author: Shauck, C. J. Spear, J.

text:
    The State of Ohio v. Mason et al.

      Penalty for burglary — Section 68SS, Revised Statutes — Question when dwelling-house is inhabited — Burglary of premises during temporary absence of family — Criminal law.

    Within the meaning of section 6835, Revised Statutes, which prescribes imprisonment for life as the punishment of the crime of burglariously entering an inhabited dwelling-house, a dwelling-house is inhabited when the family have gone for a vacation leaving servants in charge of the house, though when it is burglariously entered the servants may be temporarily absent upon an errand.
    (No. 9475
    Decided March 6, 1906.)
    Error to the Circuit Court of Hamilton county.
    Mason and Sewell were indicted under section 6835 of the Revised Statutes, as amended October 22, 1902, for forcibly and maliciously breaking and entering an inhabited dwelling-house, the property of Paul Walker, with intent the personal property of said Walker to steal and carry away. To the indictment they pleaded not guilty. On the trial no evidence was offered by the accused. That offered by the state showed that the owner of the property with his wife had gone on a summer trip to Europe, intending to return at the close of his vacation, leaving their furniture and all their other household goods and wearing apparel in the house, the whole in care of two servants who regularly spent their days and nights in the house but were temporarily absent therefrom at the time of the breaking and entering, having gone to spend something less than an hour in shopping. The presence of the accused in the house was discovered by a neighbor who gave information to the police who promptly surrounded the house. One of the accused attempted to escape by jumping from a window of the second story, but was at once arrested. The officers having procured a key from the servants upon their return, arrested the other within the dwelling. The contents of bureau drawers' and trunks were found upon the floor and valuables had been taken. These facts being conclusively established, counsel for .the accused requested the court to direct a verdict of acquittal. This was denied, and the court instructed the jury correctly, as is admitted, unless it erred in instructing them that an inhabited dwelling-house does not change its character because of such a temporary absence upon an errand of those who regularly occupy it. The jury returned a verdict of guilty of breaking and entering an inhabited dwelling-house. A motion for a new trial was overruled and the sentence appropriate to the verdict followed. In the circuit court the judgment of the court of common pleas was reversed for error in the charge with respect to the meaning of the phrase “an inhabited dwelling-house. ’ ’

      Messrs. Rulison, Morris, Sawyer & Minning, prosecuting attorneys, for plaintiff in error.
    The question involved in this case is the construction of the words “inhabited dwelling-house” and “uninhabited dwelling-house,” as found in section 6835, Revised Statutes, as amended May 2, 1902.
    It must be conceded that the building alleged, by the indictment in this case, to have been broken and entered was a dwelling-house. But it is contended by the defendants in error that, by reason of the temporary absence of the two servants for household purposes, it was not an inhabited dwelling-house within the meaning of the act. We are therefore confronted with the question, “What did the legislature mean by an 'inhabited dwelling-house?’ ”
    It is the claim of the State that the construction of the term “inhabited dwelling-house” by the circuit court, as meaning one in which some one is actually present at the time of the breaking and entry, is entirely too narrow and unreasonable, and goes much further than the language of the statute justifies. While it is true that criminal statutes must be strictly construed, it is also equally true that strict construction does not mean distortion; and it would seem, upon consideration of the judgment' of the court below, that such is the result of its interpretation of the terms.
    The terms “inhabited dwelling-house” and “uninhabited dwelling-house” are not in any sense technical. Bishop on Statutory Crimes (3 ed.), sec. 101.
    Before the passage of the-act under consideration there was no classification of dwelling-houses in Ohio. All buildings used by men as places of abode were regarded as dwelling-houses, the law being only concerned with their use as dwellings, irrespective of the purpose for which they were built. Davis v. State, 38 Ohio St., 505.
    But the last legislature, as was suggested by defendant in error'in the hearing below, realizing the danger to human life involved in the breaking and entering of dwelling-houses, .undertook, by the passage of the act in question, to discourage this particular crime by attaching to it a penalty of the most severe character. At the same time, the legislature doubtless realized that in the ordinary course of men’s affairs there are many circumstances under which a house may not have a living soul dwelling in it for long periods of time, and yet preserve its identity as a dwelling-house. Summer-houses and winter-houses, houses left entirely unoccupied for long periods of time while their owners are following the dictates of business or pleasure, are recognized by the law as dwelling-houses. State v. Meerchouse, 34 Mo., 346; Harrison v. State, 74 Ga., 801; Com. v. Brown, 3 Rawle, 207; State v. Dan, 18 Nev., 345; Wharton on Criminal Law, sec. 791; Bishop on Statutory Crimes (3 ed.), sec. 279.
    For the extended periods during which such houses xemain unoccupied the crime of breaking and entering them ordinarily involves no more danger to human life than that of breaking and entering a storehouse or any other of the half-dozen or more buildings mentioned in the statute.
    These considerations justly gave rise to the desire, on the part of the legislature, to devise some classification of dwelling-houses in which the penalty to be imposed would be fairly proportioned to the damage sought to be prevented. For this reason, and no other that can possibly be imagined, the legislature was amply justified in classifying dwelling-houses into “inhabited” and “uninhabited,” and providing a different penalty for the breaking and entry of each.
    In dividing dwelling-houses into these two classes it may be fairly assumed that the legislature intended to create a classification of some stability, and, at the same time, one which would fairly accomplish its main purpose of offering all reasonable protection to human life.
    The fact that Ohio is unique in the use of the terms “inhabited dwelling-house” and “uninhabited dwelling-house” in its burglary statute deprives the State from presenting any authorities directly bearing upon their interpretation. So far as we are now aware, counsel for plaintiffs in error below cited but one burglary case in support of their contention. This was the case of State v. Moon, 62 Kan., 801.
    It is difficult to see how the comment of the Kansas court upon the definitely expressed intent of the Kansas legislature to protect only the actual occupant of a dwelling-house can be of any value in the case at bar, where the language of the Ohio statute is so far different.
    These cases cited by plaintiff in error below, viz.: Commonwealth v. Buzzell, 33 Mass., 160; Woodford v. People, 62 N. Y., 117; Lacy v. State, 15 Wis., 15; People v. Jones, 2 Edm. (N. Y.), 86; are all good law, but the humane consideration of one legislature, having special regard for the safety of those whose lives are endangered by the commission of the crime of arson, can control and limit those of another in providing for the possible safety of those whose lives are endangered by the crime of burglary, it is difficult to see. If the crime in each instance was arson and the.language of the statutes was the same or similar, the cases might be in point, but with such widely different crimes and statutes, the decisions can be of no possible value.
    It might be further said that arson and burglary, while both are crimes, are exceedingly different in their character; burglary is a crime of stealth, which can only be committed in the night season, when it is so dark that the face of a human being cannot be discerned at a reasonable distance. A man may easily enter his house without knowing that the perpetrators of the crime are there, and many a man has been killed for this misfortune; while arson, though stealthily committed, is a crime which, in its results, readily becomes apparent. It may be committed night or day, and in its perpetration only involves danger to the actual occupant of the dwelling-house. The perpetrator of the crime of arson slinks away from the scene of the crime after h’e has set fire to the building, while the burglar remains upon the scene after the breaking and entry to secure the fruits of his labor, and while so doing to avoid apprehension and its consequent punishment by means of murder if necessary.
    However; without abandoning our contention as to the difference between the wrong and the reasonable remedy in burglary and arson, it is interesting to note the ruling of the court when practically the same question of interpretation that we have here was actually in issue. Section 4311, Revised Statutes of Georgia makes the willful and malicious burning of an occupied dwelling-house punishable with death. After some consideration we are unable to see any difference between the use of the term “occupied” and “inhabited,” other than that it might he said that the latter is the more general term. In the case of Johnson v. State, 48 Ga., 116, the prosecuting witness left his home in the morning, returned the same evening, and found the house burned down; his wife left the house the same day, and there was no one in the house at the time it was burned. It was claimed by the defendant that this was not an occupied dwelling-house.

      Mr. Phineas S. Phillips and Mr. William Sander, Jr., for defendants in error. •
    It is contended by the state of Ohio that the construction of the circuit court of section 6835, Revised Statutes, as amended May 2, 1902, afterwards in 1903, is not reasonable.
    All the authorities have held, without an exception, that a dioelling-house is not a mere empty building, even though it may have been constructed and formerly used as a residence, but that it must be the home and the place of residence of some person or persons; the law being only concerned with their use as dwellings, irrespective of the purpose for which they were built. Davis v. State, 38 Ohio St., 505.
    In volume 2, Second American and English Encyclopedia of Law, page 926, tíre rule is laid down that is the rule not only in this country, but also in England. 2 Encyclopedia Laws of England, 208.
    The question to determine, therefore, is the intention of the legislature of Ohio in dividing dwelling-houses into two classes, inhabited and uninhabited. To arrive at that intention we cannot take the mere naked words used in the statutes, but must consider, in connection therewith, the present statutes, the law as it had existed prior thereto, the constructions which had been placed upon it, and the defects, if any, which the legislature sought to remedy.
    In view of the rule we have heretofore referred to, it is clear that an empty house, in which no one resides, would not be considered a dwelling-house, either inhabited or uninhabited; for while the courts have uniformly held that to constitute a structure a dwelling-house, it matters not whether there be a human being therein at the time of the commission of the offense of burglary, yet it is evident that when we speak of an uninhabited dwelling-house, we do not mean an uninhabited house, in which no one has resided and which is empty, for such a structure could in no sense be considered a dwelling-house of any class.
    If the contention of counsel for plaintiff in error is correct; that a dwelling-house which one has left for a limited period, to-wit: for a few hours or a day or two, is an inhabited dwelling-house, within the meaning of the statute under consideration, it is evident that the legislature created no classification whatever, for the construction which the state seeks to put upon the crime of burglarizing an inhabited dwelling-house would be precisely the same as the construction which has heretofore been placed upon the crime of burglarizing a dwelling-house under our former statutes.
    We think it clear that this was not the intention of the legislature. We think it clear that it was not the intention to punish more severely the crime of burglary irrespective of the fact as to whether human beings were in the structure at the time of the commission of the offense or not.
    Our view of the enactment of section 6835, as amended in 1902 and 1903, is that the manifest intention of the legislature of Ohio was to mete out a punishment for the offense of burglary which would be commensurate to the gravity and enormity of the-crime.
    In enacting this law and creating this classification, the legislature of Ohio was merely following a classification that had previously been made by nearly all of the important states of this country • and England, to-wit: Alabama, California, Georgia, Kansas, Massachusetts, Minnesota, Michigan, Missouri, North Carolina, Wisconsin, New York, as well as all of the English statutes.
    Burglary in these states is divided into two general divisions. The first grade is where the offense-is committed while there is a human being in the dwelling-house at the time of the commission of the offense. The second where there is no one in the dwelling-house at the time. The first grade is in all cases punishable by extreme measures, and in the second by a much milder form of punishment. The reason for this difference is obvious, for in the first grade there is coupled with the offense against the property the much more serious crime of an offense-against the person.

    All the decisions have recognized that the danger to human life is the single controlling point, and it is with ,a view to protecting it that the legislatures of the several states of our country have imposed the maximum penalty of imprisonment in such cases. State v. Moon, 62 Kan., 808; Commonwealth v. Buzzell, 33 Mass., 160; Woodford v. People, 62 N. Y., 117; Lacy v. State, 15 Wis., 15.
    The precise question now presented to this court arose in the state of New York, and this entire question has been determined by the courts of that state. People v. Butler, 16 Johnson (N. Y.), 203.
    Is this not the identical case at bar? Did not the legislature of the state of Ohio intend to do exactly what the legislature of New York did, when it made the offense of burning an inhabited dwelling-house an offense punishable by death, while that of breaking an uninhabited dwelling-house is punishable in a much milder degree.
    Construing this same statute (N. Y.) is the case of People v. Jones, 2 Edmond’s Reports (N. Y.), 86.
    Criminal statutes are to be strictly construed and yet under a most liberal construction no court would hold that conviction might be had for what might have been the result of the commission of the crime. People v. Butler, 16 Johns. Rep., 203, above cited, has been approved and followed by all the decisions in New York since that time. The strongest case on this subject is the case of People v. Fanshawe, 65 Hun (N. Y.), 77, decided in 1892.
    We submit that in the case at bar there was absolutely no offense committed against the person; no one was in the house or about the house at the time of the breaking and entering by defendants in error nor at any time while they were within the house or on the premises, indeed, the evidence shows that defendants in error were apprehended, under arrest and on their way to the police station before the occupants of the house again entered it.
   Shauck, C. J.

This is a proceeding in error under section 7306a of the Revised Statutes for the reversal of the judgment of the circuit court and the affirmance of that of the court of common pleas. State v. Budd, 65 Ohio St., 1. It is not a proceeding under sections 7306 and 7308 to present to this court exceptions taken hy the prosecuting attorney to an adverse ruling of the trial court for the purpose of having the law determined to govern similar cases, in which counsel may be appointed to argue the case against the prosecuting attorney. It follows that although counsel for the accused appear here to vindicate the judgment of the circuit court they are in no sense attorneys for that court.

The pertinent provision of the section of the statute under which the defendants were charged is as follows: “Whoever in the night season maliciously and forcibly breaks and enters any inhabited dwelling-house with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury shall be imprisoned not more than thirty years nor less than ten years; and whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter, any uninhabited dwelling-house, or any kitchen, smoke-house, shop, office, storehouse, warehouse, malthouse, still-house, mill, pottery, factory, water-craft, school-house, church or meetinghouse, barn or stable, railroad car, car factory, station-house, hall or any other building, or attempts to break and enter any inhabited dwelling-house (houses) with intent to steal property of any value, or with intent to commit a .felony, shall be imprisoned in the penitentiary not more than fifteen years, nor less than five years. ’ ’

Counsel for the defendants present the view that the distinction which the statute makes between an inhabited dwelling-house and an uninhabited dwelling-house, and the imposition of the graver penalty for burglariously entering a house of the former-description, is for the protection of human life, giving consideration to the liability to personal encounters between burglars and occupants who may be in the house when it is entered. No case, they say, can be within that purpose unless the persons-who inhabit the house are actually in it when it is burglariously entered. Since the statute contains-no technical words affecting the question, the purpose of the legislature can be ascertained only by regarding its words as used in their ordinary sense.. If we assume that counsel have stated that purpose' correctly, we must still recur to the terms of the' statute to ascertain what has been enacted for . its-accomplishment, that is, for the protection of human life. Did the legislature contemplate only those collisions which are likely to occur between burglars and persons who are within when they enter? Of did it also contemplate the collisions likely to occur when persons who have been absent from their homes return to find burglars already within? No-suggestion is made which can excuse us from considering the ordinary meaning of the words used by the legislature in defining the offense for which it has provided the graver penalty.

Counsel have diligently, and vainly, searched for like provisions in the statutes of other states.' But. the change in our own statute made by the amendment of 1902 deserves attention. Prior to that amendment, and for many years, the buildings which were the subject of a burglarious entering were, “any dwelling-house, kitchen, smoke-house, shop, office, storehouse, warehouse, malt-house, still-house, mill, pottery, factory, water-craft, 'Schoolhouse, church or meeting-house, barn or stable, or railroad car, car factory, or station-house.” The change effected by the amendment is to divide dwelling-houses into the two classes of inhabited and uninhabited. To enter a dwelling-house of the former class the graver penalty is affixed, while, as to the penalty, the uninhabited dwelling-house is left in the same category of buildings as formerly. If the general assembly were legislating for the purpose of establishing a distinction upon the ground of the actual presence of persons in, or their absence from the building at ■ the time of entering, it is quite unaccountable that it omitted to make a similar provision as to the other buildings if they should be occupied when burglariously entered; for it is within common observation that in the night season persons are actually within churches and others of the buildings named in the statute. The cases cited by counsel for the defendants in which there has been a construction of statutes relating to dwelling-houses “in which there shall be at the time some human being” do not seem to advance their view. Indeed since the legislature of this state has rejected the words which so plainly bear the meaning for which they contend and has adopted those of a broader meaning, we are forced to conclude that it had a more comprehénsive purpose in view. Unless we substitute words rejected for words used we must regard our statute as comprehending within the graver offense a dwelling-house which, as was this, is in daily use by those who inhabit it although at the precise moment of the burglarious entering they may be temporarily absent on an errand incident to the duties of housekeeping. Conformably with the practice of this court the point decided is stated in the syllabus. The propriety of limiting judicial decisions to the requirements of cases is obvious, for it has been frequently illustrated. But misunderstanding and embarrassment are likely to ensue unless the limitation is because of the presence or absence of facts which are of legal significance. It seems to me that they are likely to ensue in the present case if our decision is so limited as to suggest a resort to time pieces and measuring devices to ascertain the duration or the distance of the absence from an inhabited dwelling-house of those who inhabit it. We agree that the words considered are usepl in their natural meaning, and that meaning is not doubtful. A dwelling-house is a building which by the mode of its construction or reconstruction is suitable for a habitation. An inhabited dwelling-house is such a house used as a habitation. The ordinary use of a habitation embraces the protection and shelter of household goods and wearing apparel whether the inhabitants are present or absent. The proprietor of this dwelling-house was a school teacher. During the school year he inhabited it with his wife. When they went away to return at the close of his vacation, leaving their household goods and deities within its protecting walls and shades, they did not cease to inhabit it. The protection of homes is a subject worthy of legislative attention and the language of this act indicates that such was its purpose. If this view is correct, it is of no legal significance whatever that servants were left in charge of the house during the absence of the proprietor and his wife.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Price, Crew, Summers, Spear and Davis, JJ., concur.

Spear, J.

I am in accord with the judgment, and with the preceding opinion save the suggestion in the last paragraph that the dwelling would have been an “inhabited dwelling” within the meaning of the statute, even though servants had not been left in charge of the house during the absence of the proprietor and his wife. Many definitions of the word “inhabit” are given by lexicographers. As applied to this situation, it seems to me that it is the equivalent of to remain, dwell, or to abide within, as distinguished from to depart from. Adopting this definition an inhabited dwelling is one which is occupied and wherein usual processes of living and housekeeping are going on as contrasted with a dwelling, however furnished, from which the owners have departed for an indefinite stay, leaving no one in charge and in which no housekeeping is at the time being conducted. In my judgment the presence of the serving women, as shown by the record, and the occupancy by them of the house as the place where they at the time dwelt, saves the case for the state.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    State of Ohio for the use of The Board of Education of the School District of Cincinnati v. Griffith et al.

      .Public officer liable for malfeasance in office, when — Sureties on official bond — Answerable only within the letter of their contract — For unfaithful performance of his official duties — Not for dereliction outside limits of his office — Section 8985, Revised Statutes — Duty of cleric of board of education.

    1. A public officer is personally, and may be even criminally, liable for malfeasance in office; but tbe sureties on his official bond are answerable only within tbe letter of their contract for tbe unfaithful performance of bis official duties and not for dereliction outside of tbe limits of bis official duties. State v. Carter, 67 Ohio St., 422, distinguished.
    2. Tbe clerk of a board of education is not authorized, nor is it made bis duty by statute, to receive and become tbe custodian of tuition funds belonging to such board, and such board is not empowered by section 3985, Revised Statutes, to make a rule conferring such authority or imposing such duty on tbe clerk of tbe board; and where pursuant to such a rule, the clerk of tbe board was permitted to and did receive and have tbe custody of tuition funds which be failed to safely keep and account for, tbe sureties on bis statutory bond are not liable therefor.
    (No. 9051
    Decided April 3, 1906.)
    Error to the Circuit Court of Hamilton county.
    On the thirty-first day of May, 1887, the Board of Education of the School District of Cincinnati adopted a rule, which reads as follows: '“None but the children, wards and apprentices of actual residents of Cincinnati or free-holders whose homesteads are in part in Cincinnati shall, under any circumstances, be admitted free to the common schools of the city; and in cases of wards and apprentices Record evidence of the right of admission shall be furnished whenever required. Children, wards and apprentices of non-residents may be admitted by the trustees (school committee) of any district upon payment, in advance, to the clerk of the board of the following tuition fees, viz.: High schools, $70.00 per annum; intermediate department, $40.00 per annum; district department, $24.00 per annum; deaf mute school, $24.00 per annum, payable quarterly, semi-annually or yearly. ’ ’
    Thereafter, on the sixteenth day of April, 1900, one George R. Griffiths was chosen clerk of the board of education of the Cincinnati school district for the term of three years and until his successor should be chosen and qualified, and he immediately entered upon the discharge of the duties of said office. On the twenty-first of May, 1900, the said clerk gave bond to the state of Ohio in the sum of five thousand dollars, conditioned upon the faithful performance of all the official duties required of him as clerk of said board, and the defendants became and were sureties thereon; and upon the death of the said George R. Griffiths, which occurred on the first day of October, 1900, it was found that a large sum, to-wit, the sum of $4,668.75, tuition fees for attendance in the public schools in the city of Cincinnati, had come to his hands and had been converted by said clerk' to his own use. ■ Thereupon suit was begun in the court of common pleas of Hamilton county to recover from the defendants, as the sureties' of the said clerk, the amount claimed to be due from the clerk. The defendants demurred to the petition upon the ground that the same does not state facts sufficient to constitute a cause of action against them. These demurrers were sustained in the court of common pleas and judgment was rendered in favor of the defendants. The judgment of the court of common pleas was affirmed by the circuit court and this proceeding in error is prosecuted to reverse the judgments of the circuit court and the court of common pleas.

      Mr. H. M. Rulison, prosecuting attorney; Mr. Charles J. Hunt,.city solicitor; Mr. John V. Campbell; Mr. Hartwell J. Cabell and Mr.- Morrison R. Waite, for plaintiff in error.
    While, under the provisions of sections 4016, 4052 and 4057, a report or accounting of all receipts and expenditures was required of the .clerk on September first, and while the bond under his last election was not given until May 21,1900, his sureties were liable, if at all, for all sums unaccounted for received on and after the last preceding accounting day, which was September 1, 1899. Kelly v. State, 25 Ohio St., 567; Farrar v. United States, 5 Pet., 373; Bruce v. United States, 17 How., 438.
    No point is made by counsel for the sureties except on the main question: “Is there any liability?’’ They argue that because section 4042 makes the city treasurer the,,treasurer of the school funds, no school moneys might lawfully come into the hands of the clerk; that the rule adopted by the board of education and. set up in the petition is in contravention of the statutes, and, therefore, of no force; that the liability of sureties is strictissimi juris, and, because the clerk received these moneys without authority of law, the sureties can not be called to account for his default with respect to them.
    In approaching the argument, we concede two things:

      1. The liability of sureties is strictissimi juris.

      2. If the rule set up in the petition contravenes the statutes, it is of no force.
    In defense of our petition we urge two propositions :
    1. The rule relied on in no respect contravenes the statutes, but was passed in pursuance of authority given by them.
    2. Whether or not the rule was valid, the clerk failed in his duties in two respects:

      a. He issued no orders to the treasurer on which these sums would have been paid into the treasury; and,

      b. He made no report to the county auditor of these receipts.

      The rule does not contravene the statutes.

    It is not claimed by counsel for the sureties that the statutes expressly prohibit the receipt of school moneys by the clerk. What the statutes do is to make the city treasurer the treasurer of the school funds, and forbid him (the treasurer) to receive such school funds as were appropriated by the clerk, “except upon the order of the clerk.”
    Counsel asked the court to infer that because a treasurer is provided by law, no one but the treasurer could, under any circumstances, lawfully receive money due the board. The statutes do not say so*, and we find nothing in them to indicate that it was intended to do other than make the treasurer the ultimate custodian of the funds.
    The defendants ’ surety rely principally upon section 4047 as prohibiting, by implication, the receipt of any moneys by thé clerk.
    The mention of the clerk in section 4047 is only incidental in connection with the inhibition applicatile to the treasurer and to the county auditor in section 4048. If no money other than that received from the county treasurer is paid to the school treasurer, except upon the order of the clerk, and the «clerk performs his duty in the making of the report, ¡required by section 4047, to the auditor of all miscellaneous receipts by the treasurer, and in the making •of the statement required by section 4048, the auditor will be in a position to know the exact amount in the hands of the school treasurer, so as to determine whether, under , section 4048, any further moneys can be paid by the county treasurer to such school treasurer. The defining of the duties of the school "treasurer and the prescribing of the method of doing business, so that the amount of money to be entrusted to the school treasurer can be determined by the county auditor, seems to be the object of the two sections above mentioned. In so far as such sec-lions prescribe, in any way, the duties of the clerk, ■the sections are cumulative, and not in any way limitations upon the duties with which the clerk may be charged by other sections of the statute or by the board of education, in pursuance of its general powers. Sections 3985 and 4013, Revised Statutes.
    The board is to prescribe the terms upon which others than children, wards or apprentices of actual residents of the district are to be admitted to the schools. The rule adopted provides that the children, wards and apprentices of non-residents may be admitted upon payment in advance to the clerk of the board of certain tuition.
    The allegation of the petition is that said rule was in full force and effect at the time of the election and •qualification of the defendants’ principal as clerk of the hoard of education, and was so in effect up to and at the time of his death, and the sureties are-presumed to have known of the duties imposed on their principal, and to have had them in contemplation when they signed his bond. The statute gave the board the power to impose terms, and one of the terms was that tuition should be paid to the clerk. A sufficient reason, if any is necessary, for this rule, is the saving of money, time and inconvenience to the children who had to pay tuition. Most of them non-residents, they would attend the schools nearest their homes, and these schools would, ordinarily, be in the outlying precincts of the district, most remote from the offices of the clerk and the treasurer of the board. It would likewise save the clerk and the treasurer time and annoyance in that the collections might be made of all tuition pupils of a school at one and the same time. State v. Carter, 67 Ohio St., 422; Dillon’s Municipal Corporations, sec. 308.
    By section 3985 the board is empowered to make riiles and regulations for its government, and the government of its appointees. By section 4013 the board is authorized to admit non-resident pupils upon such terms, or upon payment of such tuition as it may prescribe. The board, in pursuance of this authority, passed the rule of May 31,1887, which provided for the payment of tuition to the clerk. We had just as much authority as had the council of Madisonville, and it was exercised as formally and for as good reasons. A legal duty was imposed, and that duty was violated. Why should the bondsmen escape?
    If the clerk had received this money colore officii? and not virtute officii, we submit that the sureties would be liable for Ms default with respect thereto. Mechem on Public Officers, sec. 284; Feigert v. State, 31 Ohio St., 432.
    So that we have authority on which to hold the sureties, even if the rule impose no duty.

      If the rule was bad the sureties are, nevertheless, liable for—

      a. No money other than that received from the county treasurer might be paid to the treasurer of the school funds, except upon the order of the clerk. When such money was offered to him it was his duty to issue an order to the treasurer to receive it, and he failed in this; and,

      b. By sections 4047, 4052 and 4057 he was required to report the amount of miscellaneous receipts to the county auditor. He failed in this. Throop on Public Officers, sec. 244.
    If there had been no defalcation, and nothing had been lost to the school district, we would still be entitled to nominal damages for the clerk’s failure to perform the duty imposed with respect to the ma.kiug of his annual report, and the demurrers should have been overruled for this reason.
    In their supplemental brief plaintiffs in error cite and comment upon the following authorities: Halbert v. State, 22 Ind., 125; Jones, Auditor, v. Commissioners, 57 Ohio St., 189; City of Greenville v. Anderson, 58 Ohio St., 463; Abbott v. Inskip, 29 Ohio St., 61; Railway Co. v. Gaffney, 65 Ohio St., 104; State v. Carter, 67 Ohio St., 422; Meyer v. Muscatine, 1 Wall., 384; Woodborne v. Scarborough, 20 Ohio St., 57.

      Mr. Powel Crosley; Mr. E. S. Aston and Mr. Frank F. Dinsmore, for defendants in error.

      As .said by the solicitor in his brief, the moneys received directly from the 'county treasurer are not required to be paid to the school treasurer upon an order of the clerk, the reason being that the system of checks contemplated by the statute is fully maintained without the clerk’s order. The county auditor, as well as the county treasurer, have this check upon the school treasurer and the statutes provide for an annual settlement between the school treasurer and the county auditor. The purpose of the report or account provided in section 4047 to bé made by the clerk of the board to the county auditor, is for the purpose of preserving this scheme of checks, so that the county auditor will be advised of the moneys received by the school treasurer other than that which came to him directly from the county authorities. In the annual settlement to be made under section 4044, the county auditor would have in his possession, derived from other sources than the school treasurer, the exact amount of money received by him in the course of the year.
    It is not upon any inference or implication of statutory duties that we make this claim. The scheme is apparent upon the face of the statutes and we merely seek to maintain'it. The plaintiff in this case wants to destroy it.
    A consideration of the statutes will further develop the correctness of our position. Section 3980.
    Sections 3897, 3982, 3984, 4042, 4043, 4044, 4047, 4048, 4049, 4050, 4053, 4054, 4055, 4056, Revised' Statutes. It will be seen by these sections that there is no authority given to the clerk to receive or disburse any money. Several sections of the statutes, as cited, particularly negative the idea that the clerk is a receiving or disbursing officer in any sense of that term. He-is a clerical and recording officer, the bookkeeper, in other words, of the board, having charge of its records and its accounts. This is made clearer when taken in connection with the statutes relating to the office of the treasurer.
    At this point attention should be called to the term “miscellaneous receipts” as used in section 4047 and the term as used in the amended petition. The term as used in the statute evidently refers to all money other than that received from the county treasurer. And in the case at bar would include the tuition fees, together with the other receipts denominated “miscellaneous ’ ’ by the plaintiff in this case. The rule, however, refers only to the tuition fees and gave no authority for the collection of the other moneys set out in the amended petition.
    The only statute which is cited and which it is claimed conflicts with the statutory scheme claimed by us to exist is section 4027. That section was repealed May 12, 1902 (95 O. L., 622). It provided for a fine for certain offenses, to be collected in an action in court, instituted by the board in the name of' the state. And the clerk was made the officer in charge of the law suit on the- part of the board. Necessarily, it was proper, that he, as the recording and auditing officer should have charge of the litigation, and upon the completion of that litigation should collect and pay over the money produced as the result of it. While it is true that this statute to a certain extent would, authorize the clerk to receive from the attorney of the board, as the result of the judgment of the court, certain moneys, it can easily be seen that this in no manner conflicts with the statutory scheme of checks to which we have referred, for the reason that the money collected by him would be a matter of court record and public notoriety.' We do not believe, therefore, that this section in any way conflicts with the argument made by us. We do not know the reasons for the repealing of the section, but it may have been for the very reason now claimed on the part of the plaintiff.
    The rule of the board was adopted, under two sections of the statutes. Sections 4013 and 3985.
    The first section, in authorizing the board .to prescribe the terms for admission of persons to the schools and the payment of tuition, confers no authority to designate the officer to whom payment is to be made. It is the amount of the payment which the board has the authority to prescribe and not the person to whom the payment should be made. The statute prescribes the person to whom the payment should be made and the manner of making those payments in detail. That is sections 4047 and 4055 provided that the payment should be made to the treasurer upon the order of the clerk. Consequently this section gave no authority for the passage of the rule.
    The second section referred to contains n© direct authority for the passage of such a rule as we have here. 'And as these two sections are the only ones claimed as authority for the rule, we think the plaintiff fails to maintain its case in this respect.
    There being no statutory authority for the clerk to receive the money, and the rule being invalid, for that reason, the defendants claim that in view of the principle applicable to sureties, there is no liability on the bond in this case. The solicitor approaches this question with a concession of the principle that the liability of a surety is strictissimi juris, but. he seems to be unmindful of the force of the rule, which he admits. To appreciate the full effect of that principle of law, see the language of Judge Ranney in McGovern et al. v. State of Ohio, 20 Ohio, 93; State v. Medary, 17 Ohio, 554; State of Ohio v. Cutting, 2 Ohio St., 1.
    We deem it advisable to present some of the authorities in which courts have had occasion to apply the rules of law applicable to sureties, under facts substantially the same as those in the case at “bar. It is said in one of the briefs that these cases are inapplicable, for the reason that the bonds were conditioned not for the faithful performance of ■duties, but for the faithful accounting of moneys. In some of the cases the bonds read one way, and in •some cases the other, and a careful examination of these authorities has convinced us that there can be no distinguishing of cases upon this line of argument. And this court, in City of Greenville v. Anderson, 58 Ohio St., 463, did not mean to draw such a distinction as would be applicable to the state of facts now before the court. The People v. Pennock, 60 N. Y., 421. This case is in principle, and as to the facts, practically the same as the case now before the court, even to the passing of the rule by the board authorizing the receipt of the money by the clerk. Orton v. City of Lincoln, 156 Ill., 499; State v. Moores, 56 Neb., 285; County of San Luis Obispo v. Farnum, 108 Cal., 562; State v. Bonner et al., 72 Mo., 387.
    The following cases, in addition to those cited, are •directly in point and fully sustain the proposition ■claimed by us:

      Knox County v. Goggin, 105 Mo., 182; State ex rel. v. Moeller, 48 Mo., 331; Governor v. Perrine, 23 Ala., 807; People, etc. v. Cobb, 10 Col. App., 478; Lowe et al. v. Guthrie, 4 Okla., 287; Ward v. Stahl et al., 81 N. Y., 406; Heidenheimer Bros. v. Brent et al., 59 Tex., 533; People v. Hilton, 36 Fed., 172; United States v. Rogers et al., 81 Fed., 941; Scott et al. v. The State, etc., 46 Ind., 203; Keith v. Fenelon Falls Union School Section et al., 3 Ont., 194; McKee v. Griffin, 66 Ala., 211; Leigh v. Taylor, 7 Barn. & Cr., 491; Nolley et al. v. Callaway County Court, 11 Mo., 447; Saltenberry v. Loucks, 8 La. Ann., 95.
    The language of these cases is so strong and its applicability to this case so apparent, that they would seem to be conclusive, rendering it unnecessary to make any further statement.
    The reasons for this class of decisions are discussed by Stearns on Law of Suretyship, section 181, and seem to be that if the case were decided otherwise, there would be no remedy against the official misconduct of officers. It would seem a sufficient reason for this class of cases that a public officer undertaking to execute a writ is liable for any wrongful act he does in the execution of it, whether it be against the person mentioned in the writ, or some one else. In no case can it be said that he steps outside of his duty, because everything that he does in that line is in attempting to enforce the writ. In this connection, it may be noted that the decisions are further to the effect that an officer who acts absolutely without a writ of any kind whatsoever, acts as an individual, and his sureties are not liable.
    The solicitor, for the plaintiff in error in his brief, apparently invokes the doctrine, which we will call colore officii, to sustain the argument on this part of the case. When the limits of that doctrine are fully understood, as presented by the authorities, it will be seen that it is of no avail in this case.
    There is a line of cases represented in this state by Ohio, etc. v. Jennings et al., 4 Ohio St., 419, and by Lammon v. Feusier, 111 U. S., 17, in the United States courts, to the effect that an officer acting colore officii is liable on his bond for official misconduct. A late case following the same rule is Drolesbaugh v. Hill, 64 Ohio St., 257. In all of these cases, many of which we hereafter cite, the state of facts involved the case of a public officer, usually a sheriff, marshal or constable, seizing the property of the wrong person under a writ of execution or proceedings in attachment against another. The Jennings case was a trespass of this kind, and the decision there was based upon the case of the People v. Schuyler, 4 N. Y., 173. The Drolesbaugh case was of the same character and looks for authority to the Jennings case.

      Sangster v. Commonwealth, 17 Gratt., 124; Grandstaff v. Ridgely, Hampdon & Co., 30 Gratt., 1; Stuart v. Madison, 1 Call, 481; Commonwealth v. Stockton, 5 Mon., 193; Hardin’s Exrs. v. Carrico, 60 Ky., 289; State v. Moore, 19 Mo., 369; Knox County v. Goggin, 105 Mo., 182; State v. Bonner, 72 Mo., 387; Sample et al. v. Davis, 4 G. Greene, 117; Turner v. Killian, 12 Neb., 580; Nebraska v. Moores, 56 Neb., 285; Holliman v. Carroll, 27 Tex., 23; People v. Schuyler, 4 N. Y., 173; Heidenheimer Bros. v. Brent, 59 Tex., 533; Van Pelt v. Littler. 14 Cal., 194.
   Davis, J.

There is- no- proposition of law more firmly settled in this state than that sureties are not liable beyond the letter of their contract. In this case the defendants are sureties on the bond of the clerk of the hoard of education, executed as provided in section 4050, Revised Statutes, and conditioned “that he shall faithfully perform all of the official duties required of him as clerk of said board. ’ ’ The clerk was a defaulter for a considerable amount of tuition fees which he had received and failed to pay over. Was this a breach of the bond?

There is nothing in the statutes which define the duties of the clerk of the board of education, which' makes it his duty to receive and disburse tuition fees. Indeed we fail to find any authority in the statutes for the clerk of the board of education to receive or disburse any money whatever, except fines for truancy, as provided in section 4027, which has been repealed since the commencement of this action. With that exception the duty of receiving, keeping and disbursing funds seems to be exclusively imposed upon the treasurer of the district. Section' 4042, Revised Statutes. Yet it is contended in behalf of the plaintiff that the board could, and did, enlarge the duty of the clerk in that respect by virtue of section 3985, Revised Statutes, a part of which reads as follows: “The board of each district shall make such rules and regulations as it may deem expedient and " necessary for its government and the government of its appointees and pupils. ’ ’ A number of years before this bond was executed the board adopted a rule the material portion of which, so far as it affects this controversy, is as. follows: ‘ ‘ Children, wards and apprentices of non-residents may be admitted by the trustees (school committee) of any district upon payment, in advance, to the clerk of the board of the following tuition fees,” etc.; and under cover of that rule the clerk received and handled the money for •which he is in default. The statute gives to the board tbe power to make rules and regulations for tbe government of itself, its appointees and pupils :■ that is, rules for their management, control and direction, merely disciplinary regulations. It could not for a moment be assumed that section 3985 confers upon the board the power to legislate, so as to confer upon itself and its appointees powers and duties which are not found in the acts of the general assembly; for the power of the board to make rules is just as broad for itself as for its appointees. If it can enlarge the powers and duties of its appointees, beyond the statutory limits, it can enlarge its own powers and duties. Such power could not be, and in our opinion was not intended to be, conferred upon the board of education by the general assembly. The-permission to receive tuition fees which was given to the clerk by the rule, was therefore outside of and beyond the official duties of the clerk.

The foregoing reasoning would lead to the exoneration of the sureties.

But it is. insisted that the receipt of these moneys-by the clerk was colore officii, if not virtute officii, and that for acts colore officii sureties are held responsible in this state. While there has been confusion of terms in some cases, and possibly a confusion of classification in some instances; yet this-conclusion results from the cases in this state and elsewhere, that there are three classes of cases against sureties on official bonds: one class in which the officer acts, virtute officii, within his official authority but unfaithfully or improperly exercises his official duties, and another class in which the officer while acting colore officii, with pretense of official authority, is guilty of trespass upon person or property. Of this class illustrations are found in Story v. Jennings, 4 Ohio St., 418, and Drolesbaugh v. Hill, 64 Ohio St., 257. In both of the classes, already named the sureties are generally held to be liable. The third class is of those cases in which the officer has been guilty of misconduct which is wholly outside of the line of his official duty as defined by law. In this class of cases the sureties have generally,, and we believe upon the soundest of reasoning, been held not to be liable. We refer this case to the third class and cite as illustrations the following cases: State v. Medary, 17 Ohio, 554; Wilson v. State, 67 Kan., 44; People v. Pennock, 60 N. Y., 421; State v. Bonner, 72 Mo., 387; Orton v. City of Lincoln, 156 Ill., 499; State v. Moores, 56 Neb., 82; County of San Luis Obispo v. Farnum, 108 Cal., 562. There are numerous other cases to the same effect some, of which are cited in the briefs of counsel.

The case of the plaintiff is not helped out by the contention that the clerk was guilty of a plain official duty in that he did not report these receipts and pay them over to the treasurer-; because the loss was-occasioned not by the negative acts of not reporting or paying over, but by the direct, affirmative act of receiving that which he could not lawfully receive and converting the same' to his own use.

In State v. Carter, 67 Ohio St., 422, cited by plaintiff, the question of the liability of sureties was not involved in the record, nor argued. The whole contention was whether the officer himself was chargeable with certain funds so as to be within the terms of the statute defining and punishing embezzlement. It was held that he was so chargeable; and the judge who delivered the opinion of the court expressly directed attention to the fact that the question of the liability of the sureties of the defaulting officer was not before the court and was not passed upon.

The judgment is

Affirmed.

Shauck, C. J., Price, Crew, Summers and Spear, JJ., concur.


author: Speak, J.

text:
    Devenney v. Devenney.

      Construction of item, in will — Loss or gain in value of securities— Purchased by trustee — Goes to principal and not to the income, when — Definition of the term “dollar” — Bequest of one thousand dollars to legatee — To be paid in money and not by delivery of securities — Law of wills — Descent of property — Executorship.
    1. A petition, in a cause brought under section 6202, Revised Statutes, to obtain a construction of one item only of a will, which does not set forth the entire will, is bad on general demurrer.
    2. As a general proposition the loss or gain in the value of securities purchased by a trustee having authority therefor should go to the diminution or accretion, as the case may be, of the principal and not to the income, unless a contrary intention is to he inferred from the trust instrument.
    3. The term “dollar” implies the money unit of the United States. It means simply money. Hence a provision in a will which gives to a legatee, to he paid by the executor, the interest an- • nually during his life of one thousand dollars which the executor is directed to invest and keep safely invested, the one thousand dollars to be paid at the decease of the legatee to his children or their issue, and in case he die without children or issue, then to another named, and provides further that the legatee may at any time secure to the executor the return to him of the one thousand dollars at the death of the legatee, and upon the offer of such security the said sum shall be delivered to said legatee, is a provision for the payment of money only and not for the delivery of securities.
    4. Where, under such provision of a will, the executor invests the one thousand dollars in securities in conformity with the direction of the will, and a premium accrues thereon, such premium does not belong to the cestui que trust, but is to go to the residuary legatee if there be one, and if not, to the estate generally. And the executor will not be required, upon the tender of security to secure the return to the ■executor of the one thousand dollars at the decease of the legatee, to deliver to him the securities in which said one thousand dollars have been invested.
    (No. 9090
    Decided April 3, 1906.)
    Error to the Circuit Court of Licking county.
    Warner C. Devenney (defendant in error) commenced an action against Samuel S. Devenney (plaintiff in error) by the filing of a petition in'the court of common pleas of Licking, a copy of which follows:
    Plaintiff says that he is one of the legatees under the will of John P. Devenney, deceased, and that the defendant, Samuel Devenney, is the executor of said last will and testament, and the trustee provided for by section fourth of said will. Plaintiff says that he requested more than thirty days ago said Samuel S. Devenney in writing to begin this action, but that' said Samuel S. Devenney has refused to do so, and this plaintiff brings this action under. and by virtue of the statute authorizing the same. Plaintiff says that in the administration and the distribution of said estate under the said will, and in the execution of the trust created therein certain questions have arisen which can be properly determined only by a decree of this court, and the plaintiff believes that it is necessary to the proper execution of the duties of the defendant as trustee under said will, that he should receive the instructions of this court as herein prayed for. Plaintiff says that the will and testament of John P. Devenney contained the following item:

      “Fourth. I direct my executor to provide, invest and keep safely invested during the lifetime of my son, Cornelius Warner Devenney the sum of one thousand dollars, and to pay the interest thereon annually to my son Cornelius during his life, and at his death I direct that my executor shall pay the said one thousand dollars to his children or their issue, if he leaves any, and in default of such children or issue then to my said son Samuel for his own use; but in case my said son Cornelius shall at any time secure to my executor the return to him of said one thousand dollars at the death of him the said Cornelius, to the satisfaction of the said executor, then the said sum shall be delivered to said Cornelius. ’ ’
    Plaintiff says that said defendant is acting as trustee for this plaintiff under said item. That in July, 1898, Samuel S. Devenney, as trustee aforesaid, and assuming to carry out the request set forth in item fourth of the last will and testament of John P. Devenney, invested the one thousand dollars mentioned in said item fourth in United States government bonds, and that said money is at present invested in said bonds. Plaintiff says he is willing to secure to said Samuel S. Devenney the one thousand dollars mentioned in said item fourth, and has offered and agreed to do so, and that said Samuel S. Devenney has expressed himself as being satisfied with the security offered by this plaintiff, provided that the said Samuel S. Devenney shall turn over to him the investment which has been made in United States Government bonds, that is, the bonds themselves, that constitute the investment. That said Samuel S. Devenney refuses to do this, although said Samuel S. Devenney offers to turn over to plaintiff one thousand dollars, and has made a legal tender thereof, but not the investment which he has made under and by virtue of the trust aforesaid, and which offer the plaintiff rejected.
    "Wherefore, this plaintiff prays that this court direct and instruct said Samuel S. Devenney as to said item fourth, qnd for such other relief as plaintiff may be entitled.
    To this petition a general demurrer was filed by Samuel S. Devenney. Upon hearing and consideration the court of common pleas overruled the demurrer, and the defendánt not desiring to plead further the court found upon the' petition that the plaintiff is entitled to the bonds themselves in which the investment is made -by Samuel S. Devenney, as executor of the last will and testament of John B. Devenney, and judgment is rendered accordingly, with costs. Upon error to the circuit court that judgment was affirmed, and Samuel S. Devenney brings error.

      Messrs. Hunter & Hunter, for plaintiff in error.

      Mr. Waldo Taylor and Mr. J. R. Fits gibbon, for defendant in error.
   Speak, J.

The question is, does the petition state a case entitling the legatee to any relief? The action was brought by Warner C. Devenney, legatee,, under favor of section 6202, Revised Statutes, which authorizes an action of this character to be instituted by a legatee where the executor refuses to bring it, and the person so bringing such action may ask the direction of the court in the matter respecting the trust in the same manner and as fully as was formerly entertained in courts of chancery. As the petition, seeks a construction of an item of a will, and as the relief asked is to be such as would have been, but • for the statute, properly demanded of a court of chancery, it is clear that the rule in reference to the construction of like instruments is to be such as prevailed under the former practice in courts of chancery bearing upon the construction of wills. That practice is well understood. It is indicated by so many decisions that a- citation of them would needlessly encumber the record. Briefly it is that the court’s duty is to ascertain the intent of the testator, and in doing so such intent will not be determined by a clause only, but must be gathered from a full and complete consideration of the entire will; in other words, as expressed, by many authors, the will is to be taken by the four corners and the intent of the testator as to any item ascertained by a consideration of the entire instrument. Tested by this rule it is manifest that when the pleader, as in this case, contents himself with setting out in his petition a clause only of the will, he has not made a case which requires or authorizes a court to afford him any relief whatever. The petition is, therefore, defective, and the demurrer, for this reason if for none other, should have been sustained.

But the plaintiff was and is content to assume that a consideration of the other portions of the will would not aid his contention, and rests his case upon the item quoted; and his argument justifies the court in acting upon that assumption. Therefore we proceed to consider whether or not the language of that item alone supports his claim. The words used by the testator do not seem to us to be ambiguous. He speaks of a definite sum, that is, one thousand dollars. Dollars mean money. The dollar is the money unit of the United States. In the absence of qualifying words the term dollar cannot mean promissory notes, or bonds, or other evidences of debt. In other words, dollars are simply money. One thousand dollars means one thousand dollars in money. It is the interest on one thousand dollars which is to be paid to Warner during his life; it is the principal of the said one thousand dollars which is to be paid to the children of Warner at his decease, and in case he shall leave no children then to be paid (the one thousand dollars) to Samuel for his own use. But more than this. In case Warner shall secure to the executor the return to him, at the death of Warner, of the one thousand dollars, “then the said sum shall be delivered to” Warner. This constant repetition of the term one thousand dollars leaves it entirely clear that if anything other than money was intended by the testator to be the basis of his provision for his son Warner no such intent is to be gathered from this item of his will, and this is all we have before us. We do not expect to find two wills exactly alike, and so decisions upon the 'construction of wills are not usually instructive, yet it is believed that the above stated conclusions are supported by authorities cited by the learned counsel for plaintiff in error, and attention is here called to some of them. Brearley v. Lalor, 15 N. J. Eq., 108; In re Levy’s Estate, 161 Pa. St., 189; Mann v. Executors of Mann, 1 Johnson’s Chancery, 231; same case, 14 Johnson’s Chancery, 1; Bushnell v. Drinker, 5 Redfield, 581; Hall v. Cushing, 9 Pick., 395; Dorr v. Wainwright, 13 Pick., 328, 331; Gidding’s Exr. v. Seward, 16 N. Y., 365.

But if the. provisions of this item of the will were of doubtful meaning it would seem that the application of a generally accepted rule of law respecting accretions would relieve it of question. That rule is that, in the absence in the will of an expressed intent otherwise, the increase in the value of the corpus held by a trustee from natural causes is principal and not interest. As given approvingly in the opinion in Graham’s Estate, 198 Pa. St., 216, quoting from In re N. Y. L. I. & T. Co., 53 N. Y. Supp., 382: “The loss or gain in the value of securities purchased by the trustee in the exercise of his sound discretion should go to the diminution or accretion, as the case may be, of the capital and not to the income unless a contrary intention must be inferred from the trust instrument. ’ ’ The principal case above cited holds: “Where a trustee invests moneys of the trust estate in bonds and subsequently sells the bonds at an advance, and invests the proceeds in other securities, the profit on the bonds is part of the principal of the estate and should be so held by the trustee.” In Gray v. Darlington, 15 Wall., 63, in commenting upon the income tax law, it is held by Mr. Justice Field that: “Mere advance in value in no sense constitutes the gains, profits, or income specified by statute. It constitutes and can be treated merely as increase of capital.” Other authorities of like import are: Gerry, In re, 103 N. Y., 445; Van Blarcom v. Dager, 31 N. J. Eq., 783; Hubley, Estate of, 16 Phil., 327; Thompson’s Estate, 153 Pa. St., 332; Van Vleck v. Loundsbery, 34 Hun, 569; Matter of Lawrence, 26 N. Y. St., 238; Townsend v. U. S. Trust Co., 3 Redfield, 220; Matter of Vedder, 40 N. Y. St., 119; McLouth v. Hunt, 154 N. Y., 179; Hill on Trustees, 4th Am. ed., *386.

It is insisted, however, by the learned counsel for defendant in error that the question in the case is: ■Who is entitled to the premium on the bonds, the trustee or the cestui que trust, and that the trustee is not entitled because of the rule that the trustee cannot, in the absence of power given in the trust instrument, profit in any manner by his investment of the trust fund; that is, he cannot make an incidental profit for himself by way of interest or premium, in the management of the trust property, nor in any manner acquire a pecuniary gain from his fiduciary position; and a list of authorities whose name is legion is given in support of the rule. No authority is needed to establish the rule as an abstract proposition. The difficulty with it, however, is that it has no application to the facts of this case. It isn’t a question between the cestui que trust and the trustee as such as to which shall have the premium on the bonds, but is á question, under the rule hereinbefore stated, wholly between the cestui que trust, as a life tenant, and the estate of the testator. If there be, by this will, a residuary legatee he takes it; if not it rests in the estate generally, and the fact that, by the terms of the will Samuel is to have the one thousand dollars in case Warner dies without children in no way affects the question, but the necessary result is quite the same as though the right to receive the one thousand dollars in the contingency named had been given to a stranger. But it was stated at the oral hearing that there is a residuary legatee, and .this was not disputed. If this be so it would seem to follow that no embarrassment need arise in the administration of the estate because of this premium on the bonds.

We are of opinion that the courts below erred in overruling the demurrer to the petition and in rendering judgment for plaintiff below. The judgments will be reversed and final judgment rendered'by this court for plaintiff in error.

Reversed.

Shauck, C. J., Price, Crew and Davis, JJ., concur.