author: Johnson, C. J.

text:
    Grant v. Jones.
    G., a native of Ireland, migrated to Canada some twenty-five years ago, and after living there about five years became a peddler, and as such traveled through several of the United States, carrying his pack of goods and selling wherever he went. As a peddler, he thus frequently visited Lemon township, Butler county, and there loaned money, taking real estate security, and thereafter, his occasional visits to that township were repeated as often as once a year, in his business as a peddler and to look after his investments, remaining so long as was necessary to transact his business, and then resuming his travels, carrying his notes and mortgages with him wherever he went. These visits to Lemon township were for the temporary purpose stated, and never with the intention of making that place his permanent abode. He was unmarried, and had no .home anywhere, never located for business in any place, never sought to change his domicile of origin, nor his allegiance as a British subject, nor to exercise any of the rights of a resident citizen of Ohio.

      Held, 1. That for the purposes of taxation of these notes and mortgages, G. was not a resident of Ohio.
    2. Credits owed by a non-resident of this state are not taxable here, unless they are held within this state by a guardian, trustee, or agent of the owner by whom they must be returned for taxation. The fact that such credits are secured by mortgage on real estate, within this slate, does not change the rule that credits arc to be taxed at the residence of the creditor, and not of the debtor.
    Error to the District Court of Butler county.
    The defendant in error, as treasurer of Butler county, Ohio, brought suit against Patrick Grant, to recover $2,236.37, being for taxes assessed against him, in Lemon township, Butler county, Ohio, for the years 1874, 1875, 1876, 1877, 1878.
    The answer of the defendant contained a general denial of his liability to pay the taxes, or that the same were legally charged against him; says he is a native of Ireland ; is a subject of Great Britain ; never was a citizen of the state of Ohio, or a resident therein, and that he never resided in Lemon township.
    That he has no family and has no residence anywhere. That for the last fifteen or twenty years his business has been that of a peddler, and during a.ll said time he has been engaged peddling in Pennsylvania, Virginia, Ohio, Indiana, Michigan, Illinois, Iowa, and in Canada West. That he has no personal property except some notes and mortgages, and. the goods lie peddles, all of which he carried with him, wherever he went.
    lie denies that any assessor of Lemon township, during all of said years, served him with notice to list any personal property of any kind, and he denies that any assessor of said township made any return to the auditor of Butler county, Ohio, of any personal property against him.
    The court of common pleas of Butler county, Ohio, gave judgment against Grant for $1,273.70, and finding that his residence, for the purpose of taxation, from second Monday of April, 1874, until second Monday of April, 1878, was in Lemon township.
    Patrick Grant filed a petition in error in the district court .of Butler county, Ohio, to reverse said judgment, but said court affirmed the judgment of the court of common pleas.
    This petition in error is filed 'in- this court for the purpose of reversing the judgment .of the district court and court of common pleas.
    The bill of exceptions, which was taken before the law was passed relieving this court from a review of .the evidence, shows that the tax was levied on notes and • mortgages, owned by Grant. It is conceded that Grant had no real estate or chattel property, within the county, so that the only question is, was he subject to be taxed on these credits-? If lie was a resident of Lemon township he was properly taxed, otherwise not.
    In behalf of plaintiff below, S. B. Berry testified, that- he had known Grant for six years or longer; that he had frequently been in Middletown (in Lemon township) and was known as a peddler and money-lender ; was there once a year or sometimes oftener, and that he having refused to list his credits, he made up the amount against him from an examination of the records.
    William Cunningham, the assessor for Lemon township in 18.79, testifies to serving a tax notice on him in 1879, which lie refused to receive, and said that bis home was in New London, Canada West, and that what tax he paid was -paid there, and that he afterward .examined and found that his name was not on the duplicate there.
    William Stout and John Weidenborrer, Jr., testified Jo the same conversation.
    William Weikel, the assessor in 1875, says that he .knew G-rant. •“I savLhim. in Middletown, which is in Lemon township, in.the^spring,of 1875 ; I at that time presented-him with a blank tax notice; he would notaccept.it; .s.aid he was not a resident; said lie had no property subject to taxation here; this was in spring of 1875 ; I have seen him there at Middle-town tvvo or three times á year since I saw him carrying a pack; he was a peddler; I have seen him in Middletown sometimes á month or more in the spring of the year.”
    L. G. Doty", being sworn as a witness, testified as follows: “I am an attorney atdaw at Middletown, in Lemon township, Butler county, Ohio ; I have known Patrick Grant (defendant) intimately from 1851-5 to this time ; his business was that of a peddler by carrying pack on his back; he never had, to my knowledge, any residence in Lemon township, Butler county, Ohio ; he never to m'y knowledge voted there; had no home there that I know of; had no family ; he is unmarried-; had no place to do business there, except that he sometimes did some business in our law office ; he owiled no real estate during all that time in Butler county ; he had no personal property during all that time in this county, except his pack, which he carried on his back, and was filled with linen goods and promissory notes and mortgages; wdien he first stopped iii Middletown he stopped with Paddy McCiie (a brother Irishman) but during the last four or live years he stopped at Patrick Elymi’s ; his business at Middletown was to look after notes and collect the interest and loan the same; he usually came once a year; sometimes twice a year; he always came in- the spring of the year to get his interest and re-loan it, and then he would go away with his pack and be gone for months ; I usually calculated for him the interest on lifs notes and mortgages; ho had notes and mortgages in Butler county to the amount of about $16,000; he never left liis notes or mortgages with me or with any one elsé, but carried them with him; he w?as never long in Middletown at a time ;• in 18711 first consulted him about his business; he had a note against Paddy McCiie; 1 sued him on it and got judgment; I drew up notes and mortgages for him to amount in all to about $16,000 during this entire period; lie has a note and mortgage on myself for about $5,000 ; note and mortgage on Thomas Hágán for about $2,500 ; note and mortgage on Mark M. Doty for about $2,000; nóte and mortgage on William Davison for about $1,000; note and Mortgage on Paddy Ford, $300; note and mortgage on Peter Newcomb, $200 ; note and mortgage on George Lane, $1,100 ; note and mortgage on Simpson, about $2,000, and some others; Patrick Grant was sometimes sick at Middletown; I know nothing of his coming there with a woman; he always came to Middletown in the spring of the year; the interest was usually due on his notes and mortgages in the spring; he would stay away and perhaps we would not see him till the next spring; for the last two or three years he has been at Middletown perhaps twice a year; I would write to him during the year at different points, Evansville, Indiana; Parkerslhirg, Virginia, and other places ; the mortgages were mostly on real estate outside the village of Middletown.”
    William II. Todhunter, being sworn as a witness, testified as follows: “ I am a law partner of L. D. Doty at Middle-town, Lemon township, Butler county, Ohio; I have known Patrick Grant eight or nine years past; he had no residence in Middletown at any time to my knowledge; he had no property of any kind to my knowledge, except his notes and mortgages, which he always took with him; he usually returned to Middletown in March, or April of each year to collect his interest, which was usually due about that time; he has been here about twice a year to attend to this business and look after some suits he had brought there for past few year; he had no business room at Middletown that I know of; sometimes he did his business in our law office; I collected money for Grant and gave him check for amount; he never left the notes with us, but always carried them with him.”
    Charles F. Gunckel, being duly sworn as a witness, testified thus: “I am an attorney, residing at Middletown, Lemon township, Butler county, Ohio; have known Patrick Grant for ten or fifteen, years past; he had no residence in Middletown, or in this county, to my knowledge; he always claimed his home to be in London, Canada "West ; he had no property, except notes and mortgages, and a pack.”
    Patrick Grant, being sworn as a witness in his own behalf, testified as follows: “ I was born in the county of Down, Ireland; was twenty years old when I came to this county ; I am now and have always remained a British subject; I am a peddler; this is my business ; I have peddled in about fourteen states of this Union ; I never had a house or rented a house in lemon township in this county; I came to Lemon township only to peddle or to collect my interest and to re-loan it; I have never had any home or residence in Middletown or in Lemon township ; I had no property of any kind in Lemon township except my pack (which I carried on my back), and my notes and mortgages, which I always took with me; I bought goods at Cincinnati and other places, and had them shipped to mo at different points where I could mtíet them; I never came to Middletown except on business, and staid usually but a few weeks; sometimes I would be absent from Middletown two years, but I was usually there once a year, sometimes twice; I peddled altogether on foot, but sometimes I would forward my pack for a short distance by railroad.” Cross-examination : “ My first home was in county Down, Ireland; had no home in the United States — never; I went from Ireland first to Canada; was there five years or more ; I never had a wife; I have no lands in Canada ; I was, during the war, arrested in West Yirginia as a spy, and imprisoned at Camp Chase, near Cincinnati; after 1 was discharged I went to Washington City, and put my case in the hands of Lord Lyons, the British minister, who promised to attend to it; from Washington I went to Parkersburg, Yirginia ; staid there six weeks, and ever since 1 have been peddling in the different states of the Union; I had some money loaned in Iowa; in 1874 I had not quite $9,000; in 1875 I had about $10,000; in 1876 about $11,000; I now have about $16,000, all in notes and mortgages, on land and real estate in Lemon township -; I spent about two-thirds of my time in the United States; I never paid any taxes in Canada, or in any other place; when I went to New London, Canada West, I stopped at the cheapest boarding house I could find ; I own no property of any kind in New London, Canada West; I have no home anywhere, it was every plaee, it was where 1stopped; aftei' the war. was over I intended to collect my money in the United States and buy property in New London, Canada West, and make my home there, but there was so much discount on paper money that I could not do it, and now when paper money is about equal to gold I cannot collect my money.”
    Patrick Norton, being duly sworn, testified as follows: “ I live at Middletown; I have known Patrick Grant fourteen or fifteen years; he has always been a peddler; I never knew him to have a home at Middletown or Lemon township; he never rented or occupied a room there; he came and went with a pack on his back; when at Middletown he boarded usually at McOue’s house.”
    Peter Newcome, being sworn as a witness, testified as follows : “ I have known Patrick Grant last seventeen or eighteen years ; he has always been a peddler; I never knew him to have a house or place of business in Middletown or Lemon township.”
    Thomas Johnson being sworn as a witness, testified as follows : “ I live at Middletown; have known Patrick Grant six or seven years past; he is a peddler: I never knew him to have a home in Middletown or Lemon township.”
    The foregoing was all the evidence in the case bearing on the question of residence.

      Thomas Moore and Thomas Millihein, for plaintiff in error.

      James E. Campbell, 8. B. Card and C. W. Isaminger, for defendant in error.
   Johnson, C. J.

By the well-settled principles of the common law, Grant was a non-resident of Ohio. He was a native of Ireland, came to Canada at the age of twenty, resided there five years, never was married, was a peddler by occupation, had no homo anywhere, and no property, except his peddler’s pack of goods which he carried with him on his back, wherever he went pursuing his calling, and the notes and mortgages in controversy, which were also carried on his person. During twenty or more years he traveled over fourteen states, visiting Middletown, Lemon township, about once each year. During the war of the Rebellion he was arrested as a spy in West Virginia, and imprisoned in Camp Chase, and thei-e claimed the rights of a British subject. He never claimed nor exercised any of the rights of a resident or citizen of Ohio, nor had he any fixed place of abode. His visits to Middletown were always of a temporary character, to pursue his vocation as a peddler and look after his investments. He never evinced a purpose to become a citizen of the United States, nor to adopt a home in Ohio. Neither by word or act did he look to a change'of his domicile of origin, nor of-his allegiance as a subject of Great Britain. He was what may be called a wanderer.

Upon this state of facts, authorities need not be cited to show that plaintiff in error was not a resident of Ohio, within the meaning of that term as generally used in our statutes, or as defined at common law. It remains to be determined whether his notes and the mortgages to secure the same on real estate in Ohio, are subject to taxation in the township where the money was loaned, they never having been held in this state by a resident owner or by any' resident, agent, trustee, or guardian, for the owner.

The tax law of 1859 (2 S. & C. 1438) with its amendments, was in force until the revision, and governs the case. Section one provides that “ all property, whether real and personal, in this state, and all moneys, credits, investments in bonds, stocks, joint companies or otherwise of persons residing therein . . . shall be subject to taxation.” By section two, “ investments in bonds ” and “ investments in stocks ” are taxable here, if they are held by persons residing in this state, whether for themselves, or as guardians, trustees or agents, without regard to the sifrus of the state, county, municipal authority or body, whether within or without'the state, issuing them.

These provisions came under review in Worthington v. Sebastian, 25 Ohio St. 1, where it was held, that as to this class of property, the situs of the creditor and not of the debtor, is to determine where credits, investment in bonds, etc., are to be taxed, and that the tax is to be imposed by the law of the creditor’s place of residence, and not by that of the debtor.

This was the same view as was taken by the supreme court of the United States in Railroad Co. v. Pennsylvania, 15 Wallace, 300, where the state undertook to tax debts owing by a corporation resident of the state, without regard to the residence of the creditor. It was there further held, that the power of the state to tax, is limited to persons, property and business within its jurisdiction, and therefore, non-resident creditors were not subject to taxation on bonds held by them though secured by mortgage or real estate within the state.

The point was again decided by this court in Bradley v. Bauer, 36 Ohio St. 28. It was there held, that the residence of the owner of shares of stock in a foreign corporation determined the right of this state to tax such shares, and if he resided in Ohio, they were taxable here, though the capital was taxed in this state where the corporation was located. It is there said the same principle governs a chose in action, and that “ for the purpose of taxation its situs is that of the domicile of the owner, although the debt is secured by mortgage upon realty in another state.”

The discussions and decisions on this point are so recent and elaborate that it is needless to do more than to refer to a few of them. Tappen v. Merchant's National Bank, 19 Wall. 499; County of Northampton v. Whetwell, 49 Pa. St. 526 ; State v. Braum, 3 Zab. 484; City of Newark v. Assessor, 30 N. J. Law, 13; Kirkland v. Hotchkiss, 42 Conn. 426. The last case came before the supreme court of the United States, and will be found reported in 100 U. S. 491, where it was again held, that for the purposes of taxation a debt has its situs at the residence of the creditor, and the doctrine in 15 Wallace, supra, is repeated.

Our statute clearly adopts that rule. Whenever the person holding such choses in action resides in Ohio, he must list for taxation such credits, whether he holds them as owner, guardian, trustee, or agent. If they are held within the state in either capacity, they are within the jurisdiction of the state for purposes of taxation. If they are not So held, but are owned and held by a non-resident, they are not subject to taxation.

What constitutes a person a resident of Ohio, for tire purpose of voting, of admission to the public schools and benevolent institutions of the state, for the administration of estates and in other cases, has been a frequent matter for consideration in the courts. There is no substantial difference between the words residence and doznicile in regaz’d to these matters, though they are not always synonymous. For business purposes and perhaps for purposes of taxation, a man may have more than one residence, but he can have but one domicile.

Thus in State v. Ross, 3 Zab. 517, the domicile of one Potter was in Georgia, where he lived most of the year and exercised the rights of a citizen, but resided during part of the year in New Jersey, in his own house. It was held that his real estate and tangible property in New Jersey were taxable there, but bonds, stocks, etc., owned by him have the situs of his domicile in Georgia, and could not be taxed in New Jersey.

That case is instructive both as to the power of the state, and the policy of taxing persons on things in action, at any other place than the domicile of the owner. The policy of this state, as declared in the statutes, is clearly expressed, and is founded in wisdom. If we concede the power of the state to tax things in action held by persons not residing within its jurisdiction, which is denied by the supreme court of the United States, yet no attempt has been made to exercise such power. The policy of the state has always been to encourage, rather than repel such investments of non-resident owners, and hence the statute provides, that such credits are taxable at the residence of the owner, if he is a resident, or where they are held within the state by a guardian, trustee, or agent of the owner, if they hold them within the jurisdiction of the state, but if the owner does not reside within the state, and such credits are not held within the state by an agent, guardian, or trustee of such owner, the residence of the owner fixes the situs of the credits. The act of 1861, taxing “ transient traders (S. & S. 760), which is part of the Revised StatT utes, provides that if any such person shall locate in any place, in this state, his stoclc in trade is liable to taxation, but there is no requirement that he shall be taxed on his credits or other investments. If such trader is not a resident of Ohio, he comes under the rule above stated, but if residing in the state, then such credits follow the residence of the owner.

Judgments of the district court and of the common fleas reversed and the cause remanded.


source: Caselaw Access Project

author: Doyle, J. Johnson, C. J.

license: Public Domain

text:
    Hershizer v. Florence.
    1. A married woman, having a separate estate, who signs a promissory note as surety for her husband, will be presumed without further proof to intend thereby to charge her separate estate. Such presumption can only be overcome by proof of facts or circumstances, surrounding the execution and delivery of the note, which show that such was not her intention.
    2. Real estate purchased by a married woman in 1860, with her individual means, and which was under the law as it then stood her general property, was, by the act of April 3, 1861 (S. & S. 389), changed into her separate estate, subject to the provision that vested rights should not be affected thereby. Such property was not thereby subjected to her debts previously made; and the husband’s freehold jure uxoria, was not divested. Subject, however, to vested rights, and .with refer ence to her future contracts, such property is to be regarded as separate property. Olarh v. Clark, 20 Ohio St. 128, explained.
    3. Curtesy “initiate” as it existed at common law, is abolished in Ohio. Curtesy is now regulated by statute and is conferred only upon surviving husbands in the estates of which the wives die seized. It is' not a vested estate until the death of the wife.
    Error to District Court of Madison county.
    The action was brought to charge the separate estate of the wife with the payment of' two notes, for $200 and $400, respectively, executed by her with her husband, Dec. 18,1867. The petition alleges:
    “ 1. That prior to and at the time of the execution and delivery of the above described two promissory notes by the said R. Florence and Elizabeth Florence to the said R. B. Adams & Co., to wit, on the 22d day of March, a. d. I860, while the said R. Florence and Elizabeth Florence were husband and wife, the said Elizabeth Florence was seized in 'fee simple as her separate estate of the said estate hereinafter described, which was for a valuable consideration, on said 2 2d day of March, a. d. 1860, sold, transferred in fee simple by said R. Florence and Elizabeth Florence to one John Williams, and said John Williams did, for a valuable consideration, on the same day, grant, bargain, sell and convey in fee simple to the said Elizabeth Florence, her heirs forever, the same said estate, and which was at that time and now is her sole and sepa/rate estate and is now under her separate and entire control.”
    Then follows a description of the property, which, it is claimed, is the separate estate of the defendant, Elizabeth Florence.
    “ 2. That at the time the above promissory notes were given it was talked over and understood that the said promissory notes should be a lien on said estate, and it was the intention of the said Elizabeth Florence to bind her said separate estate when she signed said promissory notes, and that said notes were to be paid out of her separate estate. And the said Elizabeth Florence did then and there, at the making and delivering of said promissory notes, pledge her separate estate and property to the payment of said promissory notes.”
    The prayer of the petition is, that an account may be taken of the amount due on said notes, with interest, and that a receiver may be appointed to take charge of the above described real estate of the said Elizabeth Florence, and lease or rent the same upon such terms as the court may order, and out of the rents, issues and profits thereof pay to the plaintiffs the amounts found to be due upon the aforementioned notes and the cost of this proceeding, and that the plaintiffs may have such other or further relief as justice and the nature of the case may require.
    The answer of Elizabeth Florence denies each allegation contained in the second paragraph of the petition above set forth, and avers that she did not in any way, at the time of the signing and delivery of said notes, or at any. other time, in any way, by word or deed, promise and bind herself to pay said notes out of her estate, nor pledge her estate for any such purpose. It denies any indebtedness to plaintiff on the notes, and also denies that, on the 22d of March, 1860, or at any other time, she was, or is, seized in fee simple as her separate estate, of the real estate described in said amended petition, or of any part of said real estate. It denies that said real estate was conveyed to her by said John Williams as or for her separate estate, or that the said conveyance contains any words or clause creating or importing a separate estate in said lands in this defendant. On the contrary, the truth in relation to this defendant’s title to said lands is as follows, namely: Long prior to the year 1860, upon the death of her father and mother, who both died intestate, this defendant inherited from them, under the-laws of this state, an undivided interest and share of the lands in the amended petition described, together with other lands; and her said husband, long before the year 1860, acquired by purchase an undivided interest and share in fee simple in the same lands; and the conveyances in the amended petition mentioned were made and delivered for the sole purpose of partitioning said lands between this defendant and her husband. Wherefore this defendant avers that her estate in the lands in the amended petition described is, and always has been, her general estate, and not her separate estate, and that neither she uor her said estate is liable for the payment of said notes, or any part of either of said notes in the amended petition described.
    A reply puts in issue all the averments of the answer.
    A separate answer was filed by Robison Florence, in which he sets forth his discharge from all his indebtedness by proceedings in bankruptcy, upon which no issue is made.
    The action was tried, on appeal, in the district court upon an agreed statement of facts and a judgment rendered in favor of the defendant, Elizabeth Florence.
    The agreed statement is as follows:
    That several years prior to the year 1833, John Williams died intestate, at the county of Madison, state of Ohio', leaving four children, to wit, John Williams, Jr., Harrison Williams, Washington Williams, and the defendant, Elizabeth Florence (then Elizabeth Williams), his only children and heirs-at-law. At the time of his death said John Williams was the owner in fee simple of 1,804 acres of land in said county of Madison, which then descended to and vested in said four children as tenants in common, in fee simple. That said Elizabeth Florence and Robison Florence were married in the year 1833, and have ever since that time resided together as husband and wife.
    That about the year 1840 said Robison Florence purchased and received a conveyance from said Harrison Williams for his undivided one-fourtli of said land, and about the year 1845 ho also purchased and received a conveyance from said John Williams, Jr., of his undivided one-fourtli of said lands. About the year 1840, by mutual consent of all parties, the undivided one-fonrth interest of said Washington Williams in said lands was set off, assigned and conveyed to -him in severalty by his co-tenants.
    That between the year 1856 and March 22, 1860, Edward Edwards contracted with said Robison Florence for furnishing materials and building a house on the remaining three-fourths of said land, which was then owned by said Robison Florence, and Elizabeth Florence his wife, as tenants in common, said Robison then owning two undivided fourth parts thereof, and said Elizabeth, bis wife, then owning one undivided fourth part.
    That said Edwards constructed said house between the dates last aforesaid, in pursuance to a plan that was in accordance with the wishes and directions of said Robison Florence;
    That about March 22, 1860, said Robison Florence became financially embarrassed, and in consequence thereof was compelled to dispose of his interest in said lands, and on March 22, 1860, by mutual consent of all parties interested in said lands, partition was made of said undivided three-fourths of said lands between said Robison and Elizabeth Florence, and she was assigned as her portion thereof four hundred and fifty-one acres of the land described in the pleadings in this action, and npon which said house then and still stands, upon condition and in consideration of her agreeing to release her inchoate right of dower in the other two-fourths of said land, which was then assigned and conveyed to said Robison Florence, and she did thereupon release her inchoate right of dower therein, and the same was sold free from such inchoate right of dower, and the proceeds applied to the payment of the debts of said Robison Florence.
    In the latter part of the year 1861, or early in 1862, said Robison Florence was insolvent, and was indebted to said Edwards in about $600 for work done and materials furnished in the construction of said house, and said indebtedness was unpaid and unsettled.
    At the date of the notes, in 1867, Edwards claimed there was still due him from said Robison Florence the sum of over $800, but he offered to take $600 in full satisfaction of his claim, if said Robison, who was still insolvent, would give him his notes, payable to R. B. Adams & Co., or order, to whom said Edwards was indebted, one for $200, due in one year from that date, with interest, and the other for $400, due in two years from that date, without interest, with liis wife, the said Elizabeth, as surety thereon; which offer was accepted, by said Robison, and the notes in suit executed and ■delivered accordingly. The said Elizabeth knowingly' signing said notes as surety for said Robison; and said notes were ■subsequently assigned by 'the said R. B. Adams & Co., for a valuable consideration, to the plaintiffs.
    This proceeding is prosecuted to obtain a reversal of the judgment of the district court.
    IF. J. Gilmore, for plaintiff in error:
    On the issues and agreed facts I claim that the wife ac■quired title to the lands as a purchaser on March 27, 1860.
    First. The respective rights of the husband and wife in the lands are, therefore, to be considered with reference to the ■state of the law in Ohio at the date she so acquired title. So far as it can be done, I will consider these respective rights separately ; those of the husband first:
    I. Curtesy in expectancy and curtesy initiate as known at common law, had been abrogated or greatly modified in Ohio prior to 1860, and curtsey consummate had at that time become purely statutory. The statutes to which reference is had are : 1. Section 15 of the statutes of descents, passed in 1835. Swan Stat. (1841) 288. This section saves the right of curtesy and dower which any person may have in any estate of inheritance of any deceased person, i. e., curtesy consummate. While there is nothing in the act expressly changing the common law in reference to curtesy in expectancy, or initiate, there is a saving as to curtesy consummate alone. The common law would have done the same. It would also have vested the consummate estate in the husband immediately on her death. 4 Kent, 30. The statute does the same. At common law curtesy expectant vested no interest in the husband and it was subject to legislative control and devestment. Thurber v. Townsend. 22 N. Y. 517. But at common law curtesy initiate was such an interest in the husband, that he could sell or incumber it, and hence it could be seized and sold on execution. Canby v. Porter, 12 Ohio, 79. The effect of section 15, above cited, was to constitute curtesy consummate a vested statutory estate, and by implication to leave curtesy expectant and initiate subject to legislative control, by impliedly denying to them the character of vested interests.
    2. The act of 1846, Swan Stat. (1854) 712, 713, and the amendatory act of 1847. Ib. 713. The amendment imparts to the act a prospective operation in terms. Still the. act is a plain assumption of power over curtesy in expectancy and initiate, and when read in connection with section 15, just cited, it is a qualification of curtesy consummate. Section 1 overthrows the law as announced in Canby v. Porter, supra. Section 2 destroys the common law characteristics and qualities of curtesy. It cuts off the jus disponendi, and inhibits incumbrances by the husband of his interest. He cannot incumber his wife’s estate even to the extent of letting one of his wife’s fields out for one crop. Jenney v. Gray, 5 Ohio St. 45. The right, whatever it is, under this act, could not longer be claimed as a common law right, nor, as to curtesy initiate, can it be said to be a thing owned by the husband.
    3. It was not intended to be an exemption law in favor of the husband. Such a law already existed. Swan Stat. (1841) 487.
    4. It was not intended as a homestead law, for such a law was passed in 1850. Swan Stat. (1854) 711. These laws are all indicative of an Ohio policy: the two last ones for the protection of husbands ; the act of 1846 for the protection of wives.
    5. The next act to -which attention is called is the act of descents of 1S53 (Swan’s Stat. 1854, 323, § 17), which is a hcec verba re-enactment of section 15 of the act of 1835 with these words added : “And surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.” This is important, as it excludes the idea that there can be curtesy initiate without the birth of issue. Thus stood the law in 1860 when the wife in the case at bar acquired title to the lands in question by purchase; and the curtesy rights of the husband were such as the law gave him at that time. There was no issue of the marriage of the husband and wife in the case ; or at least the record is silent as to issue, and the fact should have been shown affirmatively if there was issue. On this state of the case I claim that the husband has only a. statutory, vested curtesy in the lands in question, that will come into his possession and enjoyment on the death of his wife but not before ; and that, this -was the only vested interest .by way of curtesy that he acquired in his wife’s lands at the time she took the fee by purchase and conveyance in 1860. At that time, even at common law, he took but curtesy in expectancy, which, like the inchoate right of dower in a wife, is subject to legislative control.
    6. As to the effect the act of 1861, and the amendment thereof of 1866 had on the curtesy of husbands, see Denny v. McCabe, 35 Ohio St. 576.
    Second. The lands of the wife described in the petition, or the rents and profits thereof, are liable to the payment of the notes set out in the petition.
    1. Conceding that the lands in question were what is called her general property at the time she acquired them in 1860, and that she had a vested title and estate in them; yet neither her title nor estate was impaired or disturbed by the act of 1861 (amended in 1866), which declares these lands to be her separate property, (a.) A wife’s vested right of property cannot inhere in, or-depend upon, her mere common law disabilities. At common law her title and estate remained vested in her as to lands owned by her at her marriage, or the same vested in her, as to lands acquired by her after her marriage, but that law gave the possession and control of such lands to the husband during coverture, and a a freehold estate therein after her death. The devesting of the husband, by law, of his possessory right's during coverture, (as I have argued has been done in this case,) only freed her already vested estate from restrictions, and to that extent enlarged her rights therein; and on the death of the husband during coverture, all restrictions are removed and her rights correspondingly enlarged in her lands, i. e., she holds a fee simple estate as a femme sole, so that the marital rights of the husband had never disturbed her vested title and estate. Cooley Const. Lim. top p. 443, 444. (b.) The wife’s vested title and estate in this case is one thing, and these cannot be devested by retroactive laws the manner of holding, the tenure — is a different thing, which in this case, the wife had no vested right in ; and, lienee, the legislature could change the tenure, by a law retroactive in its operation.
    2. Without conceding that the acts of 1861 and 1866 have a retrospective operation in this-case, I claim that it was without the power of the legislature to give it such an operation, so far as it affects the tenure of the wife. Holbrook v. Finney, 4 Mass. 568 ; Annabel v. Patch, 3 Pick. 361; Morris v. Clymer, 2 Penn. St. 277 ; and see analogous cases, Carroll v. Olmsted, 16 Ohio, 251; Gilpin v. Williams, 25 Ohio St. 283, 300; Goshorn v. Purcell, 11 Ohio St. 652, citing Ohio cases;. Killain v. Killain, (Penn. 1861) 1 Am. Law Reg. N. S. 18; Chestnut v. Shane, 16 Ohio, 599 ; Goshen v. Stonington, 4 Conn. 209. Finally, the plaintiffs are entitled to the relief they ask. Phillips v. Graves, 20 Ohio St. 386 ; Williams v. Urmston, 35 Ohio St. 296; Avery v. Vansickle, 35 Id. 260.

      Harrison, Olds & Marsh, and George Lincoln, for Mrs. Florence:
    The agreed statement of facts shows the nature of the wife’s title to the land. It came to her by descent prior to the year 1833, and clearly shows that the land in question is the general property of the wife, as distinguished from either an equitable or statutory separate estate. Mrs. Florence was married to her present husband long prior to the passage of any of our statutes declaring what shall be deemed the separate property of married women. Glidden v. Taylor, 16 Ohio St. 509; Quigley v. Graham, 18 Ohio St. 42; Logan v. Thrift, 20 Ohio St. 62; Clark v. Clark, 20 Ohio St. 128.
    The partition of the lands which took place in March, 1860, did not impress upon the land assigned to the wife the legal character of a separate estate. Partition does not decide title or create any new title. Tabler v. Wiseman, 2 Ohio St. 207 ; McBain v. McBain, 15 Ohio St. 337.
    The partition, however, was made prior to the passage of the act of April 3, 1861, concerning the rights and liabilities of married women. Neither that act or the amendments thereto, have a retrospective operation, so as to affect vested lights or to change the character of the defendant’s estate in the lands. Nor was it constitutionally competent for the legislature to make those acts retrospective in their effect. Quigley v. Graham, 18 Ohio St. 42; Glidden v. Taylor, 16 Ohio St. 509; Logan v. Thrift, 20 Ohio St. 62.
    The general property of a married woman cannot be charged in equity with the payment of her engagements. It is necessary to aver and prove that the wife has a separate estate. Jenz v. Geigle, 26 Ohio St. 527; Falles v. Keys, 35 Ohio St. 265.
    Inasmuch as Mrs. Florence has no separate estate, the judgment of the district court was right, and should be affirmed.
   Doyle, J.

If the defendant, Elizabeth Florence was, at the date of the execution of the notes, the owner of the real estate described in the petition, or any part of it, as her separate property, the judgment of the district court was wrong. "When a married women, owning a separate estate, executes a promissory note, either for herself or as surety for her husband, the presumption is that she charges her separate property with the payment thereof. Such presumption cannot be overcome by testimony by the wife, that such was not her intention. Unless there are circumstances surrounding the transaction which show that such was not her intention, it is not material what her secret purpose was, and the presumption aforesaid will prevail.

The finding, therefore, by the district court, that she knowingly signed the notes as surety for her husband, is sufficient to bind her separate property (if she had any), notwithstanding the denial in her answer thiS| by the execution of the notes she made such charge, or the averment that she did not, by word or deed, promise to pay said notes out of her separate estate, or pledge the same for such purpose. Avery v. Van Sickle, 35 Ohio St. 270; Williams v. Urmston, Id. 296.

Was defendant, Elizabeth Florence, possessed of a separate estate at the date of the execution of the notes, in 1867 ? A considerable part of the argument of the case was devotpd to the rights of the parties, upon the assumption that the estate which the wife now holds came to her by virtue of her inheritance of the property prior to 1833, at which time the common law governed in respect to the marital rights of the husband. It being insisted upon one side that these were vested rights-which could not be affected by subsequent legislation. We are relieved from considering that question by the fact that the husband and wife, in 1860, united in conveying this land to a trustee, who afterwards conveyed the same to the wife. Whatever interest the husband had, passed by his deed to the trustee, and when the title became, again, vested in the-wife, his rights accrued under the law as it then stood. It is true, it is alleged, that these deeds were made for the sole purpose of partition, and it is insisted that no new title was created by such partition. The rule asserted in Tabler v. Wiseman, 2 Ohio St. 207; and Mc Bain v. MeBain, 15 Ohio St. 337, applicable to partition proceedings under the statute, that no new title is created thereby, does not apply to the deliberate conveyances of the parties, especially where there is an independent consideration for such conveyances. In the present case the wife, in consideration of the conveyance to her of the land in question, which was improved, by the house in the erection of which this debt was incurred, released her inchoate right of dower in the remainder of the land. The rights of the parties, therefore, are to be determined under the law as it stood in 1860, and such modifications thereof as the legislature has since, within its constitutional power, made by statute.

By a series of statutes, commencing with the act of February 28,1816, the legislature of this state has sought to abridge, and in some particulars remove, the disabilities under which married women hol'd their estates at common law, and the control which their husbands had over such estates. By the common law, the husband, upon marriage, became vested with the wife’s estate of inheritance during coverture, and if he survived her, and issue capable of inheriting it had been born to them, he had a life estate, by curtesy, therein. The estate of the husband, either during coverture, or after the death of the wife, could be seized and sold upon execution for his debts, and he could convey and incumber the same. There was no provision which secured to her or her children, during the life of the husband, a home in even her own lands against the demands of his creditors, or his own extravagance or improvidence. To mitigate this generally recognized evil, the legislature passed the act of February 28, 1876, S. & O. Stat. 693 a, whereby it was enacted: “That the interest of any married man in the real estate of his wife, belonging to her at the time of their intermarriage, or which may have come to her by devise, gift or inheritance during coverture, or which mayliave been purchased with her sole and separate money or other property, and during coverture shall have been deeded to her, or to any trustee, in trust for her, shall not be liable to be taken, by any process of law or chancery, for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body.”

The second section of the act made all conveyances and incumbrances of the husband’s interest in such real estate of the wife, void during the life of the wife, and during the life or lives of the heir or heirs of her body, unless by instrument of conveyance executed, attested and acknowledged according to the laws of this state for the conveyance or incumbrance of the estate of the 'wife in lands situate in this state. By other sections of the act provision was made for exempting from liability for the debts of the husband certain articles of personal property, dioses in action, demands, legacies and bequests.

This statute operated alike upon the interest, in the lands of his wife, which the husband had “ jure uxoris,” which was a freehold interest and lasted during coverture, and the estate by the curtesy, which was consummate upon her death. The first could not be seized upon execution, or conveyed or incumbered unless she joined therein, the second was equally secured, after her death, during the life of any heir of her body. See Jenney v. Gray, 5 Ohio St. 45.

This act was in force in I860 when, as we have shown, the wife’s present title to the lands was acquired.

By the act of February 11, 1824, Chase’s Statutes, 1313, the law of descent and distribution of the estates, real and personal, of persons dying intestate in Ohio was regulated and determined. By section 15 it was. declared, however, that nothing contained in the act should affect the right “ any person may have as tenant by the curtesy in any estate of inheritance, nor shall the right of dower claimed by any widow, in any estate of inheritance be impaired in any wise whatever.”

This left the estate by curtesy as it existed at common law; expectant upon marriage (as it is sometimes asserted), initiate upon the birth of a child capable of inheriting, consummate upon the death of the wife. This act was amended in 1835, Swan’s Stat. (1S41) p. 288, and in the place of the section last cited, the following was enacted :

‘‘Sec. 15. Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in any estate of inheritance of any deceased person.”

While in the act of 1824 the common law estate of the curtesy was saved from the operation of the act, the curtesy which is saved in terms by the act of 1835 is curtesy in the estate of a deceased wife. It is true that the statute was regulating descents and distribution, estates of deceased persons, nevertheless the change in the language has significance.

The act was again amended in 1853, and section 17 contained the entire section 15 above quoted, and added thereto this clause “ and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.”

In Denny v. McCabe, 35 Ohio St. 576, it was insisted that by this statute, which eliminated from an estate by the curtesy the prerequisite, “ birth of issue,” an estate immediately vested in the husband, in all respects like unto curtesy initiate, by the mere facts of marriage and seizin of the wife, but it was held that such was not the effect of the act. That the marital right of the husband to the possession and control of the real estate of his wife was unaffected by the act. That in strictness this right is not an estate by the curtesy, though sometimes called curtesy expectant, but a mere possession by him in the right of the wife ; and that the statute operated only to enlarge the rights of “surviving husbands.” And see 10 Pa. St. 398; 1 Leading Cases in the Am. Law of Real Property, 259; 100 Ill. 367.

It -seems clear that by this legislation the rights of the husband in the real- estate of his wife were in these respects materially changed; i. e., the estate or interest which, by virtue of the marriage, was his, whether issue was born or not, and which entitled him to the possession and rents and profits thereof during coverture, was preserved to him, bnt with his power to convey or incumber it without his wife’s joining with him, and the power of his creditors to seize it upon execution, destroyed. His curtesy in the estate of his deceased wife, i. <?., curtesy consummate, was likewise saved to him, no longer dependent upon the birth of issue.

It would seem from this that whát was known at common law as “ curtesy initiate,” as distinguished from the freehold of the husband jure uxoria, and the right by the curtesy in the estate of a deceased wife, has no place in this system. It could not be conveyed and incumbered by the husband, or seized upon execution. The right of the husband to curtesy consummate no longer depended upon it. The elements which gave it value as a vested estate are eliminated. See 1 Leading Cases Am. Law Real Property, 286; Denny v. McCabe, 35 Ohio St. 576 (where this precise question is adverted to but not decided); Bruner v. Briggs, ante.

The record in this case is silent as to whether there was issue born of this marriage or not, but whether there was or not we think no estate by the cui'tesy vested in him in 1860, when the title of the wife was received which was beyond the power of the legislature to abolish. Thus stood the law when the act of 1861 was passed, which provided as follows:

“ Any estate or interest, legal or equitable, -in real property belonging to any woman at her marriage, or which ma/y have come to her during coverture, by conveyance, gift, devise or inheritance or by purchase with her separate money or means, shall together with all rents and issues thereof, be and remain her separate property and under her sole control; and she'may in her own name during coverture, lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him unless she shall join therein with him in the manner prescribed by law in regard to her own estate.”
Sec. 5. This act shall not affect any lights which may have become vested in any person at the taking effect thereof.”

This act, as to future acquired estates, stripped the husband of his right to the possession-and to rents and profits of his wife’s lands. As to previously acquired estates, such right, being vested, was left unimpaired. It saved to him an estate by curtesy after her decease.

JBy an amendment to this act, passed March 23, 1866, the power of the wife to make contracts in her own name, with reference to her separate property, was enlarged, and for any liability growing out of such contracts rendering such separate estate subject to execution, in any action against lier. The effect of this statute is to impress upon the general property of the wife, acquired in the manner defined by the act, the characteristics of separate estate, whether such property was thus acquired before or after its passage. 16 Ohio St. 518.

It may not be in all respects like the separate estate which existed in equity, nor is it essential that it should be. It is a statutory separate estate, which may exist, if the legislature so declares, in lands subject to the marital rights of the husband or in the language -of the statute, in any estate or interest, legal or equitable in lands.

It did not and could not affect vested rights. It was decided in Logan v. Thrift, 20 Ohio St. 62, that such estate, i. en lands purchased before the passage of the act of 1861, could not be subjected, after the passage of the act, to the payment of a note previously -executed, for the manifest reason that at the time the wife signed the note she had no separate estate. In Fallis v. Keyes, 35 Ohio St. 265, it was held that land acquired after the act of 1861, could not be subjected'to the payment of an obligation entered into by her, previous to the passage of the act, for the same reason, to wit: that she had no separate estate when the obligation was entered into and hence there could be no intention to charge it. In these cases the rights of the parties .were fixed before the passage of the act.

But the legislature might, within its constitutional power, enlarge the power and control of the wife, over her own property, so as to affect her subsequent conduct with reference to it. It might authorize her to convey or incumber it without the consent of her husband, leaving his vested rights, however, unaffected. It might enlarge her general property into separate property, if it was not thereby subjected to existing liabilities which could not be enforced against it while it remained her general property. It certainly could confer upon her the power to charge such estate with the payment of future debts or obligations.

Construing this act to have the effect of converting the general property of the wife into separate property, without affecting vested rights, does not take away or impair any right of the wife, nor without her consent create any new obligation. With respect to past transactions it does not attach any disability or liability. It does enable her however, with respect to her future contracts, to charge such property as her separate property. The rights of the husband which vested in him prior to the act of 1861 are not affected. He is still entitled jure uxoris to the possession and rents and profits during' the joint lives of himself and wife. That is the only right which vested in him at the date of the conveyance to the wife in 1860. If he survives her he will be entitled to an estate by the curtesy in the lauds of which she dies seized. Subject to the marital right of the husband she can charge this estate, as her separate property, by contracts or obligations entered into by her, subsequent to the passage of the act of 1861.

We do not overlook certain expressions in reported cases in Ohio which are in conflict with the views here expressed. In Clark v. Clark, 20 Ohio St. 128, the question was whether the wife could maintain ejectment upon a deed to her of lands, executed before 1861, and containing no words creating a separate estate. It was held that she could not for the very manifest reason that the husband was entitled to the possession of the land during their joint lives. That the rights of the husband stood unaffected by the act of 1861. So say we. The statement found in the opinion that, under the deed, the husband had an inchoate estate of curtesy in the lands, with the present right of possession, is a misstatement. His present right of possession is independent of any estate by the curtesy.

“ It has 'sometimes been said that a husband is tenant by the curtesy initiate by the marriage, but there is no curtesy before the birth of issue; for though the marriage is the foundation of the whole, it does not constitute it at the common law. The husband indeed becomes seized of a freehold by the marriage, but it is his wife’s freehold, not his, insomuch that both must do homage for it. In contemplation of law, therefore, her person is his person, and her seizin h'i3 seizen. After issue born he has a separate estate.” Chief Justice Gibson in Lancaster Co. Bank v. Shaffer, 10 Pa. St. 398. See 2 Mich. 94 ; 15 Mich. 60 ; 22 N. Y. 517 ; 28 Barb. 343 ; 9 Ind. 184; also 9 Ind. 37. In Clark v. Clark, supra, it is said by the court: “Lands conveyed to a married woman prior to the act of April 3, 1861, do not by virtue of that act become the separate property of the wife.” The only question however before the court, was whether the act of 1861 divested the husband of his marital light to the possession, so as to enable the wife in her own name to maintain an action in ejectment, and the quoted proposition must be read in the light of that fact. The act of 1861 certainly.-did not convert his right of possession into the separate property of the wife, because it was a vested right and the act could not and did not purport to have that effect.

An expression in the opinion in Fallis v. Keyes, supra, seems to imply that the act operated on future acquired estates only. But the property of the wife in that case was undoubtedly her separate property, admitted to be so, acquired after 1861, and the question being whether it could be charged with obligations entered into prior to 1861, this question was not before the court and it did not attempt to decide it. It follows from what has been said, that the rents and profits of the land in question cannot be subjected to the payment of these notes. They belong to the husband during the joint lives of himself and wife. Subject thereto, however, the notes are a charge upon the wife’s estate, which can be sold, if necessary, to pay them.

Judgment reversed.

Johnson, C. J.

I dissent from the 1st point of the syllabus, for the reason stated in Levi v. Earl, 30 Ohio St. 147.

I concur in the judgment, however, upon the facts stated in the record, but differ from my brethren as to the effect of the act of 1846, on the general property of a married woman, acquired after that act took effect, as to the husband’s rights in her land during coverture.

It is said in substance that the only effect of the act of 1816, was to limit the freehold estate of 1he husband jura uxoris, so as to exempt such estate from being taken for his debts, or being sold of incumbered by him, during her life or the life or lives of the heirs of her body and therefore the estate was one of freehold vested in him alone during coverture, which entitles him to sole possession with the exclusive light to the rents issues and profits of the land.

In my judgment the effect of the act of 1816 goes farther than this, and should be so construed. Its sole object was, to protect married women and the heirs of their bodies, in the enjoyment of the possession, rents, issues and profits, of their general estate, acquired after the act of 1816, in common with their husbands during coverture, and during the life of heirs of their bodies. This was done by taking from him all the common law incidents of sole freehold estate jure uxoris. It is not liable for his debts, nor could he sell or incumber it without the wife consented by joining in a valid conveyance.

It was solely for her benefit, and that of the heirs of her body during their lives. Without taking time to demonstrate' this, I content myself with simply stating, that as to lands acquired by a married woman after the act of 1816, her husband acquires an estate of freehold, in common with his. wife, the owner of the fee, and that she, jointly with him, is entitled to the possession, rents, issues and profits. It follows, that this interest of the wife during coverture became the separate property of the wife by virtue of the acts of 1861 and 1866. Hence I concur in the judgment, but think that this joint interest of the wife in common with her husband is under the acts of 1861 and 1866 chargeable.


author: By the Court.

text:
    Bonham v. Mills.
    In an action of forcible detainer, the defendant may demand a jury on the appearance day, although it is subsequent to the return day of the summons.
    Error to tlie District Court of Fayette county.

      M. J. Williams, for plaintiff in error.

      O. A. Palmer, for defendant in error.
   By the Court.

In an action of forcible detainer before Yeoman, a justice of the peace, in ease of Mills against Bonham, a summons was issued April 5, 1879, returnable April 8, requiring Bonham to appear April 9. On April 9, Bonham appeared and demanded a jury, but the justice overruled the demand on the ground that Bonham had waived the right by failing to make demand on April 8. Exception. Judgment for Mills ; affirmed in the court of common pleas ■and district court.

Reliance was placed in the courts below on a remark of ■Judge Swan, that “ it would seem, from the provisions of the .statute, that the demand for a jury must be made upon the return day of the summons.” Swan’s Tr. (11th ed.) 552. But upon examination of that which precedes and follows the remark, read in the light of former statutes, we are led to the conclusion that he did not intend to deny the right to demand a jury on the appearance day. The court erred in holding that Bonham was too late with the demand. The opinion of Doyle, J., in Hill v. Hollister, 5 Week. L. Bull. 757, is in accordance with this view.

Judgment of the district court, court of common pleas and justice of the peace reversed, and cause remanded for further proceedings.


author: Upson, J.

text:
    Taylor v. Elder.
    The will of T. was duly admitted to probate, and was in the following words:
    “ In case of any accident with me, I give all my property and money to my wife, Rhoda Ann Taylor, with this proviso: That she, my wife, provide for my adopted daughter, Mary Frances Boyle Taylor, adopted in the month of February following, being the year 1863. Dated this day, November 25, 1873.”
    The adopted daughter from the death of the testator to the time of her marriage, was supported by the widow, who had elected to take under the will. The adopted daughter was after her marriage supported by her husband, and the testator’s widow refused further to provide for her-.

      Held, the adopted daughter is not entitled to have set off to her any share of the estate; nor is she, while otherwise provided for, entitled to claim support from the testator’s widow.
    Error to tbe Superior Court of Cincinnati.
    1. On October, 26, 1876, Mary F. B. Elder filed in the Superior Court of Cincinnati the following petition.
    Mary F. B. Elder, Plaintiff, vs. Rhoda Ann Taylor, Defendant, _

      Petition.

      “ Now comes the plaintiff herein and says that she was the adopted daughter of the late P. N. Taylor of Cincinnati, and of Rhoda Ann Taylor, his wife, the defendant herein, although such adoption was not by virtue of any proceeding in the probate court of this or any other county. That she was born on the 7th of June, 1855, was adopted by said P. N. Taylor and said defendant in February, 1863, and was married on the 17th day of October, 1871, to Henry Elder, Esq. of Cincinnati. That her said father died on the —day of November, a. d. 1873, leaving no children other than the plaintiff, and left a will, which was duly admitted to probate by the probate court of Hamilton county, Ohio, upon the 1st day of December, a. d. 1873, and is recorded in vol. 19, page 152 of the Records of Wills of said county, which will was in the following words and figures, viz.:
    “ ‘ Cincinnati, September 6, 1862.
    ‘“In case of any accident, with me, I give all my property and money to my wife Rhoda Ann Taylor.
    P. N. Taylor.
    “ ‘ With this proviso, that she, my wife, provide for my. adopted daughter, Mary Frances Boyle Taylor, adopted in the month of-February following, being in the year eighteen hundred and sixty-three, dated this day, November 25th, 1873.
    “‘Ilis
    P. N. M Taylor, mark.
    “ ‘ Signed in the presence of these witnesses:
    “ ‘ Daniel W. Moore,
    “ ‘ Win. Cheeseman,
    “ ‘ Caroline M. Reid,
    “ ‘ M. A. Cheeseman.’
    “ And that said defendant having full knowledge of such probating of said will, appeared before the judge of the probate court, and duly elected to take under said will.
    “ Plaintiff further says that she is the Mary Frances Boyle Taylor mentioned in said will; and that her said father, at the time of his death, left about $12,000 worth of real estate, being an estate of purchase, situated principally in the city of Cincinnati, the remainder being situated in Kentucky, which is, and has been since his death, producing large rents, and all of which rents are and have been taken by said defendant, and all of which property is controlled by her. That he also left a large amount of personal property, which, when his estate was settled, was turned over to the defendant herein, in four notes, aggregating $7,323.77, which, or the proceeds of the same are still in her possession or under her control.
    “ That after her father’s death she remained for most of the time at her homestead with her mother, the defendant herein, until her marriage in 1871, and received during that time simply her food and clothing from her father’s estate, which was received through her mother.

      “ That since her marriage she has requested and demanded of her mother her share of her father’s estate, or an adequate provision for her, in accordance with her condition and the extent of said estate; but that the same has always been refused, except one offer made her by her said mother of $100 for a release of all her interest of every kind in her father’s estate, which offer she refused.

      “ Wherefore plaintiff prays the court that the defendant may be compelled to render an account of the personal property, and rents and profits received by her from P. N. Taylor’s estate, and to render a statement of the real estate held by her and derived from said estate, or exchanged for real estate belonging to said estate, or purchased with personal property derived from said estate.

      “ And plaintifE further prays the court for a construction of said will, and a determination of her rights thereunder ; and for a decree against defendant, compelling her to transfer to plaintiff such a share of the personal property, rents and profits of real estate, and real estate, as the court may find she is entitled to ; or to pay over to said plaintiff, such a share of the personal property, rents and profits, as to the court may seem proper for her adequate and proper provision from the time of her father’s death to the date of the decree, and to set apart in a safe manner for plaintiff’s benefit, such a share of said personal property, rents and profits, and real estate, as to the court may seem proper for the adequate and proper provision for plaintiff during her lifetime; or to pay over to said plaintiff such a share of the personal property, rents and profits, as to the court may seem proper for her adequate and proper provision from the time of her father’s death to the date of the decree, and to secure to the plaintiff the payment of, and to pay plaintiff a definite sum per annum, during her life, such as may seem to the court proper for her adequate and proper provision.

      “ And plaintiff further prays for her costs, and for such other and further relief as to the. court may seem just and proper. ”
    To which petition Rhoda Ann Taylor demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and an answer was filed, to which the plaintiff replied, and the cause was submitted (upon the pleadings and evidence) to the court, which at its general term in May, 1878, found the facts substantially as stated in the petition, and also that P. N. Taylor died on the twenty-sixth day of November 1873, and “ that by the terms of said will, said Taylor intended and did convey all of his property both real and personal, to his wife, the defendant herein, coupled with a trust to provide for the plaintiff herein, his adopted daughter ; that by said trust the plaintiff became and is entitled to be provided for out of the estate of said P. N. Taylor, with a reasonable and adequate support for her life, proportioned to the estate left by said Taylor and the condition and circumstances in life of the plaintiff”
    Upon this finding the court rendered judgment “that said plaintiff recover from said defendant such sum as is equivalent to the reasonable and adequate support from the death of said P. N. Taylor to the date of this decree, after allowing for such maintenance as she received from the death of said Taylor to the date of her marriage, said sum to be paid immediately after the same has been determined, and that said plaintiff further recover from said defendant such an annual sum or sums during her life as may hereafter be found by the master or masters to be hereafter appointed, and to whom this case may be referred, to be the reasonable and adequate amount or amounts for the support proportioned to the estate left by said Taylor, and the circumstances in life of said plaintiff,” and that the defendant pay the costs of the action, and of the reference. The court also referred the case to a master for the purposes stated in the judgment.
    This proceeding is prosecuted by Rhoda Ann Taylor to reverse the judgment of the superior court.

      Jordan c& Bettman, for plaintiff in error,
    contended that when the adopted daughter married, she could no longer claim support under the will, and cited, Moore v. Gamble, 1 Stockt. (N. J.) 246 ; Conner v. Ogle, 4 Md. Ch. 425; Addison v. Bowie, 2 Bland 606 ; Smith v. Jewett, 40 N. H. 530 ; Lyon v. Lyon, 65 N. Y. 339 ; Bull v. McCrea, 8 Ben. Mon. 425; Cloud v. Martin, 2 Dev. & Bat. (N. C.) 274; Baker v. Reel, 4 Dana, 158; Thorp v. Owen, 2 Hare, 608; 1 Bishop on M. & D. § 553 ; Cunningham v. Irwin, 7 Serg. & Rawle, 247; Neil v. Johnson, 11 Ala. 615 ; Schouler on Dom. Rel. 196 ; Stillman v. Stillman, 12 Reporter, July 13, 1881, No. 2; 99 Ill. 196.

      Perry <& Jenny, for defendant in error,
    claimed that the will of Mr. Taylor created a trust in favor of Mr^. Elder, and that the plaintiff in error by accepting under the will accepted the trust imposed by the will. The cjuestion is as to the duration of the trust. We claim that it continued through the life of the trustee. Saunders on Uses and Trusts, 343; Adams on Eq. 27, 29 ; Wright v. Adkins, 1 Turner & Russell, 143 ; Clifton v. Lombe, 1 Ambler, 519, 520; Alexander v. McCullock, 1 Cox, 891 ; McDermott v. Kealy, 3 Russ. 64; Jubber v. Jubber, 9 Simon, 503 ; Soames v. Martin, 10 Simon, 288 ; Pride v. Tooks, 2 Beaver, 730 ; Longmore v. Elcomb, 2 Younge & Collier, 363; 2 Roper on Legacies, 1495 ; Biddy v. Thompson, 32 Beavan, 646; Cushman v. Filleter, 3 Ves. 7; 4 Ves. 498; Lyon v. Lyon, 100 Mass. 340.
   Upson, J.

The difficulty in giving a satisfactory construction to the will of P. N. Taylor does not arise from any doubt as to the principles of construction, but from the indefiniteness of the few words in which he endeavored’to express his meaning, so far as it relates to his adopted daughter. The words £( provide for,” are capable of a very broad, or a very narrow, signification. They may be understood to include the furnishing of food, clothing, a dwelling house, household furniture, fuel, lights, and all. that may be needed to enable a person to live comfortably ; or they may be interpreted to mean only the supply of necessary food and clothing, or the giving of a suitable marriage portion.

In reference to the time during which the provision shall be continued, the meaning of those words is equally doubtful; they may require that it should continue while the adopted child remains at the home of the widow, during her minority until her marriage, or during her life.

In the case of Abraham v. Alman, 1 Russ. 509, 46 English Chancery Rep. 453, the will under consideration contained the same words in the following clause: “ Also to provide for the two daughters of my child Hannah Embden, namely Sarah Embden and Esther Embden,” and in giving the opinion of the court upon the effect of this clause, the master of the rolls said: “ The testator had no doubt intended tq make a provision for the Embdens, but his purpose seems to have been to do so by a distinct provision, and not by attaching a charge upon what was given beneficially to others. What this provision was to be, or in what manner, or out of what fund to be made, the court has no means of determining. . Was the payment to be made by a payment to the children of Hannah Embden during their respective lives, or by the payment of a sum in gross ? How was the amount of it to be calculated ? It appears to me impossible to give any certain construction to the clause on which the plaintiffs found their claim.”

The court thereupon held that clause of the will to be void for uncertainty. We are not disposed to go so far as that in this case. The language of the clause written in 1863 is plain, and taken alone would give to the widow all,of the property, real and personal, for her own benefit, but it is clear that by the clause added by the téstator, November 25 1873, the day before he died, he intended to place his widow under obligation to make some provision for their adopted daughter ; and effect should be given to that intention so far as it can be as ascertained. For this purpose we must first determine- the nature and extent of the provision intended, and in regard to that we are satisfied that the testator-intended to -trust mainly to the discretion of his wife, and with that discretion, fairly exercised, a court 'of equity would not interfere. It is conceded by Mrs. Taylor that while Mrs, Elder remained at the home of the former, as a member of her family, it was her duty to support her; which duty is admitted to have been performed, but' 'it is claimed by Mrs. Elder that the obligation to support her during life, was imposed upon Mrs. Taylor by her election to take under the will, and that the whole of the property devised and bequeathed, was taken by her subject to that trust. These claims were sustained by the judgment of the superior court, which found that by the terms of the will Taylor “ intended to, and did, convey all of his property, real and personal,” to his wife with a trust, by which his adopted daughter became, and w’as, entitled to be provided for, out of the estate, with a reasonable and adequate support for her life, proportioned to the estate left by Taylor, and her condition and circumstances in life; and rendered judgment in accordance with that finding. We cannot concur in that construction of the will, which holds the whole property in trust to secure the support for life of the adopted daughter, and makes the-rights and interests of the widow subordinate. We do not think the language of .the will, or the surrounding circumstances, show that to have been the intention of the testator.' We think it is clear that his principal purpose was to give his ¡property to his wife, for her own benefit, but with the obligation to provide, to a reasonable extent, for the adopted daughter. This obligation was fully discharged by the support provided from the death of the testator to the marriage of Mrs. Elder, when it was no longer needed. Cases have been cited, on one side to sustain the position that maintenance for life was intended, and, on the other, that the intended provision was limited to support while the beneficiary should remain a member of the widow’s family; but it has been well stated that “ no definite rule can be laid down ; each case must stand upon its own circumstances.”

The principles which we consider applicable to this case however, so far as they reíale to the extent of the required provision, are stated in the case of Carr v. Living, 28 Beavan, 644, where the testator devised and bequeathed his real and personal property to trustees in trust to pay the interest to the testator’s wife, for life, for the separate use of his wife, and their children, to be applied for the maintenance and support of herself, and the maintenance, education, clothing and support of the children. Upon the hearing of the case the master of the rolls, Sir J oh» Romilly, said: “ The principle on which I have always acted, and which is consistent with all the authorities, is this, that although the parent in these cases is a trustee for the children, it is only so far as is required for their maintenance and support. Thus if the daughters had married and were supported by their husbands, they could not come and complain that no allowance was made to them,” and the court held that “ when the children are otherwise provided for, and do not require support or maintenance, they are not entitled to complain that they do not receive a portion of the fund which is not required for their maintenance, education and support.” The principles applicable to the construction of the will now under consideration are also illustrated by the case of Paisley's Appeal, 70 Pa. St. 153. The testator gave to his wdfe the rents and profits of all his property, during her life, for her support, and the support and education of his children, under the direction of his executors, and the court held that this did not create a trust for the children, either in the widow or executors, nor give the orphans’ court, jurisdiction to call them to account, or to decree in favor of the children for the future administration of the estate; that the children had no present interest in any particular shares, and that the testator’s main object was to benefit the widow. In regard to the judgment of the court below the court say, “such a distribution as that decreed might .be most unjust and inequitable. It might leave the widow with all the cares and responsibilities of the household upon her, without an adequate support for herself.”

Similar considerations are entitled to great weight in determining the meaning of the words “provide for” in the will of P. N. Taylor, and upon the whole we are satisfied that the facts stated in the petition of Mrs. Elder are not sufficient to constitute a cause of action, and that the superior court erred in overruling the demurrer to the petition, as well as in the final judgment against Mrs. Taylor.

We do not decide that circumstances may not occur hereafter which would give Mrs. Elder a right to further provision, nor do we decide what mode of enforcing such provision might be adopted, but that she has no right to any share of the property, nor at this time to other relief.

Judgment reversed, demurrer to petition sustained, and cause remanded.


text:
    Bullock v. Kilgour.
    K., a creditor of an insolvent corporation, brought- suit against its stockholders, including H., B. and L., to enforce their individual liability as stockholders, for the benefit of the creditors of the corporation, and obtained judgment against such stockholders respectively for the amounts found to be required for the payment of the debts of the corporation; and the court appointed a receiver to collect the amounts for which judgment was rendered, and apply the money to the payment of such debts. K. afterwards filed a supplemental petition against B. and L., alleging that an execution issued agaiust H., upon such judgment, had been returned unsatisfied, that he was insolvent, that he acquired his stock from B. and L., who had held and owned it, and praying judgment againt B. and L., for the amount of the judgment rendered against H.

      Held, the judgment rendered in the action brought by K. is a final judgment, conclusive upon K., and the other creditors, as to the liability of the several stockholders who were parties to the action.
    Error fo the Superior Court of Cincinnati.
    In July, 1868, Charles H. Kilgour filed a petition in the superior court of Cincinnati against the Pendleton Street Railroad Company, The Franklin Bank of' Cincinnati, John J. Hooker, Anthony D. Bullock, Henry Lewis and others, alleging that be bad recovered a judgment, which was still in force and unsatisfied, against the street railroad company,0a corporation of wbicli he and the other defendants, except the Franklin Bank, were the stockholders ; that the Franklin Bank had also obtained judgment against the company, and that there were other debts due from the company ; that the entire property of the company had been sold and the proceeds applied to the payment of other debts, and that the company was wholly insolvent; that each of the stockholders was liable to the plaintiff and the other creditors of the company pro rata with the other stockholders to such amounts as were unpaid on their stock, and in a sum of money equal to the amount of his stock, or to such proportion thereof as might be required to pay all the debts of the company ; but that controversies had arisen among said stockholders as to the number of shares of stock held by them respectively, and the amounts for which they were liable. The petition prayed that an account might be taken of the debts of the company, and to whom owing; and also of the stockholders of the company, the amount of stock held by each, the amount due on the stock, and also due for the extra liability of one hundred per cent.; that an assessment might be made on the stockholders, in proportion to their liability, of such sums as would be sufficient to pay all the debts of the company; that judgment might be rendered against the stockholders respectively, for the sums so assessed, and for other relief. The case was referred to a master, to take and state the account prayed for, and upon the confirmation of his report judgment was rendered, in June, 1870, against those stockholders who had been served with process. ■
    It was found by the court that Bullock and Lewis held' stock to the amount of sixteen hundred dollars, and judgment was rendered against them for $652 ; and judgment was also rendered against Hooker, as the holder of stock to the amount of seven thousand nine hundred dollars, for $3,219.
    The court appointed a receiver to collect the sums for which judgment was rendered, and also, by legal proceedings or otherwise, the sums found due from those defendants not served with process, and from the money thus collected to pay the costs of the suit, and to distribute the balance pro rata among all the creditors of the company.

      In March, 1882, Kilgour filed a supplemental petition against Bullock and Lewis, alleging that an execution had been issued against Hooker and returned unsatisfied, and that he was insolvent: that Hooker acquired his stock by transfer from Bullock' and Lewis August 17, 1867, at which time all the debts of the company had been contracted, and that prior to that day Bullock and Lewis were the owners and holders of that stock; and praying judgment, on behalf of Kilgour and the other creditors of the company, against Bullock and Lewis for the amount of the original judgment against Hooker.
    Bullock and Lewis moved to strike the supplemental petition from the files, but their motion was overruled. They then demurred, but the court overruled their demurrer, and rendered judgment against them in accordance with the prayer of the supplemental petition. This proceeding is prosecuted to reverse that judgment.

      Ramsey & Matthews, for plaintiff in error.

      Ilealy, Drannan ds Desmond, for defendant in error
   Upson, J.

It was supposed that in deciding this case it would bo necessary to review the decision of this court in Brown v. Hitchcock, 36 Ohio St. 667, in regard to the time at which the individual liability of the stockholders of a corporation attaches in favor of its creditors. This we should not be willing to do in any case where it is not necessary, as we think it is not in the case now presented for our consideration. The first question to be decided is, whether the judgment rendered in 1870, in the action brought by Kilgour, is a final judgment. If it is, it can only be vacated, modified or rev-er: sed in the mode prescribed by statute, and until thus vacated, modified or reversed it is conclusive upon all parties to the action, as to all matters involved therein; upon the principle that the public good requires a limit to litigation.

The object of the. action was to enforce the individual liability of the stockholders of the company, for the benefit of all its creditors, and in order to enforce such liability it was necessary to determine the controversies 'which the petition stated to have arisen among the stockholders as to the number of shares held by them respectively and the amounts for which they were liable. To á complete determination of the questions involved in such an action it is necessary that all of the stockholders should be made parties for the purposes of a general account and to enforce from them contribution in proportion to their shares of stock, as decided in Umsted v. Buskirk, 17 Ohio St. 113, and also that the liabilities of the.parties, as between themselves, may be marshaled in accordance with the rules of equity. If there were other stockholders of the Pendleton Street Railroad Company, who were liable, it was the right of. any defendant to insist upon their being made parties.

It is clear that- no other parties, and no other allegations in the petition, were needed to give the court power to determine finally all questions, affecting the individual liability of the parties to the action, as stockholders of the company.

Bullock and Lewis were parties defendant, and the cause of action against them existed'at the time the suit was brought, whether their liability, as stockholders, attached at that time, or when the debts of the company were contracted. It was the duty of the court, under the allegations of the petition, to determine the extent of their liability, whether primary or ultimate, and the court did determine that they were the holders of stock to the amount of sixteen hundred dollars, and were therefore liable to contribute towards the 'payment of the company’s debts the sum of six hundred and fifty-two dollars, for which judgment was rendered against them. While this judgment-remains in force it'is a conclusive determination of their liability as stockholders to pay the amount, of such judgment, and- no more.

Section 5119 of the Revised Statutes does not authorize the plaintiff to file a supplemental petition after final judgment has'been rendered, for the purpose of vacating, reversing or modifying such judgment.

Judgment reversed.