author: METCALFE, J.

text:
    STREET RAILWAYS.
    [Mahoning (7th) Court of Appeals,
    March 23, 1917.]
    Mahoning Valley Ry. Co. v. Kazanecka.
    1. Duty of Interurban Railway Toward Passengers Crossing Parallel Track Upon Leaving Car on Right of Way.
    Where a car is standing at a regular stop on the right-of-way of the company for the purpose of receiving and discharging passengers, it is the duty of a motorman operating a car on the parallel track going in the opposite direction, while passing such standing car, to keep his car under such control that it may be stopped on the instant, and failure so to operate it is negligence.
    2. Degree of Care Required from Alighting Passenger.
    While a passenger alighting from such standing car is not relieved from the duty of using ordinary care, such ordinary care does not require him to anticipate negligence. Failure on his part to look and listen for a car on the parallel track while passing behind the standing car for the purpose of crossing such parallel track, in order to get off of the premises of the company, is not contributory negligence on his part.

      Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Anderson & Lamb, for defendant in error.
   METCALFE, J.

This action was brought bjr the plaintiff below to recover for damages which she claimed to have sustained through the negligence of the defendant company.

Anna Kazanecka was a passenger on one of the company’s cars going from Youngstown, Ohio, to Newcastle, Pa. The place where she stopped was a regular stopping place of the company’s cars and was on the company’s right of way, and was not at a street crossing. Many passengers alighting at this point were accustomed to cross the trades of the company to reach the public street, while others would pass along the right-of-way parallel with the track to another street.

Miss Kazanecka alighted from the car, and, while it was still standing on the track, passed behind it, intending to cross the parallel track and continue on across the right-of-way to the street. As she was about to step upon the parallel track she was struck by a car going in the opposite direction from the one from which she alighted. She recovered a verdict in the court of eommdn pleas, and it is claimed that the court below committed error prejudicial to defendant, the present plaintiff in error.

The first exception taken is to the giving of plaintiff’s request to charge No, 1, which is as follows:

"The employees of the defendant knew that at stop seven there was a double track; that the steam railway tracks were close to and upon one side of their tracks, and at least the majority of the passengers leaving said car would go across both tracks of the defendant company. Therefore, it was the duty of the company to keep in mind the rights of its patrons who were under a necessity of crossing the tracks in going from the ear to their home or elsewhere. ’ ’

This request puts upon the defendant company, while its car discharging passengers is standing, the duty of keeping in mind the rights of its passengers after leaving the car, and of being regardful of their safety while crossing the tracks of the company when a car going in the opposite direction is passing.

Bequest No. 7 on the part of the defendant was refused. This request is as follows:

‘ ‘ The conductor of the east bound car was under no duty to warn plaintiff that cars were approaching or likely to approach from the opposite direction on the west bound track, and he was not negligent in failing to advise her of this fact either while she was alighting from the car or after she had alighted therefrom, and if you find that he called out a warning to her at the earliest moment when he discovered that she was going into a zone of danger upon or near the west bound track, he fulfilled his duty towards her in that situation.”

This raises the question squarely whether or not any duty rests upon the company or its employees to be regardful of the safety of passengers after they have left a car, but are still upon the premises of the company.

Resquest No. 8 of the defendant was also refused. It is as follows:

"The court says to you, as a matter of law, that this defendant company was not obliged to stop a west bound car before passing the east bound car, but that it had a right to operate its west bound ear by and past tbe standing east bound ear while said east bound ear was standing at Stop 7.”

It is urged on the part of the plaintiff in error, the stop in question being outside of the limits of a municipal corporation, that the duty of the employees of the company ceased when a passenger alighted, unless the company was aware of some danger, and that in such ease the company would discharge its duty by giving him warning.

Whether the propositions contained in the last two requests and urged upon us in argument are true or not, when applied to a case of a car being operated on-the public highway, we do not say, but we do not think they can apply in the ease of a car being operated on the company’s right-of-way, as in this ease. The stop where the plaintiff alighted was on the premises of the company. It was not at a crossing at a public street. Alighting passengers were accustomed to cross the tracks to get off of the premises of the company.

We do not say that an absolute duty rested upon the company to stop the car going in the opposite direction when approaching a car from which passengers were alighting. We do-say, however, that it was the duty of the company’s employees in charge of the car, if they did attempt at such a time to run past on the parallel track, to have the car under such control that it could be stopped at a moment’s warning. Of course passengers would not be excused from the duty of using ordinary care, but ordinary care does not require them to anticipate negligence on the part of the company, and it is negligence to so operate a ear in such a situation as to endanger the passengers who are leaving the standing car. A passenger has a right to cross the tracks of the company at such a time without anticipating any danger at the hands of the company’s servants, and the failure of such passenger to look and listen for the approach of a passing car would not be contributory negligence on his part. If the company undertakes to operate a car past another car, at a place on its own premises where the latter is discharging passengers, it does so at its own peril and not at the peril of the passengers.

In this position we feel that we are fully sustained by the authorities. The proposition is thus well stated in 3 Thompson, Negligence (2d Ed.), Sec. 2705:

“If a railway carrier discharges its passengers at a place where they have to cross other railway tracks, in order to make their egress from the grounds of the carrier, the carrier owes them the duty of taking reasonable precautions to the end that, while making their egress, they be not struck by other passing trains; and it has been justly held that the passenger, while not absolved from the duty of exercising* care for his own safety,has the right to presume that the tracks intervening between the places where he is obliged to alight and the station will be kept safe while he is crossing; so that the mere fact that he fails to look and listen for an approaching train before attempting to cross, will not necessarily be ascribed to his contributory negligence, and will not prevent a recovery of damages if he is struck by such a train.”

The above proposition is fully sustained by the authorities in the case of electric as well as steam railways. Bremer v. St. Paul City Ry. 107 Minn. 326 [120 N. W. 382; 21 L. R. A. (N. S.) 887]; Birmingham Ry., L. & P. Co. v. Landrum, 153 Ala. 392 [45 So. 198; 327 Am. St. 25]; VanNatta v. People’s St. Ry., Elec. L. & P. Co. 133 Mo. 13 [34 S. W. 505]; Evansville St. Ry. v. Gentry, 147 Ind. 408 [44 N. E. 311; 37 L. R. A. 378; 62 Am. St. 421]; Consolidated Trac. Co. v. Scott, 58 N. J. L., 682 [34 Atl. 1094; 33 Ll R. A. 122; 55 Am. St. 620]; Dobert v. Troy City Rd. Co. 36 N. Y. Supp. 105; Capital Trac. Co. vLusby, 12 App. D. C. 295, and Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. 207; 32 L. R. A. 276].

Complaint is made of the following charge given on behalf of the plaintiff:

“If the testimony of plaintiff and her witnesses does not raise a presumption of contributory negligence on her part, then the burden rests upon the defendant company to prove that in the situation not only that she was guilty of contributory negligence, but that sueh contributory negligence directly and proximately contributed to produce her injury, and if the defendant had thus failed to prove contributory negligence, it is your duty to find that the plaintiff was not guilty of contributory negligence. ’ ’

. It is urged that this charge is wrong for the reason that if the testimony of the plaintiff, and the witnesses introduced on her behalf, raised a presumption of negligence, then it was her duty to remove that presumption by a preponderance of the evidence.

It is true that that is the law, but is it the duty of the trial judge to give it to the jury in that way, under all circumstances; or is it error to give a charge which does not state that it was tlie duty to remove the presumption by a preponderance of the evidence where the proposition given is sound law and applicable to the case? The law as stated in this charge is correct and is applicable to the case. It is true it is usually given with the qualifying words, “that if the evidence of the plaintiff created a presumption of contributory negligence, then the duty rests upon the plaintiff to remove that presumption,” but we do not think that the omission of those words from a request to charge is prejudicial error. Besides, the contributory negligence complained of was a failure to look and listen for the approaching car, but the jury found that plaintiff did look and listen, and we have announced it to be the law in this case that a failure on her part to look and listen for an approaching car on the other track would not be contributory negligence on her part, so we think that in either event there ivas no error in giving the charge.

Pollock and Farr, JJ., concur.


source: Caselaw Access Project

author: GRANT, J.

license: Public Domain

text:
    WORKMEN’S COMPENSATION.
    [Cuyahoga (8th) Court of Appeals,
    June 17, 1918.]
    Grant, Dunlap and Lawrence, JJ.
    Industrial Commission of Ohio v. Kate P. Boyd.
    Suicide by Insane Workman Not “Seif Inflicted” Injury.
    Judgment against the state industrial commission in favor of the dependents of an injured workman, who died by his own act, will not be set aside when there is some evidence tending to establish the inference that the decedent was bereft of reason at the time of the suicidal act.

      ERROR.

      Samuel Doerfler, for plaintiff in error.

      Payer, Winch, Rogers <& Karch, for defendant in error.
   GRANT, J.

It has been intimated that the function of this court in this case is likely to be propaedeutical to the Supreme Court.

But be that as it may, it is not the less our duty to examine this record with as much painstakingness as if here was to be an end of the litigation.

The statute under which the plaintiff below — defendant here — must recover, if at all is Section 1465-68, General Code, in its present amended form, and which reads as follows:

“Every employee mentioned in subdivision one of section fourteen hereof who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on or after January 1,1914, shall be paid such compensation out of the state insurance fund for loss sustained on account of such injury or death” * *' *

In this case a claimed result or sequence of the employee’s injuries was his insanity. "While thus bereft of reason he committed suicide.

The question then is, was his death “purposely” self-inflicted? If it was, there should be no recovery.

A judgment for the plaintiff was had in the court below. We are asked to reverse it, because, it is said the injury otherwise called death was self-inflicted.

What seems to be the accepted text-book rule on the subject, is laid down in 2 Honnold, Workmen’s Compensation, p. 508, Ihus:

“Where there follows as the direct result of a physical injury an insanity such as to cause the workman to take his own life through an unaccountable impulse or in a delirium of frenzy without conscious volition to produce death, having- knowledge of the physical consequences of the act, there is a direct and unbroken connection between the injury and the death. But where the resulting insanity is such as to cause suicide through a voluntary willful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act, even though choice is dominated by a disordered mind, then there is a new and independent agency, which breaks the chain of causation arising from the injury,”

The contention of the Industrial Commission at this point, stated in terms of its brief, is as follows:

“There is no evidence which would in any way tend to prove that Mr. Boyd committed suicide by reason of ‘an unaccountable impulse or in a delirium of frenzy.’ ”

The proof on such a question must of necessity generally be meager in amount and more or less speculative in outcome. Inference must arise, if at all, from a distorted viewpoint on the part of the suicide and the workings of an insane man’s mind are so curious, so complex, having their springs and sources often in a remote and almost undiseoverable concatenation of happenings, that to trace the outcome satisfactorily, or to- any approximate degree of certainty, is difficult at all times and at many times impossible. Witness Mr. Lorry in the “Tale of Two Cities.” An insane person — so common experience shows — is prone to destroy himself. The impelling force to the act he seems to have no power to resist, and yet he often seems, even when so controlled, to be cunning and calculating in his concealment of his enforced yielding to the impulse of self-destruction, to a degree that a conclusion is often drawn that the ingredient of premeditation, a fixed and thought-out purpose, an intent, is present, which would to appearance exclude the notion of an involuntary taking of his life through an uncontrollable and overpowering force outside of himself and beyond all volition of his.

Still, courts must act upon evidence, and not speculation. They may, however, recognize in their case in hand experienced truths of conduct and action, known to operate on mankind and to govern human action, within appropriate limits and landmarks fixed by universal observation. One of these truths is, we think, this almost invariable propensity in an insane person to do away with himself without power to resist it.

Evidence from tbe witness stand must be in conflict, because it must rest largely in opinion, in deduction, in inference. It appears to have been in conflict in this case. We cannot agree that there was “no evidence which would in any way tend to prove that Mr. Boyd committed suicide by reason of an unaccountable impulse or in a delirium of „frenzy,” as the brief says.

That different minds would reach different conclusions as to the tendency of the evidence in this respect, is true, probably— perhaps certainly. Our own conclusion in this regard might be different — although we do not say so — from that of the court below. But if it were so, the fact would not warrant a reversal here. The fact that minds would differ in conclusion, of itself commands repose for the judgment, if there was anything in the evidence about which they might fairly differ. We think there was something in this case.

We are not at liberty in any event to disregard this rule of non-intervention by. a x*eviewing court, whenever it appears that the conflict in the evidence is a real one, in resolving which men may honestly vary in conclusion, it being the business of the court of first instance to say where the preponderaney resides. We ought to be especially loath to disturb a judgment rendered in promotion of a statute the purpose of which is highly remedial, and where the policy underlying its administration is avowedly liberal in favor of the remedy, whenever the facts warrant its application.

The act which created the former board of awards — the predecessor in function of the plaintiff in error, declared as follows :

“Such board shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such a manner as in their judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act.”

We are not by this relieved of the duty of declaring the law of the ease; but we are admonished that the plain legislative wish is not to have the law administered in any grudging or cheese-paring fashion.

In our opinion there is some evidence in the case, the tendency of which is to establish the inference which is embodied in the judgment under review. It is, therefore, affirmed.

Dunlap and Lawrence, JJ., concur.


text:
    STREET RAILWAYS.
    [Columbiana (7th) Court of Appeals,
    December 20, 1916.]
    Pollock, Metcalfe and Spence, JJ.
    Newell Bridge & Ry. Co. v. East Liverpool Trac. & L. Co.
    Street Railway Renting Tracks to Another Company Cannot Contract Away Liability for Negligence and is Liable for Damages Paid by Lessor to Injured Persons.
    The plaintiff and defendant are both street railroad companies. By contract the plaintiff has the right to use certain portions of the tracks of the defendant. A clause in said contract relieves the defendant from any responsibility for loss or damage occasioned by the operation of plaintiff’s cars over its tracks. By the negligence of the defendant a car of the plaintiff was thrown from the track, injuring several persons. The defendant requested the plaintiff to settle with the injured persons and leave the question of defendant’s liability to be determined later. The plaintiff having settled with the injured persons brought suit against the defendant to recover the amounts paid in such settlement. Held:
    1. The clause in the contract relieving the defendant from responsibility from loss or damage occasioned by the operating of plaintiff’s cars does not relieve the defendant from responsibility to the plaintiff for damages occasioned by defendant’s own negligence.
    2. The plaintiff is entitled to recover the amount paid in settlement of damages to the injured persons.
    3. An action to recover the damages thus occasioned is not a suit between joint trespassers, but an original action to recover damages sustained by the plaintiff through the sole negligence of the defendant.
    [Syllabus by the court.]
    Error.-

      Walter Hill and Brookes & Thompson, for plaintiff in error.

      Billingsley, Moore & Van Fossen, for defendant in error.
   METCALFE, J.

The only questions in this case before the court at this time are raised by the demurrer to the answer. The plaintiff operates a line of street railway from Newell, West Virginia, across the Ohio river to the city of East Liverpool, Ohio, and in the latter city runs its cars over a portion of the tracks of the defendant company. The right to so operate its cars on the defendant’s track is secured by contract, and it is the duty of the defendant to keep its tracks in repair.

On one of the streets in East Liverpool, over which the plaintiff ran its cars, was a switch which was out of repair. The plaintiff had several times notified the defendant of the condition of the switch and requested of defendant that the necessary repairs be made thereon.

At the time of the accident complained of in the petition the plaintiff had occasion to run one of its cars over this switch. The front truck passed over in safety, but when the rear truck struck the switch it opened and threw the rear end of the car off the track it was running on and on to a track leading on to another street, so that the car was thrown squarely across the street on which it was running.

A number of persons at work on the street at the time were injured. The defendant denied its liability, but it was agreed between the plaintiff and defendant that the plaintiff should settle with the injured persons and that the question of defendant’s liability should be determined later. Thereupon, the plaintiff settled with the injured persons and brought this suit to recover the amounts paid in such settlement.

The defendant claims exemption from liability to the plaintiff by reason of the following clause in the contract by which plaintiff secured its right to run its cars over defendant’s tracks:

“To use all due precaution for the safety of the public, and in consideration of the rights herein granted to save and hold rhe first party (defendant) free and harmless from all loss, cost, damage, and expense whatsoever, which may in any wise accrue through, or be incurred by said first party (defendant) by reason of the operation by the second party (plaintiff) of his cars over the tracks of said first party as herein provided.”

The object of this clause in the contract is to secure indemnity to the defendant from liability for any acts of negli--gence on the part of the plaintiff in operating its cars while on the defendant’s tracks. The contract saves the defendant harmless from any acts of the plaintiff in the operation of its cars which would create a liability, whether such acts be negligent or not. There is nothing in the contract which in any way relieves the defendant from the consequences of its own negligence.

The car of the plaintiff was in operation at the time of the accident, but the accident was not occasioned through any fault of the plaintiff in operating the car, but by the negligence of the defendant in failing to keep the switch in repair. It happened solely on account of the fault of the defendant. It is not from its own negligence that the defendant is relieved by the terms of the contract, but from the negligence of the plaintiff.

In Eugene C. Lewis Co. v. Metropolitan Realty Co. 112 App. Div. 385 [98 N. Y. Supp. 391], affirmed 189 N. Y. 534, it is held that a provision in a lease relieving the lessor from any liability for any loss or damage by reason of leakage of gas, steam or water pipes, did not relieve him from liability for an overflow of a water tank as the result of the lessor’s own negligence. And to the same effect, also, are Levin v. Habicht, 90 N. Y. Supp. 349; LeVette v. Hardman Estate, 77 Wash. 320 [137 Pac. 454]; Smith v. Faxson, 156 Mass. 589 [131 N. E. 687].

It is urged, too, that the plaintiff and defendant were joint trespassers and that this is an action between joint trespassers for contribution.

Doubtless the plaintiff and defendant would be jointly liable to the injured persons, but this is not an action for contribution as we view it. The action is to recover for injuries to the plaintiff by reason of the sole negligence of the defendant.

The injury having occurred by reason of the defendant’s negligence, the fact that the plaintiff would be jointly liable with the defendant to the injured persons does not make the plaintiff a joint trespasser.

"We think the court erred in overruling the demurrer to the answer, and the judgment is reversed.

Pollock, J., and Spence, J., concur.


author: JONES (O.B.),J.

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    April 24, 1916.]
    Jones, Jones and Gorman, JJ.
    Koch et al. v. Meyers et al.
    1. Failure of Testator to Read Will, to Have it Read to Him or to Acknowledge Will.
    Where, in an action to contest a will, it *is evident from the testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained, it can not be said that such will was executed by the testator in such a manner as to comply with the requirements of Sec. 10606 G. C. and the verdict of a jury sustaining such will is not sustained by the evidence and will be set aside.
    2. Wide Range of Facts Admissible in Will Contest.
    In an action to contest a will, issues relating to undue influence are generally determined upon circumstantial evidence and inferences drawn from a full presentation of facts which are inconclusive when taken separately, and a wide range of inquiry is therefore permitted to bring, before the jury facts and influences bearing upon the preparation of the will.
    ERROR.

      Cobb, Hoivard & Bailey and Henry L. Bockel for plaintiffs in error.

      Cogan, "Williams & Ragland, for defendants in error.
   JONES (O.B.),J.

The action below was brought to contest the will of Fred Mauntel, deceased, and resulted in a verdict and judgment sustaining the will.

The decedent was a man fifty-four years of age. The eause of his death was diabetes, and he suffered from a carbuncle on the back of his neck which might be considered as a contributing cause of Lis death. His acknowledged sickness was of about two weeks' duration, and he was under treatment by a physician for a period of only one week.

The evidence in regard to his mental condition during the last three or four days of his illness is quite conflicting. He died on Monday, about 7 P. M., having been in a coma for several hours before his death. The will in question was signed on Sunday, the day before, after 11 A. M. There is evidence that he had periods of stupor and delirium, at intervals, during at least two days prior to the day on which the will was signed.

The testimony of the attorney who drew the will and acted as one of the two witnesses is to the effect that when he went in response to a message to the home of testator for the purpose of drawing his will, he found him seated in a Morris chair in the dining room, and after speaking to him, and being told that he desired a will drawn, he, the attorney, proceeded to draw the first part of the will, including the first item, providing for the payment of debts, and then asked the testator but two questions: (3) “Whom do you want to leave your property to?” and (2) “Who do you want for your executor?” The answer to the first question was: “I want to leave it to Sophia Meyers. She is the best friend I ever had. ’ ’ The answer to the second was: “Make Dr. Saur executor.” Nothing was said as to any other relatives; nothing else as to his property or the terms of the will. The testimony of this witness as given in chief and on cross examination is quite contradictory in regard to the execution of the will, but in the end he is positive that the will as written was not read to testator; but that after it was written it was handed by the attorney to the testator to read and sign, and that “he took it and scrutinized it before he signed it, and then signed his name to it.” On being questioned further, the witness said that testator “scrutinized it,” “just a second or two,” and it is evident from his testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained.

A careful consideration of all the evidence as to the execution of the will convinces all the members of this court that this-will was not executed or acknowledged to be his will by the testator in such a manner as to comply with the requirements of See. 10505 G-. C. and that it did not become a valid will under the law as laid down in the case of Keyl v. Feuchter, 56 Ohio St. 424 [47 N. E. 340], and Tims v. Tims, 32 O. C. C. 506 (14 N. S. 273). The verdict of the jury, therefore, in that respect, is not sustained by the evidence.

Issues relating to undue influence are generally determined upon circumstantial evidence and inferences drawn from a full presentation of facts which are inconclusive when taken separately. A wide range of inquiry is therefore permitted to bring before the jury facts and influences bearing upon the preparation of the will. Sehouler, Wills .(5 ed.), Sec. 242.

Two members of this court are of the opinion that the trial court erred in withdrawing from the consideration of the jury the question of -undue influence. In their opinion sufficient facts were shown by the evidence to justify and require the submission to the jury of the question of undue influence, under the rule as recognized in Wilder v. Taylor, 87 Ohio St. 520. To this proposition Judge Gorman dissents.

For the reasons stated, the judgment, b'elow is reversed and the cause remanded for a new trial.

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


author: JONES (O. B.), J.

text:
    DAMAGES — MUNICIPAL CORPORATIONS.’
    [Clermont (1st) Court of Appeals,
    November 10, 1915.]
    Jones, Jones and Gorman, JJ.
    Amelia Vil. et al. v. Anna M. Hicks.
    1. Abutting Owner May Recover for Unnecessary and Injurious Trimming of Shade Trees by Municipality or Contractor.
    A village and a contractor with such village, for the stringing of wires for supplying electric light for lighting the streets and for commercial purposes are liable in damages to an abutting lotowner whose trees in front of his property and within the lines of the public highway are injured by being unnecessarily and recklessly trimmed by the employees of such contractor, where the council of such village attempted to grant a “free tree trimming privilege” to the contractor.
    2. Claim for Damages not Necessary To Be Filed Before Suit Is Begun for Destruction of Shade Trees.
    In such a case a claim- for damages on the part of the abutting lot owner is not such a claim as must be filed under the provisions of Sec. 3830 G. C., before suit is commenced.

      ERROR.

      Allen M. Nichols and Davis & Paxton, for plaintiffs in •error.

      C. B. Nichols, Eli II, Speidel and Joseph Sagmeister, for defendant in error.
   JONES (O. B.), J.

Plaintiffs in error seek to i*everse the judgment against them in the common pleas court by the defendant in error, who was plaintiff below, for damages done to her shade trees standing inside the curb line in front of her property upon a street in the village of Amelia.

Plaintiff in error, Charles Pommert, was the contractor with said village for the stringing of wires for supplying electric light both for lighting the streets and for commercial purposes in lighting the homes- of its residents. Plaintiff below, Anna M. Hicks, claimed that in stringing these wires her shade trees had been unnecessarily, heedlessly, recklessly and maliciously cut and trimmed in such manner as to injure the beauty, health and probable life of the trees, and thus to damage her property.

There is no dispute as to the fact that the shade trees in question were the property of plaintiff, and that they had stood in the street in front of her property for many years and were highly desirable for the purpose of shade and in adding beauty to the appearance of the property. The record shows that the trees were very severely cut, many large limbs being taken out of the centers and tops of the trees, and that great injury was thus occasioned to them. It is contended, however, on the part of defendants, that all of the cutting that was done was necessary for the purpose of the proper stringing of the electric light wires.

Under Sec. 3618 GL C. the village has authority to establish, maintain and operate a municipal lighting plant and is empowered to determine the plan and method of its distribution. The stringing of wires upon poles in the streets is a usual method of conveying the current necessary for such lighting, and was the one adopted here, although other plans could have been used which would not have required any trimming of trees.

Our Supreme Court has recognized the property rights of the abutting lot owner in trees and shrubbery in front of his property and within the lines of the public highway. Phifer v. Cox. 21 Ohio St. 248 [8 Am. Rep. 58], and Daily v. State, 51 Ohio St. 348 [37 N. E. 710; 24 L. R. A. 724; 46 Am. St. 578]. The village has, however, the powei', by virtue of See. 3630 G. C. to regulate the planting, trimming and preservation of shade trees in the streets and highways.

On behalf of the plaintiffs in error it is contended that the council of the village has absolute discretion as to what constitutes an obstruction in a street, and that whenever a shade tree becomes such an obstruction in the opinion of council, the village has the right to cause its removal, and, therefore, that the village had the right to determine that it was necessary to trim and cut off all that portion of plaintiff’s shade trees necessary to provide a free area within which to string the necessary wires for the light plant; that only such trimming had been done by the village and its contractor, and that therefore plaintiff below was not entitled to recover.

In support of this claim of absolute discretion upon the part of the village officials counsel rely upon authorities such as Chase v. Oshkosh, 81 Wis. 313 [51 N. W. 560; 15 L. R. A. 553; 29 Am. St. 898]; Tate v. Greensborough, 114 N. Car. 392 [19 S. E. 767; 24 L. R. A. 671], and Vanderhurst v. Tholcke, 113 Cal. 147 [45 Pac. 266; 35 L. R. A. 267]. Other cases leave the matter of necessity as a question of fact to be determined by the court and not arbitrarily by the officials of the municipality. Frostburg v. Wineland, 98 Md. 239 [56 Atl. 811; 64 L. R. A. 627; 103 Am. St. 399; 1 Ann. Cas. 783], and Everett v. Council Bluffs, 46 Ia. 66.

In the case of Newcomerstown v. Dickenson, 32 O. C. C. 311 (14 N. S. 191), affirmed, 77 Ohio St. 597, it was determined that the officers of the municipality have no right to destroy shade trees in front of the property of an abutting property owner, unless their removal becomes necessary for street purposes. The question of this necessity was passed upon by the court, and a judgment rendered in favor of the property owner for damages because of the destruction of his shade trees was sustained.

In Massillon v. Huff, 32. O. C. C. 333 (14 N. S. 193), the question was left to the jury whether the contractors and the city engineer in the construction of the improvement of the street must of necessity have destroyed the trees, or whether the doing of the same was an unnecessary and wanton violation of plaintiff’s rights, for which he might recover;

These cases would indicate that the declaration of council as to the necessity of the trimming of plaintiff’s trees would not necessarily be final. A court could undoubtedly consider the facts in order to determine whether or not such official discretion had been abused, even if its existence to the extent claimed by defendants below were conceded. But in the case here presented by the record there was no determination by council as to the necessity of trimming plaintiff’s trees. On the contrary, whatever action was taken by council was simply to grant to the village contractor, Mr. Ponunert, as called for in his proposition to string the wires, a “free tree trimming privilege. ’ ’ The record fails to show any consideration by the counsel itself of what trimming was necessary or any order requiring any of the trees in question to be trimmed. And Mr. Pom-mert, the contractor, likewise failed to give any directions in regard to any specific tree. Pie simply bought four saws and placed them in the hands of his linemen, enjoining them, as he says, to do no more trimming than was necessary. Thus we find that if the absolute discretion is vested in council they failed to exercise it, undertaking to devolve their rights in the matter entirely into the hands of their contractor, who in turn simply relied upon the good sense and discretion of his men, he himself not being present while most of this woi-k was being-done.

The evidence shows that the jury were justified in finding that unnecessary trimming had been done and that plaintiff had been thereby damaged. Although plaintiff’s trees were the only ones trimmed in the stringing of the wires, no malice was shown in the matter, but a recklessness of her rights which seems inexcusable. And while the evidence might be considered unsatisfactory in fixing accurately the extent of this damage, the judgment as finally entered is fully supported by the evidence.

A careful examination of the record fails to show that there was any prejudicial error committed by the trial court either in the refusal of any of the special charges requested by defendants or in the general charge, which fairly submitted the case to the jury; nor do we find any other prejudicial error shown by the record.

A point is made by the plaintiffs in error that no claim for damages was filed under the provision of See. 3830 G. C. before suit was brought. This section has been construed by the Supreme Court in Ironton v. Wiehle, 78 Ohio St. 41 [84 N. E. 425], and would not apply to such claim as is presented in this case.

The judgment will therefore be affirmed.

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


author: DUNLAP, J.

text:
    MUNICIPAL LAND.
    [Cuyahoga (8th) Court of Appeals,
    June 26, 1918.]
    Grant, Dunlap and Lawrence, JJ.
    Newberg Heights (Vil.) v. H. L. French et al.
    1. Validity of Detachment of Territory Proceedings.
    The entire matter of the creation and organization of municipalities, the enlargement or restriction of their boundaries, and the raising, division and distribution of their revenues has been committed in Ohio to the legislature, and the constitutionality of measures enacted by the legislature in that behalf depends in no way upon their wisdom.
    2. Abandonment of Village Government and Erection of Territory Into Township Within Discretion of inhabitants.
    The statutes providing procedure for the detachment o.f territory from municipalities are constitutional enactments, and the result of an election for the detachment of territory can not be invalidated long thereafter on an allegation that the election was not held within the twenty day period, or that the expenses were borne by persons interested in securing such detachment.

      Appeal.

      Kraus <& McMasters and J. A. Cline, for plaintiff.

      Samuel Doerflcr and Locker, Green & Woods, for defendants.
   DUNLAP, J.

The suit is brought by the village of Newburgh Heights, a municipal corporation. The defendants are the members of the deputy board of state supervisors and inspectors of elections for said county, who are sued in that capacity. Joined with them are the auditor of the county and the three members of the budget commission of the county.

The suit is the aftermath of an election and is brought to enjoin the holding of another and for further relief, which will be mentioned later in this opinion.

The facts disclosed by the petition are: that on November Í6, 1917, a petition was filed with the board of deputy state supervisors and inspectors of elections of Cuyahoga county, Ohio, properly signed, containing a description of certain territory which the petitioners desired to detach from said village of Newburgh Heights, and praying for an election for the purpose of determining whether or not the same should be detached and become a new township; that upon the filing of said petition said board of elections ordered an election to be held on December 4, 1917, and then later on November 28, 1917, without a new petition being filed, ordered the election to be held December 11, 1917, which Avas more than twenty days after the filing of the petition, and was thus contrary to laAv; that the election was accordingly held and resulted in a majority of the votes being in favor of the detachment of said territory and its erection into a new township to be called Willow; and the result of said elecetion has been certified to the secretary of state of Ohio.

It is then asserted that the territory described in said petition so sought to be detached from the plaintiff village contained about 1,800 acres of land, having a population of about 400 persons; that the total valuation of property on the tax duplicate of Newburgh Heights village prior to said election was about $12, 000,000, and that the tax valuation of property listed for the portion of said village sought to be detached was about $11,000,000, leaving a valuation in Newburgh Heights village if said territory is detached of less than a million dollars, which will be inadequate to support the governmental functions of said village; that the portion which still constitutes the village has a very much greater population than the part here sought to be detached. It is also averred that the description of the part sought to be detached follows no regular or well-defined lines, but was drawn in such a manner as to include in it the large manufacturing plants of said village and farm land containing but few residences and mercantile buildings, and that said attempt to detach was instigated by certain large corporations owning valuable property in said detached part. It is claimed that the detachment of said part was an unreasonable, arbitrary and an unfair division of the village, and that its detachment will work an irreparable injury to the village and its citizens. It is also complained that, contrary to law one H. 1J. Shuler, an agent of the American Steel & Wire Co., and other large corporations, promised and offered the petitioners signing said petition, prior to the signing of the same, that if they would sign the petition requesting that an election be held, that the said corporations would defray all expenses involved in the holding of said election, and in filing, recording and transcribing the records necessary to secure said detachment, and thus save the petitioners from any expense, and that said petitioners would not have signed the petition but for said promise, and that the same invalidates the election held by virtue of said petition.

The claim is made that said corporation inspired said detachment of territory for the purpose of evading their fair share of taxation.

It is also charged that no portion of said territory so sought to be detached is contiguous to an adjoining township as required by law, but it is conceded in a supplemental petition, filed for the purpose of putting the court in possession of the exact facts regarding its contiguity to an adjoining township, that the territory sought to be detached from said village was at all times mentioned in the pleadings contiguous to and did adjoin the township of Cleveland, the township of Brooklyn Heights, the township of East Independence, and the township of South Newburgh; that the township of Brooklyn Heights was coterminous in boundary with the village of Brooklyn Heights; that the township of East Independence was coterminous in boundary with the village of Independence; that the township of South Newburgh was coterminous in boundary with the village of South Newburgh; that the boundary line of the township of Cleveland was coterminous with the boundary line of the city of Cleveland at all points where said boundary line was contiguous to and adjoined the territory sought to be detached, but that at other points the city of Cleveland included territory not included within the township of Cleveland, and that no township officers perform any duties in the city of Cleveland adjoining Newburgh Heights village as originally constituted.

Having cited these claimed violations of the law in the proceedings leading up to and consummated in said election of December 11, 1917, and which it is claimed render all of said proceedings invalid and of no force and effect, information is then given to the court that the county commissioners have given notice that an election will be held on February 2, 1918, for the purpose of selecting officers of Willow township, being that portion of the territory sought to be detached, and that the deputy state supervisors and inspectors of elections are preparing to and wall prepare, unless enjoined by the court, ballots for said election, and will hold said election for the purpose of choosing the officers of Willow township; that said election will be of no force and effect and will be an unlawful expenditure of the funds .of the county and of Newburgh Heights village.

It is apparent that if said election has not been held on said date it never will be held on said date, and we are somewhat of the opinion that this obvious fact should have some bearing upon the remedy which plaintiff’s counsel should now attempt to pursue. In other words, it seems vain to ask us to enjoin a matter which must either already be an accomplished fact or else impossible of performance. This consideration should per-baps dispose of this whole ease. Very evidently can. not enjoin an election Avhich has already been held. This point while not raised necessarily disposes of the question as to whether or not we can enjoin this election.

Some further consideration upon our part of the facts plead is perhaps necessary on account of the other relief asked for in the petition. It is sought to enjoin the budget commissioners from fixing the tax rate for said Willow township, and from depriving Newburgh Heights village of the taxes so fixed in said Willow township, and depriving Newburgh Heights village of the taxes payable on said property. It'is apparent that this additional relief can not be granted to the plaintiff if the township of Willow has a legal existence. If, by the election of December 11, and by the certification of its proceedings to the Secretary of State, it came into legal existence, if those proceedings were not utterly void, then the granting of this relief would be improper. The territory which attempted to detach itself from said village had under the law an apparent right to do so, provided it was contiguous to a township.

The facts contained in the supplemental petition referred to above do, wé think, bring this case within the provisions of Secs. 3577-1, 3577-2 and 3577-3 G. C., being the act of May 7, 1915 (106 O. L. 301), and we so hold. The fact that the election date for the original election for the detachment of this property was changed from December 4 to December 11, whether that latter date came within the twenty day period or not, does not make the election void. Persons interested in said election should have taken proper steps to see that it was legally held. They can not wait until long afterwards and then attack it collaterally when the new township so created seeks to operate under the powers and rights which were supposed to be secured by the election. The claim that the petition for the original election was invalid because the. petitioners were induced to sign on the representation that the expenses incident to the election would be defrayed by other parties, must be overruled. The statute merely provides that the expenses shall be defrayed by the petitioners and that the election officials may require the payment of such expense in advance as a condition precedent to the taking by them of any of the steps provided for in the statute. It is a matter of common experience and common knowledge that such expenses are generally borne by some persons who arc particularly interested, and we know of no rule or principle of law deciding that after an election has been held the same may be over-turned by reason of such conduct upon the part of interested parties. We decide against the plaintiff upon this point.

With regard to the claim that the provisions of the General Code under which this detachment was effected is unconstitutional, we think that in similar cases decided by the Supreme Court of Ohio that court has sustained the constitutionality of such statutes. We refer particularly to the eases of the State Board of Health v. Greenville, 86 Ohio St. 1 [98 N. E. 1019; 1913D Ann. Cas. 52]; Blanchard v. Bissell, 11 Ohio St. 96; Metcalfe v. State, 49 Ohio St. 586 [31 N. E. 1076]; State v. Cincinnati, 52 Ohio St. 419 [40 N. E. 508; 27 L. R. A. 737], We believe that these authorities establish the proposition that that the entire subject-matter of the creation and organization of municipalities and of the enlargement and restriction of their boundaries, has been unreservedly committed to the discretion of the legislature by virtue of the constitutional provision that the general assembly “shall provide for the organization of cities and incorporated villages by general laws; ’ ’ and that the extent to which the revenues and the future activities of a municipality may be affected by the detachment of a portion of its territory is a matter for the consideration of the legislature and for it alone. We believe that the question of the wisdom of the legislation which permits this detachment of property has nothing to do with determining its constitutionality. The question of the wisdom of such legislation is for the legislature. This court might think and perhaps does think that it is the most unwise kind of legislation, but this consideration can in no way control our action. It is solely a question of power. If the legislature has constitutional power to enact a law, no matter whether the law be wise or otherwise, it is no concern of the court. Thus, in spite of the arbitrariness of the boundaries fixed for this detached territory-, in spite of the damage that may be done to the remaining territory, it was within the province of the legislature to enact the law under which this detachment occurred, and in our opinion the statute under which the detachment took place is constitutional.

"We have no doubt that the situation which has occurred in this village is unfortunate, and we deeply deplore its occurrence, but our conclusion, that the statute is constitutional deprives us of all power to consider the allegations of the petition to the effect that the line is arbitrary and unfair. All that we can say upon this point is that the legislature did not see fit to define where such lines should run in its enactment and put no limitations upon the same. All that the court can say from examination of this petition is, that the inhabitants of a certain territory wished to relinquish their village government and again become a township. The laws of Ohio provide for the gratification of this desire.

So far as we are able to ascertain the provisions of the statute have been sufficiently complied with so as to at least insure their validity against a collateral attack such as we must necessarily regard this suit to be.

We regard the petition and supplemental petition as insufficient in law in that it does not contain facts sufficient to constitute a cause of action against the defendants or any of them, and the demurrer to the same will be sustained at the costs of the plaintiff.

Grant and Lawrence, JJ., concur.


author: WILSON, J.

text:
    EXECUTOES — TRUSTEES.
    [Hamilton (1st) Court of Appeals,
    June 10, 1918.]
    Jones, Gorman and Wilson, JJ.
    Morris U. Bernheim v. Edgar Stark, Exr. and Tr.
    1. Power of Executor to Contract for Sale and Lease of Property not Affected by Contest of Will.
    Temporary suspension of the power, given an executor and trustee under a will, to sell and lease real estate, for the time being, pending a contest of the will, does not preclude the trustee from entering into an agreement for the sale or lease of property, contingent upon the validity of the said will being established, when the contracting purchaser knows of the existence of proceedings involving the validity of the will; hence the termination of such a suit in a judgment upholding the will leaves the trustee clothed with all the power and authority conferred by the will as and from the date of his appointment.
    2. Power of Trustee Under Will to Contract for Sale of Real Estate for Part Payment and Lease for Years with Power to Purchase.
    An executor and trustee, having authority under the will to sell or lease property, is at liberty to enter into an agreement whereby a purchaser is to pay for the property in part and take a lease for a period of years with a privilege of purchase for the amount remaining due under the agreement, interest on said amount to be paid at a stipulated rate during the term of the lease.
    3. Lease by Trustee with Power to Purchase Not Invalidated by Expiration of Term of Trustee.
    A sale and lease of real estate pursuant to the terms of a will is not rendered invalid by reason of the fact that the term of the lease may exceed the term of the trust, inasmuch as failure of the lessee to exercise his privilege of purchase could only result, in reclamation of the property parted with after a very considerable payment had been made thereon, and in case of a division of the property becoming necessary before expiration of the lease the ground rent could be sold and the estate closed.
    Appeal.

      Jonas B. Frenkel and Philip Boettinger, for plaintiff.'

      Charles E. Stephens, Jr., and Bufus B. Smith, _for, de-) fendant.
   WILSON, J.

This cause came into this court on appeal from the court of common pleas of Hamilton county, and is now submitted to the court on plaintiff ’s' demurrer to the answer and cross-petition of tbe defendant, Edgar Stark, executor of tbe estate of Mary Ann Britt, deceased.

Tbe demurrer rests upon tbe ground that tbe allegations of tbe answer, and also of tbe cross-petition, do not constitute either a defense or a cause of action against tbe plaintiff.

The court’s disposition of this demurrer will in effect determine tbe rights of tbe respective parties to this action.

On February 26, 1913, tbe plaintiff Morris U. Bernheim made tbe following proposal for tbe purchase of certain property of the estate of Mary Ann Britt, deceased:

‘ ‘ Cincinnati, Ohio, February 26th, 1913.
1 ‘ Edgar Stark, Executor & Trustee Under tbe Will of Mary Ann Britt deceased.
“I hereby agree to purchase tbe property belonging to tbe estate of Mary Ann Britt, deceased, situated in tbe city of Cincinnati, Hamilton county, Ohio, and known as Nos. 126 and 128 W. Eighth street and 804 and 806 Elm street, bounded and described as follows:
“Beginning at a point in tbe north side of Eighth street, thirty-six (36) feet more or less east of Elm street, thence east-wardly along Eighth street, fifty-nine feet four and one-half (59 ft, 41-2 in.) more or less; thence northwardly parallel to Elm st. ninety (90) feet more or less to Weaver alley; thence westwardly along Weaver alley ninety-five feet four and one-half (95 ft. 41-2 in.) more or less to Elm st., thence southwardly along Elm street thirty (30) feet more or less; thence eastwardly parallel to Weaver alley thirty-six (36) feet more or less; thence south-wardly parallel to Elm street, sixty (60) feet more or less to Eighth street, at the place of beginning.
‘ ‘ The consideration for said property is to be one hundred and twenty-five thousand ($125,000) dollars to be paid as follows: Upon the acceptance of this offer I will deposit five thousand ($5,000) dollars with the Union Savings Bank & Trust Co., as a special deposit on which the said company is to pay interest at the rate of 3 per cent per annum. In the event that the courts decide that the will of Mary Ann Britt is valid, said sum of five thousand dollars shall be paid by the Union Savings Bank & Trust Company to the executor and trustee under the will of Mary Ann Britt, and upon the tender to me of a lease containing the provisions hereinafter set forth, duly executed by him, I will further pay to such executor and trustee the sum of forty-five thousand ($45,000) dollars in cash. Said lease is to be for twenty years from date and to provide for a ground rent of 5 per cent net upon the remainder of said purchase price, to wit: seventy-five thousand ($75,000) payable quarterly. The lessee shall therein obligate himself to pay in addition to said ground rent, all taxes, rates, charges and assessments of every kind which may become a lien upon the property after the date of said lease and, further, that he will within ten (10) years from the date thereof erect a building or buildings upon said property so leased, satisfactory to the lessor, and keep the same insured in a sum and in companies satisfactory to the lessor, loss, if any, payable to the said lessor on account of the purchase price of said property or to be applied in re-building, as the lessor may elect. But if the lessor elect to take the insurance on account of the purchase price the lease shall terminate, and the balance of the purchase price, if any, become payable.
‘£ Said lease shall further contain a privilege to the lessee to purchase said property at any time after ten years from date, upon giving six months’ notice in writing to the lessor.
“If the executor and trustee under the will of Mary Ann Britt can not give me a good and legal title to all the property above named, I am to have the right to cancel this obligation to buy said property, and in that event the $5,000 paid by me on the acceptance of this offer is to be refunded to me, together with the interest on said deposit, at 3 per cent per annum.’’

Which proposal or offer was accepted by Edgar Stark, defendant, as the representative of said estate, in the following language :

“Cincinnati, Ohio, February 27,1913.
“I hereby accept the foregoing offer, upon the conditions therein named, and agree to make the lease therein provided for, in ease the will of Mary Ann Britt is sustained. ’ ’

This action was instituted by the plaintiff for the purpose of obtaining a cancellation of the contract created by said offer and acceptance, and the return of the sum of five thousand dollars deposited under the terms of said contract, and in his petition alleges as grounds therefor that the defendant Edgar Stark, executor and trustee under the will of Mary Ann Britt, deceased, was, under the laws of Ohio and under the terms of said will, without authority or power to enter into any contract whereby he could execute a lease for the time and upon the terms in said contract set forth, and further, ! ‘ that he is without power under said will at this time to enter into such a contract or to perform the stipulations therein set forth; ’ ’ that said Edgar Stark, as executor and trustee under the will of Mary Ann Britt, deceased, can not give a good and legal title to all of the property described in the petition.

To this petition the defendant Stark, executor, filed an' answer and cross petition admitting certain allegations in the petition: the death of Mary Ann Britt leaving a will, a true copy of which is attached to plaintiff’s petition; that said will was contested in ease No. 146202 of the common pleas court of Hamilton county; that he entered into the contract set forth in plaintiff’s petition; that the plaintiff deposited the five thousand dollars called for under said contract; and that plaintiff had made a demand of him to return said five thousand dollars with which demand defendant refused to comply. And further answering, defendant denies that he is without authority or power under the laws of Ohio and under the terms of the will of Mary Ann Britt, deceased, to enter into any contract whereby he could execute a lease upon the premises described for the time and upon the terms set forth in said agreement; and denies that he can not give a good and legal title to all of the property described in the petition; and further denies the right of plaintiff to cancel said agreement. And further, by way of answer, defendant says that the last will and testament of Mary Ann Britt was sustained by the judgment of the common pleas court of Hamilton county; that subsequent thereto the defendant duly executed a lease of the property described in the contract, in accordance with the terms and conditions expressed in said contract, and on the 7th day of July, 1915, tendered said lease to tbe plaintiff and demanded of plaintiff tbe payment of $45,000 in cash and that tbe plaintiff execute said lease, all of wbieb plaintiff refused to do. Defendant further alleges that all of tbe devisees and beneficiaries under tbe will of Mary Ann Britt, deceased, prior to tbe making of tbe contract February 26, 1913, approved of tbe same and requested tbe defendant to enter into said contract with plaintiff. And by way of cross petition tbe defendant alleges that be was appointed as executor and trustee under tbe will of Mary Ann Britt, deceased, and that he is now acting as such; that on February 26, 1913, be entered into said contract with plaintiff, and that be entered into tbe contract with tbe approval and at tbe request of all tbe devisees and beneficiaries under said will; that the plaintiff deposited tbe said sum of $5,000 as required by tbe contract; that the will of Mary Ann Britt was sustained by tbe court of common pleas of Hamilton county, Ohio; that on July 7, 1915, he duly executed in duplicate and tendered to plaintiff a lease in conformity with the terms and conditions set forth in said contract, and demanded of plaintiff the $45,000 in cash called for by said contract; that' tbe plaintiff refused to pay said sum of $45,000 and refused to execute said lease; that be bad complied with all tbe terms and conditions of said contract, but that tbe plaintiff bad refused to comply with said contract and to carry out the terms thereof. Tbe defendant thereupon prays for a judgment against the plaintiff for said sum of $45,000 and interest from July 7, 1915, and for an order requiring plaintiff to perform bis part of said agreement by executing the lease provided for in said agreement, and for such further or other relief as tbe defendant may be entitled to in equity.

To this answer and cross petition tbe plaintiff demurred, for the reason hereinbefore set forth.

The demurrer presents for the consideration of the court two legal propositions:

1. Could the executor and trustee — assuming that he had the power and authority under the will to sell or lease the property described in the agreement — enter into an agreement such as the one described in the petition for a sale or lease of said property during the pendency of tho action contesting the validity of said will?

2. lias tbe executor and trustee under the terms and provisions of the will of Mary Ann Britt the power and authority to make a sale or lease of said property on the terms and conditions expressed in the agreement under consideration ?

The will of Mary Ann Britt, deceased, provides as follows:

‘ ‘ In the Name of God, Amen.
“I, Mary Ann Britt, being of sound mind, do make and publish this my last will.
“ Item First. I direct my Executor and Trustee hereinafter named to set apart and keep suitably invested sufficient of my estate to produce a net yearly income of Forty-eight Hundred ($4,800) Dollars and from said income pay monthly during life the sum of One Hundred Dollars to each of the following persons, to wit: my brother Francis I. Partridge, my niece Mrs. McEwen, my niece Mrs. Dixon and my niece Blanche Partridge.
“Item Second. I direct my said Executor and Trustee to set apart and beep suitably invested a'sum sufficient to yield a net income of One Hundred Dollars per month and pay the same monthly to my nephew Arthur J. Partridge son of said brother, until he arrives at the age of twenty-five years and then to pay to him the principal sum so invested.
“Item Third. I direct my said Executor and Trustee promptly after my death to pay the sum of One Hundred Dollars to each of five priests in the diocese of Cincinnati to be named by the Most Bev. Archbishop, with the obligation of saying masses for the repose of my soul. Also to pay promptly the following charitable bequests: to the St. Joseph Orphan Asylum now at Cumminsville the sum of Five Hundred Dollars; to the Sisters of Charity for Seton Hospital the sum of Five Hundred Dollars; to the Sisters of the Good Shepherd for the institution now conducted by them on Price ITill the sum of One Hundred Dollars.
“Item Fourth. I give to my sister Mrs. Margaret Orr the full one-third of my estate.
“Item Fifth. All the rest and residue of my estate I give as follows: one-fourth thereof to my nephew Arthur J. Partridge, one-fourth to my niece Mrs. McEwen, one-fourth to my- niece Mrs. Dixon and one-fourth to my niece Blanche Partridge. Said rest and residue shall be divided upon the death of my brother Francis I. Partridge. Thereupon the provision of One Hundred Dollars a month to my nephew and nieces shall cease.
“Item Fifth. Should any of my legatees contest this my will, his or her portion shall become part of the residue of my estate.
“Item Sixth. I nominate and appoint Edgar Stark or whoever may be the trust officer of the Union Savings Bank and Trust Company of this City, Executor and Trustee of this my will. I give him full power to sell, lease, divide or rent any of my real or personal property and execute proper instruments for that purpose, to make repairs or improvements, to make and change investments and generally to do such things as may be necessary and proper in the administration of my estate and the trusts reposed in him without applying to court for leave so to do. I direct that in case any of my bequests or devises should be subject to any inheritance or other tax, the same to be paid by my estate. I hereby vest in my said executor or Trustee such title as may be necessary to carry out the provisions of this my will.
“Cincinnati, June 27, 1910.
her
“Mary Ann (X) Britt.
mark
Signed and acknowledged as and for her last will by the said Mary Ann Britt in our presence and we have at her request and in her presence and in the presence of each other signed the same as attesting witnesses.
“Hoy W. Kinsey, M. D.
“ J. Stewart Hagen, M. D.
“John Ledyard Lincoln.”

As to the first proposition presented the court is of the opinion that the executor and trustee •"aider said will had the power and authority to sell or lease said property and for that purpose to enter into an agreement for such sale or lease.

It is contended, however, that during the pendency of the contest of said will, and under and by virtue of See. 10633 G. C. the execution of the power of disposition either by sale or lease, conferred on the executor and trustee by the will, was suspended until the validity of said will was finally established. By its very terms the agreement entered into between the plaintiff and the defendant Stark, executor, etc., as set forth in plaintiff’s petition was not to become operative or of any binding force and effect between the parties until the validity of said will was established and when so established the power and authority conferred by said will on the executor and trustee to sell or lease said property was to be exercised by him, and the trust imposed executed, but only however after the termination of the suspension of that power by the declaration of the validity of said will.

Contracts for the sale of real estate contingent upon the happening of certain events are matters of everyday experience in real estate transactions, and the court is unable to see any reason in law for a distinction in that respect between an individual and an executor and trustee, both of whom being clothed with power and authority to sell or lease upon the happening of the event. This court is, therefore, of the opinion that the suspension of the execution of the power conferred by the will on the executor and trustee pending the contest of the will did not preclude bim from entering into the agreement for the sale or lease of said property contingent upon the validity of said will being established.

The institution of proceedings to contest the validity of a will naturally cast a doubt upon the validity of proceedings of an executor in the administration of the trust, for he would be unable to perform any act which would be binding upon the heirs at law or distributees at law contesting the will in the event the will was set aside. The contrary would of course be true if the will were sustained, but no one dealing with the executor in the meantime could be sure whether or not he had authority as such, and the practical consequence would be that no one would deal with an executor under such circumstances and there would be no administration of the estate as long as tbe contest continued. The legislature realizing the necessity for some remedial legislation on the subject enacted a law, Sec. 10633 G. C., enabling the executor to do certain things which are necessary and proper to be done in the administration of the estate whether the will be sustained or defeated, which acts of the executor shall be binding upon all parties. The statute is therefore an enabling one and is not intended as a limitation or restriction of the powers of the executor.

There is no fraud or concealment alleged nor is it alleged that any misrepresentations were made inducing plaintiff to enter into the agreement. On the contrary it is apparent from a reading of the agreement that the plaintiff knew of the pendency of the proceedings involving the validity of the will and the effect it had upon the power of the executor and trustee to sell and convey the property, for in his offer to purchase the property — the agreement — he expressly stipulated that:

“In the event that the eourts decide that the will of Mary Ann Britt is valid, said sum of $5,000 shall be paid * * * to the executor and trustee, ’ ’

and further providing for the carrying out of the agreement.

Conditional contracts for the purchase and sale of real estate have been subjects of more or less litigation, and as a result we have a variety of opinions upon the subject each of which depending upon its own peculiar facts. A case somewhat analogous to the ease at bar is to be found in Pearsons, Estate, In re, 98 Cal. 603, 612 [33 Pac. 451], the court say:

“The purchaser from an executor at a sale under a power in the will, deals with him in making the purchase as he would with any other vendor. He makes the purchase subject to a confirmation by the court, but in all other respects he may incorporate in his contract of purchase the same terms and conditions as he would in dealing with an3r other agent for the sale of property. And he can repudiate his contract for pur-, chase only for the same reasons as he could in case he had bought for another. ’ ’

In the above case the performance of the contract — and thereby the execution of the power conferred by the will — was contingent upon an act to be performed by the court. In the case at bar tbe performance of tbe contract is contingent upon tbe court’s declaring tbe will valid.

In Archdeacon v. Cincinnati Gas & Elec. Co. 76 Ohio St. 97 [81 N. E. 152], tbe question involved was as to tbe right of the administrator to maintain an action brought by him on March 28,1903, as administrator of tbe estate of John Archdeacon, when as a matter of fact be was not tbe administrator and was not appointed as such until March 10, 1905, defendant contending that be was wholly without authority to act at the time of instituting the suit. The court held, in the syllabus:

“The general rule that the qualification of an administrator relates back to the time of his appointment as regards acts done by him in the interim which are for the benefit of the estate, applies to a case of this character. The commencement of the suit by the administrator, therefore, being for the benefit of the estate, was the valid commencement of an action.”

So, in the case at bar, the removal of the impediment to the execution of the powers conferred by the will, by the declaration of its validity, left the executor and trustee clothed with all power and authority conferred by the will as and from the date of his appointment, and he is therefore bound by his act of February 26, 1913, in entering into said agreement, provided, however, his aet is not in excess of the power and authority conferred on him by said will.

In the case of Wilson v. Wilson, 54 Mo. 213, the court say:

“A will giving power of sale vests the title in the executor at the time of testator’s death, and his deed of the property made before probate of the will is a good conveyance provided the will be subsequently probated.”

The second proposition is: Had the executor and trustee under the will of Mary Ann Britt, deceased, power and authority to sell or lease said property on the terms and conditions expressed in said agreement ?

As we enter upon the consideration of: this proposition we are confronted with the question: Does the agreement so entered into, when fully executed, constitute in fact a sale or lease of the property! It is evident from a reading of the agreement that the plaintiff wanted to purchase the property, for he says in the opening paragraph of his offer:

“I hereby agree to purchase the property belonging to the estate of Mary Ann Britt, deceased. ’ ’

And after describing the property he further says:

“The consideration for said property is to be $125,000 to be paid as follows:” * * #

It further provides that in case of loss by fire:

“Loss, if any, payable to the said lessor on account of the purchase price of said property.”

And again:

“If the lessor elects to take the insurance on account of the purchase price, the lease shall terminate, and the balance of the purchase price, if any, become payable,”

The defendant, Stark, in accepting the proposition says:

“I hereby accept the foregoing offer, upon the conditions therein named. ’ ’

True, the agreement provides that after the $50,000 is paid on the purchase price a lease duly executed by the executor and trustee shall be given plaintiff for a term of twenty years at an annual ground rent of five per cent upon the remainder of the purchase price, to wit, $75,000, and containing a privilege to said lessee to purchase said property at any time after ten years from the date, upon giving six months’ notice in writing to the lessor.

In construing this agreement it is necessary to take into consideration the circumstances surrounding the transaction and the intention of the parties, as well as the language used in expressing that intention. And in considering those matters the c’ourt has concluded that the agreement is an agreement for the purchase and sale of said property, and that while it is provided that a lease shall be given with-the privilege of purchase for the remainder of the purchase price of $125,000 viz., $75,000 — it is but another method intended by the parties for the securing to the seller the balance of the purchase price rather than through the usual form of a mortgage. The method so pursued is not an unusual one; on the contrary it is frequently resorted to in the bargain and sale of real estate. This conclusion we feel is strongly supported by tlie fact tbat a very large part of tbe purchase price — forty per cent — is to be paid in cash at or before the execution and delivery of the lease.

It is contended however, on the other hand, that the executor and trustee had no power under the will to sell said property on any terms other than for cash, and that if the agreement is construed as one for the purchase and sale of the property it is not enforeible, for the reason that the terms of payment expressed in the agreement are contrary to and in excess of the power and authority to sell conferred by the will of Mary Ann Britt, deceased.

The will of Mary Ann Britt provided as follows:

“I give him full power to sell, lease, divide or rent any of my real or personal property and execute proper instruments for that purpose * * * to make and change investments, and, generally, to do such things as may be necessary or proper in the administration of my estate and the trusts reposed in him, without applying to court for leave so to do. * * * I hereby vest in my said executor or trustee such title as may be necessary to carry out the provisions of this my will.”

To enable said executor and trustee to sell and convey said real estate the testator clearly by her will vested a fee simple title thereto in her executor and trustee and clothed him with full power and authority to do such things as may be necessary or proper in the administration of her estate and the trust reposed in him. She authorized him to sell or lease her real estate, and for that purpose to do such things as may be necessary or proper in administering the trust so reposed.

The executor and trustee was clearly authorized to sell the real estate described in the agreement, and the testator having failed to specify the terms and conditions upon which such sale or sales should be made — on the contrary, she having authorized him to do such things as may be necessary or proper in the administration of the trust — she thereby vested in him a discretionary power as to what would under the conditions and circumstances be proper and to the interest of her estate in making such sales. The testatrix clearly intended to rely upon the judgment of her executor and trustee in the management and sale or lease of her property and for that purpose she made as complete a grant of power as it was possible for her to do. In addition to her giving him power to sell and lease her property, she also gave him full power to make and change investments. Can it be contended that under such power he would not have the authority to invest in a ground rent which in his judgment was a good investment? Having authority to so invest the funds of the estate could he not have sold the property for cash and have subsequently purchased a ground rent of this same property yielding five per cent upon $75,000, that being only sixty per cent of the supposed value of the property? If so, we can see no reason in law or in equity why he may not be permitted to do directly what he could properly and legally do indirectly. Clearly if the executor sold the property for cash he would have to reinvest the fund.

A. trustee with unfettered power to sell undoubtedly has the right to make reasonable terms as to payment, consistent with the best interests of the estate. Whatever is fairly and reasonably necessary to carry out the power would be implied and included in it.

Perry, Trusts, Sec. 786a, states the following as the rule controlling sales by trustees:

“If, however, the sale is made for a change of investment, the trustee may take a mortgage upon the property sold if it is real estate; for investments in mortgages of real estate, in the absence of any provision in the instrument of trust to the contrary, are permitted by law. ’ ’

In McLenegan v. Yeiser, 115 Wis. 304 [91 N. W. 682], the court say, Syl. 6:

“Under a power to sell lands and invest the proceeds it is proper, in the absence of any provision to the contrary, to take a mortgage on the property for a reasonable part of the price. ’ ’

In this case the sale was made to a life tenant and a mortgage was accepted for a large part of the price, running for twenty-five years, at two per cent, and the court held:

“That the sale would not be declared void because of the extent of the credit given at such low rate of interest, no prejudice having resulted to the remainderman. ”

It was contended in this case that the sale was invalid because of the credit given for the price and that a sale on such credit was beyond the power conferred by the will which, being silent as to terms, it is assumed must be construed to authorize a sale for present money. And on page 313 of the opinion the court say:

“It seems plain when the duty of a selling trustee is to keep proceeds of a sale invested, he can not do so more surely than by leaving a reasonable amount thereof secured upon the property sold. Nothing- can then happen to the estate more prejudicial than the return to it of the very property parted with, which is not injurious, if enough of the price is collected, or otherwise secured, to cover expenses of sale and of reclamation. ’ ’

The foregoing case very aptly expresses the views of this court on the subject under consideration.

This will clearly and unequivocally gives to the executor and trustee the power to lease the property, without restrictions or limitations as to the terms and conditions of such lease. Counsel for plaintiff contend, however, that the executor and trustee could not lease for a term extending beyond the term of the trust, which might be the case if the agreement were fully executed. By Item Fifth of her will she provided for a final division of her property in the following language: .

“All the rest and residue of my estate, I give as follows: one-fourth to my nephew Arthur J. Partridge; one-fourth to my niece Mrs. McFuven, one-fourth to my niece Mrs. Dixon, and one-fourth to my niece Blanche Partridge. Raid rest and residue shall be divided upon the death of my brother Francis I. Partridge. ’ ’

Of course we have no assurance that Francis I. Partridge ■will not survive the period of the lease, and the court can not therefore say that the lease will extend beyond the period of the trust. If it does not, then there is no authority in law which would justify the court in saying that said executor and trustee could not enter into a lease of said property for the period provided for in said agreement.

In the case of Greasen v. Ketteltas, 17 N. Y. 491, there was involved the validity of a lease made by a testamentary trustee for a term of twenty-one years, and the court say:

“A trustee holding a legal fee, determinable when the purpose of the trust shall cease, has power at law to lease for a term of years which may extend beyond the period of his trust estate, subject to the jurisdiction of a court of equity to annul the lease if unreasonable or improvident. ’ ’

If Francis I. Partridge should not survive the period of the lease and it became necessary for the executor and trustee to divide the estate, he clearly would have authority to sell and dispose of the fee of said property, the ground rent, for the purpose of ma.king said division, and would not thereby violate any of the provisions of said will.

The court is therefore of the opinion that the allegations contained in the answer of Edgar Stark, executor, constitute a defense to the cause of action set forth in the petition; that said executor and trustee has power and authority under the will to convey to plaintiff such title to said property as was possessed by the testator; and that the allegations set forth in the cross-petition of said Edgar Stark, executor, constitute a good cause of action for the relief therein sought.

The demurrer will therefore be overruled.

Jones and Hamilton, JJ., concur.