in the will, and yet was held to have the power of selection.

In the case of Hesketh v. Murphy, 36 N. J. Eq. 304, the income was to be used for “the relief of the most deserving poor of the city oí Patterson, aforesaid forever, without regard to color or sex; but no person who was known to be intemperate, lazy, immoral or undeserving, to receive any benefit from said fund.” This bequest was held valid; and it was further held that the power to dispense the fund carried with it by implication the power to select the particular beneficiaries. And in this particular ease many more things are to be determined than in the case at bar. First, as to the temperance or intemperance, whether moral or immoral, deserving or undeserving, lazy or diligent, and so on, and yet without any special delegation of that power it was held to be a power incident to the other powers of the trustee. In this particular will in the case at bar, a great many things are. specifically left to the judgment of the trustee. 'While it is true that it is not specifically stated that he shall select the individual beneficiaries from the class named, yet reading the item as a whole no other conclusion can be reached but that it was intended by the testator that the trustee should apply it as best he could along the lines directed and for the specific purpose named, and that in doing so he should exercise all the discretion incident to the performance of such a trust.

There are many authorities that may be cited in support of all of the propositions that we have advanced, but we have called attention to enough for the purpose. It is true,,there are some authorities to the contrary, but they are few and far between, and in many instances are clearly distinguishable from the case at bar. But at all events the great weight of American authorities on this question are to the effect '(1) that the individual beneficiaries of a charitable trust must necessarily be vague and uncertain, and it is sufficient if a class is designated from whom the,trustee can select the same; (2) that a trustee clothed with the power of administering a trust fund for- such public charity has without special delegation thereof incidental authority to select from the classes named the individual beneficiaries thereof.

Our conclusion therefore is, that this trust is a valid one; that the trustee has the power to select’ the individual beneficiaries from the classes named, and that this selection ought to be and necessarily must be fair and impartial, without reference to sex or any other qualification than required by the provision of the will, and in such number as the income of said fund will warrant, and it is his duty so to do when in his opinion honestly exercised the fund is sufficiently large that the income thereof will enable him to carry out the objects of the trust. And upon his failure to properly execute his trust honestly, fairly and impartially the remedy therefor is ample.

Motion for new trial by the heirs at law overruled.

Exceptions noted. Thirty days for separate finding of fact and law and the statutory time for bill of exceptions. The costs in this court are taxed to the defendants, and the costs also in the common pleas court made upon the issue joined by the answers of said defendants and petitioner are also taxed to the defendants. Costs of the petition and other necessary costs for the construction of the will shall be paid out of the fund.

McCarty and Taggart, JJ., concur.


author: WILSON, J.

text:
    JONES LOCAL OPTION LAW — REVIEW ON ERROR.
    [Franklin (2nd) Circuit Court,
    October, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    Jones Local Option Law, In re Rehearing
    1, Pasties to Review or Proceedings under Jones Local Option Law.
    Where a review is desired, of proceedings under the Jones local option law (98 O. L. 68), the qualified, elector who feels aggrieved should appear as plaintiff and the mayor of the municipality in question as the defendant in error.
    2. Powers or Judges in Chambers must be Expressly Granted by Statute.
    Inasmuch as no express authority is given the judges of the circuit court in this statute, Sec. 12 of act 98 O. L. 68; Lan. 7293a; B. 4364-301, or in any statute to grant leave to file a petition in error in vacation at chambers, a petition filed at such a time and by such leave must be stricken from the files.
    [Syllabus approved by the court.]
    Error to Franklin common pleas court.
    Addison & Addison, Gumble & Gumble and C. C. Williams, for plaintiff in error.
    W. B. Wheeler, for defendant in error.
   WILSON, J.

In these eases it is sought to obtain a review in this court, of the proceedings before the officers with whom the petitions were filed, and by whom the order was made in pursuance to the provisions of the act popularly known as the Jones local option law, 98 O. L. 68 (Lan. 7283a et seq.; B. 4364-30a et seq.). The provisions for review are found in Sec. 12- of that act. It is therein provided that,

“Any person being a qualified elector of any residence district of any municipal corporation wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated. The motion shall not be granted unless for good cause shown. If such motion is granted, a petition- in error shall be filed within fifteen days after the finding or decision of the mayor or judge setting forth the errors complained of. The circuit court upon the filing of such petition shall forthwith issue a summons addressed to the mayor of such municipal corporation, notifying him of the filing of the petition in error and directing him to appear in said court on behalf of said residence district at the time mentioned in the summons, which time shall not be more than thirty days after the finding or decision of the mayor or judge nor less than ten days after the filing of such petition. The circuit court shall have final jurisdiction to hear'and determine the merits of the proceedings and there shall be no appeal or error proceedings allowed from such decision. ’ ’

The cases are all submitted upon the question as to whether they are properly in court, and for a determination of the character of the proceedings here, if the petitions in error are found to be properly filed.

As preliminary to the conclusion we have evolved out of the obscurity of the statute, it may be said that the proceedings are not properly entitled in this court. The qualified elector who feels aggrieved should appear as the plaintiff in error, and the mayor of the municipality in question as the defendant jn error.

In each of the eases the leave to file the petition in error was granted by two of the judges of the circuit court sitting at chambers. The circuit court of Franklin county was in vacation at the time, and no term of the court was to be holden until long after the expiration of the fifteen days in which the petition in error must be filed. Did the judges of the court have power at chambers to grant the leave to file the petition in error ? The constitution provides: ‘ ‘ The several judges of the supreme court, of the common pleas, and such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers or otherwise, as may be directed by law.” Article IY, See. 18 Ohio Const.

“The general doctrine is, that all judicial business must be transacted in court, whether there be any express direction to that effect or not; and that such business as may be transacted out of court is exceptional and must find express authority in statute.” 4 Enc. Pl. & Pr. 337, and authorities there cited.
“It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no order in vacation except such as are expressly authorized by statute.” Blair v. Reading, 99 Ill. 600.

No express authority is given the judges in the statute in question,, or in any statute, to grant the leave to file the petition in error in vacation at chambers. The petitions in error were, therefore, filed without authority of law and will be stricken from the files.

The other questions raised must be reserved until a proceeding in error has been properly instituted. The question whether the provisions for review are defective and void for uncertainty, and what effect that would have upon the law itself must await such a proceeding.

! The existence of the jurisdictional facts which must underlie the order to give it vitality and validity, may be challenged in another forum.,

Sullivan and Dustin, JJ., concur.


author: WINCH, J.

text:
    PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.

      Bulloch Beersford Mfg. Co. v. H. E. Hedges.
    Verification or Pleadings by Corporation.
    The provisions of Rev. Stat. 5109 (Lan. 8624) regarding verification of pleadings by agents and attorneys apply to the pleadings of corporations as well as those of natural persons.
    [For other cases in point, see 3 Cyc. Dig., “Corporations,” §§ 1876, 1877; 6 Cyc. Dig., “Pleadings,” 55 1230-1285. — Ed.]
    [Syllabus by Judge Winch.]
    Error to Cuyahoga common pleas court.
    G. A. Grott, for plaintiff in error.
    W. J. Patterson, for defendant in error.

       Affirmed, Bullock Beresford Mfg. Co. v. Hedges, 75 Ohio St. 000; 52 Bull. 157.

   WINCH, J.

The question presented by the petition in error in this case is, whether a petition in an action instituted by a corporation having its place of business within the county should be stricken from the files because it was not verified by an officer of the corporation. The verification complained of was by the corporation’s attorney, no reason being given why it was not verified by an officer, and no statement being made that the facts were within the personal knowledge of the attorney.

This question requires a construction of Rev. Stat. 5102, 5109 (Lan. 8617, 8624) ; the former section, so far as applicable, reads as follows:

“Every pleading of fact, * * * must be verified by the affidavit of the party, his agent or attorney; when a corporation is the party, the verification may be made by an officer thereof, its agent or attorney. ’ ’

Revised Statute 5109 (Lan. 8624) provides:

“The affidavit verifying a pleading can be made by the agent or attorney only when” — then follow four specified cases when it can be done, within none of which the verification in this case is brought.

It is said that Rev. Stat. 5109 (Lan. 8624), does not apply to the pleading of a corporation. The common pleas court held otherwise. Ve apprehend that it was right.

"Were it not for Rev. Stat. 5109 (Lan. 8624), under a fair construction of Rev. Stat. 5102 (Lan. 8617), read without reference to any other law, we take it that every pleading, whether of a natural or artificial person might be verified by an agent or attorney, without restriction or qualification.

The same may be said of Rev. Stat. 5109 (Lan. 8624) : Read by itself it applies to all pleadings, whether of natural or artificial persons. It is a manifest limitation upon the privilege of having pleadings verified by agents or attorneys, granted under Rev. Stat. 5102 (Lan. 8617).

It would seem, then, that by combining the two sections there would not result any exemption of corporations from the operation of Rev. Stat. 5109 (Lan. 8624), though we are aware that the conclusion reached by the common pleas court of Cuyahoga county is not in harmony with the conclusion reached by the common pleas court of Franklin county, Standard Fashion Co. v. Dean, 8 Dec. 389 (7 N. P. 127), and the common pleas court of Lucas county, Northern Nat. Bank v. Rolling Mill Co. 2 Dec. 67 (2 N. P. 260).

The two eases last cited proceed upon the proposition that officers, agents and attorneys of corporations are all of them its agents. True, but it does not follow that all its agents and attorneys are officers, and we believe that the only agents of a corporation who may verify its pleadings without restriction are such as are strictly officers, having charge and control of its affairs, whom the law must presume to have sufficient knowledge of its affairs to warrant them in verifying statements of fact on its behalf, as though made for themselves.

The judgment is affirmed.

Henry, J., concurs.

Marvin, J., dissents.


author: DUSTIN, J.

text:
    LICENSE.
    [Franklin (2nd) Circuit Court,
    March, 1907.]
    Wilson, Sullivan and Dustin, JJ.

      Linton v. Columbus (City). *Pegg v. Columbus (City). *Columbus (City) v. Badger, Mayor, etc.
    Vehicle License Oedinance Held to Include Nonresident Owners oe Vehicles Used on City’s Streets.
    The term “use” in an ordinance, regulating the use of the streets of a city by persons who use vehicles thereon, and requiring the payment of certain license fees therefor, has reference to a continued or repeated practice; and the ordinance applies to all who, in such sense, use the vehicles described and includes nonresidents as well as residents of the municipality.
    [Syllabus approved by the court.]
    Appeal from Franklin common pleas court.
    J. A. Godown, for J. F. Linton.
    M. E. Thrailkill, for Lewis. Pegg et al.
    Paul Jones, for city of Columbus.
    G. S. Marshall, C. E. Carter and E. L. Weinland, for defendants.

       Reversing Pegg v. Columbus, 17 Dec. 333.

   DUSTIN, J.

The ordinance in question, No. 21927, is “to license and regulate the use of the streets of the city of Cblumbus, state of Ohio, by persons who use vehicles thereon, etc.” Bearing in mind the definition of “use” as a continued or repeated practice, we are of the opinion that the ordinance applies to those who, in the above sense, use the vehicles described. This construction would apply to nonresidents as well as lo residents, and must be settled in each case according to the facts.

The remaining questions were disposed of, we • think, in the case of Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463].

As the above construction will not give a common relief to all the plaintiffs in Pegg v. Columbus, the decree in that case, as in the others, must be for the defendants.


author: PER CURIAM.

text:
    TESTAMENTARY CAPACITY — WILLS!
    Licking (5th) Circuit Court,
    March Term, 1905.]
    Donahue, McCarty and. Taggart, JJ.

      Welsh Hills Baptist Church, etc. v. Harriet M. Wilson et at.
    INSTRUCTIONS TO JURY SHOULD BE CONSTRUED AS A WHOLE.
    Where one paragraph of the charge given to the jury may, when standing alone, be misleading, but taken in connection with what immediately follows a correct and clear statement is made, there is no objectionable error. Nor does the court instruct that testamentary capacity must equal that of capacity to make a contract by charging, “It is necessary that a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life,” when what follows, in a later paragraph, expressly states, "He need not have sufficient capacity to make a contract, but must understand substantially what he is doing and the nature of the act in which he or she is engaged.”
    [For other casesi in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 508-527.— iOd.J
    [Syllabus approved by the court.]
    A. A. Stasel and G. C. Daugherty, for plaintiff:
    Test of testamentary capacity. Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43) ; Kettemann v. Metzger, 13-23 O. C. C. 61; Page, Wills Sec, 68; Thompson, Trial Ey. See. 1121; West v. Knoppenberger, 26 O. C. C. 168; Underhill, Wills See. 87.
    Hunter & Hunter and Kibler, Kibler & Montgomery, for defendants:
    Sufficient understanding to transact ordinary business, is strong evidence of testamentary capacity, though the want of such understanding does not necessarily show incapacity. Brockmeier v. Buck, 9 Dee. Re. 353 (12 Bull. 213).
    Special requests. Hall v. Beed, 17 Ohio 498; Cleveland & E. Elec. By. y. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; United States Board & Paper Co. v. Browne, 25 O. C. C. 347; Tracy v. Card, 2 Ohio St. 431; Ijewis v. State, 4 Ohio 389; Stewart v. Southard, 17 Ohio 402 [49 Am. Dec. 463]; Beed v. McGreiu, 5 Ohio 375; Creed v. Bank, 11 Ohio 489; Steivart v. State, 1 Ohio St. 66; Gill v. Sells, 17 Ohio St. 195; Oliver v. Sterling, 20 Ohio St. 391; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Kettemann v. Metzger, 13-23 O. 0. C. 62.
    Testamentary capacity. Page, Wills Sec. 97, p. 115; Blough v. Parry, 144 Ind. 463 [40 N. E. Rep. 70] ; Moore v. •Caldwell, 27 O. C. C. 449; Black’s Dictionary, 767,1107, 1108; McGinnis v. Kempsey, 27 Mich. 368.
    Reversible error. McAllister v. Hartnell, 60 Ohio St. 69 [53 N. E. Rep. 715]; Clark v. Clark, 8 Circ. Dec. 752 (16 R. 103) ; Schweinfurtk v. Railway, 60 Ohio St. 215 [54 N. E'. Rep. 89]; Breck v. State, 2 Circ. Dec. 477 (4 R. 160) ; Page, Wills Sec. 400.

       Affirmed, without report, Welsh Hills Baptist Church v. Wilson, 52 Bull, 67; 75 O. S. 000.

   PER CURIAM.

Harriet M. Wilson et al. commenced their action in the court of common pleas of Licking county against Andrew J. Cada et al., seeking to set aside the last will and testament of Hannah E. Thomas, deceased, and on issue joined, the cause went to a jury for determination.

After a verdict, the plaintiff in error prosecuted error to this court seeking to reverse the judgment of the court of common pleas; and the sole question presented here is on the charge of the court.

On the trial of the case, counsel for defendants requested the court, in writing, before the argument to the jury, to give to the jury the special instruction found on page 12 of the bill of exceptions, which the court refused to give, this is one of the errors complained of by the plaintiff in error. If this instruction, so asked by counsel, was correct and proper, it was the duty of the court to have given it without modification and without change; but, as we view the request, it is not a correct instruction, as it omits several very important and vital elements defining mental capacity. Counsel request the court to say that, “The testatrix must have capacity to remember the person or parties to whom she wishes to give this property, and remember and know her immediate relatives.”

Taking this request as a whole, counsel in taking it from the well-known authorities on instructions to juries, eliminated several very essential and, as we think, vital elements, and modified and restricted the definition of mental capacity in the respects as indicated, so that it was improper to be given in the form as requested.

We think the court was not in error in refusing this request.

The charge as' given to the jury is also excepted to, and our attention is directed to a paragraph on page 5 of the bill of exceptions, which reads as follows:

“In order to be able to make a valid will, it is necessary that a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life, and if he possesses this, though he may be feeble in mind and body from sickness, old age or other cause, he has a legal right to dispose of his property as to him may seem fitting and proper.”

If this portion of the charge stood alone without any modification, it perhaps might be misleading; but taken in connection with what.immediately follows, and particularly with what follows in the second paragraph below, we do not think the jury could have been misled. Nor is the question made in this case, as claimed by counsel for plaintiff in error,' that the court instructed the jury that testamentary capacity must equal that of capacity to make a contract, for the court distinctly says, and immediately following upon this paragraph 'that is objected to:

“The law does not undertake to test a person’s intelligence or to define the exact quality of mind and memory which a testator must possess; but it does require him to be capable of knowing the extent and value of his property, the names or relationship of those persons who are the natural objects of his bounty; their deserts in reference to their conduct and treatment of him or her; their conditions and necessities, and be capable of retaining all these facts in his or her memory long enough to have the will prepared and executed. He or she need not have sufficient capacity to make a contract, but he or she must understand substantially what he or she is doing, the nature of the act in which he or she is engaged, the extent of his or her property, the relations of others who may or ought to be the object of his or her bounty,” etc.

We think the court fairly presented to the jury the true rule of testamentary capacity, as approvéd by the highest authorities in this country and England, as shown by the latest works on the subject of wills.

It is our opinion that no error intervened in this case, and that the judgment of the court of common pleas should be affirmed.

Judgment for costs, and cause remanded to the court of common pleas for execution.

Exceptions of plaintiff in error are noted.


author: PARKER, J.

text:
    CRIMINAL LAW AND PRACTICE.
    [Lucas (6th) Circuit Court,
    November 7, 1906.]
    Haynes, Parker and Wildman, JJ.
    Max Lisberger v. State of Ohio.
    Right to File a Motion for a New Trial.
    A trial court has not jurisdiction to hear a motion for a new trial in a criminal prosecution at a term of court subsequent to that at which the verdict was rendered.
    ' [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” § 974 — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Frank Mulholland and C. E. Hartman, for plaintiff in error.
    L. W. Wachenheimer, prosecuting attorney, and Ralph Emery, assistant prosecuting attorney, for defendant in error.
   PARKER, J.

Lisberger was convicted of the crime of murder in the second degree and sentenced to life imprisonment. At the term at which he was convicted he filed a motion for a new trial, setting up, among other grounds for a new trial, newly discovered evidence, and in support of that ground affidavits were filed. That motion came on for hearing and was heard at that term of court, and was overruled. And at a subsequent term, — I think at the next term of court, although I am not certain of that, — another motion for a new trial was filed, and the chief ground of that motion was newly discovered evidence; and in support of that motion a number of affidavits were filed. Upon the overruling of the first motion and the entering of judgment a bill of exceptions was' taken; and upon the overruling of the second motion another bill of exceptions was taken, which is called in the record a supplemental bill of exceptions. After the overruling of the first motion a petition in error was filed in this court. After that the second motion for a new trial was filed, and upon its being overruled,- as I have said, a supplemental bill of exceptions was taken, and then a- supplemental petition in error was filed in this court.

It is said to us that the trial judge overruled this second motion for a new trial upon the ground that he had lost jurisdiction over the matter; that the second motion for a new trial was not filed within the time provided by law. Revised Statute 7350 (Lan. 11114) sets forth the causes or grounds upon which a motion for a new trial may be granted, and among them-the fifth paragraph is, “Newly discovered evidence, material for the defendant, which he conld not, with reasonable diligence, have discovered, and produced at the trial.”

Revised Statute 7351 (Lan. 11115) provides that:

“The application for a new trial shall be by motion, upon written grounds, which shall be filed at the term the verdict is rendered, and, except for the cause of newly discovered evidence material for the party applying, which he co.uld not, with reasonable diligence, have discovered and produced at the trial, within three days after the verdict was rendered, unless unavoidably prevented.”

The first motion for a new trial was filed in due time. The second motion was not filed within three days, nor was it filed within the term. It was filed at a subsequent term.

We have looked into the record very carefully, and we are impressed by these affidavits, indeed we are convinced thereby, that this man did not have a fair trial; that he was unfairly treated by the witnesses for the state; that on account of some prejudice against him and some feeling for the deceased, these witnesses combined together to convict this man and send him to the penitentiary; and it seems to us that the verdict of murder in the second degree could hardly have been justified, if the statements set forth in these affidavits are true; and they stand here in the record uncontradieted. The man should not have been convicted of a higher crime or offense than manslaughter, and perhaps he acted in self defense, so that he should not have been convicted at all. It seems to us that he is the victim of a wicked conspiracy, and if it was within the poAver of the court to grant him relief we should be swift to do it.

But we find no authority for acting upon a motion for a new trial filed after the term in a criminal case; we know-of none. We think that is the policy of the law that the matter shall be concluded by the action in the case taken at the term; and it may be readily perceived that if it were otherwise, there would be no certainty about results in criminal cases, and the state would often be taken at great disadvantage. If a motion might be filed after the term, there is no reason why it might not be filed at any time, no matter how remote from the time of the trial; even after the state’s witnesses had disappeared or been scattered, or perhaps died; so that the state might be unable to show the true state of the case on a new trial. We have no doubt but the statute is founded upon the theory that that should not be permitted; but that if it should turn out that a person is wrongly convicted he should not be without a remedy; and we believe the remedy is with the board or tribunal or officials that may either pardon, or in some way, modify the result.

We think that this is a case that should be presented to the pardon board or to the board of managers, who may not only pardon, but reduce or commute the sentence. There the state may be able, by counter affidavits, to put a different face -upon the matter. The state here, relying upon the statute, seems to have thought it idle and useless to file counter affidavits. I speak of the matter as it appears here in the record, with these affidavits standing uncontradicted. It may be that when the matter shall be presented to the proper tribunal, these affidavits will be contradicted, and that a different face could be put upon the matter.

We see no error in the action of the court of common pleas in overruling the motion for a new trial. Sufficient showing was not made upon the first motion, which was filed in due time, to require the court to' grant a new trial, and we think the court properly held upon the second motion. We find no errors in the record requiring a reversal. 'Therefore the judgment will be affirmed.

Haynes and Wildman, JJ., concur.


author: HURIN, J.

text:
    EXECUTORS AND ADMINISTRATORS — PARTITION.
    [Crawford (3rd) Circuit Court,
    January Term, 1907.]
    Norris, Hurin and Donnelly, JJ.
    Frank P. Myers et al. v. Margaret P. Myers et al.
    1. Partition may be Had 'Within Year of Decedent’s Death, when.
    A suit in partition may be commenced by an heir at any time after the death of the ancestor, although no order of partition can be taken until after the expiration of one year from such ancestor’s death, unless the petition shall set forth, and it be proved, that all the debts and claims against the estate of such decedent have been paid or secured to be paid or that the personal property of decedent is sufficient to pay the same.
    2. Suit in Partition does not Prevent Sale by Administrator to Pay Debts.
    But, when the sale of the lands of such ancestor is necessary to pay debts of his estate, the filing of such suit in partition does not prevent the administrator from proceeding to sell the lands; and on filing his certificate from the probate court in accordance with Rev. Stat. 6173 (Lan. 9714) in the court of common pleas where such partition suit is pending, he is entitled to an immediate order of sale, the necessity for such sale not being- contested; and, without filing such certificate, he may appear in said partition suit and, on his cross petition, obtain such order of sale without waiting for the expiration of the year from the ancestor’s death.

      3. Heir not Permitted to Interfere with Speedy and Orderly Settlement of Estate.
    The law favors the speedy and orderly settlement of estates and an heir will not be suffered to interfere with such speedy and orderly settlement by a hasty suit in partition; but the partition suit, if commenced, will be superseded by, and subject to, the proceedings of the administrator on his cross petition praying for the sale of lands to pay debts.
    [Syllabus by the court.]
    Appeal from Crawford common pleas court.
    L. C, Feighner and Anson Wickham, for plaintiffs.
    Scroggs & Monnett, Finley &• Gallinger, Kennedy & Kennedy and W. J. Swenck, for defendants: ,
    Cited and commented upon the following authorities. Sheldon v. Newton, 3 Ohio St. 494; Coopers v. Raihvay, 2 Dec. Re. 199 (2 W. L. M. 63); Hollingsworth v. Flint, 101 U. S. 591 [25 L. Ed. 1028]; Dean v. Railway, 119 N. T. 540 [23 N. E. Rep. 1054]; McRoberts v. Look-wood, 49 Ohio St. 374 [34 N. E. Rep. 734] : Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 338) ; Smith v. Montag, 1 Dec. 224 (32 Bull. 153); Fry-man v. Fryman, 6 Circ. Dec. 377 (9 R. 91) ; Schneider v. Cordesman, 10 Dee. 571 T8 N. P. 99) ; Lafferty v. Shinn, 38 Ohio St. 46; Fouis v. State, 8 Ohio St. 98; State v. Pugh, 43 Ohio St. 98 [1 N. E. Rep. 439]; Milwaukee Mich. Ins. Co. v. Russell, 65 Ohio St. 230 [62 N. E. Rep. 338; 56 L. R. A. 159].
   HURIN, J.

John G. Myers died intestate November 16, 1905, seized of certain real estate. The administrator of his estate, in the performance of his trust, discovered certain claims against the estate which he caused to be submitted to arbitrators in accordance with the provisions of Rev. Stat. 6093 (Lan. 9632). ■

While these proceedings were pending in the probate court, certain of the heirs commenced proceedings in partition in the court of common pleas, making the administrator a defendant and causing service of summons to be made upon him.

This petition in partition was filed June 16, 1906, just seven months after the death of John G. Myers. On June 23, 1906, the arbitrators made their report to the probate cotirt, finding the claims submitted to them to be valid claims against the estate to the amount of $3,000. On June 30, the administrator filed in the probate court a petition to sell lands to pay debts.

Thereupon the heirs who were plaintiffs in the partition case, appeared in the probate court and by answer to the administrator’s petition to sell lands set up the fact of the pending partition suit in the common pleas court as a bar to further proceedings in the probate court regarding the same lands. A demurrer to this answer was sustained by the probate court and a judgment rendered for the administrator and a sale of the land ordered. No error was prosecuted to this judgment.

Thereupon the administrator appeared in the common pleas court and by answer set up his order of sale obtained in the probate court as a bar to the action in partition. The common pleas court sustained a ■demurrer to this plea and ordered partition of the land. From this judgment the administrator appealed to this court.

The first question arising is as to the right of the heirs to commence partition proceedings before the expiration of one year from the death of the ancestor.'

Revised Statute 5756 (Lan. 9293) provides that—

“Where the title to such estate came to such persons by descent or devise upon the death of an inhabitant of this state, a partition thereof shall not be ordered by the court within* one year from the date of the death of such inhabitant, unless the petition shall set forth, and it be proved, that all of the debts and claims against the estate of such decedent have been paid, or secured to be paid, or that the personal property of said deceased is sufficient to pay the same. ’ ’

This statute has created much discussion. Its intent appai’ently was to prevent unseemly haste on the part of heirs in rushing into court and seeking a partition of an ancestor’s estate immediately after his decease.

The circuit court of this circuit per Seney, J. (Judge Day dissenting) rendered a decision in the case of Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 338), in which it was held that this statute, Rev. Stat. 5756 (Lan. 9293), denies to the heir the right to commence such action within a year after the death of his ancestor.

And in Smith v. Montag, 1 Dec. 224 (32 Bull. 153), Judge Hunt held to the same effect and said:

“There can be no doubt but that the legislature intended, by this amendment, to give the exclusive right to the administrator or executor for one year to sell the real estate to pay debts,” etc.

But in the case of Fryman v. Fryman, 6 Circ. Dec. 377 (9 R. 91), the fifth circuit court took the contrary view and held that the statute meant simply what it said and no more, viz., that

“A partition shall not be ordered within one year from the death of such inhabitant.”

After an examination of all these decisions and of the statute in question we are constrained to believe that the latter .view is the correct one and that, while a partition suit may be commenced at any time after the death of the ancestor, no order of partition can be taken until after one year from such death. Whatever may have been the intention of the legislature, it has not gone farther than to prohibit the taking of the .order for partition. It follows that in the case at bar the suit in partition was properly pending at the time that the administrator filed his petition in the probate court to sell lands to pay debts and it appears that when he did so he had already been served with summons in the partition case and was therefore duly notified that such case was pending. ^

In filing his petition in the probate court to sell lands to pay debts, the administrator appears to have strictly oomplied with the statutes, Rev. Stat. 6136 (Lan. 9676) et seq., and to have promptly and in strict conformity to the usual course in such cases attempted to carry ou!t the provisions of law for the subjection of the land to the debts of the intestate, simply pursuing the course of conduct which, by the commencement of the process of arbitration, he had started to follow before the filing of the suit in partition.

But in so doing he appears to have overlooked the provisions of Rev. Stat. 6173, 6174 (Lan. 9714, 9715), which provide another way for accomplishing the same result and apparently an exclusive way, by procuring from the probate court a certificate of the amount necessary to pay the indebtedness and expenses in addition to the assets, and filing this certificate with the court in which the proceedings for partition are pending.

Revised Statute 6174 (Lan. 9715) provides that such court shall, on motion of the administrator, order the amount named in such certificate to be paid over to the administrator out of the proceeds of the sale of the premises.

The evident purpose of these sections of the statutes is to provide a quick and easy and inexpensive method for the payment of these debts without undue litigation; and to further insure the administrator against danger of loss of the land as security for the payment of the debts of the estate it is in Rev. Stat. 6174 (Lan. 9715) provided that nothing therein contained shall be. so construed as to prohibit any executor or administrator from proceeding to sell land belonging to such estate to pay any debts, when the same has been sold on partition or otherwise, or the proceeds of such sales fully distributed.

And the Supreme Court has repeatedly held that the debts of the ancestor are liens on his lands indefeasible by any action of the heirs or others in a partition case and that any purchaser thereof, ’ either by private purchase from the heirs or at a partition sale, takes said land cum onere. Faran v. Robinson, 17 Ohio St. 242, 243 [93 Am. Dec. 617] ; Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600] ; Lafferty v. Shinn, 38 Ohio St. 46; Sidener v. Hawes, 37 Ohio St. 532.

It is fhus evident that the administrator could have lost nothing but time by proceeding in the partition ease, for he was amply protected by statute.

"While it must seem an extraordinary thing for an heir of an estate, in process of administration and possibly insolvent, to step in and interrupt the orderly administration of the estate and, for his own purposes, choose his own forum for the determination of his own interests —another forum from that in which the administrator is properly and diligently acting — and while we do not say that such a course would be permissible, after the administrator has actually petitioned the probate court for an order to sell lands and that court has assumed jurisdiction, yet under the state of facts appearing in this case, such action by the heir seems to be expressly permitted'to him by the law, and the administrator is bound by the provisions of the statutes expressly providing for such an emergency. Rev. Stat. 6173, 6174 (Lan. 9714, 9715).

But was he obliged to wait till the heir could at the end of a year take his order of partition? We think not. The law favors the speedy settlement of estates.

While these statutes gave the administrator an assurance of ultimate funds to be derived from the sale of the land at the end of the year, if at that time the pleadings in the partition suit were ripe for the taking of the order of partition or sale, yet he was not bound to await the passing of the year before subjecting such lands to sale. It was his right and duty to proceed with such sale as soon as possible after discovering the necessity thereof.

Having been brought into the partition case against his will, he had the right and it was his duty to set up in that proceeding the necessity of a sale of the lands and to ask and receive an order for such .sale on his cross petition.

His right to such order supersedes the right of the heirs.to an order of partition and the action in partition must thenceforth proceed on his cross petition, as a proceeding to sell lands to pay debts, — at least until the debts which he represents are provided for. Lafferty v. Shinn, 38 Ohio St. 46. For if it should happen that the sale of all the lands was necessary in order to pay debts, there would be no lands left to partition among the heirs; and under the statutes and decisions previously referred to, no order of partition could avail to prevent this sale of the lands on bis demand — the necessity of a sale to pay debts being undisputed — nor could a partition, had one actually been made, and even though the lands had been resold to third parties, - have prevented a sale of the same lands on his demand. No title could have passed by an order of partition that would have been free from the claim of the administrator for debts of the estate. See Faran v. Robinson; Lafferty v. Shinn; Sidener v. Hawes, supra.

The demurrer to the cross petition of the administrator will therefore be overruled; there will be a finding and decree in favor of the administrator on his cross petition and an order of sale on that cross petition, appraisers appointed, execution awarded and cause remanded for execution and further proceedings.

Norris and Donnelly, JJ., concur.


text:
    BRIDGES — COUNTIES—MANDAMUS.
    [Erie (6th) Circuit Court,
    December, 1906.]
    Haynes, Parker and Wildman, JJ.
    State ex rel. Swint, Rennick & Co. v. Sandusky Co. (Comrs.)
    1. Mandamus Will Lie to Compel Award op Contract to Lowest Bidder, when.
    It is not improbable that mandamus will lie to compel county commis'sioners to 'award a contract for a public improvement to the lowest and best bidder, when the statute requires such action on their part, and it appears by undisputed evidence, or concession in pleadings, that one of the bidders is the lowest and best, and that the commissioners are fraudulently colluding for the award of the contract to another bidder.
    L-tf'or other cases in point, see 2 Cyc. Dig., “Bridges,” §§ 78-92; 3 Cyc. Dig* “Counties,” §§ 364-369, 384-397; 5 Cyc. Dig., “Mandamus,” §§ 293-309 — Ed.]
    2. Otherwise ip Contract be1 One not Required to be Awarded by Public Bidding, etc.
    But where the petition fails to disclose that the contract is one which the commissioners are required to award by public bidding, the fact that they did advertise in regular form for bids with a reservation of the right to reject any or all, does not afford ground for compelling them to accept the lowest and best bid, or for complaint because an amendment was. permitted to one of the bids after expiration of the time fixed for their filing, whereby better figures were obtained for the county.
    [For other cases in point,-see. 3 Cyc. Dig., “Counties,” §§ 391-397; 5 Cyc. Dig., “Mandamus,” §§ 371-383 — Ed.]
    [Syllabus by the court.]
    Errc® to Sandusky common pleas court.

      H. C. De Ran, for plaintiff in error.
    M. W. Hunt, for defendant in error.
   PER CURIAM.

This is a proceeding by Avhich the plaintiff in error seeks to reverse a judgment of the court of common pleas, sustaining a demurrer to the amended petition of plaintiff and dismissing the plaintiff’s action. The ease is one instituted in the court below for injunction and mandamus.

The plaintiff, in its amended petition, alleges that the relators, together with other persons, submitted bids for the construction of certain bridges in said county, and that the relators were the lowest and best bidders therefor. It is claimed that plans and specifications and estimates were prepared and that the proceedings of the board of county commissioners of said county were taken under Rey. Stat. 795 to 800 (Lan. 1759 to 1765), inclusive; that notices were published for four weeks in a newspaper published and of general circulation in said county, soliciting such bids, in pursuance of said plans and specifications, for each of said bridges separately, and with a provision in said notices that bids would be received up to 12 o’clock noon on March 2, 1906. The plaintiff says that relators filed, in due form, within the time named in the notice, a sealed bid in all respects as required by the notice published and by the statute and in accordance with the said plans and specifications, agreed to furnish materials and do the required work upon all said bridges for the sum of $709.08.

The amended petition alleges, further, among other matters, that at the time specified in said notice, the said board of commissioners opened and read the bids and that the said board of commissioners, together with the county surveyor, tabulated the same and found and declared the bid of the relators to be the lowest and best bid, but adjourned for the noon hour without awarding the contract; .that at a later hour of the same day the said board of commissioners reassembled for the purpose of taking further action in the matter of awarding the contract.

The amended petition further alleges that the bid of another party, known as the Hughes Brothers, was of like character with that of the relators, but was for the sum of $929.07; and that during the adjournment of said board of commissioners and after the opening of the bide, and before the reassembling of the said board, the said Hughes Brothers acting in collusion with certain members of said board of county commissions, added to their bid and proposal the following sentence: “If the said board awards the said Hughes Brothers all the said bridges, we will allow a reduction of 15 per cent from the total amount stated in this bid.” It is further alleged that said Hughes Brothers and certain members of said board illegally colluded, and fraudulently conspired in the making and procuring of said change and alteration in said Hughes Brothers’ bid, and that said change and alteration were made after 12 o’clock on March 2, 1906, and after all the bids herein mentioned and described had been opened and read by the said board of commissioners, and that said change and alteration were contrary to the terms and conditions prescribed in said notice fyy the said commissioners and contrary to and in violation of law; that said reduction in price was made after the bids had been opened and read and after the relators had been ascertained to be the lowest bidders and after said commissioners and Hughes Brothers had full knowledge that relators were the lowest and best bidders and was made in fraud and violation of relators’ rights in the premises.

The plaintiff alleges the intentiom of said board to enter into a contract with said Hughes, Brothers for furnishing of the work and materials for .said bridges and that they will do so unless restrained by the order of the court. Based upon these and other facts mentioned, the plaintiff asks for a writ of mandamus against the said board commanding it to award its said contract to the relators, and also that said board be enjoined from entering into any contract with said Hughes Brothers. The demurrer to this amended petition is upon the ground that it does not state facts constituting a cause of action, and that said facts do not entitle the relators to the relief asked: The estimated cost of the contemplated structures is not stated in the amended petition, except that as to each,of the bridges it is less than $1,000. Copies of the notice and of the relators’ alleged bids are attached to said amended petition and made a part thereof.

By the filing of a demurrer the allegations of the amended petition are, of course, to be taken as true, including the averment that some of the commissioners colluded with Hughes Brothers as to the alteration of their bid and that the bid of relators was the lowest and best bid among, those submitted. The notice published by the commissioners contained an express reservation of a right “to reject any or all bids.”

We have no doubt, under the facts admitted by the demurrer, as to the right of a taxpayer of the county to an injunction to restrain the commissioners from awarding the contract to the Hughes Brothers after the refusal of the prosecuting attorney to institute such suit. There is here, however, no allegation either that the relators are taxpayers or that the prosecuting attorney has been requested or has refused to institute sucb proceedings for an injunction. It seeing to be conceded, by both parties, that the question now pending before our court involves only the sufficiency of the facts alleged by the relators to entitle them to the writ of mandamus compelling the county commissioners to award to them the contract.

It has been generally held that the courts will not, by mandamus, interfere with the discretion of the commissioners and like bodies,' in determining as to which among several bidders for a contemplated improvement, is the lowest and best bidder. These cases, however, so far as we are advised, have not involved the consideration of such facts as are herein disclosed, and it is not improbable that, in a case where, under the statute, the commissioners are compelled to award a contract for an improvement to the lowest and best bidder, if it should appear by the undisputed evidence, or concession in pleadings, as here, that one of the bidders was the lowest and best, and that the commissioners were fraudulently colluding with another to defeat the statute, the court might interfere by mandamus.

But does this amended petition disclose a ease in which the commissioners were compelled to let the contract or contracts, for the construction of these bridges upon competitive bidding? As already stated, the estimated cost of the proposed structures is not given, although it is said to have been, as to each of said, bridges, less than $1,000. But in Rev. Stat. 798 (Lan. 1762), it is provided, that,

“When the estimated cost of any * * * bridge or bridge substructure or of making any addition ‘thereto or repair thereof, does not • exceed $200 the same may be let at private contract without any publication or notice thereof. ’ ’

The pleadings nowhere aver that these bridges were not of the class so specified in the statute, — that is to say, bridges of an estimated cost not to exceed $200; and the bids of the relators indicate that no one of the bridges was to cost the county upon such bidding as much as $200.

Upon this state of facts we fail to discover that there was any requirement of the statute that the contract should be let to the competition of bidders at all. If the county commissioners saw fit to invite offers from contractors, it was their privilege so to do. The action taken by them, so far as disclosed by the amended petition, was entirely voluntary and it was within the power of the commissioners, when so acting, to reserve to themselves the right to reject any or all bids, as in terms they did. With this reservation, neither the relators nor any other bidder had a right to insist upon the acceptance of a bid, and after the opening and inspection of several bids, the commissioners might, if they chose, permit any amendments of such offers tendered them, so as to obtain the best figures for the county. 1

These views, of course, dispose of the questions as to the right of the relators to either injunction or mandamus, or both.

We find no error in the. conclusion reached by the court below, and the judgment will be affirmed.


text:
    CONTRACTS — STATUTE OF FRAUDS.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donahue, McCarty and Taggart, JJ.
    Martin J. Murphy v. Daniel F. Adams, Admr.
    Right to Recover Payments on Uneneorcible Contract.
    A verbal contract for the conveyance of real estate, the consideration to he paid partly in labor for which an agreed sum was to be credited each ■ day upon the purchase price of the property, is unenforcible under the statute of fraud, but the party performing the labor may recover for the value of his services rendered in pursuance of the contract, provided he did not abandon or fail to perform his work through his own fault.
    [For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 1703-1738, 1880-1906. — Ed.]
    [Syllabus approved by the court.]
    Error to Knox common pleas court.
    L. B. Houck and W. M. Koons, for-plaintiff in error.
    C. V. Trott and W. A. Hosack, for defendant in error.
   PER CURIAM.

The record in this case discloses that the work performed by defendant in error’s intestate was performed by him under and in pursuance of a contract, by the terms of which he was to receive a credit of one dollar per day upon the purchase price of a certain dwelling house then to be erected by the plaintiff in error for said defendant in error’s intestate, and which was to be sold and conveyed to him for the sum of $1,050. This contract was verbal, and by reason of the statute requiring' a contract for the sale of real estate to be in writing, could, not be enforced in the courts of this state. But, notwithstanding that fact, this court is clearly of the opinion that if the plaintiff in error abandoned that contract and refused to go forward with the same, the defendant in error could recover for the estate he represents, the value of the services rendered by his intestate in pursuance of that contract; but if, on the other hand, the defendant in error’s intestate failed and refused to go forward with that work and abandoned the same through his own fault and of his own motion, then we do not think he could recover. There is practically no evidence in this record disclosing which of these parties repudiated the contract. The evidence is sufficient as to the services and the value thereof, but it is not sufficient to sustain this verdict upon the theory that the plaintiff in error abandoned the contract, and for that reason and that reason only, it is against the manifest weight of the evidence and is not sustained thereby, and the case is reversed and remanded for a new trial.

Exceptions of defendant in error noted.