author: SHIELDS, J.

text:
    CRIMINAL LAW — HOMICIDE—JURY.
    [Muskingum (5th) Court of Appeals,
    May Term, 1915.]
    Shields, Powell and Houck, JJ.
    Charles Lynch v. State of Ohio.
    1. Summoning Grand Juror Under Wrong Initials not Ground for Plea in Abatement.
    The summoning of a grand juror under the wrong initials is a misnomer only, and is not an irregularity of which advantage may be taken by a plea in abatement.
    2. Explicit Description of instrument with which Homicide Committed Immaterial.
    Under the present rules for pleading in criminal cases, which require reasonable certainty only in an indictment, the fact that the pleader might have been a little more explicit in his statement as to why the instrument alleged to have been used in committing the homicide could not be more fully described, does not constitute ground for quashing the indictment.
    3. Testimony of Undivorced Woman Living with Defendant as His Wife May be Received against Him.
    Where the woman with whom the defendant was living as his wife at the time of the commission of the crime, is shown to have been previously married to another man who was still living and from whom she had not been divorced, it is competent for the state to call her as a witness against the defendant.
    ERROR.

      E. F. O’Neal and E. B. Myer, for plaintiff in error.

      C. F. Bibile and Perry Smith, for defendant in error.
   SHIELDS, J.

At the September (1914) term of the court of common pleas of Muskingum county, Ohio, the grand jury of said county returned an indictment against Charles Lynch, the plaintiff in error, charging him in four separate counts with murder in the first degree — in killing John G-. Albert. Upon trial had the plaintiff in error was convicted of the crime charged and upon a recommendation of mercy by the jury in its verdict, he was sentenced to the penitentiary for life. For the purpose of having the judgment and proceedings in.the court below reviewed upon proceedings in error, a petition in error was filed in this court containing numerous assignments of error and while not waiving anyi rights under the various errors assigned therein, the errors discussed and urged upon the attention of this court were: (1) that the court below erred in overruling and dismissing the plea in abatement of the plaintiff in error to said indictment; (2) that said court erred in overruling the motion of the plaintiff in error to quash the first and second counts in said indictment; (3) that said court erred in overruling the demurrer of the plaintiff in error to the first and second counts in said indictment; (4) that said court erred in admitting evidence upon the trial to the prejudice of the plaintiff in error; (5) that said court erred in its charge to the jury; (6) that the verdict of the jury was manifestly against the weight of the evidence and not sustained by sufficient evidence and was contrary to law.

1. Taking up the errors alleged in their order, it was contended on behalf of the plaintiff in error that the grand jury presenting said indictment was not legally constituted: (1) That one J. F. Bell participated in the deliberations of said grand jury as a member thereof when he was not selected or drawn as a grand juror in the manner prescribed by law; (2) that said grand jury was impaneled and sworn before the date set out in said indictment as the date of the commission of the crime charged, and that therefore defendant did not have an opportunity of making any challenge to the array or to any one in said grand jury.

In reply to the plea in abatement setting up this alleged irregularity, after making general denial of the claim thus made by the plaintiff in error, the state by its counsel averred therein:

“That the said J. F. Bell as mentioned and referred to in defendant’s plea in abatement is and was the same person considered by the jury commissioners of this county at the time they selected names of the jurors for the present year as that indicated and designated by the said commissioners as F. M. Bell of fourth ward B, the said jury commissioners then believing that said person’s name to be F. M. Bell instead of J. F. Bell; that the said name F. M. Bell, fourth ward B., with others, were by said commissioners selected, written on separate pieces of paper uniform in size, quality and color, placed in the jury wheel and certified to as jurors for the ensuing year.
“That upon the order of this court of common pleas, the clerk in the presence of the sheriff, judge and jury commissioners, after turning the jury wheel several times, drew therefrom the number of names of the persons to serve as grand jurors specified in said order, among which names was ‘F. M. Bell, fourth ward B.’ That the clerk forthwith issued to the sheriff a venire facias commanding him to summon the persons whose names were so drawn as aforesaid to attend as grand jurors at the time and place in the order stated.
“That thereupon, on September 15, 191.4, the said sheriff in endeavoring to serve said summons drawn in the name of F. M. Bell as aforesaid, left a true copy thereof at the usual place of residence of the said J. F. Bell, to-wit, at No. 229 Jackson St., fourth ward B., Zanesville, Ohio; that the said J. F. Bell appeared in answer to said summons at the time and place named in said order and said summons and answered to the name of F. M. Bell; was impaneled, sworn and charged as a grand juror in and under the name F. M. Bell, and as such served on said grand jury and took part in all the deliberations and consideration of said grand jury, all of which appears of record in the journal of this court, a copy of which record is hereto attached, marked exhibit A, and made a part hereof.
• ‘! That the said J. F. Bell who so served on said grand jury as aforesaid was at said time possessed of the requisite qualifications to act as a juror, and was not selected and drawn as a member of said grand jury in any manner other than as herein set forth.
1 ‘ That at the time the names of the jurors were selected by the said jury commissioners as aforesaid, and at the time of the service of said summons by said sheriff as aforesaid, there was no other F. M. Bell or J. F. Bell living in said fourth ward B. ”

Upon a demurrer being filed to the foregoing reply, the court below overruled the same and dismissed said plea in abatement. Under the facts stated, was the action of said court erroneous? The statutes point out the maimer in which the drawing, summoning and impaneling of grand jurors shall be conducted. Section 11436 G. C. provides that:

*'A challenge to the array may be made and the whole array, set aside by the court, when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire did not proceed as prescribed by law. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.”

Here it appears that J. F. Bell was supposed and believed to be the same Bell whose name was selected by the jury commissioners, and whose name was afterwards drawn from the jury wheel to serve as one of the grand jurors, as appears more fully in the reply to said plea in abatement. Taken all in all, in our judgment, it was a misnomer at best, and the qualifications of J. F. Bell as a grand juror not having been raised or challenged, but who it is not claimed did not have the requisite qualifications to act as such grand juror, said alleged irregularity under the provisions of said See. 11436 G. C., was not such an one, in our judgment, as that the plaintiff in error could avail himself of and thereby defeat the state in its right to further prosecute.'

Again, aside from the fact that said plea in abatement seems to rest upon conclusions rather than upon facts stated, can irregularities and defects in the selecting, drawing and impaneling of a grand jury be taken advantage of by a plea in abatement?

In the case of Huling v. State, 17 Ohio St. 583, it is held that—

“ It is a good plea in abatement in a criminal case, that one or more of the grand jurors who found the indictment had not the legal qualifications of such grand jurors.
“But mere irregularities in selecting-and drawing grand jurors, which, do not relate to or affect their personal qualifications as such, must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement.”

The principle laid down in the foregoing case has since been cited and followed in a number of cases decided by the Supreme Court of this state, among which are the following: State v. Deiter, 81 Ohio St. 504, 505; State v. Barlow, 70 Ohio St. 373 [71 N. E. Rep. 726]; State v. Elson, 45 Ohio St. 649 [16 N. E. Rep. 684].

And in the case of Lindsay v. State 24 O. C. C. 1 (4 N. S. 409), affirmed in Lindsay v. State, 69 Ohio St. 215 [69 N. E. Rep. 126], which was a case in this district, the court in its opinion held that—

“The errors complained of as to impaneling the grand jury are irregularities only, and not objections to any of the panel as to their qualifications. Section 5162 and 5167, R. S., provide for the selection, drawing and summoning of grand and petit juries. Mere irregularities in selecting and drawing grand juries, which do not relate to or affect their qualifications as such, must be taken advantage of, if at all, by challenge for. cause, and can not be made grounds to quash the indictment or be pleaded in abatement.
“Technical defects in obtaining and impaneling a grand jury which do not affect the competency of the persons to act, can not properly be made the basis of a motion to quash the indictment or plea in abatement, but must by express statutory provision be availed of if, at all, by challenge before the jury is impaneled and sworn. ’ ’

And in the case of McHugh v. State, 42 Ohio St. 154, in which the array was challenged for misnomer of a grand juror, it was held:

“It not appearing that the officer had acted in bad faith, or that the accused had been injured by the mistake in any of his substantial rights, the error, if any was committed, afforded no ground of reversal. ’ ’

And the judge announcing the opinion in said case on page 164 said:

“An indictment can not be held invalid for a defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits.”

Can it be said that the plaintiff in error was injured or prejudiced in any of his substantial rights by J. F. Bell acting as a grand juror when his qualifications to act as such were not questioned, especially when we consider that the manner of selecting and drawing juries concerns the public rather than the accused? We do not think so, and we further think that the action of the court below was fully justified in dismissing said plea in abatement and that such action affords no ground of reversible error.

2. The second error complained of is that the court below erred in overruling the motion of the plaintiff in error to quash the first and second grounds of said indictment (said motion to quash the third and fourth counts in said indictment having been sustained). It was contended on behalf of the plaintiff in error that said indictment is indefinite in this, that it does not sufficiently describe the nature and character of the instrument alleged to have been used by the plaintiff in error in causing the death of the said John G-. Albert, thereby failing to apprise the plaintiff in error of the charge he was called upon to meet and defend against. That one charged with crime is entitled to be advised of the nature of such crime is fundamental, but that there are cases in which the state for want of information can not aver with certainty the character of the weapon or instrument used in the commission of a crime is also well known, and in such case the rules of criminal pleading permit the pleader to describe such weapon or instrument as “with a certain weapon, the name and character of which is to the grand jurors unknown,” or “with a certain instrument, the name and character of which is to the grand jurors unknown. ’ ’ In the indictment before us perhaps the pleader might have been a little more explicit in stating why the weapon or instrument alleged to have been so used could not have been more fully described, but under the present liberal rules of criminal pleading, reasonable certainty in an indictment only being required, we are of the opinion that said indictment sufficiently describes the crime of murder in the first degree and of the manner in which said crime was committed.

Defects and imperfections which do not prejudice the substantial rights of the accused on the merits do not invalidate the indictment, and we do not think that the substantial rights of the plaintiff in error were perjudiced by any lack of averment in said indictment advising him more fully of the charge made against him.

Entertaining these views we are of the opinion that the court below was right and did not err in overruling said motion to quash said counts in said indictment.

3. It was also contended that the court below erred in overruling the demurrer of the plaintiff in error to the first and second counts in said indictment. From what has already been said in this opinion it is scarcely necessary to add here that in our judgment the action of said court in overruling said demurrer was proper.

4. It was urged that the court below erred in admitting certain evidence of one Mrs. Frank Brown, as the same appears in the bill of exceptions, commencing on page 245, given upon the trial in behalf of the state against the objection of the plaintiff in error, and to which exceptions were duly taken. It was claimed by the plaintiff in error that the witness was his wife and she was therefore incompetent to testify as a witness against him, while the state denied that the witness was his wife, and even under the assumption that she was, still under the present statute (100 O. L. 49, 50) fixing the rights of husband and wife to testify, she was competent to tesify as a witness as to the whereabouts of the plaintiff in error on a particular occasion, under favor of the special exception made in said statute. That husband and wife are competent witnesses in behalf of each other in a criminal case, and incompetent witnesses against each other, except in certain instances, is fully recognized in this state, the last announcement made by the Supreme Court, perhaps, being in the case of State v. Orth, 79 Ohio St. 130 [86 N. E. Rep. 476; 22 L. R. A. (N. S.) 240].

This is true as between husband and wife. Here an anomalous situation was presented — the plaintiff in error claiming that he was lawfully married to said witness and that she was at the time of the trial his wife, while she claimed that they were never married and that she was not and is not his wife. Without here reciting the testimony offered on this subject, it is sufficient to say that it is not altogether clear that some form of marriage may have been undertaken by these parties at Newark in 1909, but it is admitted by the plaintiff in error that at the time he ran away with said witness in 1906, she was then living in Union City, Indiana, that she was then a married woman and was then the wife of Frank A. Brown of said city, with whom the plaintiff in error admitted having worked, and was well acquainted with. That he afterward never learned, nor made any effort to ascertain, whether or not the said Brown and his wife were divorced, except what said witness told him about a month before their alleged marriage. In addition to the testimony of said witness denying that she was married to the plaintiff in error and that she was not divorced from her husband, Frank A. Brown, the said Brown also testified that they were married, that they were still man and wife and were not divorced. From the foregoing it appears that the said witness had a lawful husband living from whom she had not been divorced; at the time she was called on as a witness to testify, and if this is true, the alleged marriage between the plaintiff in error and the witness was not a valid marriage. Underhill, Evidence lays down the rule that :

“The burden of proving that the marriage relation exists between the witness and the accused rests upon the party opposing the competency of the witness, unless a marriage valid or at least apparently valid in all respects is shown to exist at the time the witness is offered, or his or her testimony must be received. It is not enough that the parties, supposing the marriage to be valid, had lived together for years as man and wife and had introduced each other to the world as such. The marriage must be actually and in fact valid, and must have existed in full force and vigor down to the date of the crime alleged.
“The validity of the marriage will be inquired into upon a voir dire examination of the witness and if the relation of husband and wife is not found to exist, the witness is competent and must be permitted to testify.”

Again, in the case of State v. Rocker, 130 Iowa 239 [106 N. W. Rep. 648], it is held:

“There is, of course, a presumption in favor of legality arising from naked proof that a marriage has taken place. But it is a mere presumption of fact, and may be overcome by proof, among other things, that one or both the parties was incompetent to enter into the marriage relation. Accordingly the presumption must give way at once in the face of proof that the defendant had a former wife living and undivorced, and his incompetency to enter into the subsequent marriage is thus established.”

Following the above authorities, under the proof made that the witness was then the wife of another from whom she had not been divorced, and who was then living, the alleged marriage of the plaintiff in error and the witness could not be and was not a valid marriage, and the witness was therefore competent to testify, and in permitting her to testify, in our opinion, the court below did not commit error.

It was also urged that the court below erred in admitting as evidence upon the trial the certificates issued by the State Security Bank of Zanesville to the said John G. Albert. These certificates are dated January 17, 1914, February 14, 1914, and June 20, 1914, issued by said bank to the said John G. Albert and made payable to him, and were delivered to him as of said dates. In the absence of proof to the contrary, the presumption would be that he retained the possession and was the owner of said certificate until the date of his death. True, the possession of them traced to and found in the possession of the plaintiff in error soon after the crime charged was committed, would not of itself be evidence sufficient to convict him of such erime, but it would be a circumstance for the jury to consider in connection with all the other evidence in the case, including the explanation given, if given, of such possession, and whether satisfactory or not. It was argued by the plaintiff in error that possession of these certificates may have been lawfully secured from the said John G. Albert in his lifetime by some other person, and that their possession by the plaintiff in error was therefore not necessarily unlawful, nor was such' possession to be regarded as having any connection with the crime charged. As stated, the possession of these certificates as a fact or circumstance standing alone might not be an incriminating circumstance or evidence of guilt, but the conduct and declarations of the plaintiff in error in explaining their possession might be, all of which it was the province of the jury to determine. The rights of the plaintiff in error in this respect seem to have been properly guarded and protected in the instructions of the court to the jury in its charge. We find no error upon the part of the trial court in admitting these certificates as evidence upon the trial, nor in the admission of the evidence in relation thereto.

5. One of the specifications of error in said petition in error is that the court below erred in its instructions to the jury. We have carefully examined this charge and find it to be a fair and able exposition of the law applicable to the ease. In it the interests of the state aud the rights of the accused are alike properly cared for.

In the charge given as well as in the refusal of the court to give certain requests of the plaintiff in error submitted to be given in charge, we think there was no error.

6. It was argued that the verdict in this case was clearly against the weight of the evidence and not supported by sufficient evidence, and was contrary to law. At the expense of no little time and labor we have carefully read the entire bill of exceptions. This we were led to do because of the important character of the case — important to both the state and the accused. Without stopping to philosophize on the value of human life or the stem demands of the law that one accused of crime shall first be given a fair trial before liberty or life is taken, in the light of this record we can not say that the plaintiff in error has not had the full benefit of this charitable and humane rule of the law. Despite his claim that he was not in the vicinity of the Albert premises on the Sunday evening in question, a reading of the record shows the decided weight of the evidence given upon the trial to be to the contrary. His own admissions show that he was well acquainted with said Albert and was familiar with his premises. It likewise shows that during his visits at the Smithley and Quinn homes in the afternoon of that day his mind seemed to be occupied with matters concerning said Albert, and that in the evening of that day his conduct was observed to be both strange and unnatural. This evidence when considered in connection with the undisputed fact that he left his home in Zanesville for Wheeling that night (the night of the murder) without any apparent cause, and in connection with the evidence clearly showing that after reaching Wheeling or Bellaire he soon surrounded himself with ex-convict friends and laid plans with their aid to negotiate and raise money on one of the said certificates of deposit in question, and after having been taken in custody by the authorities, he stealthily sought to conceal his pocket-book containing the other two said certificates of deposit, and then denied having possession of any and all of them, these together with other facts and incriminating circumstances clearly shown, were before the jury and in their solution of them we do not think their verdict was against the weight of such evidence or contrary to law.

Finding no error in the record prejudicial to the plaintiff in error the judgment of the court of common pleas will be affirmed and the case is remanded for execution.

Powell and Houck, JJ., concur.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Court of Appeals,
    November 8, 1915.]
    Jones, Jones and Gorman, JJ.
    Clifford Seasongood v. Philip L. Seasongood, et al.
    Nonresident Properly Named as Executor.
    A nonresident who has been named in a will as executor is entitled to appointment by virtue of Sec. 10605 G. C. if he be of age and of sound mind and untainted by conviction of crime, notwithstanding a rule of court to the contrary, especially since a large part of the estate is in nonresident’s state and that three residents are also named as coexecutors.
    Error.

      Clifford Seasongood and Murray Seasongood, for plaintiff in error.

      Paxton, Warrington & Seasongood and Robert P. Goldman, for defendants in error.
   GORMAN, J.

It appears from the record that on November 29, 1914, Lewis Seasongood, a resident of Cincinnati, Hamilton county, Ohio, died testate, leaving a large estate part of which was located in Ohio and part in New York. In his will he named as his executors his three sons Philip L., Albert and Clifford, and his nephew, Murray Seasongood, and also nominated all of his executors, except Albert, as testamentary trustees. All of these were appointed as nominated in said will, by the surrogate court of New York, on February 8, 1915. Clifford Seasongood is now and was at the time of his father’s death and when the will was executed a resident of New York City, which fact was well known to the testator at the time he nominated him as one of his executors and testamentary trustees. He had for several years proir to his father’s death managed his father’s realty and personalty in the state of New York and had been his father’s personal advisor for many 'years and up to the time of his death. He is of legal age, a lawyer in good standing at the New York bar, and is in every way suitable, competent and well qualified to act as executor and testamentary trustee of his father’s estate.

It appears that the probate court of Hamilton county, Ohio, on the presentation of said will for probate and record, and on the application of said Clifford Seasongood to be appointed as one of the executors and testamentary trustee thereof, refused and declined to appoint him solely on the ground that he, the court, could not appoint a nonresident or Ohio as executor or coexeeutor, however suitable and well qualified he might be, although it appears from the record that the widow and all the next of kin of the testator, as well as the other three executors, joined in the request for the appointment of said Clifford Seasongood. The court appointed the other three executors named in the will; and Clifford prosecuted error to the common pleas court to reverse the judgment of the probate court in refusing to appoint him. The common pleas court affirmed the probate court, and the plaintiff in error, Clifford Season-good, is here asking this court' to reverse the common pleas and the probate courts.

The sections of the General Code touching the appointment of testamentary trustees are 10591 and 10600 inclusive and 11029 to 11036 inclusive. The sections governing the appointment of executors are 10605 and following, of the General Code.

By the provisions of Sec. 10605 G. C., the probate court, when a will is duly proved and allowed, shall issue letters testamentary thereon to the executor, if any be named therein, if he be legally competent and accepts the trust and gives bond if that be required.

Section 10591 provides that every trustee appointed in a will, before enternig upon his duties, must execute a bond payable to the state, to the satisfaction of the probate court conditioned for the faithful discharge of his duties as trustee, except that when the terms of the' will provide that no bond need be given the court may grant permission to the trustee to execute the trust with or without bond'; but when granted without bond the court may thereafter, upon the application of an interested party, require a bond.

It appears from the record that there has been of long standing a rule of the probate court of Hamilton county — not especially authorized by statute — that executors, administrators, guardians and trustees must reside in Hamilton county.

The circuit court of this county, in the case of Sargent v. Corbley, 28 O. C. C. 125 (7 N. S. 226), held that notwithstanding this rule of the probate court a nonresident of Hamilton county, if a suitable person, might be appointed administrator.

Tt needs no citation of authorities or extended argument to satisfy us that a rule of court is not binding or valid unless in accordance with the law, either statutory or the common law, or is a reasonable exercise of the court’s power to make and promulgate the rule. The rule of court must always give way if in conflict with a statute. Van Ingen v. Berger, 82 Ohio St. 255 [92 N. E. Rep. 433; 19 Ann. Cas. 799].

Tf the court refused to appoint Clifford Seasongood because of this rule of court, it would appear that this refusal on this ground can not be justified in the face of the statute, See. 10605 G. C., which requires the executor named in the will to be appointed if he be legally competent and will accept.

If we were to apply the rule at common law, that is, that part of it known as the ecclesiastical law, the executor named in the will, if not incompetent, must be appointed. The wishes and will of the testator were respected and enforced whenever possible. Slaters v. May, 2 Lord Raym, 1071; Williams, Executors (7 Am. ed.) 270; Smith’s Appeal, 61 Conn. 420.

In Borland, Wills p. 495, Sec. 189, the author says :

“By the theory of the common law the executor derived his powers directly from his appointment by the testator. The ecclesiastical courts could probate the will, but the executor did not need an appointment by them and they had very little control over him. * * * The testator might appoint any one as executor, whether qualified or not.”

In Rex v. Raines, 1 Lord Raym. 361, Carth. 457, 1 Holt 310, it was held by Lord Holt that the appointment of the executor named by the testator was mandatory, even though the person named was improvident, dishonest and suspected by the legatees.

This decision was approved in Marriott v. Marriott, 1 Strande 666.

When we come to examine and construe our statutes we should do so in the light of the common law rules and principles in force at the time of their enactment, and bearing upon the rules promulgated by the statutes under consideration. The legislature will not be presumed to have intended a repeal of the settled rules of tbe common law unless the language employed by it clearly expresses or imports such intention. State v. Sullivan, 81 Ohio St. 79 [90 N. E. Rep. 146; 26 L. R. A. (N. S.) 514; 18 Ann. Cas. 139],

Our statute, See 10605, does not expressly forbid a nonresident of the state being appointed executor. It says that the probate court “shall issue letters testamentary thereon to the executor * * * if he is legally competent, ” etc.

Who are competent persons and what is meant by “legally competent ? ’ One is legally competent if he is of legal age, of sound mind and has not been convicted of a crime which renders him infamous.

In the case of Clark v. Patterson, 114 Ill. App. 312, affirmed, Clark v. Patterson, 214 Ill. 533 [73 N. E. Rep. 806; 105 Am. St. Rep. 127], the court, in construing the words “legally competent” in a statute providing for the appointment of an executor if he be legally competent, said:

“The words ‘legally competent' mean that the; person named as executor must be of legal age, of sound mind and memory and untainted by conviction for crime which renders the convicted person infamous.”

If the person nominated in the will as executor be not a minor, an idiot, a lunatic or insane, he is in contemplation of law legally competent. In the matter of the appointment of an administrator the- statute further limits the qualification of the applicant beyond the requirements of an executor. While the probate court shall issue letters testamentary to the executor naméd in the will when it is admitted to probate, if he is legally competent under Sec. 10605, the provisions relating to the appointment of administrators found in Sec. 10617 G-. C., after setting out the persons entitled to administer the estate, subdivision 3 reads as follows:

“If the persons entitled to administration are incompetent or evidently unsuitable for the discharge of the trust * # * the court shall commit it to one or more of the principal eredtiors if there be any competent and willing to undertake the trust.”

It will thus be seen that in the appointment of an administrator the court must take into consideration not only the competency of those entitled to administer the estate under the law, but must also determine whether or not the applicant for administration is a suitable or unsuitable person. He might be perfectly competent in law, or legally competent, so for as any legal disabilities are concerned, and yet be totally unsuitable or unfit to have the administratoin committed to him.

In the ease Ulhorn, In re, 4 Circ. Dec. 526 (12 R. 765), decided by the circuit court of this county in 1894, the court held that the probate, court of this county in refusing to appoint a son of the testator as administrator with the will annexed, because he was a nonresident of this state, did not err, inasmuch as there was a discretion vested in the probate court to refuse or grant letters of administration to a nonresident applicant otherwise entitled to the appointment, because the removal statute, See. 10629 G. G., gave that court power to remove an administrator or executor among other grounds for removal from the state. If after appointing a person entitled to administer the estate the court could, under said Sec. 10629, remove him because he removed from the state, then manifestly it would not be an abuse of discretion on the part of the court to refuse to appoint him in the first instance if he was at the time of the refusal a nonresident of this state. Furthermore, in that case the applicant, the son of the testator, was not named in the will as executor, but he sought to be appointed administrator with the will annexed under Sec. 10612 G. C., and by the express provisions of Sec. 10617 G. C., administration of the estate could be granted to residents of this state only.

Furthermore, for all that appears in the record of the Ul-nom case, the son applying for administration may have been an unsuitable person, and if so the court could refuse to appoint him on that ground Non constat, but if in the Ulhorn case the son had been named as executor in the will and had been a competent person the circuit court might have held that his appointment as executor would be mandatory on the court. Indeed, the Ulhorn case can not be cited as an authority which is conclusive on this court in a ease, as the one under consideration, where the testator with full knowledge of the fact of his son’s nonresidence names him as one of his executors. In the Ulhorn case the circuit court might with much better reason have based its decision on the provisions of Sec. 10617 G. C., (then Sec. 6005 R. S.), which requires administrators (but not executors) to be residents of this state. No such limitation is found in the executor’s statute, See. 10605.

The removal statute, Sec. 10629, does not require the probate court to remove an executor or administrator because of his removal from the state. This statute furnishes grounds for removal only. It says the court “may remove,” etc. It is discretionary with the court to remove or not remove him because of nonresidence after appointment; and even before the court may remove him on this ground the executor or administrator is entitled to twenty days’ notice. We 'apprehend that if the probate court refused to remove an executor or administrator after his appointment because of his subsequent removal from the state, it would not ordinarily be held to be an error or abuse of the court’s discretion.

In other states having provisions similar to ours with reference to the qualifications of executors and administrators and similar limitations on the appointing power, as well as removal statutes analagous to ours, the courts have in many instances held that the appointment of a legally competent executor named in the will is mandatory unless there is some statutory disqualification imposed, such as nonresidents in the state. McGregor v. McGregor, 40 N. Y. 133; Berry v. Hamilton, 51 Ky. 191 [54 Am. Dec. 515]; Banquire, In re, 88 Cal. 302; Holladay v. Holladay, 16 Ore. 147 [19 Pac. Rep. 81]; Stevens v. Cameron, 100 Tex. 515 [101 S. W. Rep. 791].

In Stevens v. Cameron, the probate court refused to appoint an otherwise competent person named in the will as executor, on the ground that he was a nonresident of the state, and the statute provided that absence from the state for three months furnished grounds for removal. The upper court on appeal reversed the lower court and held that he had a right to be appointed executor because the testator had named him as such. To the same effect are the cases of: Corrigan v. Jones, 14 Col. 311 [23 Pac. Rep. 913]; Fulgham v. Fulgham, 119 Ala. 403 [24 So. Rep. 851]; Brown In re, 80 Cal. 381 [22 Pac. Rep. 233]; Hecht v. Carey, 13 Wyo. 154 [78 Pac. Rep. 705; 110 Am. St. Rep. 981]; Walker v. Torrence, 12 Ga. 604.

We think that our Supreme Court has at least inferentially held that it is the duty of the probate court to appoint as executor the person named in the will. In Union Savings Bank & Tr. Co. v. Telegraph Co. 70 Ohio St. 89 [86 N. E. Rep. 478; 128 Am. St. Rep. 675], the court, on page 99, uses this language -.

“When the plaintiff died, being at that time a resident of Clark county, and left a will nominating the plaintiff in error to be executor of the will, and the will was offered for probate in the probate court of that county, it was within the jurisdiction of the court, and it became its duty, to appoint the person named in the will to be executor, if there was no obstacles thereto in the law as it then existed. ’ ’

Again, in the ease before us it appears that there were three other coexecutors of Clifford Seasongood, all residents of Ohio, named jointly with him as executors of this estate, and surely if it were necessary to protect the executor’s estate in Ohio from any maladministration the probate court of this county would at all times have three executors out of the four citizens and residents of Hamilton county, Ohio, who would be answerable at any and all times to the beck and call and citation of the court. It appears also from the record that there is a large part of the testator’s estate located in New York state, and it would appear to be eminently proper and helpful to the three resident coexecutors of Clifford Seasongood that he should be a co-executor so that he could with less inconvenience to all and with much greater facility and economy to the estate look after that part of the estate in New York. Evidently the testator carefully considered the benefits, desirability and even necessity of having his son, versed in the laws of New York, to act as coexecutor of his will with the other three named by him. He saw, and we see, no legal impediment to his appointment; and from the standpoint of fitness and competency perhaps no better selection could be made. It was the testator’s will that Clifford should be one of his executors, and that will should not be thwarted unless there be found some statute prohibiting this appointment or some rule of common law forbidding it. No statute disqualifies or forbids this son from acting as his father’s executor or from being appointed by the court, and, as we have before said, the common law made his appointment mandatory. The mere fact that the probate court, under the removal statute, Sec. 10629 G. C., may remove an executor or administrator for removal from the state after his appointment, does not preclude the appointment of one named as eoexecutor with others in the will in the first instance. There is no irreconcilable inconsistency between the two Secs. 10605 and 10629 G. C.; the latter section merely rests a discretion in the probate court to remove for nonresidence, whereas the former statute, Sec. 10605, appears to make the appointment of the person named in the will mandatory.

Clifford Seasongood is also named in his father’s will as one of the testamentary trustees of the estate, and it would appear that the testator in law has the right to create a trust in his estate and name his trustee in his will. Indeed, the testamentary trustee does not get his authority to act by virtue of an appointment by the probate court, but through his designation as trustee by the testator in his will.

It is true the statute requires testamentary trustees to give bond before entering upon their duties unless excused from so doing by the terms of the will. But there is nothing sadi in the statutes about an appointment as testamentary trustee, or the issuance of letters to him as testamentary trustee, as there is in the case of an executor under Sec. 10605 G. C. If the testamentary trustee fails to give bond as ordered by the court he shall be removed from the trust or be deemed to have declined it (Sec. 10592). The court has power to appoint only in case the testamentary trustee fails to give bond, declines to accept, dies, resigns, becomes incapcitated or is removed from the trust, and the will has made no provisions for his successor (Sec. 10596 G. C.).

Trustees created by will executed outside of this state, whether residents of this state or nonresidents, are recognized by our laws, and have the right to administer their trust in this state, being required only to give bond as resident trustees are required to do where the trust is created by will in this state. It would seem unreasonable to suppose that the legislature intended to prohibit a resident of this state from designating a nonresident of this state as a testamentary trustee, and yet permit a nonresident of this state to make a will outside of this state, and designate therein a nonresident testamentary trustee to act in this state and hold, control and dispose of property in this state. The provisions with reference to testamentary trustees recognize foreign testaments and foreign testamentary trustees, but put them on the same legal footing as resident trustees appointed under domestic wills. The probate court’s jurisdiction over all testamentary trustees is regulatory only, and it may not refuse to recognize a trustee designated in a will because he is a nonresident of the state, but only if the trustee fails to accept by giving bond or declines the trust. We conclude, therefore, that Clifford Seasongood should have been allowed to give bond as one of the testamentary trustees of his father’s estate, notwithstanding the fact of his nonresidence. No statute forbids it any more than it is forbidden to a nonresident testamentary trustee appointed under a foreign will to act as such trustee in this state.

The conclusion of the court is that Clifford Seasongood’s appointment as coexecutor and cotrustee under his father’s will is mandatory and should be recognized by the probate court by accepting a proper and sufficient bond and issuing to him in conjunction with his coexecutors and eotrustees letters testamentary on his father’s will.

Judgment of the comomn pleas and probate court reversed.

Jones, E. H. and Jones, O. B., JJ., concur.


author: JONES, O. B., J.

text:
    ACTION — GIFTS—PLEADINGS.
    [Hamilton (1st) Court of Appeals,
    December 13, 1915.]
    Jones, Jones and Gorman, JJ.
    Annie Laws et al v. James M. Morley et al, Admrs.
    1. Action for Recovery of Gift of Corporate Stock Transferred by Donee is for Recovery of Money.
    An action for recovery of tbe value of corporate stock, received by the defendant as a gift from an aged woman alleged to have been incompetent by reason of senility, is for the recovery of money only where the stock has been transferred by the donee.
    2. Amendment Eliminating Charge of Fraud and Substituting Undue Influence Permitted.
    An amendment, during trial, which eliminates a charge of fraud and substitutes therefor a charge of undue influence is not improper; particularly where the jury subsequently found that the donor was of unsound mind but that no undue influence was exerted; nor is it error to refuse a continuance because of such an amendment.
    3. Contractual, not Testamentary Capacity Essential to Sustain Gift Executed by Aged Woman not Anticipating Death.
    Contractual rather than testamentary capacity is required to uphold a gift of corporate stock, made by an aged woman without immediate prospect of death and rendered immediately effective by assignment and delivery.
    Error.

      DeCamp & Sutphin, for plaintiffs in error.

      Horstman & Horstman, for defendants in error.
   JONES, O. B., J.

The action under review in these proceedings was brought in the common pleas court by defendants in error, who were plaintiffs below, as the administrators of Ellen Lehane, deceased, against plaintiffs in error, who were defendants below, to recover the value of twenty-seven shares of preferred stock in the Procter & Gamble Company, which had been transferred by her without consideration to one of the defendants for the benefit of both, five days before her death.

Ellen Lehane had been employed as a servant in the household of their parents from the time defendants were small children and after their parents’ death remained with them in the same capacity continuously until defendants removed from their old homestead on Dayton street into a new home upon the hill, when Miss Lehane, then 75 years of age, concluded to give up active work, and secured quarters with friends or relatives, living thus upon her income for a period of about five years, during the remainder of her life. She had lived as a faithful servant in defendants’ family for a period, in all, of forty-three years.

While her wages were small, she was frugal in her habits, was under little expense, and had carefully saved, depositing money from time to time in a savings bank, from 1895 up to the time of her death. Her accumulations thus made were invested partly in the Procter & Gamble stock in question in this case, which was purchased about the time of the organization of that company in 1890, and partly in stock of the American Sugar Refining Company and American Locomotive Company, which was purchased in parcels from time to time, in 1907 and previous thereto. These investments were made with the advice and assistance of the brother of the defendants.

While Ellen Lehane was living with defendants and their family her relations with them were of an intimate and friendly character. The defendants were looked upon by her as confidential friends and advisers and they continued in that relation up to the time of her death, looking after her personal comfort and assisting her in her business matters. She could neither read nor write; she signed her name with a mark. One of the defendants would draw cheeks for her on her account in the savings bank and would collect the dividends on her stocks, bringing her the cash for them. They arranged for a telephone in her room so they could converse with her at will, and by means of which she could reach them whenever she wished to or needed their assistance. They called upon her at her room from time to time, and frequently made her little presents.

Ellen Lehane had never married, and she had no brothers or sisters living at the time she left the service of the defendants, but she had numerous relatives, descendants of deceased sisters, with whom she was on good terms, and especially one nephew of whom she was quite proud, the Reverend P. P. Crane, a Catho'lie priest who lived in St. Louis, and Mrs. May Som-mers Soards, a grand-niece, of whom she was quite fond, and with whom she lived for a time, and who remained attentive to her up to the time of her death.

The stocks which constituted the small fortune of Ellen Le-hane were at her request kept for her by the brother of the defendants in his safe deposit box. At a meeting in his office in 1907, when Mr. Laws and Miss Annie Laws were present with Ellen Lehane,23 she executed assignment blanks assigning all the sugar and locomotive stock to her nephew, Father P. P. Crane. The transfer of this stock was not then made, but the stock and the assignments were left with Mr. Laws to give to Father Crane at her death, and no change was made as to the dividends which were to continue to be paid to her during her lifetime, to live upon. These assignments were kept by Mr. Laws until after her death, when he sent them to the respective companies and had new certificates made in the name -of Father Crane and delivered them to him as hereinafter stated.

On Monday morning, October 28,1912, May Sommers Soards visited her aunt at her home and found her prepared to go out writh one of the defendants to Mr. Laws’ office, but learning that she did not feel well, Mrs. Soards at her request telephoned Miss Laws and postponed the trip until the next day. On the following day, Tuesday, at about 10 o’clock Miss Aliee Laws called at the Phelan home where Ellen Lehane then lived, at Broadway and New street, and together they walked to Mr. Laws’ office in the First National Bank Building at Fourth and Walnut streets. There they met Mr. Laws in his private office where, he says, he was told by Ellen Lehane that she desired to give her Procter & Gamble stock to “her girls,” as she called the defendants, that they had been kind to her and she wished to return their kindness. He says he told her that if she gave it to them she should “give it to them out and out, without any strings to it,” and she said that was what she wanted to do. Thereupon he sent his son, who was in the office, to the safe deposit box for the certificate of stock, and bad his bookkeeper, Mr. Muller, prepare an assignment of the stock. At the suggestion of Mr. Laws that the transfer should not be made to both but to Annie Laws alone, it being understood that she would hold it for her sister and herself, it was drawn to Annie Laws. This assignment was then signed by the name of Ellen Lehane, who made her mark, which was witnessed by Mr. Muller and Harry L. Laws and by Miss Alice Laws, and the paper was left in the hands of defendants’ brother.

Miss Alice Laws and Ellen Lehane then returned, walking back to Ellen’s home, where Alice left her at the foot of the stairs. Mrs. Phelan seeing her come, assisted her upstairs and, finding her in a state of collapse, put her to bed and gave her stimulants. She was about the house the rest of the week, suffering from a cold, until Saturday, when she oonsented to have a doctor called. The doctor found her suffering from a rheumatic and bronchial condition, of which she had been complaining for some five or six weeks, and he prescribed for her. She was found dead in bed Sunday morning, November 3. The doctor testified that “the indirect cause of her death was a senile degeneration of all of her organs, that is. her heart and lungs. ’ ’

Miss Annie Laws, who had called and seen her on Thursday, was notified at once of her death by Mrs. Phelan, and she came and took charge of affairs and made the necessary funeral arrangements, sending for Father Crane, who came on from St. Louis and performed the church services.

Upon the request of Miss Annie Laws Father Crane came to Cincinnati, December 2, 1912, and met her and her brother, and was told by them of the transfer to Mm of the sugar and locomotive stocks., the new certificates for which in his name were then delivered to Mm. On his inquiry in regard to Procter & Gamble stock there is a conflict of testimony, Father Crane saying that Mr. Laws told Mm it had been sold by him years ago to invest the money in these stocks, while Mr. Laws testified that he told Father Crane that Ellen- had disposed of the stock before her death, without giving him any of the particulars as to how or when she had disposed of it.

The certificate for the twenty-seven shares of Procter & Gamble stock, together with the assignment to Annie Laws, was sent by Harry L. Laws, through his broker, for transfer on Thursday, October 31, 1912, and it was transferred to Annie Laws. It was sold by her brother for her December 16, 1912, for $190 per share, and the proceeds Were placed by Harry L. Laws in an account to the credit of “Alice Laws Special.”

On December 16, 1912, a letter was written by the attorneys of the plaintiffs below to Miss Annie Laws advising her that they had been appointed administrators of Ellen Lehane’s estate and asking for information regarding it. She responded with a letter referring them to Father Crane for such information. Thereupon proceedings were had in the probate court for a citation against Annie Laws and Harry La-ws to appear and disclose to the court their knowledge concerning the property and effects of Ellen Lehane’s estate. Learning, as a result of this citation, of the transfer of this stock, plaintiffs brought this action, which resulted in a verdict and judgment in their favor.

The original petition, setting out but one cause of action, was for the recovery of the value of this stock. While two causes of action were set out’in the fourth amended petition, on which the trial was had, it was alleged that the defendants had sold the stock and had appropriated its proceeds to their own use. There could be, therefore, no relief obtained by setting aside the transfer, or seeking to recover the stock itself. It was an action for money, the value of property which defendants claimed had been given to them, but the validity of which gift was denied by plaintiffs upon two grounds: first, because of unsoundness of mind on the part of their intestate; second, because of undue influence on the part of defendants.

It was not necessary to set out two causes of action. The primary demand was for the recovery of money only, as was held by this court in dismissing the appeal sought to be taken from this judgment.

Nor was it improper in the trial court to permit an amendment of the petition during the trial by the elimination of the charge of fraud as a ground of recovery and substituting the charge of undue influence, nor was it error to refuse a continuance because of that amendment. Any possible error because of this amendment is removed by the answers given by the jury to the interrogatories submitted at the request of defendants. By these answers the jury found that at the time of the alleged gift the .decedent was of unsound mind, but that no undue influence had been exercised upon her by the defendants.

The judgment is therefore based upon the finding that decedent was of unsound min'd, and many of the errors claimed by defendants in error in regard to the matter of undue influence are thus necessarily eliminated from consideration.

It is contended that the court erred in its general charge, in discussing the issue of unsound mind. Plaintiffs in error insist that decedent must be required to have merely testamentary capacity at the time of the execution of the assignment of this stock in order to perfect it as a valid gift.

It is true that a person may lack capacity for the transaction of ordinary business, and lack contractual capacity, and yet may have testamentary capacity, Wadsworth v. Purdy, 31 O. C. C. 110 (12 N. S. 8). A less degree of mental capacity is required to make a will than to make a contract or to transact ordinary business involving a contest of reason, judgment, experience and the exeriese of mental powers not at all necessary to the testamentary disposition of property,Rowcliffe v. Belse, 261 Ill. 566, 573 [104 N. E. Rep. 268], It is, however, doubtful whether mere testamentary capacity would be sufficient to sustain a gift such as is claimed here. A will disposes of property to take effect only after death. It can be revoked at any time by the testator up to the time of his death. But a gift such as this, once made, is irrevocable by the donor alone, without the consent of the donee. It was not made to take effect at death, but was to be operative at once. It would divest Ellen Lehane of all of her property except merely the income of the stock to be given to Father Crane at her death, which also she had reserved no right to sell or recover back. She made no condition to retain the income until death, as to this stock, but simply relied upon a general understanding that the Misses Laws would look after and supply her wants without any definite obligation on their part in return for the gift. While she was old, she had no immediate prospect of death, but might have lived for years. Under these circumstances it would require a contractual rather than testamentary capacity to uphold such a gift.

The part of the charge particularly objected to by plaintiffs in error, in which the court says that

—"the jury would be warranted in finding Ellen Lehane of unsound mind”—

when the purported gift was executed, if she was then

—"so far incapable of acting rationally in the ordinary affairs of life and of comprehending the nature and value of her property as to be incapable of transacting or procuring to be transacted ordinary business, and of reasonably understanding the business or transactions in which she engaged as to the nature, purpose, effect or result, and did not act rationally in the ordinary affairs of life”—

taken in connection with the finding of the jury that she was then of unsound mind, would indicate a greater degree of incapacity found by the jury than was deemed necessary by plaintiffs in error to invalidate the gift.

While the charge may be subject to criticism as to certain independent paragraphs when taken alone, taken as a whole, as it must be, we find it without error prejudicial to plaintiffs in error. And the court did not err in refusing to separately charge the jury, when so requested by plaintiff in error, that the issue of fraud was not in the case, the jury having then been distinctly charged to "only regard the issues made by the pleadings, which are unsoundness of mind and undue influence. ’ ’

A reading of the argument, in full, as made to the jury by Mr. Horstman, on which plaintiffs in error predicate a claim of misconduct of counsel, fails to show that the bounds of legitimate argument have been so far exceeded as to create error to their prejudice.

A careful consideration of the voluminous record and of the extended arguments and briefs of counsel, fails to disclose that the judgment is not sustained by the evidence, or that prejudicial error has intervened, but shows that substantial justice has been done.

The judgment is affirmed.

Jones, E. H. and Gorman, JJ., concur.


author: POWELL, J.

text:
    ERROR — JUDGMENTS—PRIORITIES.
    [Licking (5th) Court of Appeals,
    October Term, 1915.]
    Shields, Powell and Houck, JJ.
    J. W. Hornby v. Harry D. Rank et al.
    1. Nunc Pro Tunc Entry not Reviewable without Bill of Exceptions.
    A reviewing court under the rule of decision that a motion for an entry nunc pro tunc must be sustained by clear and convincing evidence, is without authority to reverse a judgment overruling such a motion where there is no bill of exceptions embodying the evidence upon which the motion was overruled below.
    2. Priorities of Judgments of J. P. Fixed by Dates of Filing Transcripts in Common Pleas.
    Judgments rendered by a justice of the peace are governed by' Sec. 11661 G. C. and become a lien as of the date and in the order of the filing of the transcripts where such filing occurs during the term; hence, a decree of distribution giving them priority in the order of their filing will not be disturbed.
    Error.

      Smythe <& Smythe, for plaintiff in error.

      Flory & Flory, for defendants in error.
   POWELL, J.

The order or judgment sought to be reversed in this action is an order overruling a motion filed in the court of common pleas for an entry nunc pro tunc of an order of distribution, entered in a partition ease in which one George Fessler owned an undivided interest in the real estate sought to be partitioned and against which were numerous liens sufficient to exhaust his interest in such real estate.

The particular question complained of is as to the distribution of $192.83 balance remaining after the specific liens against said real estate had been paid and an allowance made to said Fessler in lieu of a homestead. In addition to the other liens were four judgments entered before justices of the peace, transcripts of which were taken and filed with the clerk of courts of this county. These four judgments were all filed during the January term of 1911, but at different dates. The total amount of tbe judgments is largely in excess of the amount to be distributed. It seems that an entry had been prepared and approved by all of the attorneys, excepting the attorneys for one of the transcript creditors; that such entry was taken by the sheriff, and the order of distribution made by it was entered upon his partition ledger, and distribution- of said sum was made by him in accordance therewith; that a year or two afterwards it was discovered that this entry had never been journalized or entered upon the journal of the court of common pleas; whereupon a motion was made for an order to be entered as of the date when such distribution was made, making distribution of said fund in a different manner than the same had been distributed. This motion is not with the papers in the cases, but the transcript shows that such motion was presented and overruled.

The petition in error involves two propositions:

A motion for an entry nunc pro tunc must be sustained by evidence. In fact, our Supreme Court had held that the power of a court to make such entry should be exercised only upon evidence which shows clearly and convincingly that the action sought to be entered by a nunc pro tunc order was in fact taken. Jacks v. Adamson, 56 Ohio St. 397 [47 N. E. Rep. 48; 60 Am. St. Rep. 749].

The entry overruling the motion shows that the same was submitted upon evidence, and the court found that -the facts on which said motion was founded were insufficient and overruled the motion. There was no bill of exceptions taken embodying the testimony offered upon this motion, and it is urged upon the part of defendants in error that the- court is without authority to reverse the judgment, upon the ground that the evidence upon which that judgment or order was entered is not before the court. We think this contention is well taken and that we are without authority to enter a reversal of this ease upon the grounds stated in the petition in error.

It is contended however, that the facts appear upon the record and that they are stated in the briefs of counsel, and the real question between the parties is as to the manner of distribution of said fund. The sum to be distributed was rightly held to be applicable to the payment of the transcript judgments. It is contended by plaintiff in error that the sum should be applied pro rata upon the amount of the several transcript judgments, and it is contended by the defendants in error that the transcripts became liens at the date of their filing because they were filed within term time, and the judgments should be paid in the order in which the transcripts were filed with the clerk; or, in other words, it is contended by plaintiff in error that the rule prescribed by Sec. 11665 G. C., should control in making the order of distribution, while the defendants in error claim that the rule prescribed by Sec. 11661 G. C., should prevail.

We are of the opinion that, upon the facts as shown by the admissions of counsel and by their briefs to be undisputed, that See. 11661 furnishes the proper rule by which such distribution should be made, viz: that these judgments became liens at the date of their filing, because they were each filed during term time, and that in an order adjusting priorities of liens against said amount they should be ordered paid in the order of time in which they were filed.

The rule prescribed by Sec. 11665 relates to liens created by levy of an execution, and the rule as prescribed by Sec. 11661 relates solely to the attaching of liens by virtue of transcripts of judgments before justices of the peace having been filed by the clerk of courts, and this rule is applicable to the case at bar.

It is the opinion of the court, upon either contention, that there was no error in the order of the court of common pleas in overruling the motion for an order nunc pro tunc, or the claim of plaintiff in error to have said fund distributed pro rata, instead of in the order of the filing of the different transcripts. The judgment of that court will be affirmed at the costs of the plaintiff in error.

Shields and Houck, JJ., concur.


author: PER CURIAM.

text:
    JUDICIAL SALES.
    [Hamilton (1st) Court of Appeals,
    January, 1915.]
    Jones, Jones and Gorman, JJ.

      Phila Hay v. Fredericka Leiser.
    Indefinite Description does not Bar Claim of Title where the Public Records Afford Notice of Plaintiff’s Rights.
    A claim of title as an innocent purchaser of property at a public sale can not be based on the indefinite description contained in the deeds through which plaintiff asserts his claim, where the public records, plats and indexes pertaining to the parcel in controversy were sufficient to serve as notice of the rights of the plaintiff therein.
    Appeal.

      G. B. Mattheivs and Harry T. Klein, for plaintiff.

      August H. Bode, Jr., and Mitchell Wilby, for defendant.

       Affirmed, no op., Leiser v. Hay, 92 O. S. 000; 60 Bull. 471.

   PER CURIAM.

The claim of the defendant in this case is that she bought the property in question at a public sale, and that by reason of indefinite description in the deeds through which plaintiff claimed title she, the defendant, was an innocent purchaser of the property. The plaintiff, on the other hand, claims title and asks to have her title quieted.

We have carefully examined the evidence and considered the able briefs and arguments of counsel, and conclude that the public records, plats and indexes pertaining to the lot in question were sufficient to serve as notice to Mrs. Leiser of the rights of plaintiff in the lot in controversy. While the original deed for this lot to the trustees of the church did not definitely locate it, the fact that its boundaries were fixed, probably during the lifetime of John Brooks and certainly during the lifetime of Daniel Brooks, his son, and the church built thereon and occupied as such, and the entire lot fenced, fixed definitely the lines of the lot, which have been ascertainable ever since. Possession thereof is shown by plaintiff and her predecessors in title to such an extent that while the deed to Mrs. Leiser was of the entire tract, including this lot, still, as stated above, there was no reason why the defendant purchaser at the sale should have been misled. We think, moreover, that it is shown by a preponderance of the evidence that at the time of the auction sale it was announced that the sale was made subject to the reservation of the church lot. A decree will therefore be entered granting the prayer of plaintiff’s petition.


author: HOUCK, J.

text:
    MUTUAL BENEFIT ASSOCIATIONS.
    [Licking (5th) Court of Appeals,
    March Term, 1915.]
    Shields, Powell and Houck, JJ.
    Mutual Benefit Dept. of O. R. C. A. v. Mary I. Bland et al.
    1. Insured Fatally III with Tuberculosis Changing Beneficiary from Wife to Mother, not Evidence of Incapacity.
    The fact that insured, when fatally ill with tuberculosis, left his wife and went to live with his mother, and refused longer to support his wife and in some ways showed ill-will toward her, and caused his mother to be made the beneficiary instead of his wife in his certificate of life insurance, does not establish unsoundness of mind or memory on his part or the exercise of undue influence over him.
    2. Changing Beneficiary from Wife to Mother Valid.
    In making a change of beneficiary the insured exercised a right granted him under the rules of the order, as well as under the established rule of law that where the change is made substantially as provided for in the laws of the order or association, and to its full satisfaction and that of the insured, it is a valid change.
    3. Beneficiary, Dropped from Life Insurance Certificate, Entitled to Reimbursement for Assessments Paid.
    Where it appears that the beneficiary whose name has been dropped from a certificate paid certain of the assessments out of her own money, a court in ordering distribution of the proceeds of the certificate will direct that the amount so paid be restored to the one paying it.

      Kibler & Kibler, for Edward M. Barrett, administrator.

      Flory & Flory, for Ella J. Bland.
   HOUCK, J.

The facts in this case are that David E. Bland and Mary I. Bland were husband and wife, being married on November 28, 1900. He was a railroad conductor and had been in the employ of the B. & O. B. B. Company, as such, for a number of years prior to his death, which occurred December 2,1911.

On November 14, 1904, he took out a benefit certificate for $2,000, in the Mutual Benefit Department of Order of Bailroad Conductors of America, wh.ose principal office is located in Cedar Bapids, Iowa, naming as his beneficiary therein his wife, Mary I. Bland. It is alleged that prior to his death Mary I. Bland paid a number of the assessments thereon from her own money; that Ella Bland, the mother of the said David E. Bland, paid a number of the assessments to keep said insurance in force; that said benefit certificate remained in their home, and in their joint custody, until about one year before the husband’s death; that on October 29, 1911, the said husband left their home in the city of Newark, Ohio, and went to the home of his mother, Ella J. Bland, where he remained until his death; that on November 4, 1911, the said David E. Bland, in writing, requested the said Mutual Benefit Department of Order of Bailway Conductors of America to change the beneficiary in said benefit certificate from his wife to Ms mother, Ella J. Bland; that on November 8, 1911, he sent said certificate to said Order of Bailway Conductors, and on November 10, 1911, it erased therefrom the name of Mary I. Bland, and inserted therein the name of Ella J. Bland, the Mother of said David E. Bland, and returned said certificate to him, and the same was in his possession at the time of his death; that said wife did not consent to sai'd change, and had no knowledge of same, until some time after the change was made; that David E. Bland was never married prior to his marriage with Mary I. Bland, who survived him as his widow; that Mary I. Bland was a widow when she married David E. Bland, and had one son at the time of said marriage with David E. Bland, and that the son at that time was about nine years old.

After the death of David, E. Bland claims for the payment of the $2,000, the amount of said benefit certificate, were made to the said Order of Bailway Conductors, by both the wife and mother of decedent, each demanding payment, and claiming to be legally entitled to same. The said Order of Railway Conductors, being in doubt as to whom payment should be made, filed an interpleader, in the common pleas court of this county and paid the money, $2,000, into court, where the same now is in the possession of the clerk thereof.

This case is here for determination, on the second amended answer and cross petition of Mary I. Bland, and the answer of Ella J. Bland thereto, and the evidence.

The said Mary I. Bland in her second amended answer and cross petition, in addition to the above facts, alleges:

“That the said David E. Bland and Mary I. Bland were married on the 28th day of November, 1900, and lived together as husband and wife until the 29th day of October, 1911, at which time David E. Bland was mortally ill with tuberculosis, was weak in mind and body, and not sufficient mental capacity to transact ordinary business, was so weak in mind as to be unable to resist the influence and importunities of those around him, and that on the 10th day of November, 1911, Ella J. Bland and one Clifford T. Bland, a brother of said David E. Bland, wickedly contriving and conspiring to poison and alienate the mind and affections of said David E. Bland, for his wife Mary I. Bland, and for the sole purpose of preventing her from receiving any property or estate of the said David E. Bland, who was about to die, the said David E. Bland and Mary I. Bland, having no children, and for the purpose of obtaining for themselves the property and estate of the said David E. Bland, did poison his mind toward his wife and alienate the affection of said David E. Bland for the said Mary I. Bland, and by falsehood, deception and fraud caused the said David E. Bland to believe that this defendant was not faithful to and devoted to him, all of which was false as the said Ella J. Bland and said Clifford T. Bland well knew; that by said acts aforesaid of the said Ella J. Bland, and Clifford T. Bland, the said David E. Bland did attempt to change the beneficiary in said $2,000 benefit certificate from Mary I. Bland, to Ella J. Bland, but that same was wholly void so far as David E. Bland was concerned, and the same was not the act, intention or purpose of said David E. Bland, and that by reason of said disease he was mentally incapable of doing same, and the same was the result of duress, coercion, deceit and fraud practiced upon him by the said Ella J. Bland and Clifford T. Bland, for the purpose aforesaid, and in fraud of the rights of Mary I. Bland; that said Ella J. and Clifford T. Bland by continual urging and solicitation actually overcame the will of the said David E. Bland and substituted their own in place of his, he being too weak in mind and body to resist same, and thereby caused him to make said attempted change in the beneficiary named in said certificate.
“By reason of the premises Mary I. Bland says that she is the real beneficiary under said benefit certificate; that the same was never changed, and that she is entitled to recover the said sum of $2,000 and prays that said attempted assignment and transfer of said certificate to Ella J. Bland, be held to be null and void, and that the court order said money paid to her.”

The answer of Ella J. Bland to the second amended answer and cross petition of Mary I. Bland, is a general denial of all the material allegations therein; and she specifically alleges that David E. Bland was of sound mind and memory and that he was not influenced or coerced into changing the beneficiary in the benefit certificate held by him in the Order of Railway Conductors, and that she is the real beneficiary and prays that said sum of $2,000 be ordered paid to her.

After the trial and decree in this case in the court below, Mary I. Bland departed this life, and Edward M. Barrett was appointed by the probate court of Licking county, Ohio, as the administrator of the estate of the said Mary I. Bland, and gave bond and is now qualified in the premises and this cause so far as Mary I. Bland’s interest is concerned, is being prosecuted in the name of said administrator.

As we view this case, three questions are presented for determination by the court, two of them being questions of fact and one of law.

The questions of fact are:

First: Was David E. Bland of sound mind and memory and qualified to transact ordinary business on November 10, 1911, being the date of the change in the benefit certificate?

Second: Was David E. Bland unduly influenced to make such changes in the benefit certificate?

The question of law is-:

Could David E Bland, without the consent of Mary I. Bland, the beneficiary, change same to his mother, Ella J. Bland ?

Coming now tor the questions of fact, will state that the record of the' testimony below was long and many witnesses were examined; but we have gone over it with care and attention, and while there is some conflict in the testimony, yet on the whole it is clear and convincing.

It does seem strange that a husband who had lived with his wife in comparative happiness for ten years would, when about to pass into the great beyond, become estranged from her to such an extent that he did not want her to have or possess any of his property; that he left his home and went to and lived in the home of his mother; that his former love and desire for his wife, at least in some respects, turned to hatred and ill-will.

True, there were in their married life some little differences, but nothing of a serious nature. He refused to pay the house rent; he refused to furnish her food and shelter; he was mortally ill with tuberculosis, which caused his death; he was weak in body and may have been somewhat disturbed in mind; he lived in the home of his mother and his brother, Clifford T. Bland.

Can it be claimed from these facts and what occurred at the home of his brother, as detailed by the witnesses, that David E. Bland was of unsound mind and memory, or that he was unduly influenced ? We think not.

What is it to be of sound mind and memory and not unduly influenced, as understood and contemplated in law? If David E. Bland at the time he made the transfer of said certificate understood the nature, extent and scope of the business he was about to and did transact, and possessed that degree of mental strength that would enable him to transact ordinary business, then in law he would be considered a person of sound mind and memory.

The law does not undertake to test, by any specific method, a person’s intelligence, nor does it attempt to define the exact quality of mind and memory one must possess to transact ordinary business. The rule does not require that high degree of capacity that a man’s memory must be just as perfect as it ever was, or that his physical strength what it was, possibly, when in youth. David E. Bland may have been somewhat enfeebled in mind and body, but if he knew his surroundings and was able to and did grasp the situation, and was able to and did transact ordinary business at or near the time- of the transaction in controversy in a proper and business-like way and manner then he would be of sound mind and memory as- the rule of law requires.

Undue influence is just what the language implies. Any influence or act brought to bear upon a person entering into a contract or in the performance of a business transaction, taking into consideration the nature of the transaction and all the circumstances of each particular case, precludes the exercise of free and deliberate judgment.

The proof, as to undue influence, must be of such a character as to show the act was not the act of the person himself, but of some other person, and it must be clear and convincing.

If to the facts in this case, as established by the evidence, we apply the above well known principles of law, can it be properly claimed that Mary I. Bland has maintained and established her contention that David E. Bland was of unsound mind and memory and was unduly influenced at the time claimed by her? We think not.

It is claimed, on behalf of Mary I. Bland, that David E. Bland could not change the beneficiary in the benefit certificate without her consenting to same, and that it was changed without her knowledge or consent and is therefore null and void.

In the determination of this case it may be stated that the various rules of law which are applicable to ordinary life insurance eases do not apply here, because the laws, rules and regulations of mutual benefit associations, from which this ease at bar comes are governed differently and under different laws from ordinary life insurance companies.

On page 100 of the constitution, statutes, rules of order, and laws governing the mutual benefit department, Order of Railway Conductors of Amerisa, being exhibit “D,” we find the following rule as to benefit certificates, their change, etc.:

‘ ‘ The applicant must designate in his application some person or persons wife, relative or legal representative, to whom benefits shall be paid in the event of his death, and the secretary shall enter such designated name or names upon the register of the department and also upon the certificate of membership. Any member desiring to make any change in the named beneficiaries may do so with the cons'ent of the department by making request for such change on blanks provided for that purpose and returning the certificate for necessary correction, provided no benefits shall be made payable to any other than wife, relative or legal representative of the member.”

We find from the evidence that David E. Bland complied strictly and absolutely with the above requirements, and that the change of beneficiary in the benefit certificate in question was done strictly in accordance with the rules and regulations of Order of Railway Conductors.

While David E. Bland not only complied with the rules and regulations of the Order of Railway Conductors in making the change of beneficiary in his benefit certificate he not only exercised a right given him under the rules and regulations of said company, but exercised a right given under established rules of law which principle is well known in Ohio, and we need but cite one authority, being the case of Earley v. Earley, 13-23 O. C. C. 618 (3 N. S. 71), affirmed, no op., Earley v. Earley, 69 Ohio St. 562. The doctrine laid down in that case is certainly decisive of the question as to the right of the insured to change the beneficiary without the consent of the beneficiary. The second syllabus reads:

“While a change of beneficiaries in a mutual benefit society must be made in accordance with the laws of the society, yet when the change is made substantially as provided by the laws of the society to its satisfaction, and that of the insured, a new certificate being issued to the new beneficiary, and the old certificate cancelled, although not delivered to the society, the first beneficiary can not object to the manner of change because the change is made without her knowledge and not in strict con-fortuity to the law of the society providing for the change of beneficiaries.”

We, therefore, find the law and equities in this case in favor of the defendant, Ella J. Bland, and against the defendant, Mary I. Bland, and the administrator of her estate, Edward M. Barrett, but we find as alleged and claimed in the second amended answer and cross petition of Mary I.. Bland, that she in her lifetime paid some of the assessments on the insurance held in said Order of Railroad Conductors, and we believe that her estate should be reimbursed for such assessments so paid by her. The evidence is indefinite and uncertain as to the amount she paid, but we feel that the sum of $50 should be paid to the estate of said Mary I. Bland out of the fund now in the hands of the clerk of the common pleas court of this county in this case, and the court coming now td the' distribution of said fund in the hands of said clerk of courts, hereby orders and directs said fund to be paid out and distributed by said clerk as follows:

First: To pay the costs of this ease and taxes.

Second: To pay to Edward M. Barrett, as administrator of the estate of Mary I. Bland, the sum of $50.

Third: The rest and residue to be paid to Ella J. Bland.

Shields and Powell, JJ., concur.


author: RICHARDS, J.

text:
    CARRIERS.
    [Hamilton (1st) Court of Appeals,
    March 15, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    (Judges of the 6th district sitting hy designation.)
    Huenefeld Co. v. Chesapeake & Ohio Ry.
    Carrier Required to Show that Fire, Destroying Goods after Billed for Shipment, was without Its Fault.
    In an action against a railway company, to recover the value of goods destroyed hy fire, after being billed for shipment, where the bill of lading exempts the carrier from liability for loss occurring by fire without its fault, after the nondelivery of the goods is shown the duty rests upon the carrier to show that the loss was within the terms of the exception and occurred without its fault; and this principle is applicable although the fire originated on the premises of the plaintiff.
    [Syllabus by the court.]
    ERROR.

      Charles A. J. Walker, for plaintiff in error.

      Galvin <& Galvin and E. J. Tracy, for defendant in error.
   RICHARDS, J.

Action was brought against the railway company for the purpose of recovering the value of a car load of washing machines which had been shipped by the plaintiff and were destroyed by fire. The goods were billed to the Bostwick-Braun Company, Toledo, Ohio, and were shipped from the factory of the plaintiff company situated at Augusta, Kentucky. Whatever rights, it any, the consignee had to recover for the loss of the goods, have been assigned to the plaintiff.

An empty car had been left on January 28, 1906, on a spur track of the railway company extending back something more than 900 feet, to the plant of the plaintiff. Plaintiff proceeded to load the car with the goods, completing the same about 5 o’clock P. M. on January 29, 1906, and upon the completion of the loading a bill of lading was made out and signed by the agent of the railway company and the company informed that the car was ready to be forwarded to destination. During the night of January 29 the car and its contents were destroyed by a fire originating in the plant of the plaintiff, the same fire also destroying two car loads of ties, the property of the railway company, standing on the same siding.

On the trial of the case the plaintiff introduced in evidence the bill of lading, which contained a clause, in substance exempting the railway company from liability for loss occurring by fire without its fault. The railway company offered no evidence, and at the conclusion of the evidence offered on behalf of the plaintiff the court directed the jury to return a verdict in favor of the defendant, on which verdict so returned judgment has been entered.

No question is made as to the knowledge of the plaintiff of the terms of the limitation contained in the bill of lading, and it is said, in justification of the ruling made by the trial judge, that the evidence offered by the plaintiff shows the origin of the fire to have been on the plaintiff’s property, and that the record contains no evidence of any negligence on the part of the railway company. The evidence contained in the record is very meager, the only material facts on this matter being that the fire occurred on the same night that the car was loaded, and while it still remained on the spur, and that it was in a small village, not a terminal point of the railway company. It may be true that, when it appears the fire originated on the property or in the plant of the plaintiff, the law under such circumstances would imply that the fire originated without fault of the railway company, but the mere origin of the fire is not the only fact which is important in this ease. It does not appear what length of time the fire continued to burn, nor at what time of the night the property in question was destroyed. Whether the railway company had any knowledge of the existence of the fire, or whether it had any facilities for removing the car from the zone of danger, does not appear,- neither does it appear whether the railway company had any grounds to anticipate that a fire was likely to occur.

We think, under the circumstances stated, the plaintiff had made a prima facie case and the duty rested on the railway company to offer some evidence tending to show that the loss occurred without any fault on its part at the time of the fire. It would be an easy matter to show whether the company or its employees had knowledge of the fire and, if such was the fact, that it was without fault in allowing the car to remain in a place of danger after the fire started.

The case was disposed of on a matter of practice and the Ohio rule appears to be well stated in the case of Graham, v. Davis, 4 Ohio St. 362 [62 Am. Dec. 285].

See also, Union Express Co. v. Graham, 26 Ohio St. 595; Pennsylvania Co. v. Yoder, 25 O. C. C. 32 (1 N. S. 283).

These cases established the Ohio rule to be that the duty rests on the common carrier to show not only that the loss was •within the terms of the exception, but that the same occurred without its fault. The plaintiff’s evidence having established that the loss occurred by fire, it became incumbent on the defendant to show the destruction of the goods did not result from its negligence. The trial court, under the circumstances shown, was not justified in directing a verdict for the defendant, because it could not be said, as a matter of law, that the defendant was without fault. The question depends upon the circumstances existing at the time. While the burden of proof did not change, yet the plaintiff having offered the evidence which appears in the record, the duty then rested on the defendant to go forward with the ease by offering such evidence as it had tending to show that it was without fault for the loss of the goods shipped.

Under the federal authorities the burden rests on the carrier to show that the damage resulted from a cause excepted in the bill of lading, and, after that proof, the burden is then on the plaintiff to show that the loss occurred by the negligence of the carrier. See Cau v. Railway, 194 U. S. 427 [24 Sup. Ct. Rep. 663; 48 L. Ed. 1054]. But the case on this matter we hold to be controlled by the rulings of the courts of the state where the action is brought. The case last cited is based on Clark v. Barnwell, 53 U. S. (12 How.) 272 [13 L. Ed. 985], which was justly criticised by Judge Ranney in Graham, v. Davis, supra, and which the Supreme Court of Ohio expressly declined to follow.

The judgment will be reversed and the same cause remanded for new trial.

Chittenden and Kinkade, JJ., concur.


author: SAYRE, J,

text:
    SUNDAY LAWS — THEATERS.
    [Ross (4th) Court of Appeals,
    February 29, 1916.]
    Sayre, Merriman and Walters, JJ.
    Clarence Myers v. State of Ohio.
    Moving Picture Show Prohibited by Sunday Laws.
    A moving picture show is a theatrical performance and is prohibited on Sunday by Sec. 13049 G. C.
    [Syllabus by the court.]
    Error.
    The plaintiff in error was charged, in an affidavit filed in the mayor’s court of Chillieothe, with unlawfully and purposely exhibiting to the public, in a building known as the Majestic Theatre on East Second street in that city, “a theatrical performance, to wit: a moving picture show on the first day of the week, commonly called Sunday.”
    It appears from the testimony that the defendant was exhibiting a moving- picture show on Sunday, November 21, 1915, at the place mentioned in the affidavit; that the name of the picture was “Judith of Bethulia;” that at the time the picture was exhibited there was no scenery used and no music of any kind; that the picture had been approved by the board of censors, in accordance with the law of Ohio, and that tickets were sold in the usual way.

      Walter W. Boulger, for plaintiff in error.

      John P. Phillips, A. P. Minshall and Garrett Glaypool, for defendant in error.
   SAYRE, J,

The defendant was found guilty of a violation of See. 13049 G. C., and the judgment was affirmed by the court of common pleas of Ross county.

Section 13049 reads as follows:

“Whoever, on Sunday, participates in or exhibits to the public with or without charge for admittance, in a building, room, ground, garden or other place, a theatrical or dramatic performance or an equestrian or circus performance of jugglers, acrobats, rope dancing or sparring exhibition, variety show, negro minstrelsy living statutary, ballooning, base ball playing in the forenoon, ten pins or other game of similar kind or participates in keeping a low or disorderly house of resort or sells, disposes of or gives away ale, beer, porter or spirituous liquor in a building appendant or adjacent thereto, where such show, performance, or exhibition is given, or houses or place is kept, on complaint within twenty days thereafter, shall be fined not more than one hundred dollars or imprisoned in jail not more than six months, or' both. ’ ’

The question for determination is, whether a moving picture show is a “theatrical performance”.

"When the words “theatrical performance” were originally placed in the statute there were no moving picture shows, but at the time of the last amendment, April 26, 1911, (102 O. L. 92) they were common things. The fact that there were no moving picture shows when the statute was originally passed is not decisive of the question. State v. Cleveland, 83 Ohio St. 61 [93 N. E. Rep. 467; 21 Ann. Cas. 1284].

The argument that' the legislature meant to allow moving picture shows on Sunday because they were not included by name in the amendment of 1911 is not at all convincing or satisfactory.

The Century Dictionary defines the adjective “theatrical” thus:

“Of or pertaining to a theatrical or scenic representation; resembling the manner of dramatic performances; as, theatrical performances; theatrical gestures. ’ ’

The same authority defines “performance” thus:

“3. A musical, dramatic or other entertainment * # *. ” It does not require any assembling of facts or arguments to demonstrate that a moving picture show is an entertainment resembling the manner of a dramatic performance. So a moving picture show is within the strict letter of the statute. Is it .within the real meaning and spirit of the descriptive terms of the same? Section 13049 is a police regulation, the purpose of which is to fix regular recurring days of rest from certain secular pursuits therein named, and thus to promote the business, health and well-being of society. State v. Powell, 58 Ohio St. 324 [50 N. E. Rep.; 41 L. R. A. 854].

The exhibition of the ordinary picture show is a secular pursuit, just as the old line dramatic performance is, and as base ball playing is. The very object aimed at in the statute was the prevention of the prosecution of these secular pursuits every day.

The two performances differ in the fact that in the picture show moving pictures of persons and things are thrown on a screen, and in the old line dramatic performance the persons and things appear upon the stage. In the former there is absence of the human voice; in the latter the human voice is present. But while these differences and some others are found, the two in many respects are similar. In the moving picture show there are human forms in action, exhibiting fear, terror, courage, cowardice, hope, love, hatred, happiness, sadness, despair, and all the various passions, virtues, vices and human characteristics which are portrayed on the stage by real persons. In the moving picture show situations are represented which draw moral truths, as on the stage by real actors. In the picture show there is the same exaggeration of events as portrayed by real actors. The effect upon the audience is substantially the same. In both the moving picture show and the old line dramatic performance the particular thing aimed at is the portrayal of the events and emotions of life, often highly exaggerated and misrepresented, to afford entertainment to the audience.

Further, the moving picture represents to the eye greater, larger and more comprehensive scenic effects than can possibly be produced upon the real stage.

These facts are referred to simply to make plain that the moving picture show is in actual fact a scenic representation, and by the very best authority a scenic representation is a theatrical entertainment or performance.

The judgment of the court of common pleas will be affirmed.

Walters and Merriman, JJ., concur.