text:
    RECOVERY FOR. SERVICES FOR NURSING AND ATTENDANCE,
    Circuit Court of Stark County.
    Samuel Rudy v. Letitia Rudy.
    Decided, February, 1912.

      Statutes of Limitations — Applied to a Contract for Labor and Services —Charge of Court as to Proof Required to Establish Agreement to Pay for the Services.

    1. Under a contract wherein the defendant is alleged to have made an express agreement to pay plaintiff for services theretofore performed and thereafter to be rendered and performed, the statute ■ of limitations does not begin to run until the contract is terminated by breach or otherwise.
    2. In such a ease, the record disclosing no blood relationship between tne parties, it is only incumbent upon the plaintiff to establish the contract by' a fair preponderance of the evidence; and where the jury were instructed that the contract must be established by clear and unequivocal proof, error can not be predicated on a. refusal to give a written instruction before argument to the effect that the burden was on the plaintiff to prove the existence of the contract by fair and satisfactory evidence.
    3. A request to charge the jury in such a case that “if you find from the evidence that it is more probable the plaintiff rendered the services described in the petition as acts of kindness than with the expectation of being paid for the same, she can not recover in this action,” was properly refused.

      Craine & Snyder, for plaintiff in error.

      A. M. McCarty and L. C. Wise, contra.
    Shields, J.; Voobhees, J., and Powell, J., concur.
   This proceeding in error is prosecuted to reverse the judgment of the court of common pleas in an action wherein the defendant in error, plaintiff below, sought to recover of the plaintiff in error, defendant below, a judgment for a breach of an express contract for services rendered by the defendant in error to the plaintiff in error.

In the petition filed in the court below by Letitia Rudy, plaintiff below, she sets up that Samuel Rudy, defendant below, is indebted to her in the sum of $9,830, with interest thereon from January 10, 1911, for work done and services performed by her for the defendant, at his request, from the 16th oT'-'Féb'ruary, 1892, or about said date, continuously until on or about the 10th day of January," 1911, in earing for his room and bed, washing his bed and clothing, cooking his meal’s, sewing and mending for him, nursing, caring for and attending him when sick and feeding him when he was unable to feed himself by reason of sickness .and injuries received by him, keeping and c,aring .fon;,his promissory notes, bonds, deeds, securities and other valuable papers, attending and accompanying him at times when away from home, aiding and providing fuel, heat and light, and entertaining, him and looking after his comfort and well being," and for furniture, bed clothing and supplies furnished by her for his use during said period, which said services she says are reasonably worth said sum of $9,830, no part of which has been paid.

.. In said petition she further says that in the spring of the year- 1893, the exact date of which the plaintiff can not state, the defendant made an express promise and agreement with plaintiff to .pay her for said work and services theretofore rendered and performed by her for him, and for such work and services as she should thereafter do and perform for him, but no time for' payment nor amount of payment was "at any time agreed upon, nor was there at any time- any agreement as to how long the performance of said work and services should .continue, and she prays judgment against the defendant for said sum of $9,830, with interest thereon from January 10, 1911.

To the plaintiff’s petition the defendant filed an answer in which, for a first ground of defense, he denies each and ali of the allegations contained in said petition.

"For- a second ground of defense, the defendant avers that all of the claim of the plaintiff for things done by her for the defendant, as set forth in the petition, prior to January 10, 1905, did not accrue within six years next before this action was begun and is' barred by the statute of limitations, there being no written agreement between plaintiff -and defendant concerning the things set-forth in plaintiff’s petition.

' To the defendant’s answer the plaintiff filed- a reply to the-second ground of defense thereof in which she admits that there'is' no written agreement between the plaintiff and defendant concerning the things set forth in her said petition, bnt denies each and every allegation in said second ground of defense not therein admitted to be true.

With the issues thus made up, said cause was submitted to a jury, under instructions of said court, resulting in á verdict in favor of the plaintiff for the sum of $3,500. A motion for a new trial was filed by the defendant, which was overruled, and judgment was entered upon said verdict. A bill of exceptions was prepared and tendered embodying all the evidence taken upon said trial including said court’s charge to the jury, and error is prosecuted in this court to reverse the judgment of said common pleas court. The petition in error filed contains the following assignments of alleged error as grounds for such reversal:

(1) Said court erred in overruling the motion of the plaintiff in error for a new trial.

(2) Said court erred in its charge to the jury on the trial of said action.

(3) Said court erred in refusing to give the charges, and each of them, asked for by the plaintiff in error, before the commencement of the arguments.

(4) The facts set forth in the petition are not sufficient in law to maintain said action against plaintiff in error.

(5) Said court erred in the admission of the evidence offered by the defendant in error, to which the plaintiff in error objected and excepted.

(6) Said court erred in ruling out the evidence offered by the plaintiff in error, to which the plaintiff in error excepted.

(7) Said judgment was given for the defendant in error when it should have been given for the plaintiff, in error.

As claimed by counsel in argument, the main question raised upon this record is not solved by any adjudicated ease in the courts of this state, at least no such case is cited, but we find that like questions have been adjudicated in other jurisdictions, and we are therefore not without aid in applying recognized rules of construction to the claim made by the defendant below, under the contract between the parties hereto, in respect to the statute of' limitations.

The contract in question is denied by the plaintiff in error, but he insists that if made, as alleged in said petition, it does not limit the time for the termination of the services rendered, or fix any time therein for their payment, or specify the prices to be charged and to be paid for said services, and therefore the plaintiff’s right of recovery is limited to six years immediately preceding the commencement of the action. • In this contention we agree with counsel, if the action is based upon a running account for a period beyond six years, for under the holding of our courts, each item of an account is barred in six years after the right of action accrues thereon, unless there has been a part payment of the account or an acknowledgment of liability thereon, or a promise to pay the same in writing signed by the party to be charged thereby within six years before the action is commenced (Courson’s Exrs. v. Courson, 19 O. S., p. 454). " Every item of an account carries with it an implied promise of payment, each sale, if made at different times, being a completed and independent contract, and subjects each item thereof to. the rule imposed by the statute of limitations, but the question here made is not one on an open account, or on an account stated, but arises upon contract — upon an account for services furnished under a contract. The petition recites:

“That in the spring of the year 1893, the exact date whereof the plaintiff can not state, the defendant made an express promise and agreement to pay her for said work and services theretofore rendered and performed by her for him, ar^d for such work and services as she should thereafter do and perform for him, but no time for payment nor amount of payment was at any time agreed upon, nor was there at any time any agreement as to how long the performance of such work and services should continue. ’ ’

Said services having been rendered under a contract, nothing being specified therein as to what time payment therefor should be made, or how long such labor should continue or be performed, the question arises as to when the statute of limitations begins to run? As before stated, the plaintiff in error insists that all but six years of the claim of the plaintiff below, before suit was brought, is barred by the statute of limitations, and in connection with authorities cited he also cites Section 11222, General Code, which provides that an action upon a contract not in writing, either express or implied, is limited to six years. Is this contention supported by the decisions of courts where the question here presented has been squarely met and passed on, or is said contract to be construed as a continuous contract where the statute of limitations begins to run at the close of the services rendered ?

In the case of Carter v. Carter, 36 Mich., 207, it is held that:

“Where a person goes into the service of another upon an indefinite promise of payment for the same, and no price or no period is fixed, the bargain and service are alike continuous, and the statute of limitations does not begin to run against the claim until the service is concluded; the right of action at the close of the service is an entire right and applies to the entire service, and the employe is entitled to claim for the whole amount of all unpaid wages for Ml the service rendered under the agreement. ’ ’

In Hall v. Wood, 9 Gray (Mass.), p. 60, it is held that:

“An account for work and labor, with a bill of particulars, some items of which bear date more than six years before the commencement of the action, may be maintained for the full amount, notwithstanding the statute of limitations, if the whole work was done under an entire contract.” . -■

In the 25 Cyc., p. 1076, it is held that:

“As against a cause of action to recover compensation for services rendered under an entire, indivisible contract, the statute begins to run when work is completed, although the work may consist of numerous parts or items, and Mthough the contract provides that the compensation shall be made at stated intervals or in installments. This rule applies where the employer prevents further rendition of services, a^ by discharging the employe, or renouncing the contract; the employe’s action being to recover the value of the services actually rendered. ’ ’

In Schoch’s Administrator v. Garrett, 69 Penna. State, 144, it is held that:

“On the death of his wife, a father asked his daughter, the wife of the plaintiff, to keep Ms house, take care of him, etc., saying she should be well paid. The daughter kept the house for eleven years, until the father’s death. In an action against his administrator by the husband for the wife’s services, the court charged, that if the jury found it to be an entire contract not completed till the father’s death, the statute of limitations would not bar any part of the claim till six years after the death.”

In Littler v. Smiley, 9 Ind., 116, it is held that:

“Services rendered under .an agreement which does not state the time of payment or when the contract shall terminate, are under .an entire continuous contract, and the statute of limitations does not begin to run until the service ceases. ’ ’

• In O’Brien v. Sexton, 140 Ill., 517-524, it is held that:

“Where there is no special contract, the law will imply an agreement to pay for the materials as delivered and the work as done; but when one continuous piece of work, consisting of a number of parts or items, is to be performed, the statute of limitations does not begin to run upon the completion of each separate part or item, but upon the completion of the whole. If the several’items are merely parts of one transaction, the statute begins to run from the date of the last item.”

In the case of Morrissey v. Faucett, 28 Washington, p. 52, it is held that:

“Where services are rendered under a contract for an indefinite time, with no period of payment specified, the employment is a continuous one and the statute of limitations will not begin to run against an action to recover compensation until the services are ended.” Case of Ah How v. Furth, 13 Wash., 550, also cited.

In the ease of Shorick, Guardian, v. Bruce, 21 Iowa, p. 305, it is held that:

“When labor is performed under one entire contract running through several months, the statute of limitations commences to run from the completion of the work. ’ ’

The same holding has likewise been made by courts in other states, but we do not deem it necessary to give citations from them.

In Page on Contracts, Volume 3, at Section 1655, the principle is also recognized that:

“Limitations do not run against a continuing contract, as between the sheriff or his deputy or a contract to work for compensation, no time being specified either for payment or for the termination of the contract until the end thereof.”

In Wood on Limitations, at page 348, the principle is: also recognized that:

“In a contract for services, if the work is done under a continuous contract, and no time for payment is fixed, a right of action does not accrue until the work is completed.”

True, as contended by plaintiff in error, a contrary doctrine seems to prevail in New York, and possibly elsewhere; but the general current of authority, under a contract such as we have been considering, fixes the time for the commencement of the statute of limitations to run at the termination or close of the services which, in this case, is January 10, 1911, when the breach of the contract occurred, and before which time the plaintiff below could not have maintained her action.

We hold, therefore, that this exception to the charge of the court below affords no ground of érror.

Plaintiff in error also insists that the court erred in charging the jury that it might consider the claim of the plaintiff below for services rendered from February 19, 1892, to the time when said contract was made. It is claimed that there is no consideration supporting such promise for services already rendered. We think it clearly appears that the contract is entire, and if any part of it is valid and enforeible for the recovery of services rendered, the entire contract is valid and enforeible. The language of the contract is:

‘ ‘ That the defendant made an express promise and agreement to pay her for said work and services theretofore rendered and performed by her for him and for such work and services as she should thereafter do and perform for him. ’ ’

This part of the contract, we think, is to be construed together, and in the instruction of the court to the jury in this respect we find, no error.

Plaintiff in error -also urges upon our attention that the court below erred in refusing to give to the jury the following written requests, before argument:

(1) Before you can render a verdict for the plaintiff you must find by clear and satisfactory evidence that plaintiff and defendant entered into the contract set forth in the petition, and the burden of proving said contract is on the plaintiff.

(2) If you find from the evidence that it is more probable that the plaintiff rendered the services described in the petition as acts, of kindness, than with the expectation of being paid for the same, then she can not recover in this action.

(3) If you find that the plaintiff and the defendant entered into the contract set forth in the petition then you can only allow the reasonable value of the wages rendered by plaintiff to the defendant under said contract, during the six years immediately preceding the 21st day of April, 1911, the time of the commencement of this action.

Sub. 5 of Section 5190, R. S. provides that:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given or rejected by the court before the argument to the jury is commenced.”

Does request No. 1, present a proposition of soqnd law as applied to the case át bar? If it does, said request should have been given, but if not, it was properly refused. Contracts ordinarily are established by a preponderance of proof, except in cases where family relationship obtains- and where a higher degree of proof is required to overcome the natural presumption arising out of such relationship. The record in this case discloses no such relationship between the parties to the contract in question, and the right of the plaintiff below to recover on her claim set up in said petition is therefore unaffected by considerations of the-character mentioned. This action being one -on contract, it is incumbent on the plaintiff below to make proof of said contract by a fair preponderance of proof, but it appears that the court below even went further, and in its general -charge instructed the jury that in order to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof. We think, therefore, that said request No. 1 was properly refused, and in the refusal of the court to give said request there is no error.

Request No. 2 we hold was properly refused. Of course had the jury found that the services rendered were so rendered without any expectation of being paid for, no recovery could be had therefor, but an instruction to the jury that if they should find from the evidence that it is more probable that such services were rendered as acts of kindness than with the expectation of being paid for'the same, is, in onr judgment, a marked departure from the well recognized rules of law governing courts in their instructions to juries in respect to their duties in civil cases, and we therefore hold that request Number 2 was properly refused, and in the refusal of the court to give said request there is no error.

Request No. 3 we hold was properly refused for the reasons already stated.

Not overlooking the importance of this case to the parties hereto, we have read the record herein with no little care and find no substantial or prejudicial error to the plaintiff in error in the admission or rejection of evidence upon the trial, to which exceptions were taken by the plaintiff in error, and upon the whole record we find no error committed by the court prejudicial to the legal rights of the plaintiff in error, and the judgment of the court of common pleas is therefore affirmed, with costs, but without penalty. Exceptions noted.


source: Caselaw Access Project

license: Public Domain

text:
    IMPERFECTLY EXECUTED DEED HELD ENFORCIBLE.
    Circuit Court of Cuyahoga County.
    Joseph Uebbing v. Martin Koester, Trustee, et al.

    Decided, June 1, 1908.

      Trusts — Improperly Executed Quit-Claim Deed — Absolute in Form, but Admitted by All to Save Been in Trust — Will Made for Purpose of Carrying Out Agreement — Testatrix Dies and Action Brought to Enforce the Trust.

    In furtherance of an effort by a mother to make an equitable distribution of her estate among her children, an improperly attested quitclaim deed, made under an agreement wherein the children all joined for the purpose of carrying out the distribution undertaken by the mother and upon which a parol trust was limited, may be perfected and enforced in accordance with the agreement.

      Hamilton & Smith, for plaintiff.

      Hawley ¡<fi Meals and L. I. Litsler, contra.

      Henry, J.; Marvin, J., and Winch, J., concur.
    Appeal by Martin .Koester.

       Affirmed without opinion, Uebbing, Trustee, v. Koester, Trustee, et al, 81 Ohio State, 564.

   This appeal presents tbe question of tbe enforceability of an alleged trust relative to a family arrangement of property interests, and the case is before us on exceptions to the report of the master heretofore appointed by this court. The evidence reported by the master shows the facts to be as follows:

Alida Bauman was survived by her third husband and by one child of her first marriage; six by her second and three by her third marriage. There were four parcels of land, valued at $11,900, of which she owned one, she and her third husband jointly another, and the remaining two parcels were owed in common by her and the six children of her second marriage, who, however, allowed her to possess all the property as long as she. lived. In her last sickness she employed an attorney to devise and carry out a plan by which all her children should share all the property equally after her death, save that her third husband should have the life use of one-third, and two of the children by her second marriage should each have $200 more than the others. The plan adopted was awkwardly conceived and imperfectly executed. She and all the children together with their husbands and wives became parties to a quit-claim deed of all the property, wherein two of her sons, one by the first marriage and one by the second marriage, were the grantees. This deed, though absolute in form, is admitted by all concerned to have been made in trust. It is, moreover, though perfect in form, admittedly defective in fact, because one of the two signatures purporting to be those of witnesses was written by one who was not actually a witness to its execution. The terms of the intended trust are in dispute, and the master who took the testimony reports that he is unable to find whether any, and if any, what trusts were declared at that time. Some of the children, including one of the trustees, assert that the trust was created simply to hold the property during the mother’s life and to facilitate its disposition and the distribution of proceeds after her death according to the legal rights of the parties. The other trustee and the other children say that it was not only for these purposes, but also to carry out their mother’s wish .as above described and as embodied in a will exhibited and explained in advance to all parties to the deed and subsequently executed by her. The will purports to devise to her husband and children in this manner all of her property, which, as the will declares, is all “included” in the deed to her two sons as trustees.

It will be observed that if the deed were good, the testator had no property left to devise. The will in that case could at most amount to nothing but an exercise of her powér to appoint the stipulated trusts upon which the deed was given. That power of appointment rested in parol if it was conferred upon her at all. We think, contrary to the master’s conclusion, that such power was at least intended and agreed to be so conferred upon her.

But the deed, being defective, conveyed no legal estate to the trustees. Can this imperfectly executed deed of conveyance whereon this parol trust was limited, be perfected and enforced as a conveyance in trust for the uses intended?

The six children of the second marriage had already acquired title in their own right to nearly one-half of the entire property. If, in addition thereto, they can acquire under their mother’s will, as her heirs at law, their distributive shares of the other half which she owned, they will fare much better than the children of her first and third marriages. She might have so devised her property, having regard to what each of the children already had, as to bring about the desired equality among them without the intervention of any trust. Shall her manifest intention be defeated merely because the means actually employed by her, under the advice of counsel, were not only awkwardly adapted but imperfectly executed for the accomplishment of the purpose which she had in view? She died supposing undoubtedly that the accomplishment of that purpose was assured. Had she been apprised of the improper attestation of the deed and properly advised in the premises, she could,, and no doubt would, have so altered her will as to make the accomplishment of her purposes sure. Her will was made by her in pursuance of an agreement with her children, and the consideration moving to her in that agreement was the expected attainment of her object, namely, the equal distribution among them all of the entire property, theirs and hers alike. That will is now made irrevocable by her death and it has become effective by reason of its subsequent admission to probate. If it should turn out that it disposes only of the property which was hers, it creates inequality instead of the equality which she intended and which she supposed was accomplished. The consideration supporting the agreement in obedience to which the will was executed would thereby fail, for the object which she expected to gain would be lost. To overturn the trust and uphold the will would be to defraud the testatrix. We have, of course, no jurisdiction over the will or the disposition which it makes of her property, except to consider its effect in connection with the entire transaction.

The question was put from the bench on the hearing, whether the will should not be construed and administered to effect such a disposition of the testatrix’s own property as to make, together with the other property which is contemplated by its provisions and which some of the children already owned, 'an equal apportionment of the aggregate property among them all. If that be accomplished, it is quite immaterial whether the trust shall be upheld or not. But we do not assume to answér the question thus raised. Neither can we assume the will to be a testamentary disposition of the mother’s property in exactly the same manner as the law would distribute it, had she died intestate, so that if the trust fails the parties will be left in precisely the status which they would have occupied if neither deed nor will had been made. The will’s provisions deviate in some degree at least from those of our statutes of descent and distribution. The distribution effected by the will, however construed, is essentially a testamentary distribution and not the mere equivalent of intestacy or non-action on her part.

We hold, therefore, that the agreement between the mother and her children to put all their property in trust, for the purpose already described, was made upon consideration executed by her when she made her will.

Equity therefore requires that the trust thus supported by an executed consideration, be perfected according to the agreement, and that as so perfected, it be enforced.

A decree may be taken sustaining the exceptions to the master’s report in the particulars indicated, and defining and enforcing the trust in accordance with this opinion.


author: (Voorhees, Shields and Powell, JJ.).

text:
    DESCENT AND DISTRIBUTION.
    Circuit Court of Licking County.
    Wm. H. Goff et al v. Lemuel R. Disbennet et al.
    Decided, September Term, 1911.

      Course of Descent — Where Property has Descended to a Class of Heirs • — Degree of Consanguinity, and Whether Lineal or Collateral, Inbmaterial — Partition—Section 8581.

    Wnere an intestate leaves property acquired by purchase, with no heirs except nephews and nieces, title is cast upon such nephews and nieces as a class, and they therefore take per capita and not per stirpes.

      Crum, Raymond <& Hedges and Fulton ;& Fulton, for plaintiffs in error.'

      Kibler & Kibler', contra.
   By the Court

(Voorhees, Shields and Powell, JJ.).

Error is prosecuted in this court by the plaintiffs in error to reverse the judgment of the court of common pleas in an order of distribution of the proceeds of the sale of lands in partition.

The question arises under the construction of Section 4159, Revised Statutes, or 8574, General Code, relating’to the descent of real estate which came to the intestate by purchase.

The action was for the partition of the lands of one Samuel Goff who died intestate, never having married and who had no brothers or sisters living at the time of his death, but who had had six brothers and sisters all of whom had died before his own death leaving children surviving them, to whom the lands mentioned and described in the petition descended by virtue of said statutes..

It is claimed on the part of plaintiffs in error that these lands descended to the children of his brothers and sisters as legal representatives of such brothers and sisters, and that the lands should be divided not as though the children were, themselves, the next of kin of said Samuel Goff and inherit the same direct from him upon his death, -but that it should be divided as though the brothers and sisters were living; and they contend that such construction is sustained by the Supreme Court in the case of Dutoit v. Doyle, 16 O. S., at page 400.

In that ease the intestate left surviving several children and also issue of the two other children who were then deceased. One left three children and the other five. The Supreme Court held that the children of the deceased children of the intestate took such share of said estate as their parents would have taken had they been living at the death' of the intestate. In other words, the estate was divided equally among all the children of the intestate living at his death, and including such as had died before that time leaving children surviving them, the grandchildren receiving such share of the estate as their parents would have received had they been living. That is, the share of the'deceased child who left three children was divided into three portions and the share of the deceased child who left five children was divided into five portions.- It is claimed that this decision justifies the contention of plaintiffs in error under this section of the said statutes. We think this question has been settled otherwise by the Supreme Court in the 9 O. S., at page 327, and followed and fully sustained by the 52 O. S., at page 470.

In the 9 O. S., it, is held that by the provisions of the tenth section of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or .niece had died before the intestate, leaving children, such children took per stripes th,e share of the deceased parent.

Section 10 of that act provided, that ‘ ‘ when any of the before mentioned children, brothers, sisters, or their legal representatives, in the the same degree of consanguinity or kindred, came into partition of any real estate, they shall take per capita; but where one or more of them are dead, and one or more of them are living, the issue of those dead shall have a right to partition'; and such issue, in such case, shall take per stirpes.”

Under this provision, the parties in this ease would be included as legal representatives of the brothers and sisters of the intestate. They are in the same degree of consanguinity or kindred — all either living nephews and nieces of the intestate, or children of a nephew or niece deceased; the former would take per capita, the latter per stirpes.

Section 8581, General Code, reads as follows:

“When all the descendents of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or great-grandchildren, or of á more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”

It is claimed that this section does not apply to the ease now under discussion for the reason that it applies only to lineal descendants and not collateral descendants. The Supreme Court, however, in the case decided in the 9 O; S., have disposed of this contention. It is said at page 330:

“It might, upon a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in Section 6, children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in Section 5. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the Legislature. Its provisions are to apply ‘so that the estate shall pass to such persons of equal degree ’of consanguinity to such intestate in equal parts, however remote .from the intestate such equal and common degree of consanguinity may be.’
‘ ‘ Our conclusion is that the Legislature, instead of limiting the rule as provided in Section 10 of the act of 1831, intended to extend and apply it to every case, in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral. ’ ’

This construction is also followed and commented upon by the Supreme Court in the 52 O. S., page 470. On page 485, the court say:

1 ‘ The section was under consideration in Dutoit v. Doyle et al, 16 Ohio St., 400, where the principle of representation was recognized, and made the basis of the conclusion, that in cases of this character, grandchildren take per stirpes, and not per capita. To the representative character with which they are thus clearly invested, representative rights are appropriate; and full effect should be given to the provision which defines their inheritance, and limits it to ‘that portion of the estate to which such deceased child would be entitled if such deceased child were living.’ ”

And this applies in cases of this kind after those who. are heirs to such estate have been ascertained, in case any such heirs shall have died leaving children or other issue surviving them. That is, the nearest of kin of an intestate under this section of the statute became his heir at law and took the estate per capita, but if any such nearest of bin have died leaving children or other issue they shall take by representation only such share of the estate of the intestate as their parents would have taken if living, or per stirpes.

We think the court of common pleas did not err in making its order of distribution in this case and that its judgment should be affirmed.

It appears that some of the plaintiffs in error have accepted the amounts awarded them in the order of distribution made in the court of common pleas, and an answer to the petition in error has been filed setting forth this fact and claiming the same to be a waiver of any error that may have occurred in said proceedings in the court below.

We do not so hold, since the amounts received by them have never been in dispute, but the same have been conceded by all parties to belong to such plaintiffs in error as have received them.

The answer to the petition in error will be dismissed. Exceptions.


text:
    WORK OF MUNICIPAL PLATTING COMMISSIONS.
    Circuit Court of Erie County.
    C. L. Wagner v. Frank Fitz et al.
    Decided, 1908.

      Dedication — Plats—Municipal Corporations — Private Proprietors Can Not Plat Lands in such a Manner as to Interfere with the Work of the Municipal Platting Commission — Amendment Can Only he Made hy Besuhmission to Commission — When Other Streets May he Laid Out — Steps Essential to Dedication of Additional Streets.

    1. A municipal platting commission, for which provision is made hy Section 2629, Revised Statutes (General Code, 4347, et seq.), in defining and locating the streets and alleys of a municipality, is required to secure uniformity and regularity therein, to eliminate jogs, twists, turns, pockets and haphazard contrivances against public interest; and having performed this important work and adopted plats, private proprietors of lands within a platted territory can not interfere therewith even with the consent and cooperation of the municipal council.
    2. A plat, adopted by a municipal platting commission, goes upon record without being submitted to the municipal council. Having been so adopted, amendment may be had only by resubmission to a regularly constituted platting commission as provided by Section 2636, Revised Statutes (General Code, 4355). It is not subject to amendment by a council nor otherwise than upon regular statutory proceedings to vacate streets and alleys.
    3. Under Section 2601, Revised Statutes (General Code, 3584) streets other than those laid down by a municipal platting commission may be laid out and established in the city notwithstanding Section 2633, Revised Statutes (General Code, 4351) provides that no streets, except those laid down in such plat should be laid out; but such additional streets must not interfere with streets and alleys laid out by such commission.
    4. To lay out streets additional to those adopted by a municipal platting commission, the plat must show by the certificate of the municipal engineer that the proposed streets do not interfere with those laid down by the municipal platting commission, and the plat must have the approval of the municipal council.

      John Bay and George Blackford, for plaintiff.

      J. F. McCrystal, W. L. Fiesinger and Henry Hart, contra.

      Parker, J.; Wildman, J., and, Kinkade, J., concur.
   It is set forth in the petition in this ease, and it has been made to appear to ns, that in the year 1900 Charles L. Wagner and Chester L. DeWitt were owners of a certain tract of land in the city of Sandusky, which they caused to be surveyed and subdivided into city lots with a street running through it; that they acknowledged the plat in due form; that a certain certificate of the engineer was written upon it; that it was accepted by the city council by a city ordinance, and then it was recorded in the plat record of the county. It further appears that prior to the time of making and recording said plat the city of San-dusky had duly and regularly appointed a platting commission, which commission had adopted plats and plans for the location and opening of streets, avenues, roadways, etc.; that such commission adopted a plat or plan providing for a uniform system of proposed streets, alleys and avenues in the city of Sandusky, and that said plat and' plans were duly recorded in the office of the city civil engineer of the city of Sandusky and in the recorder’s office of Erie county, according to law. The plaintiffs in their plat designate a street running through this property as “Lockwood avenue.” It is a street lying nearly midway between two streets that had been laid out by the platting commission. To the eastward of it was a street called Erie street laid out by the platting commission; and to the westward of Lockwood avenue was a street laid out by the platting commission called Anderson street. A part of this lot of land subdivided by the plaintiffs extended over into this part of Erie street which had been laid out by the platting commission. Erie street was laid out fifty feet wide, and the plaintiffs’ land extended into Erie street forty-two feet; the other eight feet of what was laid out there as a part of Erie street belonged to another proprietor, to a man by the name of Fitz; that is to say, the easterly part. The easterly twelve feet of plaintiffs’ property was laid out as an alley, running parallel with Lockwood avenue, and running north from First street, and laid, as it will be observed, within the 'limits of that part of Erie street as platted by the platting commission. In-lots in this subdivision were laid out by the plaintiffs; those lying upon the east side of Lockwood avenue extended through from Lockwood avenue to this alley, excepting three lots at the southerly side which faced upon First street. One of these, three lots, the easterly of the three, w>as therefore (it being thirty-three feet wide) almost entirely in Erie street as laid out by the platting commission — ■all' but three feet of it; and thirty feet of the rear end of all of the other lots north of that, in that tier of lots — that is to say, the tier on the east side of Lockwood avenue — extended into that' part of Erie street as laid out by the platting commission, north of First street.

Notwithstanding the conflict between the platting as done by the platting commission and that as done by the plaintiffs, as I have said, the plat was accepted by the city council, the dedication of the street as there platted was accepted, and the plat was then recorded.

On June 10, 1903, Mr. Fitz, the proprietor upon the east, eight feet of whose land would be taken by the northerly extension of Erie street, brought an action in the common pleas court of this county to have this plat made by the plaintiff vacated, in so far as it did not conform to the plat made by the platting commission, and to enjoin the city from expending funds, as it was said the city was threatening to do, in the improving of Lockwood avenue and this twelve foot alley. Plaintiffs were not made parties, though they were then the owners of this tract of land, and, of course, would (if parties) be affected by the proceedings. They were not brought into court by publication or otherwise. The decree of the court in that case was in accordance with the prayer.

Now, the plaintiffs come and set up all these facts and pray that that decree may be set aside and vacated. Amongst their allegations as to the regularity of the action of the platting' commission, which is very fully alleged by the plaintiffs, it is averred in the petition that the streets and alleys as laid out by the platting commission have not been altered or otherwise affected by .this subsequent- platting or by other proceeding. It is contended by the plaintiffs that in thus platting their land they have acted within the limit of their rights defined by statute, and that they have not violated any provision of the law respecting the regard that is to be had-for the work of the platting commission.

Without undertaking to read extensively from the statutes, I will say that our view of the statutory law upon this subject is, that the work of a platting commission in defining and locating the streets, alleys and avenues of a city or village may not be interfered with by private proprietors of lands within the same territory, even with the consent and co-operation of the city council. The work of the platting commission is naturally and necessarily very important. Its purpose is to provide uniformity and regularity in streets and alleys, so that they may not be narrow in one place and wide in another; so that they may be free from jogs, twists and turns; so that they may be open at either end, and not in the nature of pockets and all those miserable contrivances we find in villages that are built up haphazard to please the notion or to subserve the particular interests of the proprietors of little blocks of ground within the village who may desire to lay them -out so as to get the greatest number of lots or the most money, without regard to the general .interest.

The “plans” adopted by the platting commission in Section 263.6, R. S. (General Code, 4355) “can be amended after adoption, by like proceedings by which they were originally adopted”; which means that they can be amended by the action of a regularly constituted platting ;commission. When a platting commission does its work, it is not required to submit it to the council; it at once goes upon record. It is not subject to amendment by the council; except that there are certain forms of proceeding which are authorized whereby the courts or the council may vacate streets and alleys under certain circumstances, none of which proceedings were followed so as to vacate the streets involved in this controversy. In other words, none of which proceedings were followed by the council so as to vacate this northern part of Erie street as laid -out by the platting commission.

Plaintiffs assume that they had a right to plat their lands, laying out a lot within the limits of this northern extension of Erie street, and laying out other lots extending thirty feet over into Erie street, without regard to the previous action of the platting commission; and the city council apparently assumed they had the fight, and permitted them to do it, and endorsed and approved their action. We do not think they had that right.

With respect to the plans of the platting commission, after they have done their work and .advertised it for six weeks so that objections may be made and heard, amendments made, etc., Section 2633, Revised Statutes (General Code, 4356) provides as follows:

“At the end of the time aforesaid, the commission shall cause copies of the plat, as finally adopted, to be prepared, and such monuments or marks as it may thnk proper to be placed on the grounds, and shall deposit one copy, certified to by it, in the office of the county recorder, and another in the office of the city engineer, and such plan shall be deemed and taken to be the regularly adopted plan for streets and alleys in such territory; and no streets or alleys, except those laid down on such plan, shall subsequently be in any ways accepted as public streets or alleys by the municipal corporation, nor shall any of the public funds be expended in the improvement or repair of streets or alleys subsequently laid out, and not on such plat; provided, however, that nothing herein shall be construed to prevent any municipal corporation from exercising the power of condemnation, in any of the cases where it is now or may be hereafter by law authorized to condemn and appropriate property to public use, although it be not shown as a street on such plat. ’ ’

There seems to be some inconsistency in the provisions of that section — one part providing distinctly that there shall be no streets or alleys except such as are laid out by the platting commission, and the other providing there may be other streets acquired by condemnation proceedings. The provision that there shall be no streets, except those laid out by or on such plans, we think was put in with a view of declaring distinctly, that the municipality should not be deemed to have accepted, or to be bound for, the repair of, or in any way made responsible for streets and alleys not appearing upon such plan, unless such as might be otherwise regularly adopted. We think the qualification that there may be other streets regularly adopted, must be read into that statute in view of the provision of Section 2601, Revised Statutes (General Code, 3584).

It is under this last mentioned section that the plaintiffs have undertaken to proceed. That section reads:

“A proprietor of lots or grounds in a municipal corporation, who subdivides or lays the same out for sale, shall cause to be made an accurate map or plat of such subdivision, describing with certainty all grounds- laid out or granted for streets, alleys, ways, commons, or other public uses; also, all lots sold, or intended for sale, by progressive numbers, or by the squares in which they are situated, and the precise length and width of each lot sold, or intended for sale; which map or plat shall be subscribed by such proprietor, or his agent, duly authorized by writing, acknowledged before an officer authorized to take the acknowledgment of deeds, who shall certify the acknowledgment of the instrument, and recorded in the office of the recorder of the county; and thereupon the map or plat so recorded shall be deemed -a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended; provided, that no such map or plat of any addition within the limits of any municipal corporation, when there are” (the word “no” is printed here, but it is pointed out that that is a typographical error; it should be “on”) “on record plats adopted by a platting commission or board of public works, Aia.n be recorded until the engineer of the municipal corporation certifies that the streets, as laid down on the plats of such addition, correspond with those laid down on the recorded plats of the platting commission or board of public works, and when there are streets laid down in addition to those adopted by a platting commission or board of public works, or in any municipal corporation where no platting commission is or has been in existence, no such plat shall be recorded until the same shall have been approved by the council of such municipal corporation. ’ ’

Now, it is very apparent from the reading of that statute that streets other than those laid down by the platting commission are contemplated, but these other streets must not interfere with the plans.of the platting commission. Streets may be laid through blocks, additional streets may be laid through the city, so long as they do not destroy or interfere with the streets as laid out by the platting commission. The certificate of the city engineer must show that this is true when the plat is presented. That was not done in this ease; no such certificate appears upon- that plat and no such certificate could have been made. The absence of such certificate may be unimportant here, but the important fact is that the certificate could not have been truthfully made as required by law.

When additional streets .are laid out to those provided for by the platting commission, then the requirements are precisely the same as in a case where there has been no plattnig commission, namely, that the plat shall be accepted by the council. So that the plat we have under consideration, the plat of the plaintiffs, providing for streets, requires two things, to-wit, it shall have the certificate of the city engineer that the streets and alleys as laid out upon the plat do not interfere with the work of the platting commission, and it shall also have the approval of the city council .because of the new streets laid out. But that action is all the time subject to the qualification that the city council may not authorize such platting — may not do so regularly and legally — if it interferes with the work done by the plating commission.

From the foregoing, it follows that there was irregularity in the making, adoption and recording of this plat. It does not follow, we think, that all of the work was necessarily so irregular or illegal as to be utterly void and of no effect.

Certain penalties are imposed by the statutes, Sections 2602, 2603, 2605, 2606. Revised Statutes (General Code, 3587, 3588, 3590, 3591), for platting lands in this way, recording the plat and selling the lots. It is quite apparent that it would breed great confusion in titles. Indeed, where a plat is not regularly adopted so that the numbering of the lots is authorized, it not only breeds confusion in title, but in matters of taxation also. And, therefore, penalties are imposed for attempting that kind of work, or doing that which would result in that kind of confusion.

Unplatted land must be described by metes and bounds, or otherwise, to get a pertinent description to convey anything. Lands lawfully and legally platted may be described by numbers. • The law requires that the lots'sold., or intended for sale, shall have progressive numbers, and that the precise length and width of each lot sold, or intended for sale, shall be set down. And, of course, that is quite important where platted lands are sold by numbers instead of by metes and bounds. In so far as this plat does not .affect lands extending eastward from the east line of this extension of Erie street, of course there can be no objection to it; but in so far as it undertakes to plat land lying within the limits of this proposed extension of Erie street as defined upon the plat of the platting commission, we think it is utterly ineffective and must be regarded .as void and of no effect. And the whole matter having been brought before the court, and all the facts laid before the court, we think it devolves upon this court as a court of equity to enter such ,a decree as will preserve the rights of the parties and the rights of the public as far as we may be able to do so.

Some of these lots in this eastern tier of lots have been sold and houses have been built upon the lots; one of the lots, the easterly lot of those fronting upon First street, has been sold and a house has been built upon it. This lot with the house on it fronts on First street and, with the exception of three feet, stands entirely within this proposed extension of Erie street. The eastern extension of the other lots comes into this proposed extension .of Erie street' also. To be sure, the proprietor of these lots has .a legal right to sell them so long as they are not required by the city for public streets. The proprietor’s right is not taken aw«ay by the delineation of streets upon them by the platting commission. The plaintiffs in this ease have not parted to the city and the public with their interest in these lots. They have a right to sell them, lease them, build upon them, or do with them as they please, subject to the right of the city (by condemnation proceedings) to acquire the property for the extension of the street; but they have no right to plat it and sell the property by lot numbers. They may plat up to the middle of the west side of this proposed extension of Erie street, and they may sell what remains outside the limits of the proposed extension of Erie street, by metes and bounds, or other pertinent description, but not as a part of these platted lots. And since the precise length and width of each lot sold, or intended for sale must be delineated upon the plat, we think that the plaintiffs before they sell any more lots should be required to furnish an amended plat, one in accordance with the statute, one to which the city engineer may truthfully and properly certify, and upon which he shall certify, that it conforms to the plans laid down by the platting commission; and.that they shall do so will be a part of this court’s decree.

The city has accepted this street, Lockwood avenue, and the proprietors have dedicated it, and we think the proprietors and the city should be bound by that action, both as to the public and' as to persons who have bought lots of these proprietors, and we should not interfere with that; but the amended plat should be filed. They should not be allowed to sell lots delineated upon this plat. What the rights of those who have bought lots under this plat may be against the proprietors who sold them, we are not called upon to say; they are not parties to this action.

In view of the mistakes that have been made from the beginning to the end of this controversy, both by the proprietors and by the city, we have concluded that the costs should be divided equally; half of the costs will be adjudged against the plaintiffs, and half against the city.

Mr. Hart: What is the court’s holding as to Lockwood avenue being a legal street or not ?

The Court: We hold that it is a legal street. It has been properly dedicated and accepted by the council; but both the proprietors and city council went too far in undertaking to accept the plat for the extension of lots over into Erie street. That part of their action is null and void.

It follows, of course, that the city will not be enjoined from improving Lockwood avenue.


text:
    WILL OF A HELPLESS VICTIM OF LOCOMOTOR. ATAXIA SUSTAINED.
    Circuit Court of Licking County.
    Allen B. Gregg et al v. Samuel F. Moore et al.
    Decided, March Term, 1911.

      Wills — Incapacity Not Shown by Physical Helplessness — Change in Will Does Not Support a> Contention of Undue Influence, When — Propounding Hypothetical Questions to Non-expert Witnesses — Charge of Court.

    1. In an action to contest a will it is error to admit the testimony of non-expert witnesses, whose opinions are not based on facts and observations within their own knowledge, but on a state of facts submitted to them by hypothetical questions.
    2. The fact that the testator was afflicted with progressive locomotor ataxia and was for a number of years before his death physically unable to perform any task or to help himself in any way, is not sufficient ground for setting the will aside, where it appears that during all that time he directed in detail the operations on farms aggregating over three hundred acres, and with reference to the management of his said lands did all that could have been done by a person of a sound and active mind; and the only testimony tending to show mental incapacity was slight forgetfulness on certain occasions and failure to include in his will certain legacies which he had declared he intended to make.
    3. The making of a change in a will, which there is reason to believe was done for reasons satisfactory to the testator, is not, where ■ standing alone, a sufficient reason for setting the instrument aside on the ground of undue influence, notwithstanding the will as so changed did not, in the opinion of some, make a fair-and reasonable distribution of the estate of the testator.
    4. It is erroneous to charge a jury that “it. is coercion produced by importunity, or by a silent, resistless power, which the strong will often exercises over the weak and infirm, so that the motive was tantamount to force or fear.”

      Fitzgibbon & Montgomery, for plaintiff in error.

      A. A. Stasel and Norpell, Norpell & Martin, contra.

      Powell, J.; Voori-iees, J., and Shields, J., concur.
   This is a petition in error to reverse the judgment of the court of common pleas, in a proceeding brought by Samuel F. Moore et al, defendants in error, against the plaintiffs in error, to set aside the will of one Ensley Finney Haas, who died on the 13th day of October, 1908.

The petition sets out the relationship of the various defendants, whether legatees or heirs at law of the said decedent, and avers-that the paper writing purporting to be the last will and testament of the said decedent was not his will for the reason that, at the date of its execution, the testator was not of sound mind and" memory, by reason of age and protracted disease, and that he was mentally incapacitated from making a will, or a proper distribution of his property; and, further, that he was influenced and coerced into making and signing said paper by the undue influence of the defendant, Allen B. Gregg, who was named as executor of said will, and of others conspiring with the said Gregg -, and, by reason of such influence of the said Gregg and others, and at their suggestion, the said decedent was so influenced and prejudiciced that the paper writing, purporting to be his will, executed at that time, was not the valid and subsisting will of the said Ensley Finney Haas.

They prayed that an issue be made up, which was done by answer of various defendants. The ease was submitted to a jury, and a verdict returned setting aside said will.

The contest of said will was based upon two grounds, viz.:

That by reason of age, disease and other causes, the said Ensley Finney Haas was incompetent to do or to understand ordinary business transactions, or to understand and appreciate what he was doing when the said will was signed; that he was then of unsound mind and memory, and was without sufficient mental capacity to know or to understand the extent of his estate, and the persons who would naturally be the objects of his bounty; and, second, that the will was procured to be executed by the defendant, Allen B. Gregg, with others conspiring with him to influence and persuade the said testator; and, by reason thereof, an undue influence was exercised over him by the said defendants at and before the time of the execution of said will.

After the death of the said Ensley Finney Haas, said will was admitted to probate and record by the probate court of this county; and this action was brought to set the same aside.

The said will, after making certain bequests, amounting to about the sum of $5,000, by item three, devised and bequeathed .absolutely to the defendant, Allen B. Gregg, all the rest and residue of the property, real, personal and mixed, of the said testator, the same consisting, in part, of a farm of 135 acres, besides other property, real and personal.

By the terms of the will, all the legacies were made a charge and a lien upon the real estate of the said decedent. The said Allen B. Gregg was named as executor in said will, which was executed on the 21st of April, 1908.

It appears by the evidence offered that the said decedent, Ensley Finney Haas, was, for a -number of years prior to his death, afflicted with wh-at is known as progressive locomotor ataxia, and that, by reason of such disease, he was, for some years prior to his death, physically unable to walk or to help himself in any way; that he was paralyzed from his waist down, and that he had to be carried whenever he moved from one place to another; that, by reason of his affliction, he was a great charge, having to be cared for continually by persons employed for that purpose.

It also- appears that he lived with his sister, Martha Goff, a widow, who took care of him and performed many of the services required by him on account of his condition, up until the day of her death, which occurred on the-day of June, 1907; that after her death, he had for a housekeeper, Harriett Hughes, who lived with him under a contract of employment until his death; that he also had in his employ, as a sort of body servant, to take care of him personally, one William Watson, who lived with him in that capacity until his death; that upon the death of his sister, he became the owner of the undivided half of a farm of 135 acres, he being already the owner of the other undivided half. He also had an estate for life, by the terms of her will, in another farm of 160 acres, besides being the owner of a large amount of personal property. At Ms death he had property, real and personal, of a value of between thirty and thirty-five thousand dollars.

The evidence discloses that during the whole time in which he had charge of this property, he transacted all the necessary business in looMng after the same, and in carrying on the business of farming said lands; that while he was physically incapacitated from doing any manual labor, he made all the contracts necessary for conducting the business of the farm; that he bought all necessary materials and sold the products thereof, and that he directed all the farming operations that were carried on on said land; what fields should be plowed, and what crops should be planted when plowed, and generally did all that could be done by a person of sound mind, who was in his physical condition, in the carrying on and the conduct of said business.

The things relied upon as showing that the said decedent was not of sound mind appear to be but few, as shown by this record. It seems that, on the day after the execution of the will, as is shown by the testimony of William Watson, who was his body servant and attendant, on awakening he told him to hitch up the horse, that he had to go to the .city of Newark on account of some important business that he wanted to have done. Watson told him that he was there yesterday, and that the business that he wanted to have done had been done at that time.

It appears from the evidence that, on the day the will was made, the decedent, Ensley Finney Haas, got some intoxicating liquor; that he drank some of it and took part of it home; that he no doubt was under the influence of liquor during the mght after his return home. But there is no evidence that at the time he made the will he was under the influence of liquor; but he directed what he wanted done, how his property should be disposed of, and gave directions for the maMng of the will, without prompting or assistance from Mr. Kibler, who wrote the will, or any one else.

Some eight months prior to tMs time he had visited Mr. Kibler’s office, and 'had executed a former will. When he returned to make the will in question, he brought back to the office said former will and stated to Mr. Kibler that he desired to make some changes in his will; directed what they were, and the will was written accordingly.

Without going further into details, or reviewing tüe vast volume of testimony which was offered in this case, pro and con, touching the capacity of the decedent to make a will at the time when the will in question was made, we have no hesitancy in saying and finding that, so far as his mental capacity was concerned, he was competent to make a will; and that the testimony offered in support of his mental capacity to make a will is clearer, stronger and more direct upon that issue than the testimony of the contestants as to the want of capacity.

There was much of the testimony that was offered on behalf of the contestants that was the testimony of non-expert witnesses, who gave their opinions, not based upon facts and observations which had come to their own knowledge, but from a state of facts submitted to them by hypothetical questions. We think there was error in permitting non-expert witnesses to so testify. The rule as to hon-exper't witnesses giving an opinion upon an issue of this sort is that the opinion must be based upon facts given by the witness upon which the opinion is based. Clark v. State, 12 Ohio Reports, page 483.

Another reason why the asking of these hypothetical questions was improper and the answers thereto incompetent is that, in a number of them, after reciting the facts as to the condition of the decedent, it was assumed in the question that his disease had progressed into paresis — an affection of the mind, which the record fails to disclose had ever existed.

The only other transactions which we. have been able to find upon which the plaintiffs below relied, as showing want of capacity, were the fact that, at one time within a year prior to his death, he had borrowed money of a brother of his sister’s former husband; that he had executed his note therefor, but told a number of persons that Gill Goff — the person from whom he had borrowed it — had made him a present of $500.

As a' third circumstance, it is claimed that he told a large number of people that he intended to remember them in his will and to give them a legacy, which was not done.

We do not think that these circumstánces are sufficient in themselves to overcome not only the presumption as to his capacity, but the decided weight of the testimony -sustaining such capacity. So, upon the first issue, viz, want of mental capacity, we think that the verdict of the jury is decidedly against the weight of the evidence.

Second. As to the ground of undue influence: To establish undue influence, the burden is upon the contestants, and the evidence appearing in the record in this ease, in our judgment, fails to establish this issue in favor of the contestants.

It is true, as claimed, that the will is not such as, perhaps, some others would have made. It is contended by the contestants that it is unreasonable and unfair. We do not think that the law sustains this theory. The contention as to undue influence upon the part of the beneficiary in procuring the will in question, has its principal support in the theory that as he was a stranger in blood to the decedent, it would raise a presumption _of undue influence exercised upon the testator.

It is further contended that the change in the will is evidence tending to show undue influence. A change of testamentary intention, bearing upon the question of undue influence in procuring a will, is sometimes an important circumstance; but its force depends mainly upon its connection with associated facts. If made for a reason satisfactory to the testator, although it may seem inadequate to a court investigating the question of undue influence, it furnishes of itself no ground for setting aside the will. A testator has a right to dispose of his estate in any way he may deem best. He is not required to make a.n equitable will; and he may, if he chooses, exclude his relatives; he may even exclude his children, if lie have any; and he may divide his estate unequally.

The question in all such cases is: Was the will the free act of a competent testator ? ,

The reasons for a change of intention in this case do not very satisfactorily appear, but the testimony shows that the change was made at the instance and direction of the testator himself. Courts of equity will not vacate a deed or set aside a will on the ground of influence or importunity, unless it has been unduly or improperly exercised. Fair argument and persuasion, or appeals to the conscience or sense of duty of the testator, if fairly made, lay no foundation for setting aside the will.

Upon the issue of undue influence as well as that of want of mental capacity, we think that the weight of the testimony is against the contention of the contestants and against the verdict of the jury.

We think also there was error in the charge of the court in this, to-wit, in defining what constitutes undue influence. The court said

“ It is coercion produced by importunity, or by a silent, resistless power, which the strong will often exercises over the weak and infirm, and which could' not be resisted, so that the motive was tantamount to force or fear.”

This definition could be applied in every ease of a will, and any influence that would induce a testator to give a legacy or bequest to any person whatever might be said to be undue influence under this definition; and the charge in this regard was misleading and erroneous.

It seems that the verdict in this case is the result either of a misapprehension of the testimony and the weight of the same, or was the result of bias and prejudice in favor of the contestants. The jury must have been influenced by that spirit which sometimes gets into the jury-box, that the will is not such as they would have made if they were disposing of the property that is involved in the will in controversy, and that the will in question was different from what they would have made under the same or like circumstances.

Upon the whole record, the court, is of the opinion that there was such a disregard of the weight of the testimony that the verdict of the jury and the judgment thereon should be reversed, set aside, and held, for naught.

The cause is remanded to the common pleas court for further trial and proceedings according to law. Exceptions are noted.


text:
    AUTHORITY OF COUNTY COMMISSIONERS TO BUILDJA HIGH LEVEL VIADUCT WITHIN A MUNICIPALITY.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel William Howell, a Tax-Payer, v. W. F. Eirick et al, Commissioners of Cuyahoga County, and John J. Fitzgerald, et al, as the Board of Deputy State Supervisors.

    Decided, February 27, 1911.

      Bridges and Viaducts — Authority of County Commissioners to Build, where Located Wholly within a Municipality — Persistence of a County Road, Notwithstanding Travel Deserts it for Other Routes —Bridges Sites — Sections 2421 and 7557.
    1. The authority vested in county commissioners by Section 7557, General Code,, to build bridges in certain cases, includes authority to construct a viaduct or high level bridge in a proper case.
    2. The fact that a part of a county road was for a time under the exclusive jurisdiction of a plank road company, and has since been de facto under the exclusive jurisdiction of the municipality within which it is now embraced, does not in law amount to an abandonment of the road, but its existence persists and the county . commissioners have authority to construct and maintain bridges thereon.
    3. The question of a site for a bridge is made by the statutes incidental tq the main question of authority to erect the bridge, and where its erection has been authorized the county commissioners have • the authority to appropriate whatever property may be necessary for the site.
    4. Where the termini of a proposed high level bridge or viaduct are located substantially within the limits of a county road, the fact that it follows a straight line, instead of the circuitous ro'úte made necessary by the descent to the bottom of the valley as the road was originally surveyed, is a matter of no importance so far as authority to construct the bridge is concerned.

      William, Sowell and Burton & Sake, for plaintiff.

      Walter S. Meals and John A. Cline, contra.

      Henry, J.; Marvin, J., and Winch, J., concur.
    Appeal by plaintiff.

       Affirmed without-, opinion, State, .ex rel, v. Eirick, 84 Ohio State, 503,

   This action, commenced in the common pleas and appealed to this court, is a tax-payer’s action to enjoin the building by the county commissioners of Cuyahoga county of "a county high level bridge over the Cuyahoga river upon the Cleveland-Milan road between Detroit and Superior avenues in the city of Cleveland ; said Cleveland-Milan road being a state road, ’ ’ according to the language of the preliminary resolution adopted by the county commissioners July 13. 1910.

Pending the action the question of building such a bridge has been submitted to and approved by the electors of said county, as involving an expense far -in excess of the statutory limitation of $18,000, and hence requiring such approval by the electors.

The amended and supplemental petition alleges "that the Cuyahoga river valley at the point referred to in said resolution is about one-half mile in width, occupied by numerous streets of the city of Cleveland, railroad tracks, and buildings, and that on either side of said valley the banks rise to a height of from 75 to 100 feet to the general level of the land on either side of said valley; that the Cuyahoga river occupies a channel in said valley about 200 feet in width,” and that said high level bridge is "to extend the entire distance across said river valley, and to be carried on arches or trestle work, so as to connect the level land at the top of the banks on either side of said valley, and to span the railroad tracks, public streets of the city of Cleveland, buildings, said river channel, and all intervening-space between the banks of said valley, so as to connect Detroit avenue on the westerly bank of said valley, with Superior avenue on the easterly bank, and form a practically level elevated roadway across said entire valley.”

The petition further alleges “that there is not at the place of said proposed structure any state or county road, free turnpike, improved road, abandoned turnpike, or plank road, and no such road in common use at or near the place of said proposed structure.” The petition also alleges, "That there is at the place aforesaid a viaduct spanning said river valley connecting Detroit add Superior avenues in the city of Cleveland and forming an elevated and level roadway about 50 or 60 feet in- width and about one-half mile in length, which viaduct was built and erected by the city of Cleveland about the year 1874, at great expense,” etc.

The petition contains other allegations tending to show that the proposed high level bridge will so interfere with said existing Viaduct as to constitute an unlawful invasion by the county commissioners of the exclusive jurisdiction of the city over.the present route of travel; that the original county road in and as a part of which said high level bridge is proposed to be erected, has long since ceased to extend, .if indeed it ever did extend, across the Cuyahoga river; that the existing viaduct affords a convenient route of travel, which has long been the exclusive route across said Cuyahoga river valley and that the high level bridge proposed to be erected departs not only from .the existing, but also and more widely from the ancient route of travel, in such wise as to touch said route or routes, only at the termini of the proposed improvement, and there only approximately. Relator denies that the improvement is a bridge, properly so called; denies that it is necessary, and denies that its location is on any county road of which the county commissioners have jurisdiction, or which is in common public use; all of which the answer puts in issue.

The county commissioners derive their' authority, if any, in the premises, from General Code, Sections 2421 and 7557, as follows: ,

"Section 2421. The commissioners shall construct and keep in repair necessary bridges over streams' and public canals on state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use, except only such bridges as are wholly in cities and villages having by law the right to demand, and do demand aüd receive part of the bridge fund levied upon property therein. If they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages. The granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the board of commissioners,” '
“Section 7557. The county commissioners shall cause to be constructed and kept in repair, as provided by law, all necessary bridges in villages and cities not having the right to demand and receive a portion of the bridge fund levied upon property within such corporations, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank roads, which are of general and public utility, running into or through such village or city.”

The evidence, including the agreed statement of facts, shows that the Cleveland and Milan road was laid out in 1827, “beginning at the east end of Superior lane at the center thereof, in Cleveland, and running — south 72 degrees west 14 chains 65 links to a post on the west bank of Cuyahoga river, bearing south 41 degrees east of the south corner of Alonzo Carter’s red house, and occupied by Joseph Mason, distant 90 links; thence south 57 degrees, west 1 chain 16 links; south 20 degrees west 13 chains 00 links; south 33 degrees 15 minutes W. 15 chains 50 links to the top of Cuyahoga Hill,” and so on to Milan in Huron county. The map which is put in evidence to show the locations of the road thus laid out, of the existing viaduct, and of the proposed high level bridge, discloses that the termini of the proposed improvement are substantially within the limits of the original highway, but that the new structure, as a whole, will span the valley in an air line, and stand to the route of the ancient highway in the relation, roughly speaking, of the cord to the curve of an arc. The existing viaduct runs at a somewhat lower level between the two.

Paragraphs 3 and 4 of the agreed statements of facts are as follows:

(3) “That Superior avenue is a public street of the city of Cleveland, with the westerly terminus at the east line of Water street in said city, and connects at said point with Superior lane, being the point of beginning of the Cleveland and Milan road, as set forth in the report above referred to.”
(4) “That the Cleveland and Milan road above referred to, from Pearl street westerly to Rocky river, followed the line of what is now called Detroit avenue. That about 1848, the Rock-port Plank Road Company was chartered under Ohio Laws (46 Ohio Laws, 152). Said corporation duly organized and took possession of and constructed a plank road over said Detroit street from Pearl street as far west as Rocky river, a distance of 5 or 6 miles; and said Plank Road Company erected and maintained toll gates thereon, and in 1869, the said limits of the city of Cleveland having been extended so as to embrace so much of said road as lies between Pearl street and Gordon avenue, the said Plank Road Company, by agreement with the city of Cleveland, and in consideration of $900 paid by said city of Cleveland, executed and delivered to said city of Cleveland a conveyance of that portion of its road between Bordon avenue and Pearl street; a copy of said deed is hereto attached as Exhibit A.”

The first contention of the relator is that the proposed structure is not a bridge within the meaning of the sections above quoted, but is, in contradistinction thereto, a viaduct. It is pointed out that the Legislature has itself recognized this distinction in Section 10 of the municipal code, where the language “construct or repair viaducts, bridges and culverts” is used. To the same point the case of Board of Commissioners of Carroll County v. Bailey, 122 Ind., 46, is cited, the syllabus of which is as follows:

“A structure, or culvert, oyer a ravine, made by filling in the depression with earth and gravel, there being in the center under the highway an archway of stone masonry covered by a parapet, which was erected for the purpose merely of draining surface water off: the public highway, is not a bridge within the meaning of the statute, which requires the board of commissioners of each county to cause all the bridges therein to be kept in repair.
“The term ‘bridge,’ in its common-law meaning, the sense employed by the statute, denotes a structure erected over a river, creek, pond, lake, or stream of water flowing in a channel, between banks more or less defined, although such channel may be occasionally dry, in order to facilitate public passage over the same.”

In the opinion of the court, at page 49, it is pointed out, however, that the Legislature of Indiana had in terms “restricted the authority of the county commissioners to the erection and repair of bridges over streams or water courses,” and that no such stream or water-course existed in that ease.

In Matter of Freeholders of Irondequoit, 68 New York, 376, which is also cited, the first paragraph of the syllabus discloses a • similar basis of distinction, as"follows:

“The act of 1857 (Chap. 639, Laws of 1857) providing for the building and repairing-of bridges over streams dividing adjoining towns, confers no authority as to bridges over bays, lakes or other bodies of water not ‘ streams, ’ or as to causeways or bridges over marshes between two towns.”

There are, indeed, some authorities which seem somewhat to limit the broad meaning of the term bridge, but our own Legislature has often used the word in the widest sense, notably in acts providing for overhead bridges across the Mahoning river, considered in State, ex rel, v. Davis, 55 Ohio State, 15, though these acts were there held to be unconstitutional because they were special legislation. So, also, our Supreme Court has expressly declined to narrow the significance of the term, in Smith Bridge Co. v. Bowman, 41 Ohio State, 37, holding that a railroad bridge is within the meaning of the'word as used in the mechanic’s lien statute. The dissenting opinion in that case is based upon an attempt to narrow the construction of the term. The word, as defined in 1 Bouvier’s Law Dictionary, 265, is as follows:

“A bridge is a structure erected over a river, creek, stream, ditch, ravine or other place to facilitate the .passage thereof, including by the term both arches and abutments. ’ ’ '

That the term “bridge” includes viaduct is expressly held in City of Argentine v. Atchison, T. & S. F. Railway Co., 55 Kansas, 730; State v. Inhabitants of Gorham, 37 Maine, 461; Whitelaw v. Freeholder of Gloucester County, 40 New Jersey Law, 302; Funk v. St. Paul City Railroad Co., 61 Minn., 435.

In State, ex rel, v. Commissioners, 49 Ohio State, 301, it was sought to mandamus the county commissioners of Hamilton county to erect a structure similar to the one proposed in the case at bar, under the authority of Section 4938, Revised Statutes, now General Code, Section'7557, above quoted, and though the court declined to interfere with the administrative discretion of the county commissioners, it is nowhere suggested in the opinion that the commissioners were without authority, under this section, should they choose to avail themselves of it, to build the structure in question. We have, therefore, no doubt that the sections of the General Code above .cited authorize the construction of a high level bridge or viaduct in proper cases.

The relator contends secondly, that the power of the commissioners does not extend to building bridges within the limits of a city upon which general power has been conferred for that purpose. But it is expressly held in Lewis et al v. Laylin et al, 46 Ohio State, 663, that county commissioners have authority to improve a state, county or township road, although the improvement embraces that part of the highway which lies within the limits of a municipal corporation. It is moreover distinctly intimated in City of Piqua v. Geist, a Minor, 59 Ohio State, 163, that the same rule applies to the erection of county bridges within the limits of municipalities.

Whatever ambiguity may have existed in the sections of the Revised Statutes, corresponding to the sections of the General-Code, above quoted, is here immaterial, because the proceedings looking to the improvement now proposed have been taken since the present codification of the statutes came into force. It may be true that the exception embraced in General Code, Section 2421, namely “except only such bridges as are wholly in cities and villages having by law the right to demand and do deinand and receive part of the bridge fund levied upon property therein,” is deprived of its force because of the circumstance that the only laws providing for such division of funds are apparently special laws and therefore unconstitutional; yet the fact remains that the same section now expressly provides that, “if they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages,” which are otherwise within their jurisdiction.

The relator further contends that, if the proposed- structure is properly a bridge and the commissioners have authority to build in cities, “they can not build in the location decided upon, because there is no state road or other road in common public use on which to build it, and it is not necessary.”

The diversion of the route of travel over the lines of the original highway to the present viaduct has not operated a discontinuance of the county road as such. Any disused portion of the highway, if utterly abandoned, is no doubt vacated by operation of law; but the county road, as such, persists, despite the new route of travel (Steubenville v. King, 23 Ohio State, 610; Silverthorne et al v. Parsons et al, 60 Ohio State, 331). It continues, in the language of the statutes, to be a road "in common public use,” or "of general public utility.” Nor do we think the ex-tinguishment of the county road is implied by the interest or action of the Rockport Plank Road Company either before or when it gave its deed to the city of Cleveland September 4, 1869, and did thereby "absolutely dispose of, release and abandon to the said city for the purpose of a public street all of that part of the plank road of said company which lies within the limits of said city and all the right and title of the said company therein and thereunto.”

In Plank Road Co. v. King, 2 Ohio State, 419, it was held that:

"The interest of the public in such roads consisting of a perpetual easement in the land covered by them, for all actual uses and purposes of public travel, may, at the discretion of the General Assembly, be transferred without any pecuniary equivalent, to a plank road company; such plank road still remaining a public highway, and subject to the same uses and purposes as before. ”

Although this part of the Cleveland and Milan road was for a time under the exclusive jurisdiction of a plank road company, and although it has since been de facto under the exclusive jurisdiction of the city of Cleveland, the county road, within the meaning of the statutes here relied upon, continues to exist.

As to the necessity of the new bridge, we can not, as a matter of law say that the existing viaduct, which was deemed adequate at the time of its construction in 1874, and which still continues to be the main route of public travel upon this road, is now, after the lapse of more than a third of a century, adequate and convenient to the use of the vastly increased population in the midst of which it is located. That question lies wholly within the discretion of the county commissioners, so long as that discretion is-not abused. State, ex rel, v. Commissioners, 49 Ohio State, 301.

It is further contended that “The proposed structure, as located by the commissioners, is not on the Cleveland and Milan road, and no authority has been voted to expend the public funds for a site for a bridge there. ’ ’ Whatever may have been the meaning of Revised Statutes, 2825, that section was superseded, prior to the commencement of the proceedings of the commissioners for the proposed improvement, by General Code, Section 5628, which imposes no limitation upon the county commissioners in respect to levying a tax for a bridge site. The section does make specific mention of sites for county buildings, but in connection with the buildings of county bridges, the subject of sites is ignored. The county commissioners have ample power, under the statutes, to appropriate whatever property may be necessary for the purpose in question, and to expend money in that behalf, without a vote of the electors, except as such authority may be required and given by the vote upon the question of erecting the bridge itself, and the question of site is left by the Legislature incident to the main question of erecting the bridge.

As already indicated, the agreed facts in this case show that the termini of the proposed improvement are located substantially within the limits of the Cleveland and Milan road. That the roadway, as elevated above the valley by the proposed improvement, is not in a vertical line above the old roadway, is of no importance. The obvious and proper way to erect a high level bridge across a valley is to erect it in a straight line. This necessarily involves a departure from the circuitous roadway required for the descent to the bottom of the valley as the highway was originally surveyed. The same condition obtained with regard to the Rocky river bridge. Silverthorne et al v. Parsons et al, 60 Ohio State, 331.

We have examined all the points made by the plaintiff in argument and in his brief without finding any sufficient reason to enjoin the proposed improvement as being beyond the authority of the county commissioners to make, or as.involving any such irregularity of procedure as to render the expenditure of money therefor illegal.

Our Brother Winch has refrained from participating in our deliberations, and the other'members of the court have independently^ reached the conclusions thus indicated. He is a resident and property owner in a part of the city which will receive a material advantage from the proposed improvement, and he wishes it to be understood that his personal opinion has in nowise contributed to the conclusions reached.

The petition will be dismissed.