author: WINCH, J.

text:
    COUNTIES — ACTIONS—STATUTES.
    [Cuyahoga (8th) Circuit Court,
    June 25, 1904.]
    Hale, Marvin and Winch, JJ.
    Henry T. Rahe, Admr. v. Cuyahoga Co. (Comrs.)
    County Commissioners Liable in Official Capacity foe Damages fob Wrongful Death, When.
    Ünder favor of Secs. 845 and 6134 Rev. Stat., an action may be maintained against the county commissioners in their official capacity by an administrator of one whose death is the result of the negligence of the commissioners in failing to keep a county bridge in repair.
    Eeeoe to Cuyahoga common pleas court.
    Johnson & Dunlap, for plaintiff in error:
    County commissioners are liable in their official capacity for damages for wrongfully causing death when the act which caused the death is such as would have entitled the party injured (if death had not ensued), to maintain an action and recover damages in respect thereof. Section 6134 Rev. Stat., which gives a right of action for wrongfully causing death, is purely remedial. Bishop, Written Law Sees. 19, 120; Tracy v. Card, 2 Ohio St. 431; 1 Chitty’s Blackstone 30, 61n; Dwarris, Statutes 734, 735. Burgett v. Burgett, 1 Ohio 469; Saterlee v. Stevens, 11 Ohio 420; Hays v. Armstrong, 7 Ohio (pt. 1) 247; Ratcliff v. Teters, 27 Ohio St. 66, 86; State v. Harmon, 31 Ohio St. 250; Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338; Moore v. Given, 39 Ohio St. 661; Rex v. Banbury, 1 Ad. & Ell. 136, 142; Commonwealth v. Loring, 25 Mass. (8 Pick.) 370; Jeffersonville (Mayor) v. Weems, 5 Ind. 547; Henry v. Tilson, 17 Yt. 479; Putnam v. Langley, 28 Mass. (11 Pick.) 487, 490; Bishop, Written Law 82; Debolt v. Insurance & Tr. Co. 1 Ohio St. 563; Brigel v. Starbuck, 34 Ohio St. 280, 285; Solor Refining Co. v. Elliott, 8 Circ. Dec. 225 (15 R. 551); Sec. 23 Rev. Stat.; Pennsylvania Fire Ins. Co. v. Carnahan, 10 Circ. Dec. 225 (19 R. 97) ; Murphy v. Hol-brook, 20 Ohio St. 137 [5 Am. Rep. 633]; Shearman & Redfield, Negligence Sec. 177; Ruck v. Williams, Hurls. & Nor. 308; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 455]'; Merkle v. Bennington Tp, 58 Mich. 156 [24 N. W. Rep. 776; 55 Am. Rep. 666].
    Chas. W. Stage, county solicitor, Z. T. Armstrong and J. L. Cannon, assistant county solicitors, for defendant in error:
    The statute, See. 6134 Rev. Stat., giving a right of action for wrongfully causing death, does not apply to a county.

      Neither the word “corporation” nor the word “person” as used in said Sec. 6134 Rev. Stat. when that statute was enacted, included a county.
    Not until April 13, 1894 (91 O. L. 142; See. 845 Rev. Stat.), was a county made liable for injuries resulting from a bridge upon a public highway being out of repair.
    We claim that the passage of the act of 1894, did not have the effect‘to extend the meaning of the words “corporation” and “person” so as to cover counties; but that those words “corporation” and “person” included only such corporations as, at the time Sec. 6134 Rev. Stat. was enacted, were liable for injuries resulting from neglect, i. e., private and municipal corporations.
    Both Sec. 6134 and that part of Sec. 845 Rev. Stat. which gives a right of action against a county for the negligence of county commissioners, are in derogation of the common law, and, therefore, should be strictly construed.
    That language, obviously, is intended to be restricted to actions $ rought by the person himself who has received such injury, and not by his legal representative; for an, injury caused by a bridge over a public highway, being out of repair, is an injury resulting from a nuisance, Cardington (Vil.) v. Fredericks, 46 Ohio St. 442; Zanesville v. Fannan, ' 53 Ohio St. 605, 619 [42 N. E. Rep. 703; 53 Am. St. Rep. 664]; 3 Blackstone’s Commentaries *220, and actions for a nuisance do not survive to legal representatives. 'Section 5144 Rev. Stat.; Wood, Nuisance Secs. 309, 319, 324.
    Neither a county nor a board of county commissioners is a body corporate proper. A board of county commissioners is at most a quasi corporation, and as such, is not liable in a civil action unless expressly made so by statute. Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, 110; State v. Hancock Co. (Comrs.) 11 Ohio St. 183; State v. Cincinnati, 20 Ohio St. 18; Finch v. Board of Ed. 30 Ohio St. 37 [27 Am. Rep. 414]; Dunn v. Agricultural Soc. 46 Ohio St. 93 [18 N. E. Rep. 496; 1 L. R. A. 754; 15 Am. St. Rep. 556]; Boalt v. Williams Co. (Comrs.) 18 Ohio 13.
    At common law no action of any kind can be maintained against the state. The statute will not be presumed to affect an existing state policy farther than the terms of the statute require. Sutherland, Stat. Constr. Sec. 321, n. 4.
    Long-established statutory policy will restrict the meaning of words to that policy. Sutherland, Stat. Constr. Sec. 407, notes 3, 4, 5.

      A statute creating a liability where none existed at common law should be strictly construed, and the terms should not be permitted to «extend any meaning beyond the clearly-expressed provisions of the act. Sutherland, Stat. Constr. Sec. 371.
    Counties which are component and essential parts of a state and the necessary agencies of its government, embodiments of the public, are no more embraced in the general words of the statute than the state itself. Cole v. White Co. 32 Ark. 45, 51.
    A general statute granting a right of action of any kind, will not be held- to include the state. State v. Board of Pub. Wks. 36 Ohio St. 409; State v. Railway, 37 Ohio St. 157, 176; State -v. Cappeller, 39 Ohio St. 207.
    These same propositions are true of a county, because it is an arm, ■or mere agency of the state. Wasteney v. Schott, 58 Ohio St. 410 [51 N. E. Rep. 34]; Gallia Co. (Comrs.) v. Holcomb, 7 Ohio (pt. 2) 232.
   WINCH, J.

Plaintiff as administrator of Charles Gessner, deceased, hied his petition in the common pleas court of Cuyahoga county against the board of commissioners of said county in their official capacity, alleging that «decedent came to his death in crossing a bridge on one of the county roads of said county, by reason of the negligence of said commissioners in failing to keep said bridge in repair. Damages in the sum of $10,000 were claimed for the benefit of the widow and surviving children of said decedent.

A general demurrer to the petition was filed by the defendants and ■sustained by the court below, and judgment rendered against the plaintiff. Thereupon a petition in error was filed in this court which brings before us for consideration and review a question raised by the demurrer, ■.and argued to us, to wit, will an action for wrongful death He against the commissioners of a county ?

This question was before this court in the case of Rose v. Cuyahoga Co. (Comrs.) unreported, several years ago and then answered in the negative, the court affirming the decision of the common pleas court for the reason stated in the opinion by Judge Phillips, of that court.

That opinion held that Sec. 845 Rev. Stat., which provides that -county commissioners shall be capable of suing and being sued in eases involving injuries to public, state and county roads, bridges, ditches, drains and water courses established by such boards in their counties, and that “any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence * * * of said commissioners in keeping any such road or bridge in proper repair, ’ ’ did not by its terms create a liability in favor of anybody arising out of the death of a person resulting from such negligence; that Sec. 6134 Rev. Stat., which provides,that in case of the wrongful death of any person, an action may be maintained by the administrator or executor of the estate of such person against the corporation which, or the person who would have been liable if death had not ensued, did not by its terms authorize the action against the county or its commissioners, because the county is not a corporation, and that both of said statutes being in derogation of common law must be strictly construed.

An able brief has been presented by counsel for plaintiff: in error suggesting strong reasons why the court should reverse itself and this-case, and we have thoroughly reviewed the reasons and authorities supporting his claim.

It is not suggested that Sec. 845 Rev. Stat. itself specifically provides a remedy in case of wrongful death by reason of the negligence of the commissioners, but that when read in connection with Sec. 6134 Rev. Stat. a liberal construction of the two statutes would authorize the bringing of an action therefor against the county commissioners in a proper case, although it is admitted that at common law an action for wrongful death would not lie.

It is claimed the decision in Rose v. Cuyahoga Co. (Comrs.) supra, while logical, reaches a wrong conclusion because its premise is wrong. The argument in that case was: Statutes in derogation of the common -law must be strictly construed; Secs. 845 and 6134 Rev. Stat. are in derogation of the common law; therefore they must be strictly construed.

It is suggested that the proposition should be stated as follows t Remedial statutes are to be liberally construed; Secs. 845 and 6134 Rev. Stat. are remedial statutes; therefore they are to be liberally construed.

Th'e wrong premise is evidently in the latter statement. These statutes, while in one sense they provide remedies for existing evils, do more than that; they create rights and liabilities; they make causes of action where before none existed. Such was the holding in the case of Pitts. C. & St. L. Ry. v. Hine, 25 Ohio St. 629; on page 634 of the opinion, Judge Gilmore, speaking of the act of 1851, which is now See. 6134 Rev. Stat. says:

“The right of action given by the statute of 1851 is in the nature of property in action, * * * . The right was not known to the common law * * * . Hence, the right of action, in such cases, could ■only be conferred by statute. * * # the act being in derogation of the common law, any restrictive language used in it (speaking of the proviso that such actions must be brought within two years of the death) must be construed against the right created by it. It would be •different if the act was merely remedial as to existing rights; such statutes are to be liberally construed.”

So, with regard to Sec. 845 Rev. Stat.; it is an innovation upon tne •common law; before its enactment no action would lie against the •county for damages resulting from the negligence of its commissioners, whether death ensued or not. At the time the legislature provided a liability for such negligence, it knew the extent of Sec. 6134 Rev. Stat. In a case involving a similar statute, the act of April 18, 1870 (67 O. L. 101), under which a-wife or child, who should be injured in person or property or means of support by an intoxicated person, might have a right of action against the person causing the intoxication, the Supreme Court makes the following observations:

“The seventh section of the liquor act, above quoted, was also an innovation upon the common law; as, before its enactment, there was no action for an injury caused by an intoxicated person, or in consequence of the intoxication, against the person who caused the intoxication. But since the action is thus given by the statute, the question is, whether, in view of the state of the law as it existed at the date of its passage, the terms of the section should be so construed as to extend the remedy to damages resulting from the death of the person intoxicated.
“Injuries ‘by any intoxicated person, or in consequence of the intoxication' are the terms of the statute; and it is contended that if intoxication causes death, and death causes injury, the latter is within the meaning of the act, On the other hand it is contended, that as the legislature must be presumed to have known'the state of the common law, and the extent of the innovation by the act of 1851 (by Sec. 6134 Rev. Stat.) if a further innovation had been intended, such intention would have been expressed in unmistakable terms. We incline to the latter view.” Davis v. Justice, 31 Ohio St. 359, 363 [27 Am. Rep. 514].

It was evidently with this conception of the law that in 1896 and again by amendment of the same act in 1898, the legislature, in providing that counties should be liable to a person injured by a riot, also provided that they should likewise be liable to his administrator, if the victim of the riot should be killed. Sections 4426-6, 4426-7, 4426-8 Rev. Stat.

In view of these decisions, both sections of the statutes should be strictly construed, and neither would seem to authorize the action here brought, but it is claimed that both together do authorize it. \

This can hardly be on the ground that the board of county commissioners or the county is a corporation, in the sense that said word is used in the statutes, for there are many decisions in this state to the contrary, if they are applicable to this case. Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, 110; State v. Hancock Co. (Comrs.) 11 Ohio. St. 183; Finch v. Board of Ed. 30 Ohio St. 37 [27 Am. Rep. 414]; Dunn v. Agricultural Soc. 46 Ohio St. 93 [18 N. E. Rep. 496; 1 L. R. A. 754; 15 Am. St. Rep. 556]; Overholser v. Home for Disabled Soldiers, 68 Ohio St. 236.

From the foregoing considerations we would be disposed to affirm the judgment in this case and adhere to our former ruling, were it not for the case of Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 455], where the question here raised was necessarily involved, but does not appear to have been argued to the court. Whether the Supreme Court would have reversed and remanded that case, or reversed and entered judgment for plaintiff in error, if it had fully considered the proposition here made, we are unable to say. Perhaps, upon a full presentation of the matter the Supreme Court may come to a different conclusion, but it is not for us to assume that it will.

The action was against a board of county commissioners to recover damages for the death of a person caused by the breaking down of a bridge by a traction engine drawing a water tank on which the deceased was riding. Judgment had been rendered for plaintiff in the common pleas court and circuit court; these judgments were reversed by the Supreme Court for error in the charge and for refusal to charge as requested, in that the trial judge did not submit to the jury whether the use being made of the bridge when the deceased received the injury which caused his death, was such usual and ordinary use of it as reasonably prudent persons in the situation of the commissioners, and charged with their duties, would, in the exercise of ordinary care, in view of all the facts, have anticipated would be made of the bridge and would be attended with danger of injury resulting to persons or property.

It appears, however, that a demurrer had been filed in- the case. The argument on the demurrer, doubtless, did not raise the precise question here presented, for we find the following language used on page 530 of the opinion:

“Another claim of the plaintiff in error, — one made on demurrer to the petition, is that, because the liability created by the statute is that of the commissioners in their official capacity, for their .official neglect, redress must be sought by action on their official bonds, which are required in order to secure a faithful and diligent performance of their official duties; and furthermore, that as the negligence charged includes the defective construction of the bridge, which was built before the act was passed, the action is not maintainable against the board of commissioners as constituted when the injury complained of was sustained. The material fact, however, from which the liability for a defective bridge arises, is the negligence of the commissioners in not keeping it in repair when the injury occurs; and the length of time the defect had continued before, or how it originated, are unimportant except as tending to show knowledge of its existence. The negligent omission to make needed repairs on a bridge known to be out of repair, is, within the purview of the statute, a negligent failure to keep it in repair. And, the liability of the commissioners in their official capacity, is the liability of the county they represent, to the person injured by their culpable neglect. 'Whether, in the first instance, recovery might be had on their bonds, or, whether the county may have recourse to them for reimbursement of the damages paid by it, are questions not now before us, and upon which we express no opinion. We are satisfied that, in a proper case, the action may be maintained as this one was brought, directly against the board of commissioners in their official capacity. ’ ’

Personally I am of the opinion that this last sentence means only that the Supreme Court considers that an action under favor of Sec. 845 Bev. Stat. is rightly brought against the board of commissioners in their official capacity, whatever the personal liability of the commissioners or their bondsmen to the county may be, growing out of thé negligence of the commissioners, and nothing more. I cannot believe that the Supreme Court, having stated specifically two questions which it says were raised by the demurrer, undertook to decide a third question thereby raised, but in no manner discussed by counsel or considered in the opinion.

However, a majority of the court is of the opinion that the language-used in the last sentence quoted is broad enough to be decisive of this case. Such being the case, further discussion of the matter is precluded and it is proper, and the law requires that the judgment of the court, below be reversed for error in sustaining the demurrer.

Judgment reversed.

Hale and Marvin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ATTACHMENT — CORPORATIONS—STATUTES.
    [Cuyahoga (8th) Circuit Court,
    June 6, 1904.]
    Marvin and Winch, JJ.; Hale, P. J., not sitting.
    Armour Car Lines v. Bigalow Fruit Co.
    Foreign Corporation Complying with Secs. 148c and 148d Rev. Stat. Exempt from Execution, When.
    Foreign corporations engaged in interstate commerce business, but not established within the boundaries of this state for the performance generally of their business, when they voluntarily take the benefit of the proviso in Sec. 148d Rev. Stat. and comply with the provisions of Sec. 148c Rev. Stat., are entitled to exemption from attachment under the provisions of Sec. 5621 Rev. Stat. upon the ground that they are foreign corporations.
    Error to Cuyahoga common: pleas court.
    Brewer, Cook & McGowan, for- plaintiff in error.
    Higley & Maurer, for defendant in error.
   WINCH, J.

In this case we are asked to review the action of the common pleas court of Cuyahoga county, in overruling a motion by plaintiff in error to discharge an attachment.

The petition in the case claims damages for breach of contract to care for two car loads of. strawberries shipped by defendant in error from Chattanooga to Cleveland in May, 1900, in refrigerator cars of plaintiff in error, which cars, it is claimed, were to be iced by the latter and kept at a low temperature in transit.

An attachment was issued in the case, the affidavit therefor stating as the ground for attachment: “That said defendant is a foreign corporation, engaged in transportation and interstate commerce business. ’ ’

The motion to discharge the attachment alleges that the statement as to the ground of attachment is untrue and that defendant below had complied with Sec. 148c and 148d Rev. Stat.

At the hearing on the motion it was shown that Armour Car Lines is a foreign corporation, that it owns and uses part of its capital and plant in Ohio, and certificates of the secretary of state were produced showing that it had complied with the requirements of Secs. 148e and 148d Rev. Stat. The bill of exceptions shows much evidence was introduced on the question whether said foreign corporation is “engaged in transportation and interstate commerce business,” plaintiff in error claiming that the legal conclusion to be drawn from the facts developed at the hearing is that it is not such corporation, and defendant in error claiming that it is.

In the view we take of this case it is immaterial whether plaintiff in error is engaged in transporation and interstate commerce business, ■or not, but conceding the claim of defendant in error, that it is, let us attempt to construe the statutes on the subject here involved. /

Section 5521 Rev. Stat. provides that the plaintiff may have an attachment when the defendant is a foreign corporation, except as provided in Secs.. 148c and 148d Rev. Stat.

■ Section 148e Rev. Stat. provides that every foreign corporation, incorporated for purposes of profit, now or hereafter doing business in this state, and owning or using a part or all of its capital or plant in this state, shall file a certain statement with the secretary of state and pay certain fees, and that every corporation subject to the provisions of said ■section which complies with its requirements, shall not be subject to attachment on the ground that it is a foreign corporation, provided that this section shall not apply to certain foreign corporations, including “transportation or other corporations engaged in Ohio in interstate commerce business.”

This proviso, conceding that Armour Car Lines is engaged in transportation and interstate commerce business, applies to said company, for it is a foreign corporation doing business in this state and owning or using part of its capital or plant in this state, and therefore Sec. 148c Rev. Stat. does not apply to it.

Section 148d Rev. Stat. provides that no foreign stock corporation, ■other than certain banking and insurance corporations, but not excepting transportation or other companies engaged in interstate commerce business, shall do business in this state without first having procured from the secretary of state a certain certificate which shall be delivered upon the corporation complying with the requirements of the laws of this state. No such foreign corporation without such certificate «hall maintain any action in this state upon any contract made by it in the state until it procures such certificate. Every such foreign corporation is required to file certain papers and statements and designate a person upon whom process against it may be served within the state, and pay certain fees.

Then follows a proviso that “such foreign corporations as comply with the provisions of Sec. 148c Rev. Stat., as amended May 16, 1894, ■shall not be subject to process of attachment under Sec. 5521 Rev. Stat., ■or any law of Ohio, upon the ground that it is a foreign corporation or nonresident of this state.”

Manifestly this proviso includes corporations not specified under 'Sec. 148c Rev. Stat., for there would be no use subserved in using this language if it were intended only -as a repetition of wbat is provided for in See. 148e Rev. Stat.

In this connection it is also significant that Sec. 5521 Rev. Stat. itself excepts from attachments such corporations as comply with Sec. 148d Rev. Stát.

We take it that the proviso in Sec. 148d Rev. Stat. includes all foreign corporations, except such as are specifically excepted in the-opening paragraph of the section, and transportation and other companies engaged in interstate commerce are not so excepted.

So far as this act is in conflict with the provisions of the federal constitution that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, and that congress shall have power to regulate commerce * * * among the several states, it is, of course, inoperative, as was held in the case of Toledo Commercial Co. v. Manufacturing Co. 55 Ohio St. 217 [45 N. E. Rep. 197]. That means that a foreign corporation engaged in interstate commerce business and not established within the boundaries of this state for the performance generally of its business, could-not be compelled to comply with said act, or punished if it did not comply. But Row about such corporations, which, though they cannot be compelled to comply with the requirements of either Sees. 148c or 148d Rev. Stat. yet voluntarily take the benefit of the proviso in Sec. 148d Rev. Stat. and comply with the provisions of Sec. 148c Rev. Stat.? Are they not entitled to exemption from attachment upon the ground that they are foreign corporations ?

Is it not possible that the legislature offered this exemption to such foreign corporations as it could not lawfully compel to comply with these two acts, as an inducement to their voluntary compliance so that the state’s revenues might be increased by the payment of the fees; required therein?

We think this explanation the only reasonable one for the existence of two laws on the regulation of foreign corporations, passed originally within three days of each other, and it gives effect to words which would otherwise be tautological.

It follows therefore that whether or not plaintiff in error is a transportation or other corporation engaged in Ohio in interstate commerce business, is immaterial. Having complied with the requirements of Sec. 148c Rev. Stat. it is exempt from attachment as a foreign corporation.

Judgment reversed.

Marvin, J., concurs.


author: MARVIN, J.

text:
    LIFE INSURANCE — EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    January 7, 1899.]
    (Hale, Marvin and Caldwell, JJ., of the Eighth Circuit, sitting in the First Circuit.)

      Abraham Plaut, Admr. v. Mutual Life Ins. Co.
    1. INSURANCE POLICY ISSUED BY FOREIGN COMPANY AN OHIO CONTRACT, WHEN.
    A life insurance policy issued hy a foreign insurance company is an Ohio contract, and its terms, together with the distribution of the amount paid thereunder after assured’s death, are governed by the laws of this state, when the application was made, the policy delivered, and all the premiums paid here.
    2. Section 3629 Rev. Stat. not Applicable to Insurance Policies Issued Before its Enactment.
    A wife was named as beneficiary in a policy of insurance issued on her hus-. band’s life, or, if she be not living at his death, then the amount thereof was to be paid to her children, etc.; the wife died before the husband, leaving a will whereby she disposed of her entire estate; both died without issue; the wife paid all premiums up to her death, which payments were continued by her executor up to the husband’s death; there was no person , in existence to whom the insurance could be paid under the terms set out in the policy: Held, that Sec. 3629 Rev. Stat. having been passed after the policy was issued, the provisions thereof, that in event the wife died before the husband, and there be no children upon her death, such policy shall revert to, and become the property of the party whose life is insured, do not apply; that the amount payable thereunder belongs to the wife’s, and not the husband’s estate, and is payable to her executor to be disposed of according to the terms of her will.
    3. Insurance Policies Form Part of Testator’s Estate.
    Policies of insurance which are the property of testator at the time of her death form a part of her estate, whether named in her will or not.
    ERROR to Hamilton common pleas court.
    Smith & Kuhn, for plaintiff in error.
    Cohen & Mack and Stephens & Lincoln, for defendant in error.

      This action was brought by plaintiff in error as administrator of the estate of Michael Schradzki, deceased, against the Mutual Life Insurance Company of New York.

   MARVIN, J.

This case comes here on a petition in error, the plaintiff here being the plaintiff below, the defendant here being the defendant below.

The case was tried below to the court without a jury, that being waived, and it resulted in a judgment for the defendant. A motion for a new trial being overruled, a petition in error was filed here. There is a bill of exceptions which, it is certified, contains all the evidence. Among the items of evidence was an agreed statement of facts from which it appears that the will of Hannah Schradzki was to be read in evidence, it was not copied, and we have nothing in the record to show what that will was, except the testimony of Fechheimer, who was executor of the will, and he testifies as to certain provisions contained in it; but in the view we take of the case it is not material. Attention is called to it however as being an item of evidence not appearing in the record.

The facts are these: Michael Schradzki and Hannah Schradzki were husband and wife; each died without issue. Hannah died in 1887, and Michael died in 1894. Two policies of insurance were issued upon the life of Michael; one on April 20, 1868, for $3,000, and the other on April 24, 1873, for $1,000. The beneficiary named in each policy was Hannah Schradzki, the wife of Michael.

The premiums upon each policy were paid during the lifetime of Hannah Schradzki by her. She died leaving a will wherein she made certain bequests to persons named in her will, and the balance of her property to a certain charity. After the death of Hannah, the executor of her will paid the premiums on each of these policies up to the time of the death of Michael. The policies in each case provide that payment shall be made of the amount insured to Hannah Schradzki, or, if she should not be living at the time^of Michael’s death, to her children, or their guardian, or their issue, in sixty days after due notice and proof of death.

As has been already said, these parties both died without issue. So that when Michael Schradzki, whose life was insured, died, there was no person in existence who, by the terms of the policies, would be entitled to payment.

The plaintiff here is administrator of the estate of Michael Schrad-zki ; he says that he is entitled to have this money paid to him, because of there being no person in existence to whom the insurance should be paid by its terms, and that Sec. 3629 Rev. .Stat. applies. That statute was passed in 1879, and it provides that:

“Any married woman may, by herself, and in her own name, or in the name of any third person, with his assent as her trustee, cause to be insured the life of her husband, for her sole use, for any definite period, or for the term of his natural life, and if she survives such period or| term, the amount of insurance becoming due and payable by the termsl of the insurance shall.be payable to her, to and for her own use, free| from the claims of the representatives of the husband, or ány of his creditors; a policy of insurance on the life of any person, duly assigned, transferred, or made payable to any married woman, or to any person in .'trust for her or for her'benefit, whether such transfer is made by her husband or other person, shall inure to her separate use and beneft, and that of her children, independently of her husband or his creditors, or of the person effecting or transferring the same, or his creditors; and the-amount of the insurance provided for in the preceding section, or this1' section, may be made payable, in case of the death of the wife before the-period at which it becomes due, to his, her or their children, for their' use, as shall be provided in the policy of insurance, or to their guardian,. if under age; but if there are no children upon the death of the wife., such policy shall revert, to, and become the property of the party whose" life is insured, unless it has been transferred as hereinafter provided.’'

Now, it is said this section controls in this case, and that the amount provided for in the policy shall therefore be paid to the representative of the husband — the administrator of his estate.

Before going further it should be said, that it is urged upon the part of the insurance company, that the disposition of this fund should be governed by the laws of the state of New York. It is a New York corporation; the policies were issued in New York. The facts are that the applications were made here, and the policies were delivered here, the premiums were all paid here, and we think (under the authority of the case of Cross v. Armstrong, 44 Ohio St. 613, 621, 622 [10 N. E. Rep. 160]) that this is an Ohio contract, to be governed by the laws of Ohio. But we think, as announced in the opinion of Judge Burket in the case of Ryan v. Rothweiler, 50 Ohio St. 595, 602 [35 N. E. Rep. 679], that the statute to which attention has been called does not apply. It may be said that it was obiter upon the part of the court to say what was there said, but we are content with the reasoning given and follow that opinion. The language of the judge is, that Sec. 3629 Rev. Stat. having been passed after the policy was issued, could not affect the rights of the parties.

That being true, this is the situation. I ought to say that it was said in argument as to the will of Hannah Sehradzki that the executor was authorized by the will to spend for the surviving husband not only the income of the estate, but such part of the property as was necessary for his support, and the executor states further, that he not only paid the (income in support of the husband, but he spent more than the income.

I The situation then, is, that Hannah Sehradzki paid all the premiums on the policies; she died testate, and by her will she disposed of her property. The executor of the will paid out of her estate from that time on all the premiums, and nothing was ever paid upon these policies by anybody except Hannah Sehradzki and the representative of her estate— the executor of her will. The statute does not apply.

The policies at the time of her death were hers; they became part of her estate; nothing was done afterward that transferred that interest from her estate to her husband. That being true, judgment for the defendant was right.

Nothing has been said in the’opinion about the matter of estoppel; but we do not think there was any estoppel from making a claim by anything that was done. It was said that the defendant was estopped; but that is immaterial. We hold that the policies were the property of the wife at her death, and became a part of her estate, and come under the provisions of her will, whether the policies are named in the will or not.

Judgment affirmed.

Haíe and Caldwell, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — WILLS—TRUSTS.
    [Lorain (7th) Circuit Court,
    April 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Burt Moore et al. v. Josephine Idlor et al.
    1. Widow not Bound to Exhaust Hee Separate Property or be in Actual Need Before Subjecting! Corpus of Life Estate to Her Support, When.
    A widow who waives her right of dower by electing to take under the will is not hound to exhaust all her separate property, or he in danger of , actual want or need, in order to avail herself of the corpus of certain property given to her for life “with power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support;’’ the corpus may he subjected if the income of her separate property and. the life estate is insufficient for her support.
    2. Children Take Pro Rate Under Will, When.
    The will of a deceased husband by which the widow was given an estate for life in certain property in lieu of dower, which she accepted, provided that “if at the death of my said wife, any of said property, or enough thereof remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit,” followed by several bequests amounting to $3,500 to three children and one grandchild, respectively, making §5,500 in the aggregate; a subsequent clause in the same item provided that “if at the decease of my said wife, there should not remain undis-posed of by her the sum of $3,500, then the same or what remains thereof Is to be divided pro rate between” the children and grandchildren referred to. Less than $3,500 of the property was left at the death of the widow; Held, there being less than $3,500 left at the widow’s death, which amount was insufficient to allow the widow to dispose, by will, of $2,000, and to pay the $3,500 of bequests to the children and grandchild as provided in the first part of the'will, the children and grandchild, in such event, can only take under the pro rate clause of the will.

      3. Application for Year’s Allowance Must be Made to Pbobate Court.
    Application for the widow’s year’s allowance must be made to the probate .court, which has original and exclusive jurisdiction; such application cannot be made to the circuit court.
    4. Life Tenant not Debtor of Remainderman but a Trustee.
    The relation of debtor and creditor does not exist between the life tenant and remainderman as such; the former holds rather as trustee. Suck trust continues in the executor of the life tenant who takes possession of the property after his death. ,

    4. Statute of Limitations not Applicable to Continuing Trust.
    The statute of limitations does not run against a continuing trust.
    C. W. Johnston, and J. H. Leonard, for plaintiffs:
    Charlotte Moore had only a life estate in this property with remainder over to the plaintiffs and Josephine Idlor, coupled with two powers, viz.: (a) The power to dispose of any or all of the property in ease she needed it for her support; and (b) to dispose of $5,500 by will, provided there was so much left her at her death. Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Greene v. Greene, 57 Ohio St. 628 [50 N. E. Rep. 1129]; Lepley v. Smith, 7 Circ. Dec. 264 (13 R. 189) ; Thurston v. Bissel, 7 Circ. Dec. 235 (13 R. 293); Turley v. Turley, 11 Ohio St. 173; James v. Pruden, 14 Ohio St. 251; Davis v. Corwine, 25 Ohio St. 668; Baxter v. Bowyer, 19 Ohio St. 490.
    The power to use for her support was on condition that she needed the property for her support. This condition is a condition precedent. 4 Kent’s Commentaries, 124; Page, Wills 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman v. Mersman, 136 Mo. 244 [37 S. W. Rep. 909]; Parmelee v. Railway, 6 N. Y. (2 Seld.) 74; ■22 Am. & Eng. Ene. Law (2 ed.) 1123,1124; Minot v. Prescott, 14 Mass. 496.
    This power could not be exercised except in case of actual need. 22 Am. & Eng. Enc. Law (2 ed.) 1156; Hall v. Culver, 34 Conn. 403; Peck-ham v. Lego, 57 Conn. 553 [19 Atl. Rep. 392; 7 L. R. A. 419; 14 Am. St. Rep. 130]; Griffin v. Griffin, 141 Ill. 373 [31 N. E. Rep. 131]; Lehnard v. Specht, 180 Ill. 208 [54 N. E. Rep. 315, 316]; Minot v. Prescott 14 Mass. 496; Rathbun v. Colton. 32 Mass. (15 Pick.) 471; Hammond V. Conkright, 47 N. J. 447 [20 Atl. Rep. 847].
    Conditions attached by the donor to the execution of the power must be strictly complied with, however unessential they may seem. 18 Am. & Eng. Enc. Law (1 ed.) 937; 4 Kent’s Commentaries, 330, 334, 335; 2 Washburn, Real Prop. 317; Smith v. Provin, 86 Mass. (4 Allen) 516; Richardson v. Crooker, 73 Mass. (7 Gray) 190; Roarty v. Mitchell, 73 Mass. (7 Gray) 243, 244; Wickersham v. Savage, 58 Pa. St. 365; Hall v. Towne, 45 Ill. 493; Rice v. Tavernier, 8 Minn. 248; Page, Wills. 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman. y. Mersman, 136 Mo. 244 [37 S. W. Rep. 909].
    The cashing of the notes was not a conversion. Burleigh v. Clough,. 52 N. H. 267, 283 [13 Am. Rep. 23, 39, 41].
    The rule of law governing .this class of cases is well and clearly stated in Bishop v. Tiemple, 11 Ohio St. 277, 281; 18 Am. & Eng. Enc.. Law (1 ed.) 930, 931, 933, 934; 4 Kent’s Commentaries (12 ed.) 334 to-336; Schouler, Wills Secs. 525, 526; 2 Jarman, Wills 272, 279; Blagge v. Miles, 1 Story 426 [3 Fed. Cas. 559].
    Tlie statute, 1 Yict. 26, Sec. 27, passed in 1837, changed .this rule-for England. Many states have altered their statute to follow the-English statute. 18 Am. & Eng. Enc. Law (1 ed.) 930; Schouler, Wills. Sec. 526; 2 Jarman, Wills 279. Hence they are not applicable in this, case.
    The statute must be pleaded or is waived. 1 Bates, Pleading 110;: Vore v. Woodford, 29 Ohio St. 245; Sturges v. Burton, 8 Ohio St. 215.
    Defendant will not be allowed to amend his answer setting up the statute of limitations. Angelí, Limitations Sec. 285; Sheets v. Baldwin, 12 Ohio 120,127,129; Jackson v. Varick, 2 Wend. 294; Eldred v. Oconto Co. 30 Wis. 206; Wolcott v. McFarlan, 6 Hill 227.
    Day is trustee and the statute does not run. Johnson v. Johnson, 51 Ohio St. 446, 460, 461 [38 N. E. Rep. 61]; Quinby v. Walker, 14-Ohio St. 193; Dabney v. Manning, 3 Ohio 321, 325. /
    An executor,.holds on the same terms as his testator. Perry, Trusts (1 ed.) Secs. 264, 269, 344, 828; Johnson v. Johnson, 51 Ohio St. 446' [38 N. E. Rep. 61]; Quinby v. Walker, 14 Ohio St. 193.
    The statute of limitations does not run against an express trust.. Perry, Trusts (1 ed.) Secs. 828, 863; Sec. 4974 Rev. Stat.; Fuller v. McEwen, 17 Ohio St. 288; Quinby v. Walker, 14 Ohio St. 193; but if the statute runs it is the six-year statute. Section 4981 Rev. Stat.
    Day is liable personally and not as executor. Quinby v. Walker,. 14 Ohio St. 193, 198, 199; Perry, Trusts (1 ed.) Sec. 263; Johnson v. Johnson, 51 Ohio St. 446' [38 N. E. Rep. 61]; Fuller v. McEwen, 17' Ohio St. 288; West v. Deán, 8 Ciro. Dee. 797 (15 R. 261).
    E. G. Johnson, H. C. Johnson and Lee Day, for defendants.
   MARVIN, J.

(Orally.)

The ease of Burt Moore,, Emma Gorham and William Idlor against Josephine Idlor and others, comes into this court by appeal fromi the court of common pleas.

The facts are, that on May 15, 1878, Amandar Moore, a resident of Lorain eonnty, Ohio, died testate leaving a considerable estate. He left a widow, Charlotte Moore, who lived for about eighteen years after the death of her husband. The plaintiffs, Burt Moore, Emma Gorham and the defendant, Josephine Idlor, are the only children of said testator who survived him, and they together with his said widow and the plaintiff William Idlor, who is his grandson, are the only beneficiaries under his will who have any interest in the subject-matter in this controversy.

The first item of the will of said testator is as follows:

"Item 1. After all my lawful debts are paid, I give and devise unto my beloved wife, Charlotte Moore, my farm situated in Avon township, Lorain County, Ohio, in section eighteen, containing about twenty-five aeres. I also give and devise unto her, two promissory notes, given to me by my brother Charles Moore, one for $1,200 and the other for $46 with all interest which may be due on them at the time of my decease, which notes are secured by mortgage on his home farm in Sheffield township, which mortgage I also give and devise to her. I also give and devise, unto her two notes given to me by William Kramer, for $500 each, secured by mortgage, on part of lot No. 4 South Bass Island, Lake Erie, with the interest due thereon at my decease. Also one note given to me by M. R. Moore and Leonard Moore for $500 and the interest due thereon at my decease. All of the above property I give and devise to my said wife, Charlotte Moore, during the term of her natural life, with the power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support, and execute and deliver a deed or deeds in. fee simple to the purchaser or purchasers of said twenty-five acres in section eighteen, Avon. If, at the death of my said wife, and of said property, or enough thereof, remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise, absolutely as she may see fit; $1,000 to my dáughter, Emma Gorham, now in California; $1,000 to my son, Burt Moore; $1,000 to my daughter, Josephine Idlor; $500 to my grandson, William Idlor.
‘‘If at the decease of my said wife there should not remain undis-posed of by her the sum of $3,500 then the same or what remains thereof is to be divided pro rata between my said daughters, Emma and Josephine, my son Burt, and Grandson William' Idlor, or to their heirs respectively. All of the above-mentioned and described property, real. and personal, devised to my said wife, is given and devised to her in lieu of her dower right in my estate. I also give and devise to my said wife, all of my household goods and furniture of every kind and description to be hers absolutely. ’ ’

Said widow elected to accept the provisions of this will. The executors of the said will in the settlement of the estate delivered to said Charlotte the personal property, except as hereinafter mentioned, which was bequeathed to her and took her receipt therefor; filed their accounts in the probate court claiming credit for the property so delivered to and receipted for” by her, and their accounts were approved.

The exception as to delivering to her the property so bequeathed to her is, that instead of delivering to her the $500 note against M. R. Moore and Leonard Moore given to her by the terms of the will, they delivered to her in lieu of said note a United States government bond for $500. This is shown by her receipt therefor and by the accounts filed by the executors in the probate court. So that there came into the hands of said Charlotte from her husband’s personal estate notes given by Charles Moore amounting to $1,200; notes given by William Kramer amounting to $1,000; and the United States government bond for $500. These notes were all secured by mortgage, and were all collected by her or for her; she had also the use of the twenty-five acres of land from the time of her husband’s death.

Mrs. Moore had property of her own, $8,000 or more independent of her husband’s at the time of his death, which she continued to own until her death.

Charlotte Moore died testate in 1895; her will reads as follows:

‘ ‘ I, Charlotte Moore declare the following to be my will.
“Item 1. I give to Jay Idlor, of Put-in-Bay, and to Bertie Moore, of California, each the sum of $100.
“Item 2. All the balance of my estate real and personal I give and bequeath to Nettie Hecoek, daughter of Isaac Hecock, deceased, Hattie Heeock daughter of Sarah Woodruff, deceased, Kate Miller daughter of Catherine Miller, deceased, Mary Day and Karl Day, widow and son respectively of Eugene I. Day, deceased, and to all of my nieces and nephews of my blood to share and share alike, save and except that said Mary Day and Karl Day shall together receive only an equal share with sa'd other named parties who are to share and share alike as stated.
“I name Sumner Day as executor of this will. He shall have full power without order of court therefor to sell my real estate and deed to purchasers to make in fee simple.
‘1 He need give no bond. ’■’

The defendant, Sumner Day, was duly qualified as executor of such will, and took possession of all the personal estate of which Charlotte Moore was possessed at her death, and proceeded to administer upon the ■same as her property. He also took possession of the twenty-five acre :farm.

The only item of personal property which came into his possession-in kind as it came from the estate of Amandar Moore was the $500 bond. It is true that the evidence is not such as to make it absolutely certain "that the $500 United States government bond, which was in the possession of Charlotte at her death, was the $500 bond which she received from the executors of the will of Amandar Moore. Mr. Day thinks that she had this bond prior to her husband’s death; but it is certain that she received a $500 United States bond from the executors of the will of her ibusband, and as a part of his estate. It was said in argument — attention was called in argument to the fact that the inventory filed by the ■executors of the will of Amandar Moore did not show such bond. Schedule D, which was read to us does not, but the inventory shows that there were United States bonds owned by him and a part of his estate, -and the receipt of Charlotte to the executors of Amandar Moore show that in lieu of the $500 note against M. R. Moore and Leonard Moore, she accepted a government bond which was not in terms bequeathed to her. So we find as a fact, that the bond which was in her possession at the time of her death was the same bond which came to her from the executors of the will of Amandar Moore. No other personal property, which was by the will of Amandar Moore given to her was in her possession in kind at the time of her death. The notes against Kramer and against the other parties named, either were collected by or were collected for her.

There was some claim made that $1,000 collected upon these notes, two of them, never was paid to her, but the evidence did not show that. The notes were all secured by mortgage, and so far as we can determine from this evidence were all paid, so that she became possessed of the avails of these notes when she parted with the notes.

It is urged on behalf of the plaintiffs, that since by the terms of -the will of Amandar Moore, the right to sell and dispose of the property which she took under the will of Amandar, could only be exercised in case it became necessary for her support, the language being:

“All of - the above property, I give and devise to my said wife ■Charlotte Moore, during the term of her natural life, with the power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support.”

It is urged that because sbe had property of her own sufficient to have provided for her support. Not necessarily the income of it, for it is shown that she was a considerable part of the time in such circumstances and in such state of health that she required assistance; but that in any event, whether the income of her own property together with thfe income of the property left by Amandar Moore was sufficient for her support, she was bound to have used her own property, a part of it if necessary for her support before she could avail herself of any part of the principal of the property left by Amandar.

In support of that we are cited to the case of Hull v. Culver, 34 Conn. 403, and the language used in that opinion goes very far toward supporting the proposition urged here by the plaintiffs.

It should be said here, that the will executed by the wife and providing for the support of her surviving husband, provided in these words: “I give all my estate to my beloved husband, to use during his natural life, and if he should want for his support to sell any part.or the whole of it for his maintenance, my will is that it shall be at his disposal.” The court held that the word “want” meant “need;” and said that before he could make sale of that property there must be an actual need; and in discussing that .proposition the court used this language, page 405:

“The defendant however urges, certainly not without plausibility, that the husband was to be the sole judge of his necessity. But as we understand it, the contingency was to be his actual need and not his expectations or opinion of it. The authorities on this point seem to be conclusive.” Citing 1 Hilliard, Real Prop. Chap. 57, Sec. 9, which we have not examined. Minot v. Prescott, 14 Mass. 96; Stevens v. Winship, 18 Mass. (1 Pick.) 318 [11 Am. Dec. 178], and Larned v. Bridge, 34 Mass. (17 Pick.) 339, which we have examined.

Without stopping to read from those cases, the cases do not, it seems to us, support the proposition which they are here cited to support, if the proposition is to be taken as meaning that the husband must have been in danger of actual want from all sources before he could make a sale of any of the property which it was provided in the will of his wife he might make sale of- if it became necessary for his support.

The other cases are, where, by the language of the will it is clear, the support was to be out of the property bequeathed.

There is this difference also to be noted. As a proposition of law it is the business of the husband to support his wife, it is the business of the husband to make provisions for the support of his wife after his •death, and if he fails to do it, the law makes a provision for her.

It is true the law makes a provision for a surviving husband; but it is not in the same sense the business of the wife to provide for the support of the husband that it is the business of the husband to provide for the support of his wife.

The will which we are considering provides in terms, that that which is bequeathed to the widow shall be in lieu of her dower.

The inventory of the estate of Amandar Moore and the settlement of the account show that his was quite a large estate. If this widow had rejected this will, she would have received much more in value than she received under the provisions of the will, and she parted with a very valuable right when she consented to accept the provisions of this will. It would seem inequitable that she should be required before she could .get anything more than the income of the little twenty-five acre farm and of about $2,700 of personalty, she should exhaust all she had herself in her support, and we hold that that is not the law applicable in this «ase.

It is shown by the evidence that the necessities of this woman were such as to make it reasonable to say that she required in addition to the income of her own separate property and the income from her husband’s, something out of the principal of this property. The evidence traces, as I have stated, no part of the personalty in kind, which was left by Amandar Moore, into the hands of the executor of the will of Charlotte Moore, nor into the hands of Charlotte Moore as remaining with her up to the time of her death, and we think it fair to say that she might very reasonably have expended in her support all of this personalty that was not still in her possession when .she died, to wit, the United States bond for $500.

It is furher urged here on the part of the plaintiffs, that whatever property Charlotte left at the time of her death, that came to her from Amandar, is to go to the parties named in this first item of the will as remainder-men, as being entitled to the property, a life estate in which was granted to Charlotte Moore, and that no part of that could be disposed of, or in any event no part of it was disposed of by the will of Charlotte, and a somewhat troublesome question in this case is, whether Charlotte did dispose of any part of it by her will, and indeed whether she had any right to dispose of any part of it by her will.

The language is peculiar. It is easy to conceive of circumstances where the language of the will would not exactly dispose of all this property.

Having given to Charlotte a life estate in this property, he says: “If at the death of my said wife any of said property, or enough thereof,”, enough for some purpose, “remains undisposed of, I give- and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit. ’ ’ If it was to remain with her up to her death, it is difficult to conceive of any way except by will that she Could have disposed of it. But before-she could dispose of it as we construe this will, theré must have been, enough property to have not only — the wording is peculiar. “If at the death of my said wife, any of said property or enough thereof,” that is, enough as we construe it to make the following bequests; if there is enough to do the things that I hereinafter speak of, she may dispose of $2,000 of it by will or otherwise, not necessarily by will. “Two-thousand dollars of it to be disposed of by my said wife by will or otherwise, absolutely as she may see fit; $1,000 to my daughter Emma Gorham,, now in California; $1,000 to my son Burt Moore; $1,000 to my daughter "Josephine Idlor; $500 to my grandson William Idlor.” Now, if there-was $5,500 or more, he has provided for the disposition of $5,500. “If at the decease of my said wife, there should not remain undisposed of by her the sum of $3,500 then the same or what remains thereof is to be divided pro rata between my said daughters Emma and Josephine, my son Burt, and grandson, William Idlor, or to their heirs respectively. ’ ’

Now, as a matter of fact, there was less than $3,500 left of this property at the death of Charlotte. There was the land, which it is not claimed was worth over that amount. It was stated to be worth about $1,400 by somebody, but no difference if it was worth $100 an acre, there-being only the land and the bond, there was less than $3,500. There was' not enough to make the disposition that he provided for, allowing-Charlotte to dispose of $2,000. Now it is true, that here would be a curious situation if there had been $4,500. Whoever had the duty upon him to determine what this will meant, would have to read something into it to make it mean anything. But bince that question isn’t here we need not undertake to say what would be done, nor do we .determine whether, if there had been $5,500 left, the residuary clause of the will of Charlotte, would have been a disposition of $2,000 by her. That question is not here; there was less than $3,500. That being true, we hold that the bond and the real estate go, under the will of Amandar Moore, to the plaintiffs and the defendant Josephine Idlor in the share of twó-sevenths to each of the three children of the testator and one-seventh to the grandchild named.

It appears in evidence, however, that the right of Josephine Idlor has been bought in by the executor, so that share will go to him as executor, whatever would otherwise have gone to Josephine. Two-sevenths to Day as executor, two-sevenths to Burt Moore, two-sevenths to (Emma Gorham, and one-seventh to William Idlor.

Some other questions were discussed in the case, one was, that no allowance was made to the widow, Charlotte, for her support for one year from the time of her husband’s death. No claim for such support seems ever to have been made; if it had been made, the court having original and exclusive jurisdiction in that matter has not been appealed to in this case, to wit, the probate court, and we cannot make any allowance for any support for the widow. It was urged on the part of the defendants here, that if these parties were entitled to anything, they were entitled as creditors and should have filed their claim for money with the executor. If they were claiming that' Charlotte Moore in her lifetime was indebted to them, that would have been the way; but they make no claim that Charlotte Moore ever owed them anything, she did not owe them anything; she held some property in trust, she to have the use of it for a lifetime with a remaiüder over to these parties.

When Mr. Day became executor of her will that trust was forced upon him and he held this property in trust, and that trust has continued. No statute of limitations to prevent plaintiffs from maintaining this action.

The decree may be that the real estate be sold, and of the net avails the disposition shall be .made as indicated; that Day shall make disposition of the avails of this bond together with whatever accumulations there have been since the death of Charlotte Moore, in the ratio already indicated.

And the costs of this whole proceeding may come out of this property.

Hale and Winch, JJ., concur.


author: VOORHEES, J.

text:
    MASTER AND SERVANT — RAILROADS—EVIDENCE
    [Richland (5th) Circuit Court,
    January Term, 1903.]
    Douglass, Voorhees and Donahue, JJ.

      Edward Whistler v. John K. Cowan et al.
    1. Master and Servant — Liability ron Act of Servant.
    A master is not responsible for the -wrongful act of his servant unless the act he done in the execution of authority, express or implied, given by the master.

      Z. Raileoad — 1-Liability for Expulsion of Trespasser by Employee, When.
    A railroad company is liable for the willful wrong of its employe in expelling a trespasser from its freight train while in motion to his injury only upon proof that the act was done by such employe in the course of his employment and within the scope of his authority.
    3. Same — What Must be Shown.
    In order to hold a railroad company responsible for an injury resulting to a trespasser upon one of its trains when there is no contractual relationship between the parties and the injury results from an order to get off the train by an employe other than the conductor, or the person in charge of the train, the party injured must establish one of two propositions: Either that there was direct authority given the employe to order such person off the train, or from the employment or position occupied by such employe giving the order that duty arises by implication of law.
    4. Same — Expulsion of Trespasser by Brakeman of Freight Train, Authority not Implied.
    Where a regular freight train is in charge of a regular crew consisting of a conductor, engineer, fireman and necessary brakeman, in the absence of evidence showing by course of conduct, custom or instructions, that brakeman thereof had authority to keep trespassers therefrom, such authority would not arise by implication simply from the fact that he was a brakeman.
    5. Same — What is not Sufficient Proof.
    If a brakeman expels a trespasser from such a train while in motion, and the- party expelled is injured thereby, proof of the fact that he was such brakeman is not alone sufficient to hold the company liable.
    6. Witness — Agent or Employe of Adverse Party Cannot be Called for Purpose of Cross-examination, When.
    It is not error to refuse to permit one party to a. suit to call the agent or employe of the adverse party for the purpose of cross-examination before such person had been offered as a witness by the adverse party. Section 5243 Rev. Stat. does not apply to an agent or employe of the adverse party.
    ERROR to Richland common pleas court.
    Edward T. Whistler, plaintiff in error, filed his petition in the court of common pleas of Richland county, Ohio, against John K. Cowan et al., receivers of the Baltimore & Ohio Railroad Co., in which it is alleged, that he, on or about April 18, 1898, boarded a freight train of the defendants’ company at Lexington, Ohio, and was bound for Mansfield, Ohio, and other points north on said defendants’ road, which said tr,ain was being conducted over said road by the agents of said defendants; that after said train had left Lexington, so situated on said road, and on which plaintiff was then riding, and after said train had attained a high rate of speed, to wit, fifteen or twenty miles an hour, one of the employes on said train, an agent of defendants, a part of whose duty it was to keep unauthorized persons off of said train, without any provocation, other than that plaintiff was riding on said train, te, the said employe, in a menacing manner, with, club in hand, approached plaintiff and ordered him to get off from said train. That plaintiff offered to comply with the demand of said employe on said train, whom he believed to be a brakeman, and who was a brakeman on said train, provided he would slow up the train or stop the same; that immediately after so communicating his intention to comply and act to said brakeman, he was again, in a most insolent, threatening and demonstrative manner ordered to leave said train instanter by said brakeman, who made no effort to slack the train, and thereupon said brakeman, in a most menacing and threatening manner, approached plaintiff and compelled him against his will to leap from said train, while it was in motion and while at said great rate of speed. The petition sets forth the injuries caused thereby to the plaintiff, and asks to recover his damages, which are stated at $15,000.
    Defendants’ answer, for the first ground of defense, is a general denial, and for a second ground say that plaintiff was well acquainted with the movement of trains and the tracks and premises where he was-injtired, and on said April 18, 1898, without necessity, excuse or promises therefor, went upon said defendant’s railroad train, and by his own negligence and want of ordinary care directly contributed to said injury.
    Plaintiff’s reply to this second defense was a general denial.
    On the trial to a jury, at the close of the plaintiff’s testimony, the court, on motion of the defendants, instructed the jury to render a verdict for the defendants, which was done. A motion for a new trial was overruled, exceptions taken, and judgment rendered on the verdict. A bill of exceptions containing all the evidence, was taken and made a part of the record. Error is prosecuted to this court to reverse the judgment of the court below.
    Douglass & Mengert and Vivian Abernathy, for plaintiff in error.
    Cummings, McBride & Wolfe, for defendants in error.

       Affirmed June 30, 1904, 70 Ohio St. 514, without report.

   VOORHEES, J.

The question is, did the trial court err in directing a verdict for the defendant on the evidence produced by the plaintiff.

Without restating the allegations of the petition it will be observed that the plaintiff does not allege therein, or contend in his evidence, that he was a passenger upon this train; but it does appear from the evidence, that on the occasion of the injury he was wrongfully on the train as a trespasser. It is contended that, notwithstanding he was a trespasser on the train, if an agent of defendant’s company or an employe* on said train, a part of whose duty it was to keep trespassers and unauthorized persons off from the train, did, in a threatening and menacing manner, when the train was running, at a speed of fifteen or twenty miles an hour, order plaintiff off of the same, and in obedience to such, order, under the circumstances stated, plaintiff in getting off was injured, the company would be liable.

The answer of defendants puts in issue the allegation of the petition that the employe on this train was authorized or had any authority or control of the train in its operation, or in keeping persons off who* had no right to be thereon. '

The right of the plaintiff to recover in this action turns upon this question: Whether the person who ordered plaintiff off the train was at-the time in the discharge of his duty, acting within the scope of his employment.

The petition does not allege who this employe was, does not describe his employment, except in one place the plaintiff says, that he was an employe and an agent of the company, a part of whose duty it was to keep unauthorized persons off from said train, and in another* place he alleges that “he believed said employe to be a brakeman, and who’ was a brakeman on said train. ’ ’ The evidence in the record upon this particular question is about as uncertain as the petition.

The plaintiff in his testimony,- in referring to the person who ordered him off the train, says,, “he was a brakeman.” ( There is no-other evidence that this person who ordered, him off. the train was in fact a brakeman. Testing the question we will assume that the person who did order plaintiff off the train was a brakeman on that particular train., It was a regular freight train.' Such . a train must have more than one brakeman in charge of it. A regular-crew must be assumed to have, had charge of the train on this occasion, which would consist of a conductor, engineer, fireman, and the necessary brakemen. . It was a train that did not carry passengers. It is conceded that the plaintiff was on this train wrongfully, not only in. violation of the statutes of Ohio, but without authority from any one in charge of the train. In other words, he was a trespasser. From the-evidence it appears that he and his companion, Bert Gray, got on the-, train after it had left the station at Lexington. ' After leaving this station and proceeding in its course toward Mansfield, this person, who-plaintiff designates as the brakeman, saw plaintiff and his 'companion* Gray, on the train,-and ordéréd them off.

Without going fully into the details as to what occurred between, the brakeman and these parties, it is sufficient to say, that from the; record it appears that the plaintiff claims that the brakeman with a. weapon in his hand and in a menacing manner advanced toward him- and ordered him to get off; that if he did not do so, he would knock him off; and, in obedience to these orders and threatening manner, he undertook to get off the ear he was on by going down the ladder — being a-box ear he was on top of it. On reaching the lower round or step of the ladder he jumped off, his foot went under the car and he lost his foot, and ankle.

It is not shown by any evidence in the record that the brakeman' had any authority to put persons off of the train. It is alleged in the' petition that he was so authorized. That is denied by the answer. The; record fails to show that he had. any authority in this regard.' The record does not undertake to disclose what authority this brakeman had, whether he had charge of any portion of the train, or what his duties were as brakeman.

The question resolves itself in its legal aspect into this: Is a railroad company liable for the act of its employe, a brakeman, in expelling a trespasser from one of its freight trains while in motion to his injury ?

The company is liable when the act is done by such employe in the course of his employment, and the act complained of is within the scope of his authority, otherwise not.

In order to hold the railroad company responsible for an injury resulting to a trespasser from the wrongful act of an employe, as in this ease, the party injured must' establish one of two propositions: either that there was direct authority given the employe to order the person off from the train, or that, from the employment .itself or position occupied by the employe, the duty arises by implication of law. It is not contended here that there was any direct authority given to this brakeman to do anything with reference to trespassers upon the train. There is nothing in the record showing or tending to show by any course of conduct, custom or instructions, that a brakeman was so authorized or required to act as a part of his employment. Does thia duty or authority arise by implication simply from the fact that he is a brakeman ? If it does so arise, then it would have been the duty of the company to show in this case that what this brakeman did was outside of his implied duty or authority.

In the ease of a trespasser.no duty except abstinence from wanton injury and gross negligence lies upon the carrier to make the carrier or master liable. Thé wrong done by the servant or employe must be an act within the scope of his duty and in the course of his employment. 2 Wood, Railroads 1382, See. 316, states the principle thus:

“While, in the case of passengers, because of the contractual duty existing upon the part of the company, the question as to whether the servant committing the injury had authority, express or implied, to do so, or, in other words, whether it was an act done within the line of his duty, is not material, yet when the question arises between a trespasser, or one to whom this duty is not owed, and the company, a different question is presented, and the company can only be made liable when authority, express or implied, to do the act is shown. Thus, the conductor of a train, being in charge of, and having full control over it, for the time represents the company as to any-matter connected with its management or control, and for an act done by him in the line of his duty, as by the ejection of a trespasser from the train, etc., the company would unquestionably be liable; but for the act of a brakeman on the train, who, without the direction of the conductor, should remove a trespasser from the train, the company would not be liable, unless express authority to do an act to which the act pomplained of is incident is shown because the act is not one which comes within the scope or line of his duty. ’ ’

In 3 Elliott, Railroads Sec. 1255, the author says:

“A railroad company owes trespassers no contractual duty; indeed, as already stated, the general rule is that it owes them no duty, except not to wilfully injure them, and this rule applies to those who are attempting to steal a ride, or otherwise trespass upon the company’s cars. They are not in a position to invoke the doctrine of apparent authority, and can only hold the company liable for acts of its employes done within the scope of their actual authority, express or implied.”

Outside of the exceptions as to passengers, the employes of a railroad company- may be divided into two classes: for the wilful wrongs of one class, though done to even a trespasser, the company is liable, because the act is done in course of their employment and within the scope of their authority; while for the same act done by a servant falling within the other class, it wiould not be liable. A company may be held liable for a trespass by a conductor of a freight train to a trespasser on his train, as in the case of Cincinnati, H. & D. Ry. v. Boyer, 10 Circ. Dec. 199 (18 R. 327), but not for the same act of and by a brakeman on the same train. .

These principles we consider to be supported by the following additional authorities:

Little Miami Ry. v. Wetmore, 19 Ohio St. 110 [2 Am. Rep. 373]; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634]; Nelson Business College Co. v. Lloyd, 60 Ohio St. 448 [54 N. E. Rep. 471; 46 L. R. A. 314; 71 Am. St. Rep. 729]; Planz v. Railway, 157 Mass. 377 [32 N. E. Rep. 356]; International & G. N. Ry. v. Anderson, 82 Tex. 516 [17 S. W. Rep. 1039; 27 Am. St. Rep. 902]; Marion v. Railway, 59 Iowa 428 [13 N. W. Rep. 415; 44 Am. St. Rep. 687]; Towanda Coal Co. v. Heeman, 86 Pa. St. 418; Bess v. Railway, 35 W. Va. 492 [14 S. E. Rep. 234 ; 29 Am. St. Rep. 820]; O’Neil v. Railway, 1 Circ. Dec. 610 (2 R. 504).

There is nothing in the record, applying even the scintilla ruie, tending to show that the act of this brakeman was an act done within the scope of his duty as such brakeman or employee of said defendants’ company. In the absence of such authority and duty he would stand to the company just as a stranger would. If a stranger had ordered plaintiff off the car, as did this brakeman, the railroad company would not be liable. The railroad company can only be liable to trespassers for the act of a servant when the act done is ordered by the master or is the result from necessary implication from the employment. There is no evidence in the record tending to establish either of these facts or conditions of liability. Therefore the court of common pleas did not err in directing a verdict for the defendants.

There is one other ground of error which will be briefly considered. It is contended that the court erred in refusing to permit the plaintiff in error to call the engineer of this train for cross-examination. The court refused to permit the engineer to be called for cross-examination because he had not been offered as a witness by the company. The court informed plaintiff if he desired to put the engineer on the stand, that he could do so, but he would make him his own witness, and not merely for cross-examination under the statute. This plaintiff was unwilling to do. Under the circumstances the court did not err in refusing to permit plaintiff to cross-examine the engineer.

The court was justified in taking the case from the jury for the reasons stated, and the judgment of the court is affirmed, with costs.

Douglass and Donahue, JJ., concur.


author: WILSON, J.

text:
    RAILROADS — MASTER AND SERVANT — CONTRACTS — RELEASE — WAIVER—PLEADING.
    [Clark (2nd) Circuit Court,
    June, 1904.]
    Sullivan, Wilson and. Dustin, JJ.
    Henry J. Bowers v. Detroit Southern Ry.
    1. Section 3365-20 Rev. Stat. Only Inhibits Releasing Claims nob Damages Accruing Befoee Execution of Release, etc.
    A contract whereby'a person about to enter, or in the employ of a railroad company surrenders or waives any right to damages against such company arising for personal injury or death, is not within the inhibition of Sec. 3365-20 Rev. Stat., if the injury which is the predicate of his claim for damages was, incurred before the execution of the contract; the right to damages which cannot be released is one thereafter arising. . The inhibition of the statute is not broadened, in such case, by the clause, “whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever.”
    2. Re-Employment of Injured Employe by Railroad Company not Against Public Policy.
    The re-employment by a railroad company of a person who was injured in its service, in such capacity as he may be able to serve, is not against public policy in that it favors the employment of incompetent persons, and endangers the safety of the public.
    3. Exhibit not Made Part of Pleading Cannot Be Considered on Demurrer.
    A copy of a contract which is attached to an answer and marked “Exhibit A,” but which is not made part of the answer, cannot be looked to for tne purpose of determining a demurrer to the answer. The court will, ini such case, confine itself to the averments of the answer.
    4. Contract Lacks Mutuality, When,
    A contract of employment in no stipulated capacity, for no stated period, except such as may be satisfactory to the employer, and for no designated wages, does not imply mutuality.
    6. When Consideration is of Some Value, its Inadequacy not Inquired Into— When Sufficient on Demurrer.
    While the consideration of a promise should be of some value, it is sufficient if it could be valuable to the party promising. Its inadequacy will not be inquired into by a court of law, unless it is per se so gross as to prove fraud or imposition. Hence, an answer of a railroad company, based upon a contract of re-employment of a former employe, which avers that in consideration of his re-employment, plaintiff released it from all claims that he had against, it arising out of any injuries sustained by the accident set forth in the petition, and that thereupon, in consideration of said release, defendant re-employed plaintiff and continued to retain him in its employ until such time as plaintiff voluntarily left its employ, is not demurrable for want of consideration or mutuality of contract.
    Error to Clark common pleas court.
    C. E. Ballard, for plaintiff in error.
    Oscar T. Martin, for defendant in error.
   WILSON, J.

The plaintiff in error filed a petition in the court below to recover from the defendant for injuries occasioned by the alleged negleet of the defendant. To the petition the defendant interposed an answer, tbe .second defense in wbicb is as follows: ■

“Second. And for a second defense defendant says that on November 18, 1902, said plaintiff, in consideration of his re-employment "by said defendant, released said defendant from any and all claims that .he had against said company arising ont of any injuries which he may have sustained by the accident set forth in the petition; and thereupon, :in consideration of said release the said defendant re-employed said plaintiff and continued to retain him in his employ until such time ■as the said plaintiff voluntarily left the employ of said defendant. A •copy of said release is hereto attached, marked ‘ Exhibit A. ’ ”

A demurrer was interposed to this defense by the plaintiff and •overruled, and thereupon, the plaintiff not desiring to plead further, judgment was had for the defendant and the petition dismissed.

It is claimed on the part of the plaintiff in error that the contract pleaded in the answer was void by reason of the provisions of See. •3365-20 Rev. Stat. The part of that section which applies directly to 'this case is the latter clause, which reads:

“And no railroad company, insurance society or association, or ■other person shall demand, accept, require, or enter into any contract, ■agreement, stipulation with any other person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he ■agrees to surrender or waive in case he asserts the same, any other right whatsoever, and all such stipulation and agreements shall be void, and •every corporation, association or person violating or aiding or abetting in the violation of this section shall for each offense forfeit and pay to “the person wronged or deprived of his rights hereunder the sum of not less than fifty dollars nor more than five hundred dollars to be recovered in a civil action.”

The injury which is the predicate of the claim for damages in this •case was incurred before the execution of the contract of release, which is challenged by the demurrer. The language of the statute is specific that as to personal injury or death, the right to damages which cannot be released is one thereafter arising. The further language, “whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever,” does not broadén the inhibition as to a claim for personal Injury. The contract in question does not come within the statute.

It is claimed it is void as being against public policy; that to permit a railroad company to enter into a contract of this kind would favor the employment of incompetent persons in the service of the corporation, and endanger the safety of the public.

We incline to think it is not so, for the reason that the railroad company would still be held to the rule that it is liable for failure to employ competent servants in all departments, and it ought not to be held against public policy to permit a railroad company to employ persons who have been injured in its service, in such capacity as they may be able to serve, as it often furnishes employment to persons who might not otherwise be able to obtain it.

It is said that the contract is without consideration and wants mutuality. There is attached to the answer a copy of a contract which is marked, “Exhibit A.” It is not made part of the answer, however, and cannot be looked to for the purpose of determining the demurrer. We can only look to the averments in the answer. We are free to say if the contract were pleaded so that the court could look to it, we would very seriously question whether that form of contract would impart any consideration. Re-employment for no stated time, only as may be satisfactory to said company — in no stipulated capacity — for no designated wage — does not imply mutuality.

But the averments in the answer are broader:

“In consideration of his re-employment by said defendant, the plaintiff released said defendant from any and all claims that he had against said company arising out of any injuries which he may have sustained by the accident set forth in the petition; that thereupon, in consideration of said release, the said defendant re-employed said plaintiff and continued to retain him in his employ until such time as the said plaintiff voluntarily left the employ of the defendant. ’ ’

The answer is not demurrable on that ground.

In the case of Judy v. Louderman, 48 Ohio St. 562, 563 [29 N. E. Rep. 181], the second syllabus reads:

“While it is necessary-that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising; and the law will not enter into an inquiry as to the inadequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition. ”

We do not think the contract, as averred in the answer, is of that character. The demurrer was rightly overruled, and the judgment of the court below is affirmed.

Sullivan and Dustin, JJ., concur.


author: HAYNES, J.

text:
    GAS AND OIL — WORDS AND PHRASES.
    [Wood (6th) Circuit Court,
    April 22, 1904]
    Parker, Hull and Haynes, JJ.
    Florence M. Griner v. Ohio Oil Co.
    Word, “Teems,” in On. Lease Refers to the Grant.
    The word, “terms,” used in a clause of an oil lease providing that “the terms of this grant shall not exceed twelve years,” which lease also contains a number of conditions and forfeiture clauses relating ,to the number of wells to be sunk, etc., refers to the grant, as well as to the conditions and collateral matter, and the effect of such clause is to limit the life of the grant to twelve years.
    Appeal from 'Wood common pleas court.
    J. E. Shatzel and J. W. Grabiel, for plaintiff in error:
    The instrument involved in this action is a lease. Ohio Oil Co. v. Kelly, 6 Circ. Dec. 470 (9 R. 511); Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. B. Rep. 1093; 34 L. R. A. 62]; Brown v. Fowler, 65 Ohio St. 507 [63 N. B. Rep. 76].
    The language of this contract should be construed in its usual and ordinary sense. Detier v. Holland, 57, Ohio St. 492, 503 [49 N. E. Rep. 690].
    Where the granting clause of a conveyance does not describe or limit the estate intended to be conveyed, the habendum, clause may be resorted to for that purpose. Brown v. Fowler, 65 Ohio St. 507, 521, 523 [63 N. E. Rep. 76]; Martin v. Jones, 62 Ohio St. 519, 525 [57 N. E. Rep. 238]; Jones, Real Prop. Secs. 652, 563; Kelly v. Hill, 25 Atl. Rep. 919 (Md.); Havens v. Land Co. 47 N. J. Eq. 365 [20 Atl. Rep. 497]; Bodine v. Arthur, 91 Ky. 53 [14 S. W. Rep. 904; 34 Am. St. Rep. 162]; Berry v. Billings, 44 Me. 416 [69 Am. Dec. 107]; 1 Washburn, Real Prop. 436, 439; 1 Washburn, Real Prop. (4 ed.) 440; Blackstone’s Commentaries, 11 Ch. 20; Jones, Real Prop. Sec. 562; McLeod v. Tarrant, 39 S. C. 271 [17 S. E. Rep. 773; 20 L. R. A. 846].
    Where both the granting clause and habendum are silent as to the term, the whole instrument may be looked to for guidance. Martin v. Jones, supra; Detlor v. Holland, supra; German Fire Ins. Co. v. Roost, 55 Ohio St. 581 [45 N. E. Rep. 1097; 36 L. R. A. 236; 60 Am. St. Rep. 711]; Wolfe v. Scarborough, 2 Ohio St. 361, 367; White v. Sayre, 2 Ohio 110, 113; Western Penn. Gas Co. v. George, 161 Pa. St. 47 [28 Atl. Rep. 1004]; Jones, Real Prop. Sec. 568.
    Written instruments construed to give effect to every part. McCoy v. Bixbee, 6 Obio 310 [27 Am. Dee. 258]; Worman v. Teagarden, 2 Ohio St. 380; Chamberlain v. Railway, 15 Ohio St. 225; Coal Co. v. Mining Co. 40 Ohio St. 559; Railway v. Railway, 44 Ohio St. 287 [7 N. E. Rep. 139]; Brown v. Fowler, 65 Ohio St. 507, 523 [63 N. E. Rep. 76].
    In conflict between the written and printed portions df a contract, preference is given to the written portion. Wichman v. Oil Co. 6 Dec. 540 (4 N. P. 407).
    The word, “terms,” in the clause, “The terms of this grant shall not exceed twelve years,” is general, universal, including the “term” or time, as well as all other terms, conditions and stipulations, granting clause and all. Bouvier, 11-p. 1109 “term;” Anderson’s Law Dictionary 1022; Brown v. Fowler, 65 Ohio St. 507, 532 [63 N. E. Rep. 76]. ’
    J. A. & E. V. Bope, for defendant in error.
   HAYNES, J.

The case of Florence M. Griner v. Ohio Oil Company comes into this court upon appeal, and has been heard upon the evidence.

The petition, filed by Florence M. Griner, sets forth that at a certain time there was an oil lease made by Myron L. Case to the Ohio Oil Company of a certain tract of land in this county, and that by the terms •of that lease, — or license as it is called in the petition, — the time limited for the production, or extraction, of the oil (the operation of the property), was limited to twelve years from the date of the making of the lease, and that period expired in June, 1903, at which time and since then the plaintiff, who is the grantee of Mr. Case of the lands, served notice upon the Ohio Oil Company of the termination of the lease, and that it should cease ,to drill or operate upon the lands for oil.

The defendant admits the execution of the lease, and claims that under it they took possession and have performed all of the conditions of the lease by them to be kept and performed; they drilled the wells required in the lease, which number eight; that they have been operating the property, and have paid the one-sixth royalty of the oil produced to the lessor, Case, and to Florence M. Griner since she has been possessed of the property, and they state that the lease has not terminated, that they still have a right to proceed to operate the lands for .oil, under that lease, and do so, so long as oil may be found upon the premises; — or to operate the land as long as oil andigas is found in paying quantities, as is the usual phrase.

The case has been- very fully argued by counsel- upon the part of the plaintiff, and upon the part of the defendant, and we' have endeavored to give the ease the. consideration that the arguments merit.

It is claimed by the defendant that the lease is a grant of all the oil -and gas upon the premises, or in and under the premises; that gas and ■oil, while in that condition under the premises, is a part of the real estate ; that they take it by a grant, and that they took it in full and complete title. Then follows the habendum, clause that they are to have and to hold it on the following conditions, — -and there are quite a number of those conditions stated, and among other things it states the number of wells that are to be sunk, the time in which they are to be sunk, and states the consequences that will follow if the parties fail to keep the terms of those conditions, — that they are required to pay a certain sum per year, or to forfeit a certain portion of the land for the nonperformance. Then follows the further clause: ‘ ‘ The terms of this grant shall not exceed twelve years.” Then follows in print: “It is understood between the parties to this agreement that all the .conditions between the parties hereto shall extend to their heirs, executors and assigns.”

Now, the controversy in this ease turns upon the construction of the word, “terms,” the meaning that is to be given to that word by the court.

It is claimed on behalf of the defendant that the grant is absolute and that the word, “terms,” applies only to the conditional or collateral matters attached to the grant, and not to the grant itself. On the other land, of course, the claim on behalf of the plaintiff is that by the express terms of this clause, the grant is limited to the period of twelve years, and that all rights under this lease terminate upon the expiration of the twelve years.

There have been many cases, as is well known, in the state of Ohio decided on the question of oil leases, and definitions have been given in certain eases to the instruments and the construction of the different instruments, and decisions of the rights of parties under them. Some of the eases we have been referred to are: Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62]; Detlor v. Holland, 57 Ohio St. 492 [49 N. E. Rep. 690; 40 L. R. A. 266] ; Kelley v. Oil Co. 57 Ohio St. 317 [49 N. E. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721], and Brown v. Oil Co. 65 Ohio St. 507 [63 N. E. Rep. 76].

■ I will refer to a single one of those cases, Woodland Oil Co. v. Crawford, supra, page 177, a case which resembles in part the case at bar. In that particular case there was a clause in the lease which provided for the termination of the lease at. the end of two years if no oil or gas was found upon the premises and if oil. or gas is found upon the premises, then the lease shall terminate, upon the expiration of twenty-five years.

Judge Burket, in delivering the opinion of the court, in speaking of this claim says:

“The proper construction to be placed upon such an agreement is,, that upon failure of the lessee to drill a well, or pay the rental, or both,, as the case may be, the lessor may elect to put an end to the lease, and. enforce payment of the promised rental, or sue for damages for failure-to drill the well, or he may elect to have the lease continue in force to* the end of the term, and enforce the drilling of wells, and the payment of rentals, as provided in the lease.' Such provisions of forfeiture are for the benefit of the lessor, and not for the benefit of the lessee. The-lessee cannot plead his own default or wrong, in discharge of his obligation to drill or pay rental.”

There was another clause in the lease that I do not find at this instant, but the substance of it is, that, if no oil or gas is found within, two years, the lease becomes null and void, but if oil or gas was found,., then, at the expiration of twenty-five years the lease terminated by virtue of that clause I have spoken of. It should.be stated, however, that in the habendum, clause the word, “term,” was used; that they were to* have and to hold for the term of two years. In the case at bar the word, “terms,” was used, but it is claimed that the word, “terms,” when it is. used in this form does not refer to the period of time, for the lease to-' run, but has reference to the conditions of the grant.

Now this paper is to be examined to ascertain, if possible, the understanding of the parties. The lease is drawn up between two parties- and is said to be in the handwriting of Mr. Case, a well-informed business man of this place.

First, he grants all the oil in the premises. It is said in some of these decisions that that it is a lease; it is a right of the party to go upon the premises of another and take from it the oil underlying the same, so long as the term of the lease runs. He has that right exclusively*. It is said also in one of these cases decided, that the oil, the mineral, is a part of the real estate while it exists in the ground; that it is fleeting in its nature; it is a fluid that runs according to the laws governing fluids; it may be upon the land of one today, and shift to the lands of another tomorrow. But so long as it remains upon the lands of one person, it is the property of that person. It is real estate until it is taken, from the ground, and then it becomes personal property.

Now what in sober sense was Mr. Case doing? He was giving the right to this party to go upon the premises and mine for oil, and! take the oil out; and of the oil that they got out, he was to have one-sixth, and the balance the company was to have for its own use. And be provided for the manner in wbicb tbe work is to be done or commenced; the number of wells that are to be drilled; he provides where they may not sink wells, either in the orchard or within a certain distance of the house; that pipes might t>e laid for the purpose of conveying the oil away, and that they should be covered, and various matters •of that kind are provided for, and then he comes to the clause in which he says, in the language I have read, that the terms of this grant shall not exceed twelve years.

It seems to us as clear as can be, that the understanding between •these parties, the intention of these parties, was that this lessee might ;go upon this property and drill wells and operate them for a period of twelve years, and at the termination of that time, the rights of the Ohio Oil Company ceased and determined; that it applied to the terms of this grant; it applied to the whole paper.

To hold otherwise, it seems to us, would involve us in some inconsistencies that would result in holding that the grant of the oil itself was valid, while all the various conditions under which it Vas held and-which were to be performed by the other party would be void and terminated. Evidently that was not the intention of the parties, and we think that the whole lease should be determined at the end of the period of twelve years.

It follows, then, from this view of the case, that the plaintiff should have judgment here as prayed for in this petition, and it is so ordered.

Parker and Hull, JJ., concur.