text:
    Cultice et al. v. Mills et al.

      Wills — Construction — Life estate to son and to Ms heirs — Intention of testator— Word "heirs" construed as "children”.— Remainder reverts to brothers and sisters of son — Who dies, without cMldren, leaving widow.

    1. The term “heirs-” when used in a will is flexible and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will and the circumstances under which it was made. (Jones v. Lloyd, 33 Ohio St., 572, approved and followed.)
    2. Where a testator devises real estate to a son during his natural life and to his heirs, and in other provisions of the will the word “heirs” is used by the testator in the sense of “children,” the word “heirs” in the devise to the son should be held to mean “children,” and not to have been used in its technical sense to designate any one capable of inheriting.
    3. In such a case the real estate, upon the death of the son without children, does not pass to his widow, but the devise in remainder fails and the real estate will revert to the sbn’fe brothers and sisters or their representatives as heirs of the testator.
    (No. 15582
    Decided January 15, 1918.)
    Error to the Court of Appeals of Clark county.
    Forest D. Mills, one of the defendants in error, filed a petition in the common pleas court of Clark county in which he alleged that he, as heir at law of John' Mills deceased, had a legal right to and was seized of an undivided one-eighteenth interest in certain real estate in that county, and that the defendants named in the petition were tenants in common with him. He asked for an order of partition. One Clara J. Mills, by leave of the court, was made a party defendant, and in an amended answer and cross-petition filed by her December 6, 1915, she alleged that the real estate described in the- petition was devised by Thomas Mills, deceased, to her husband, John Mills, during his natural life and to his heirs; that John Mills took possession of said real estate under said will and died intestate February 20, 1915, leaving no children, but leaving her, the said Clara J. Mills, his widow and only heir at law; and that under the will of Thomas Mills she was the sole owner in fee simple of the real estate in question. The prayer of her cross-petition was that she be adjudged the owner of the real estate in fee simple and that the title to the same be quieted in her as against the plaintiff and the other defendants in the partition proceeding. Clara J. Mills died March 5, 1916. Her death was suggested to the court, and Edward Cultice and C. S. Olinger, as her executors, were made parties, and the court ordered the action to proceed upon her answer and cross-petition. Forest D. Mills, plaintiff below, filed a reply, and several of the defendants filed an answer to the answer and cross-petition of Clara J. Mills, in which it was denied that Clara J. Mills had any estate, title or 'interest of any kind whatever in any of the land described in the petition or in her cross-petition, either by virtue of the terms and provisions of the will and codicil of Thomas Mills, deceased, or from any other source whatever. On March 13, 1916, an answer and cross-petition was filed by Margaret Funston Anderson and certain other defendants, in which they denied practically all of the allegations of the petition and alleged that they and the defendants named in their answer and cross-petition had a legal right to and were seized in fee simple as grandchildren and great grandchildren and heirs at law of Thomas Mills, deceased, of undivided interests in the real estate described in the petition, in the proportions named in their answer and cross-petition, and they asked for an order of partition.
    The case was submitted to the court upon the pleadings, two agreed statements of fact, and the evidence. The court found that Clara J. Mills was not the owner in fee simple or otherwise of the real estate described in the petition, that said title should not be quieted in her name or in the names of her devisees, that her husband was seized of a life estate only in the real estate described in the petition, and that said real estate descended to and vested in the heirs of Thomas Mills. The amended answer and cross-petition of Clara J. Mills was dismissed and the court ordered partition among the grandchildren and great grandchildren of Thomas Mills, deceased, and children of certain great grandchildren, being the parties named as tenants in common in the answer and cross-petition of Margaret Funstori Anderson and others.
    The case was appealed to the court of appeals by the executors of Clara J. Mills, and her devisees, and was submitted upon the pleadings, the evidence, the agreed statements of fact filed in the common pleas court and an additional statement of facts filed in the court of appeals. The court of appeals made the same finding as was made by the common pleas court as to Clara J. Mills, and dismissed her petition, and made an order of partition in favor of the same parties named in the order made by the common pleas court.
    Upon application of plaintiffs in error the court of appeals was directed to certify its record to this court.

      Messrs. Zimmerman & Zimmerman and Mr. C. S. Olinger, for plaintiffs in error.

      Messrs. McGrezv, Laybourne & MacGregor; Mr. Wm. M. Rockel and Mr. W. Y. Mahar, for defendants in error.
   Newman, J.

The provisions of the will of Thomas .Mills which are pertinent to the inquiry here are as follows:

Item 1. I give and bequeath to my son 'James during his natural life and to his heirs at his death one hundred and thirty acres of land with all the appurtenances thereunto belonging, towit: One hundred and ten acres of the west side of the southwest quarter of Section 23, Twp. 5, Range 8, also twenty acres of the same quarter section immediately north of the lands hereafter devised to Sibbia’s heirs, being the same farm as now held in his possession.

Item 2. I give and bequeath to my daughter Nancy during her natural life and to her heirs the farm on which I now live containing one hundred and thirty acres lying in Sections 16 and 22, T. 5, Range 8.

Item 3. I give and bequeath to my son John during his natural life and to his heirs the old home farm in Sections twenty-three (23) and twenty-nine (29), T. 5, Range 8, and all my personal property not otherwise disposed of.

Item 4. I give and bequeath to my daughter Sibbia’s heirs the balance of the southwest quarter of Section 23, T. 5, Range 8.

Item 5. I bequeath out of my personal property to my son James three hundred and twenty dollars.

■ Item 6. I bequeath out of my personal property to my daughter Hannah five hundred and ninety-two dollars.

Item 7. I give and bequeath to my daughter Lettie $1,000 to be paid her in notes now held by me against her husband John Inlow.

Item 8. My daughter Nancy to have control of all my household property for her and John’s use so long as they may live together and in case of the death of either or if they should wish a division then be divided equally between them.

Item 9. My lands in the state of Kansas I give and bequeath equally to my son James and daughters, Sibbia heirs Hanna and Lettie.

The will was executed August 28, 1861. Nancy, the daughter, mentioned in Item 2, died January 31, 1864, and Lettie, the daughter mentioned in Item 7, died January 1, 1865. On October 26, 1865, Thomas Mills made a codicil to his will which contained, among others, the following provisions:

“Codicil No. 1.
“Witnesseth as follows.
“Whereas by the blessing of Almighty God my life and health of body and mind has been preserved whilst two of my children Nancy and Lettie both .receiving legacies in my foregoing will dated August 28, 1861, have deceased, and other changes in my family seem to make this codicil and amendment to my before mentioned will necessary.
“First I devise that the wish or bequest of my daughter Nancy in regard to my household goods to Nancy Hess be complied with.
“Item 2d. That to said Nancy Hess I bequeath one-fifth of the farm formerly bequeathed to .my daughter Nancy by Item 2d of my will.
“Item 3d. That the .other four-fifths of said farm be divided equally between my children, James, Hanna, Sibbia, and John or their heirs having by deed dated October 6, 1865, given to my daughter Lettie heirs Wm. Thomas, Mary Lavinia, John Henry, and Martha Jane Inlow my Kansas .lands mentioned in Item 9th of my will in lieu of their interest in this last mentioned farm.”

The testator died December 18, 1865, and the will and codicil were probated in Clark county, Ohio, January 12, 1866. The “old home farm” devised in Item 3 of the will is the real estate of which partition was ordered in the proceeding below. John Mills, the son of the testator, mentioned in this item, was married to Clara J. Baird, April 15, 1869. He and his wife lived on this farm until his death which occurred February 20, 1915. The widow Clara J. Mills continued in the possession of it until her death which occurred March 5, 1916. No children were born of this marriage.

The claim of plaintiffs in error is that, under item 3 of the will, the real estate devised therein, at John’s death vested in his widow, Clara J. Mills, as his sole heir. At common law one’s heirs are the persons who would inherit the real estate by right of blood, but' the statutes have enlarged the meaning of the word and it may include persons not of the blood of the intestate. Under the provisions of .Section 8574, General Code, an estate passes to and vests in the husband or wife, relict of the intestate, where there are no children or their legal representatives. Clara’J. Mills, therefore, in a technical sense, was the heir of her husband. If, therefore, the testator used the word “heirs” according to its strict technical import, the contention of plaintiffs in error is correct. But it was held in Jones v. Lloyd, 33 Ohio St., 572, and followed in Weston v. Weston, 38 Ohio St., 473, and Durfee v. MacNeil, 58 Ohio St., 238, that the term “heirs,” when used in a will is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will. As was said in the opinion in Durfee v. MacNeil, supra, it would be unprofitable to analyze, or even to cite, the numerous cases in which the term has been held to have been used in its general sense-to designate any one capable of inheriting*, or in its limited sense to designate children, as the testator’s intention may appear from the scheme and all the provisions of the will. We are called upon then to determine in what sense the word “heirs” was used in Item 3 of the will.

At the time the will of Thomas Mills was made, a daughter Sibbia was deceased, having left six children surviving her. Lettie, another daughter of the testator, died after the will was made, leaving several children surviving her. James, a son, had children living. In the first item of the will the testator gives to his son James during his natural life and to his heirs certain real estate and describes it as being immediately north of the lands “hereafter devised to Sibbia’s heirs.” It is apparent that the testator in the use of the word “heirs” in this item had in mind the children of James and the children of Sibbia. The heirs who would take the estate after the death of^James were his children. In item 4 the testator again uses the expression “S-ibbia’s heirs,” which unquestionably had reference to the children of that deceased daughter. He makes a like reference in item 9. After the death of his daughters Nancy and Lettie the testator made a codicil and in item 3 thereof refers to the fact that he had deeded certain property to his “daughter Lettie heirs” and then names the children of Lettie, which indicates that the words heirs and children were in his mind synonymous. It is to be noted that in his codicil the testator states that owing to the death of two of his daughters “and other changes in my family” the making of a codicil became necessary, and, as has been suggested, this indicates that the mind of the testator was éxpressly directed to his family and that he was conserving his property to those of his own blood. We think the provisions of the will and codicil to which we have referred and the circumstances under which they were made show that the testator used the word “heirs” in a sense different from its strict technical import. The words “children” and “heirs” were used by him as interchangeable terms. For want of children to take the real estate devised in item 3, the devise in remainder failed, and the estate reverted to the brothers and sisters of John Mills or their representatives as heirs of the testator Thomas Mills. In Bunnell v. Evans, 26 Ohio St., 409, it was held that where a testator made a devise to his son John “through his natural life and then to his heirs,” and in another part of the will used the word “heirs” in the sense of “children,” the son took a life estate only, with remainder to his children, or issue, and not to his heirs generally, and that upon his death without issue, the devise in remainder failed, and the estate reverted to the heirs of the testator.

Counsel for plaintiff in error insist that the case of Miller et al. v. Miller, 77 Ohio St., 643, affirming the judgment of the Circuit Court, 9 C. C., N. S., 242, supports their position and that it is decisive of the question presented here. In that case where a testator had devised a parcel of real estate to his son for life with remainder to his lawful heirs, and the son married after the death of the testator, the circuit court held that upon the death of the son the wife took as heir as there was nothing in the will which tended to show that the testator used the words “lawful heirs” in a sense different from their strict technical import. The judgment of the circuit court in the Miller case was affirmed by this court without opinion. There were but two questions presented in that case in the circuit court': “Was the term ‘lawful heirs’ in the will used in a technical sense?” and “Was the widow an heir?”

In affirming the judgment of the circuit court, we may assume that this court answered these questions in the affirmative and subscribed to the view entertained by the circuit court. In the Miller case the testator had devised to a married son, Howard, a certain parcel of land during his life and at his death to his children. In another item of the will he devised to another married son, Richard, for his life and at his death to his children. In the provision of the will for construction by the court in that case the testator used this language: “I give and bequeath to Peter a parcel of land [describing it] during his life, and when he dies it is to go to his lawful heirs.” Peter was unmarried, but married after the death of the testator. As was held by the circuit court there was nothing in the will tending to show that the words “lawful heirs” in the item devising the property to the son Peter was used in the sense that the word “children” was used when the devises were made to the other sons. We do not think that the Miller case is in point here.

For the reasons we have given the court of appeals was correct in holding that the widow of John Mills had no interest whatever in the real estate in question, and her answer and cross-petition was therefore properly dismissed.

Judgment affirmed,.

Nichols, C. J., Wanamaker, Jones and Matthias, JJ., concur.

Johnson, J., not participating.


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    The Cleveland Railway Co. v. The City of Cleveland.

      Street railways — Franchise contract — interpretation favoring public — •Terins and provisions — "Repaving” and "repairing” distinguished — Pavement between tracks — Street improvement — ■Words and phrases.

    1. The Constitution of Ohio provides that all private property shall be “subservient to the public welfare.” By virtue thereof, where a private person or corporation enters into a contract with the public and such contract is of doubtful or uncertain meaning as to any of its provisions, that construction should be adopted that is most favorable and advantageous to the public interest and general welfare.
    2. Where a franchise contract uses words and phrases of common and ordinary use and meaning in street improvement, such use and meaning will be adopted by courts in the construction of such contract.
    3. The word “repair” in reference to a pavement is inherently local and more or less temporary. It is usually made necessary by some local disturbance or defect in the pavement and it is none the less “repair” because new material must be used in order to effect such “repair.”
    4. The word “repave” in reference to a street improvement has an equally well defined customary usage and meaning and relates generally to a new pavement, either of the same or different material, for the full width of the street theretofore similarly improved, or for some defined section thereof.
    (No. 15565
    Decided January 15, 1918.)
    Error to the Court' of Appeals of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. Wm. S. FitzGerald, director of law, and Mr. Wm. B. Woods, assistant city solicitor, for defendant in error.
   Wanamaker, J.

In the spring of 1914 it became necessary to lay new tracks for the operation of the street railway on Superior street viaduct in the city of Cleveland.

Pursuant to Section 38 of the franchise between The Cleveland Railway Company and the city of Cleveland, the former asked the latter for a permit to occupy and open up the street for the purpose of laying said new tracks. The city • refused to grant said permit unless the railway company would then and there agree to renew the pavement between the tracks and for a space one foot in width outside the tracks, the city contending that this obligation was imposed upon the railway company under the franchise. This the railway company denied, and therefore refused to renew the pavement.

Finally it was agreed between the parties that the railway company should proceed to renew its tracks and do whatever paving was made necessary thereby in the situation, and thereafter suit should be brought by the railway company against the city to determine the relative liabilities upon the facts and under the franchise.

The agreement by virtue of which the railway company made said changes in track and pavement contained among other things the two following provisions, as an agreed statement of facts:

“(1) That the present tracks on that portion of the viaduct are worn out and new tracks ought to be laid at once.”
“(2) That the present paving blocks which must be removed in order to relay the tracks are-worn out, and that when the new tracks are laid, it will be necessary to use new paving block to restore the street to a proper condition for traffic.”

After such changes in track and pavement had been made, suit was duly brought in the common pleas court of Cuyahoga county to recover from the city of Cleveland, at a fair and reasonable contract price, for material and labor used in connection with said pavement.

Upon trial had, judgment was entered in favor of the railway company against the city. Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas and entered final judgment for the city. Error is prosecuted here to reverse the judgment of the court of appeals.

Plaintiff in error relies for a reversal upon Section 7 of Ordinance No. 16238-A, known as the “Taylor Franchise,” particularly the latter part of such section. The section reads:

“The company shall maintain in constant repair the pavement within a space seven (7) feet in width for single-track, and for double-track the entire space between the outer rails of both tracks, including the space between the two tracks and one foot outside of each outer rail, but in no event to exceed eighteen feet, except about curves, special work and where there are more than two tracks in a street, in all paved streets' occupied by its tracks, whether such streets were paved at the time of the passage of this ordinance or subsequently thereto; but the company shall not be required to repave by virtue of this obligation to repair, nor by virtue of any requirement of the general ordinances of the city of Cleveland during the continuance of this grant.”

It is vigorously urged that what was done in this case, as shown by the record, was not a repair of the pavement, but a repaving thereof.

The words “repair” and “repave” in connection with streets and highways are in general and common use. They each have a distinctive and well-understood meaning. When any street pavement becomes in such general condition as to be unfit of unsafe for general public travel, and the municipal authorities duly determine by resolution or ordinance such necessity, they then proceed, agreeable to the statute, to accomplish such repavement of all or a part of the street, but usually the whole width of the street from curb to curb. If, however, the street is generally fit and safe for the general public travel, but certain spots or 'localities, by reason of inferior material, inferior workmanship, unusual travel, neglect to repair, or some local disturbance, become unfit or unsafe, then such a situation would not be included in the word “repave” but would be properly included in the word “repair.” Of course locally there would be a “repaving,” and technically every new block laid would be a “repaving” as to that block, but in the language of street construction and improvement the words and phrases above used have a clear and distinct meaning and are fairly included in the word “repair.”

To illustrate — the laying of water mains, gas pipes, telephone or telegraph conduits, and the like, under a pavement, would necessitate at some points such changes in the pavement by the use of new blocks or material as might in one sense be called a “repaving,” but in another sense the restoration of such pavement to its former state of usefulness would be simply a “repairing” of the street. As to the spot on the street it would be a “repaving.”' As to the whole street itself, it would simply be a “repairing.”

What was evidently intended here by this latter part of said Section 7 was this: That when the city determined upon a new pavement for the street, whether of the same or a different material, the railway company should “not be required to repave,” or to pay any part of the cost of the same. But after the same had been repaved, it would then become the duty of the railway company to keep the same in repair so long as the pavement was in general use by the traveling public.

But there is a further and all-conclusive fact decisive of this case.

The following agreed fact appears in the record:

“That the present paving blocks which must be removed in order to relay the tracks are worn out and that when the new tracks are laid, it will be necessary to use new paving block to restore the street to a proper condition for traffic.”

Blackstone has furnished us a most efficient rule in construing and applying a legislative act:

1. What was the old law before the legislative act ?

2. What was the mischief under the old law which the legislative act sought to correct?

This valuable test as to law furnishes us an interesting analogy as to facts.

The same principle that applies to the construction of a legislative act very often may with reason apply to a contractual act, the franchise in .this case.

What was the obligation of the railway company as to the pavement during the life of the old track? When we have determined this, we may the better understand what its obligation is to the pavement during the life of the new track.

Some stress is laid upon the admission that the paving blocks to be removed in order to relay the tracks were “worn out.” Being “worn out” naturally they would be unfit to be relaid about the new track, and hence new blocks would have to be used, which plaintiff in error contends would amount to a repaving, from which they contend the franchise contract relieved them.

But the admission goes much farther.

If the blocks were worn out they were not only unfit to be relaid, but were also unfit to be in the pavement about the old track, which conclusively proves that the railway company was then in default of its plain duty under the franchise in failing “to maintain in constant repair the pavement,” that is to say, before the track was changed.

The duty had arisen and had been imposed by franchise upon the railway company to put the pavement about the old tracks in proper repair.

Obviously there can be no misunderstanding as to this obligation under the franchise, which obligation covered all the company’s tracks during the whole period of the franchise, and whether such tracks were using old rails or new ones, in repair or out of repair. Had the railway company discharged its full duty under the franchise in keeping the pavement between and along the old rails in constant repair, as provided by the franchise, the railway company would have had the new blocks or suitable blocks to use about the new rails.

The obligation to lay the new rails under the franchise is admitted by the railway company. When they discharge this obligation, how can it be contended that they are relieved from the obligation to keep the pavement in repair along and between the tracks, as to which they had already defaulted in the use of the old rails with a worn-out block pavement adjacent thereto?

This admission seems decisive of the case and the obligation of the railway company in connection with the new track, by reason of its own admitted default in connection with the old track.

Under the franchise it is self-evident that whether the rails were old or new, it was the railway company’s duty to maintain them in repair during the life of the present pavement, and there being no complaint that the present pavement was in any wise inadequate for public travel, but upon the contrary had a future life perhaps of many years, the duty of the railway company to repair is undeniable.

But if there were any doubt about the construction or application of this franchise to the admitted facts before us, again the city should prevail.

In this day private interests, and private rights must yield to public interests- and public rights, and, where there is ambiguity or uncertainty as to which of two constructions should prevail in a franchise contract, it is quite clear that that construction should be adopted by courts that would be most favorable to the public interest and welfare.

The judgment of the court of appeals should be, and therefore is, affirmed.

Judgment affirmed.

Newman, Jones, Matthias and Johnson, JJ., concur.


author: Matthias, J.

text:
    The State, ex rel. The Euclid-Doan Building Co., v. Cunningham, Commissioner and Inspector of Buildings.

      Municipal corporations — •Building ordinances — Validity and interpretation — Non-fireproof tenement houses• — Limitation of height — Extension of building — Conversion into apartments —■Refusal of building permit — Mandamus.

    1. Ordinances of a municipality reasonably regulating the height, mode of construction and use of tenement houses are a proper exercise of the police power for the preservation and promotion of the safety, health and welfare of the community. A construction of such ordinances should be adopted, where possible, which effectuates the obvious purpose of their enactment.
    2. The provisions of ^n ordinance limiting non-fireproof tenement houses thereafter erected to three stories or forty-five feet in height, and prohibiting the increase in height of tenement houses except in compliance with the provisions of such ordinance regulating the height of tenement houses thereafter erected, apply to a non-fireproof tenement house sixty feet high theretofore erected under a duly authorized permit issued by the building commissioner of the city, who sanctioned the extension of the building to include the fifth story, with the express limitation that such story should not be used for residence apartments but only as an attic for storage purposes.
    3. The conversion of such fifth story into apartments to be occupied as the residence of eleven families "living independently of each other and doing their cooking upon the premises” would constitute an increase in the height of the tenement house and! . would result in the erection of a tenement house to a height prohibited by the ordinances of the municipality.

      i. The application of the owner of such building, for a permit to' make the proposed changes and alterations in the structure and use of the fifth story thereof, having been denied by the building commissioner, its issuance will not be enforced by mandamus.
    (No. 15679
    Decided January 15, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      The relator is the owner of a building located at the corner of Euclid avenue and 105th street in Cleveland, Ohio, which was erected • sometime prior to January 1, 1907. Since its erection the first floor has been used for business purposes and the next three floors for residence or tenement purposes. The fifth floor was not completed for tenement purposes nor was it subdivided into rooms and halls for any purpose. It was left unfinished and has been used solely for storage purposes. The building is sixty feet high above the curb.
    The relator desiring to partition the fifth floor and make thereof apartments for eleven families entered upon the work necessary to be done to accomplish that purpose without applying to the commissioner of buildings of the city for a permit so to do. Thereupon an affidavit was filed in the municipal court in 'the city of Cleveland charging the relator company with violating the provisions of the building code of the city of Cleveland in entering upon and proceeding with said work without first obtaining such permit. Whereupon an application was filed for such permit, but issuance thereof was refused by the respondent. An appeal from the action of the building commissioner was taken by the relator to the board of appeals of said city in accordance with the provisions of the building code theretofore adopted and then in force, and that board affirmed the action of the building commissioner. Thereupon the relator instituted this suit in the court of appeals of Cuyahoga county for a writ of mandamus requiring the respondent as commissioner of buildings of said city to issue a permit to partition for tenement purposes the fifth story of said building. Upon hearing, the court of .appeals denied the application of the relator; whereupon the case was brought to this court by proceeding in error.

      Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.

      Mr. W. S. FitzGerald, director of law, and Mr. Wm. B. Woods, assistant city solicitor, for defendant in error.
   Matthias, J.

Counsel for relator have heretofore contended and now urge that the provisions of the building code of the city of Cleveland authorize the alteration in the manner contemplated of the fifth story of relator’s building, and also the use of that portion of said building for tenement purposes, without procuring a permit from the building commissioner so to do; but because of the attitude maintained and the adverse action taken by the building commissioner with reference thereto an application for a building permit was filed, issuance of which is now sought to be enforced by mandamus, it being contended that if under the provisions of the city ordinances the proposed remodeling of the interior of said building required a permit it was the duty of defendant to issue the same.

Relator thus seeks to have determined in this proceeding the question whether such permit is required before it can proceed with the work contemplated, and, if that question be answered in the affirmative, then that the writ of mandamus prayed for shall issue. The building commissioner refused to grant the permit applied for, upon the ground that the provisions of the ordinances of the city comprising its building code prohibit the conversion of the fifth story of relator’s building into residence apartments and forbid the use of that portion of the building for tenement purposes.

The following sections of the building code, together with others, are relied upon and cited:

Article II, Section 46. “No tenement house shall hereafter be increased in height except in compliance with the provisions of. this ordinance regulating the heights of tenement houses hereafter erected.”

Article II, Section 47. “All additional rooms, halls, stairways and passageways hereafter constructed in tenement houses shall comply with all of the provisions of this ordinance relating thereto in the case of tenement houses hereafter erected.”'

Article I, Section 17. (In part.) “Every tenement house hereafter erected more than three (3) stories or forty-five (45) feet in height shall be of I, II, or III class construction as established by ordinance.”

It is conceded that each of the classes of construction referred to as I, II and III is fireproof construction.

The provisions of the last section cited are clear and explicit. The erection of a non-fireproof tenement house more than three stories or forty-five feet in height is thereby absolutely prohibited.

The authority of a-municipality in the exercise of its police power to enact and enforce ordinances of this nature, which provide for and secure the safety and welfare of the people, is no longer open to question. Such regulations are in no wise an invasion of property rights, for no one has a right to use his property in a manner that unreasonably and unnecessarily endangers the lives of others; hence in the interest of the public welfare a property owner must submit to a reasonable regulation and limitation of the use of his property, and, in matters of such character, when private interests and public welfare conflict, the former must give way to the latter.

The building of the relator in question here is not of fireproof construction, nor is it proposed by the changes and alterations to be made to place such building or any part thereof within the class denominated “fireproof construction.”

This building, which is known as the EuclidDoan, is five stories in height. The first floor is used for business purposes, and the second, third and fourth for residence or tenement purposes, and it has thus been used and occupied ever since its erection. The fifth floor has never been used except for storage purposes. The building, therefore, as actually used and occupied, either for business or tenement purposes, consists of but four floors. It is now proposed to make therein tenement apartments for eleven families, which shall be more than three stories, in fact more than four stories and more than forty-five feet, above the curb. The erection of a non-fireproof building of such height containing apartments for “three or more families living independently of each other” is now prohibited.

The ordinance containing the provisions above cited was enacted in 1915. Relator’s building was erected prior thereto. Do the restrictions and limitations of that ordinance have any application to this building? Relator contends they do not, for the reason that by its terms Section 17 of Article I, above quoted, applies only to tenement houses erected after the enactment of the ordinance. Relator further contends that Section 46 of Article II, above quoted, has no application, for the reason that it is not proposed to increase the height of a “tenement house,” as the term “tenement house” means building and the building is not to be increased in height. As supporting that contention counsel cite several sections of the building code, including Section 9 of Article I, a part of which is as follows:

“A tenement house is any house or building or portion thereof which is occupied in whole or in part as the home or residence of three or more families living independently of each other, and doing their cooking upon the premises, and includes apartment houses, flat houses, flats and all other houses so occupied.” .

It is to be observed that this definition of a tenement house is very broad and comprehensive, undoubtedly ma.de so in order that restrictions and limitations upon the construction, care and maintenance of tenement structures occupied as “the residence of three or more families liying independently of each other, and doing their cooking upon the premises,” which restrictions and limitations are more strict and exacting than those applying to buildings to be used for other purposes, shall apply and be enforced not only as to the portion of the structure so used but also to the entire building in which such apartments are located. However we are not now concerned with the construction and application of this building code generally. We are dealing only with the question as to its application to the Euclid-Doan building.

The record discloses that when this building was erected it was completed for the uses and purposes, and only for the uses and purposes, to which it has since been devoted, as heretofore stated. It was completed as a tenement house but four stories in height. The record discloses that when the building was erected the limitation of its use as a tenement house to four stories in height was in accordance with the requirements of the then building commissioner of the city of Cleveland; that notwithstanding a permit had then been issued for a four-story building an attempt was made to extend the walls to five stories. A revocation of the building permit resulted, but later a modification was made whereby the outer wall was permitted to be completed upon the condition that the fifth story should be used and occupied only as an attic for storage purposes. An affidavit exécuted by the then owner of the building, which evidences an agreement as to such limitation upon the use and occupation of the building, was at that time placed on file with the building commissioner. It is urged that the present owner is in no wise bound by such agreement between the building commissioner and the former owner of the building. That evidence is competent, however, as tending to show that the fifth story was not erected for tenement use and that the building was erected as a tenement house only to the height of four stories. The class and character of the building was then fixed as a tenement house four stories high. Now it is proposed to increase its height and to place tenement apartments at a height clearly prohibited by the ordinance of the city now in force; and it is claimed that such action is valid and that a permit must be granted therefor upon the theory that “tenement house” means building occupied as the residence of three or more families, etc., and that no attempt is being made to increase the height of the building.

Upon that theory, if in this large building there were only three families “living independently of each other and doing their cooking upon the premises,” the grade of the building being thereby fixed, all of this large building could be converted into residence apartments regardless of the very clear and evident purpose upon the part of the legislative body of the municipality to preclude the placing of such tenement apartments more than three stories or forty-five feet in height in a building of non-fireproof construction. It is not to be presumed that the legislative body intended to prohibit such erection of future buildings and at the same time permit the subsequent construction of living apartments in non-fireproof structures theretofore erected, at any height desired by the owner thereof, particularly where, as here, the building when erected was limited as a tenement house to four stories. It is clear that what is now proposed to be done is to increase the height of this tenement house by adding a story of residence apartments thereto, and it seems perfectly obvious that the making of the alterations and changes contemplated amounts to a construction of tenements at such héight as to clearly violate the provisions of the building code which prohibit not only the erection of tenement houses higher than forty-five feet, unless the same are fireproof, but also the increase in height of tenement houses previously erected without compliance with the restrictive provisions of the ordinances in force at the time the extension is proposed to be made. Such ordinances are properly enacted for the preservation and promotion of the safety, health and welfare of the community. A construction thereof should not be adopted which is supertechnical and results in defeating instead of effectuating the obvious purpose of their enactment.

It is urged that this is a matter of very serious pecuniary moment to the relator, and that the restrictions imposed deprive it of a large amount of rentals which would otherwise accrue from the use of its property as desired. Nothing seems to be more firmly established than that whatever measures are reasonably necessary to secure and maintain the peace, safety, morals and best interests of the public may be adopted and enforced under the police power, and that private property is at all times “subservient to the public welfare.”

The provisions of Section 173-37 of Ordinance Number 28151-A render unnecessary a permit for a mere partition of buildings, but can have no application where the changes to be made would result in a direct violation of other clear and explicit provisions of the building code.

In our opinion the building commissioner was fully warranted in refusing the permit applied for. The refusal was justified upon the ground that the changes and alterations proposed to be made are prohibited by the ordinances of the municipality. There was no error in the proceedings in the court of appeals prejudicial to the rights of the plaintiff in error. We aré in entire accord with the finding and judgment of that court. Its judgment is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Johnson and Donahue, JJ., concur.


author: Jones, J.

text:
    The Hocking Valley Railway Co. v. The Cluster Coal & Feed Co.

      Railroads — Public utilities commission — Finding entered as judgment— By clerk of courts — ■Judicial power — Constitutional law.

    Section 580, General Code (101 O. L., 178), authorizing the clerk of the court of common pleas to enter up the findings of the public utilities commission as a judgment, does not confer judicial power upon that officer. The act is ministerial and' not judicial, and is not violative of Section 1, Article IV of the Constitution, which vests the judicial power in the courts of the state.
    (No. 15618
    Decided January 15, 1918.)
    Error to the Court of Appeals of Franklin county.
    On November 29, 1915, the defendant in error, as claimant, filed its complaint against the railway company before the public utilities commission, claiming an overcharge of $2.19 on certain shipments of coal. The commission, having found that amount due the coal company, certified its findings to the clerk of the court of common pleas of Franklin county, Ohio. The clerk of that court docketed the case in compliance with Section' 580, General Code, and entered up the findings of the commission as a judgment against the railway company. Error was prosecuted to the court of appeals, which affirmed the judgment and proceedings of the common pleas court. Error is now prosecuted here.

      Messrs. Wilson & Rector, for plaintiff in error.

      Messrs. Morton, Irvine, Turner & Blanchard, for defendant in error.
   Jones, J.

Section 579, General Code, provides that if the public utilities commission finds in favor of a claimant it shall certify its findings to the clerk of the court of common pleas of the county in which the claimant resides or where the railroad or any of its offices are maintained.

Section 580, General Code, provides that within thirty days from the receipt of such findings by the clerk, the railroad company may by motion cause the same to be docketed as a civil action in said court, and that if no such motion is filed “the clerk shall enter up the finding of the commission as a judgment and the same shall be in all respects treated as a judgment at law with all the incidents thereof and upon which execution may issue as in other cases.” The same section further provides that if said matter is docketed for trial, the action shall proceed as in other civil actions for damages.

Since the act of the clerk is authorized to be performed without the concurrence or knowledge of the court, it is now claimed that such act is void and that Section 580, General Code, is unconstitutional, because it undertakes to confer judicial power upon the clerk of the courts and is therefore violative of Section 1, Article IV of the Constitution.

If the act of the clerk in entering these findings upon the record of the court is judicative, it is clearly invalid and the statute authorizing it is void; but the entering of findings upon the journals of the court as a judgment can by no possibility be' construed as a judicial function. The latter presupposes the use of mental processes in the determination of law or fact, and at times involves discretion as to how the power should be used. Under this statute the clerk is not vested with discretion, and his refusal to act would subject him to a writ of mandamus. It has been decided by this court that while the settling and allowance of a bill of exceptions,- in determining the collection of a bill, may be judicial, the act of the judge in signing it is purely ministerial. The court determines and announces its conclusion. This function is judicial. After such announcement, the entry of his final decision is purely ministerial. If the statute in question required the determination by the clerk of any issue of fact or legal principle involved, this would have been an unwarranted exercise of judicial power.

Under the two statutes involved the legislature has committed to the public utilities commission the authority to ascertain the facts and enter its findings of the amount due as liquidated damages. In the instant case these findings were certified to the clerk of the court of common pleas, who is authorized, in the absence of a motion upon the part of the railway company, to docket the cause-for trial and to enter up the findings of the commission as a judgment against the railway company. The. railway company not having availed itself of its statutory right to docket the case for trial is in the position of a defendant who is in default for answer to a complaint in which an exact, stipulated amount is claimed against it by the plaintiff. The case is analogous to a default judgment, with the added advantage that here the plaintiff’s claim has- been liquidated by a public administrative body, exercising quasi-]udicial functions.

It has been held with practical uniformity that, where a statute has authorized the clerk of a court of record to enter up a default judgment for a fixed and ascertainable amount claimed by the party, there is no constitutional inhibition against such law, and the same is not in violation of the constitutional provision conferring judicial power. Utah Assn., etc. v. Bowman, 38 Utah, 326; Graydon v. Thomas et al., 3 Ore., 250; Lathrop v. Snyder, 17 Wis., 110; Gamble v. Jacksonville, P. & M. Rd. Co., 14 Fla., 226; P. Miller Brewing Co. v. Capital Ins. Co., 111 Ia., 590; Sperling v. Calfee, 7 Mont., 514; Bullard v. Sherwood et al., 85 N. Y., 253; Skillman v. Greenwood, 15 Minn., 102, and Wall v. Heald, 95 Cal., 364.

These cases are authority for the legal principle that where the statute has cast upon the clerk the duty of entering a judgment for a fixed, ascertained amount, it is a purely ministerial function, and the entry of the judgment in contemplation of law is presumed to be the act of the court and performed in its presence; and especially does such a presumption attach in view of Section 2899, General Code, which provides that “in the performance of his duties he [the clerk] shall be under the direction of his court.” If the clerk were required to determine some issue of fact or law presented by the pleading it would be otherwise; but where his simple duty is to enter upon the records a fixed and liquidated amount claimed against a party who makes no efifort to defend, it is tantamount to a judgment by default or confession and involves no judicial function. Ordinary judgments under Sections 11383 and 11592, General Code, have been committed to the judiciary; but under the section here involved, the legislature has conferred upon the clerk of courts the ministerial power to enter defaults of this character as a judgment at law. Such judgment, like other judgments, still remains under the supervision and control of the court, which may open up, or vacate, the same as other default judgments.

After the commission has made its finding in favor of the claimant, Section 579, General Code, provides that the same shall be certified to the “county in which the claimant resides or where the railroad or any of its offices is maintained.”

It is now urged that this is an unreasonable exercise of legislative power. By the provisions of the section named the commission is required to cite the railway company to answer the com-' plaint. Thereby the railway company was properly served and was subject to the future course of such proceedings, as the parties are in appealed cases, where no further process is required. The character of the service and method of process is entirely within the legislative control, and cannot be disturbed by judicial action unless the legislative provision is clearly unreasonable.

This court is unable to say that this is an unreasonable provision, for it would appear that the railway company could ascertain, within the period named, the locus of the filing, either from the records of the public utilities commission, or from the court records in the counties named.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Johnson, JJ., concur.


author: Nichols, C. J.

text:
    Niemes v. Niemes et al.

      Wills — Contest—Civil action — Verdict by three-fourths of jury — Non-expert testimony — Mental capacity of testator — Testamentary capacity determined, how.

    1. An action in contest of the validity of a will is designated a civil action by the express terms of Section 12079, General Code, and as such is subject to the provisions of Section 11455, General Code, which permits the rendition of a verdict by the jury on the concurrence of three-fourths or more of its membership.
    2. It is the established law of Ohio that in such an action a lay witness, although not a subscribing witness, who has theretofore given testimony upon which an opinion can reasonably be based, may give his opinion as to the soundness or unsoundness of the mind of the testator.
    3. In such an action it is competent for such lay witness, so qualified, to give opinion as to the capacity of the testator to understand important business matters, although the absence of such capacity need not necessarily disqualify a testator from making a valid disposition of his property. Such testimony is competent as reflecting on the testator’s power of thought and comprehension and the general strength of his mental faculties.

      4. Testamentary capacity exists when the testator has sufficient mind and memory:
    First, to understand the nature of the business in which he is engaged;
    Second, to comprehend generally the nature and extent of his property;
    Third, to hold in his mind the names and identity of those who have natural claims upon his bounty;
    Fourth, to be able to appreciate his relation to the members of his family.
    (No. 15583
    Decided December 18, 1917.)
    Error to the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Mr. Rufus B. Smith; Messrs. Williams & Rag-land; Mr. Horace A. Reeve and Mr. John J. Weitzel, for plaintiff in error.

      Mr. J. Louis Kohl; Messrs. Peck, Shaffer & Peck and Mr. Floyd C. Williams, for defendants in error.
   Nichols, C. J.

In the trial of an action in the court of common pleas of Hamilton county, Ohio, the last will and testament of John Niemes, theretofore admitted to probate in that county, was by the verdict of a jury held not to be the valid last will and testament of the decedent.

Judgment was entered on the verdict, and in proceedings in error the court of appeals of Hamilton county reversed the judgment and remanded the case for a new trial. Consulting the journal entry of the court of appeals we find that the judgment of reversal was predicated on two alleged errors:

First. That the court erred in its general instruction to the jury on the subject of undue influence.

Second. That the court erred in the admission of evidence of a number of lay witnesses as to the lack of ability of the testator “to understand and decide large and complicated business propositions.”

The court overruled all other assignments of error, among which was one to the effect that the verdict was contrary to the weight of the evidence; and another to the effect that the court erred in its instruction to the jury that a concurrence of but three-fourths of the membership of that body would be sufficient to return a verdict, the point made being that since a contest of a will in Ohio is what is known as a special statutory proceeding it is not embraced within the language of Section 11455, General Code, providing that in all civil actions a verdict shall be rendered upon the concurrence of three-fourths or more of their number.

In the instant case the verdict of the jury was signed by eleven of the jurors.

Another error assigned by those seeking to maintain the will was that the trial court erred in refusing to give a certain special charge as follows: “To be able to make a will it is not necessary that a person should have power to understand complicated business transactions.”

The case, on motion, was admitted to the supreme court fpr review,

The first proposition upon which the court of appeals hased its reversal of the common pleas court was that it erred in its general charge on the subject of undue influence.

It may be at once conceded that in charging that “If deceived by misrepresentations, or coerced by threats or solicitation or persuasion, or even by mercenary kindness or attention, or influenced by the constant pressure of a dominating or controlling mind which constrained him into executing a will he would not of his own inclination have made, then the jury may find that undue influence has been exerted over the mind of the testator,” the trial judge' brought to the attention of the jury certain species of undue influence about which no evidence whatever had been offered.

The evidence in fact as to undue influence was but meager, sufficient only, it may be said, to have justified the submission of that branch of the case to the jury. A careful search of the record fails to disclose any testimony tending to prove that the testator had been coerced either by threats or solicitations or by mercenary kindness or attentions.

It may then be assumed that the court to that extent incorrectly charged the jury on that issue, although it ought to be said that in all other respects the trial judge’s charge on the subject of undue influence was most admirable.

We are of opinion that no substantial prejudice can be ascribed to such error, and we arrive at this conclusion, first, because the language improperly used was a mere abstraction and to attach to it the importance and significance necessary to justify a reversal of a cause otherwise correctly tried would be going far beyond the proper function of a reviewing court, according to the latter-day conception.

An examination of the record in the case shows conclusively that the issue on which the contestors of the will chiefly relied was the mental unsoundness of the testator. If it be granted that the language is not an abstraction, but given as having direct and concrete application to the case, we are not willing to admit that the error should be charged with the substantiality essential to warrant the setting aside of the verdict of a jury.

We are still further of opinion that if it be granted that the improper inclusion of the language as to the several species of undue influence — which was entirely unsupported by proof — was prejudicial error, the defendant in error cannot take advantage of the error, being precluded therefrom by the doctrine first asserted in Ohio in the case of Sites v. Haverstick et al., 23 Ohio St., 626, and recently reasserted in State, ex rel. Lattanner, v. Hills, 94 Ohio St., 171, 182. This well-known rule of law is that where, upon the issues made by several defenses to a claim sued upon, a general verdict is found for the defendant, it not being disclosed by answers to interrogatories or otherwise upon which issue the verdict was based, and the record disclosing no error touching either the presentation or submission of at least one of such issues, a finding upon which in favor of the prevailing party would justify a general judgment, which is rendered, error of the trial court in the submission of other issues will be disregarded.

The defendant in error seeks to escape from the consequences of this rule of law by asserting that an action to contest the validity of a will is not a civil action, but a special proceeding under the statute, and that there is but one issue, that is, the general issue to be made up on the journal and submitted to the jury as to whether the paper writing is the valid last will and testament of the testator.

The court holds that this special proceeding, so-called, is after all a civil action, clearly made so by the provisions of Sections 11238 and 12079, General Code.

The court also holds that within the general issue so made upon the journal there may be included and generally are included a number of issues special in their nature.

An instrument probated as a will may be set aside for a variety of reasons, and, without pretending to give all such reasons, we would refer to four:

1. That the testator was lacking in mental capacity.

2. That the testator was unduly influenced, as that term is defined by the law.

3. That there was a defective signing or attestation.

4. That the testator was not of legal age.

All of these several questions might be introduced in one given will-contest. It would be the duty of the court to charge separately on each one of the grounds so set forth, and, while all are embraced within the general issue of the validity or invalidity of the instrument, yet they are clearly separate issues of fact or law.

Regarding the second assignment of error ruled upon by the court of appeals in its judgment of reversal, we are confronted with a very singular situation.

The court recites in its journal entry Of reversal that the court of common pleas erred in the admission of evidence in permitting a number of lay witnesses “to testify as to the lack of ability of the testator to understand and decide large and complicated business transactions.’ ” It will be observed that the question so held to be erroneous is quoted with exactness.

A careful and detailed examination of the testimony of each and every witness offered by the plaintiff in error as disclosed by the record fails to show the admission of any such testimony by the trial court. We do find by such examination, at page 51 of the record, that the precise question was asked of Nellie Hobson. The defendant at once objected, the trial judge did not rule on the question but took its competency under advisement. The matter was evidently argued by counsel, and, later, as evidenced by the record at page 86, this same witness was recalled, and this question was thereupon propounded to her: “I will ask you whether in your opinion at that time, he was able to understand large business propositions ?”

To this question objection was made, overruled by the court, and exceptions taken, and the witness was permitted to answer it.

With but slight variations, consisting only in the substitution of the term “important” for “large,” this same question was asked of and answered by all of the witnesses offered by the plaintiff in error..

This court would be justified of course in holding that the court of appeals was in error in reversing a cause for an error assigned, but which the record discloses with absolute certainty did not occur.

That the question actually asked is radically different from the one considered by the court is beyond all question.

It is one thing to understand a matter; it is quite another thing to be able to decide it. One might have the power of understanding and totally lack the power of decision.

One might have the power of understanding and even deciding an important business proposition and yet be incapable of understanding and deciding a business .proposition of a complicated character. A large and important business proposition is not necessarily a complicated one. On the other hand, a small and unimportant business proposition might have angles of great complication.

Considered with reference to the disposition of property, a testator of clouded mentality might have the power of intellectually grasping an uncomplicated will, even though the paper writing might have to do with the disposition of a large estate, and yet be wholly unable to dispose of a small amount of property in a complicated way.

Complicated is defined as consisting. of many parts or particulars not easily severable in thought; hard to understand, explain, etc.; involved; intricate; confused.

Turning our attention to the question really asked, we are not disposed to criticise its competency. It is the law of most every jurisdiction that in a contest of a will proceeding, lay witnesses may be permitted to give their opinions as to the state of mind of the testator. The question usually propounded is: “What is your opinion of the condition of the mind of the testator at the time of the execution of the paper writing? Was it sound or unsound?” or “Was he sane or insane?”

In Runyan v. Price et al., 15 Ohio St., 1, it was held error to permit a lay witness to give opinion as to the capacity of the testator to make a will, the objections set forth by the court being that that was the ultimate question to be decided by the jury, and that the question assumes that the witness knows the capacity required by the law to make a will.

The question asked in the instant case is wholly without the objectionable features of the question condemned in Runyan v. Price, supra.

It is neither the ultimate question to be decided by the jury nor does it assume that the witness knows the capacity requisite for will-making. It would be absurd to the point of ultraism to hold it to be quite proper in a will-contest to permit a lay witness to pass judgment on the mental soundness of the testator, and yet deny him the privilege of giving his opinion as to the ability of the same testator to understand important business affairs.

Either party in proceedings of the character under investigation has the undoubted privilege of presenting to the jury any fact or circumstance having relation to the mental capacity of the testator and the power of his mental faculties.

It is quite common to ask witnesses as to the ability of a testator to transact ordinary business transactions — not that this is the final test. It is in fact a higher test than the law imposes on the testator. -The transaction of the ordinary affairs of life involves a contest of judgment, wisdom and experience, and often demands an exercise of mentality superior to that required in the testamentary disposition of property. In such matters the parties are dealing at arm’s length, as has been aptly expressed.

The fact that a testator could not understand important business transactions or even ordinary business transactions cannot in and of itself justify a verdict setting aside a will, but such inquiries are none the less proper in giving to the jury a picture of the mind under investigation.

If, in a given case, the inquiry of contestant was limited to such character of questioning, the trial court in review would be justified in holding that no evidence has been offered and in directing a verdict accordingly.

In the instant case, however, the record discloses. other testimony, consisting of facts, circumstances and conduct, which if true and unexplained would have a tendency to prove mental incapacity. It was the function of the jury to pass on the sufficiency of this testimony. It has done so — adversely to the claim of those who sought to sustain the will. The court of appeals, whose duty it was to review the testimony as to its weight, has likewise held on this phase of the case against the claims of the defendant in error. There being some evidence adduced, and the weight having been determined to have been with the plaintiff in error by both tribunals created by law to settle such matters, the inquiry is closed before it reaches the supreme court.

The trial court in the instant case gave a special charge (No. 8) which advised the jury that the test of capacity was not the ability of testator to understand important business affairs, when he said to them: “Testamentary capacity exists when the testator has sufficient mind to understand the nature of the business in which he is engaged, to comprehend generally the nature and extent of the property which constitutes his estate, and which it is his intention to dispose of, and to recollect his family, relatives and those who might be the natural objects of his bounty.”

This charge is open to no serious criticism. It might have been advisable to have subdivided the last clause into two parts, which with a slight change should read as follows:

1. To hold in his mind the names and identity of those who have natural claims- on his bounty.

2. To be able to appreciate his relation to the members of his family.

It is hardly sufficient to say that the testator should hold in his mind or “recollect” the names of his family; he should also be able to identify their relationship to himself, and, carrying the thought further, he should not only be able to hold them in mind and identify their relationship, but he should be able to appreciate the natural claims they might have on his bounty.

It would be only a step in the right direction if testator, with four children, A., B., C. and D., could recall their names and fix in his mind the fact that they were his offspring. He must go farther and realize that by the laws of civilization those united to him by the ties of blood have the first claim upon his consideration.

It is proper to say that in the use of the general term “family” there is no disposition to employ it in any restricted sense. One’s family might be the immediate members of his household, as wife, children, brothers and sisters, or father and mother, and, in the absence of these closer connections, would embrace such of his relations as, under the laws of descent and distribution of Ohio, would be entitled to the next estate of inheritance should he have died intestate.

These rules, of course, like all other general rules of this character, must he exercised with reason. A testator- who could not recall the names and identify the degree of relationship he bore to his immediate family, would be at once open to the suspicion of having a faulty memory. On the contrary, if such testator had no immediate relatives, it might in cases where there exists a large number of connections be an undue burden to charge him with the necessity of possessing such powers of memory as to be able to recall the names of all his next of kin, and to identify in detail their exact relationship even to the remotest degree.

But in any event, be these relations near or remote, the testator is always chargeable with a degree of mental capacity sufficient to appreciate the fact that those united to him by ties of blood have natural claims upon his bounty.

These natural claims can of course be ignored; only however by those who, while fully understanding, yet choose to disregard them.

By the law of Ohio, see Section 10503, General Code, “A person of full age, of sound mind and memory, and not under restraint, who has property, or an interest therein, may give and bequeath it by last will and testament lawfully executed.”

In this respect it may well be doubted if the reasons assigned by this court for its decision in Runyan v. Price, supra, will fully stand the test of reasonable analysis.

The truth is, that the established rule of law permitting lay witnesses to give opinion as to the sanity or insanity of the testator justifies so broad a field of inquiry that it would appear an unwarranted practice to withhold any reasonable inquiry relating to the state of mind of the testator.

The question approved in Runyan v. Price in reality is the ultimate one to be decided by the jury and presupposes that the witness understands what mental unsoundness is.

The question under review there was asked of a lay witness, who, in passing, it may be well to notice, was not a subscribing witness.

It sought the opinion of the witness as to the sanity or insanity of testator, or his capacity to make a will. The court passed with approval that part of the inquiry relating to the sanity or insanity of the testator, but held that portion of the question as to his capacity to make a will improper, for the reason that the question was the ultimate one to be decided by the jury and presupposed a knowledge on the part of the witness of the capacity required by the law to make a will.

It is of course manifest that the capacity under inquiry was entirely mental, and had no reference to his being of legal age or possessing property oían interest therein which he desired to will. The reasoning could well be questioned or at least said to be lacking in wise discrimination, for certainly if the testator is mentally sound he has mental capacity to make a will.

If the reasoning of the court be thought entirely sound as to that part of the question which it held erroneous, then, by the same course of reasoning, the part of the question which called for the witness’s opinion as to the sanity or insanity of the testator should likewise have been held erroneous.

The examiner of the witness evidently understood the two inquiries to be substantially the same, for, as put to the witness, the question was: “State what your opinion was * * * as to the’sanity or insanity of William Runyan, or his capacity to make a will.”

Much stronger reasons could be urged for the establishment of a rule of law entirely forbidding a lay witness to give opinion as to the sanity or insanity of a testator than it would seem possible to offer for the rule allowing such witness to give such opinion while at the same time prohibiting him from giving an opinion as to testator’s capacity or lack of capacity to make a will.

However this may be, and as long as the rule prevails permitting lay witnesses to give opinion as to the testator’s sanity or insanity, wide latitude may safely be permitted as to both the form and substance of questions which have for their object the presentation to the jury of a replica of the testator’s mind, with all its strength or weakness, and its powers or limitations.

It is further urged by the defendant in error that the trial court erred in refusing to give the following special charge: “To be able to make a will it is not necessary that a person should have power to understand complicated business transactions.”

It is sufficient to say that no such test of capacity was introduced into the case, or claimed by anyone to be the true test, so far as the record discloses. And further, since the court in special charge No. 8, heretofore referred to in this opinion, did give a test of capacity that is substantially correct, no possible prejudice could have been suffered by defendant in error by refusal to give such charge.

There remains but one further question: Was ' there error in the holding that an action in contest of a will is included within the provisions of Section 11455, General Code, permitting verdicts to be returned whenever three-fourths or more of the jury concur?

It is provided in Section 11455, General Code, that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. If therefore an action in contest of a will is a civil action it is included necessarily within the provisions of such section.

That such proceeding is a civil action is not even a debatable matter. The statutes of our state have so denominated it, and that of course is the end of the matter. Section 12079, General Code, provides that “A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest its validity by a civil action in the common pleas court of the county in which such probate was had.”

Therefore in view of the provisions of these two sections of the code, it is wholly unnecessary to attempt to differentiate between civil actions and special statutory proceedings.

Whatever the technical distinction may be, it can have no application here.

The judgment of the court of appeals is therefore reversed and that of the common pleas affirmed.

Judgment of court of appeals reversed and that of common pleas affirmed.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Johnson, J.

text:
    The Cleveland & Western Coal Co. v. Pennsylvania Co.

      Interstate commerce — ■ Jurisdiction of state courts — Demurrage charges — Delay in delivery.

    Primary jurisdiction having been conferred on the interstate commerce commission to deal with interstate commerce to the extent and in the manner provided for by acts of congress, state courts have no right originally to exercise authority over subjects which primarily come within'the jurisdiction of the commission.
    (No. 15522
    Decided January 22, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are stated in the opinion.

      Mr. C. F. Taplin, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Mr. Ellis R. Diehm, for defendant in error.
   Johnson, J.

The Pennsylvania Company recovered a judgment against The Cleveland & Western Coal Company in the municipal court of Cleveland, which was affirmed by the court of appeals of Cuyahoga county, and the case is brought here on error.

The claim of the Railroad Company was for demurrage charges on account of detention of various cars of lake coal consigned to the Coal Company in June, 1913, and loaded for its account, from plaintiff’s line, on certain named steamers for transshipment at Ashtabula Harbor, Ohio, aggregating 43 cars. In its statement of claim plaintiff alleged that pursuant to law it published and filed with the Interstate Commerce Commission rules covering demurrage charges on interstate shipments of lake coal. The statement set forth in detail the method of determining such charges and showed the number of debit and credit days in relation to defendant’s coal so shipped. The defendant does not deny the correctness of the statement 'by the plaintiff so far as it shows a balance due of 150 days detention of cars, for which $1 per day is the fixed charge.

The defendant, however, alleges that on account of certain delays, specifically set forth in its answer, with reference to 23 cars of coal, the demurrage should be suspended as to those cars, and that if suspended there would be no balance due to the Railroad Company, because the amount of debits on the 23 cars exceeds the amount of plaintiff’s account. It alleges that in the tariff filed with the Interstate Commerce Commission there was included the following provision: “Rule 6. Allowances will be made for railroad errors which prevent proper tender or delivery.”

It is the contention of the defendant that on account of unreasonable delay, which prevented proper delivery of the 23 cars in question, demur-rage should be suspended under Rule 6 as above stated. It concedes that in a suit for freight or demurrage charges no counterclaim for damages, either for delayed delivery or damage to the goods, can be sustained, but it contends that in this case the delay in the shipment defeats the claim for demurrage.

The position of the Coal Company is that it was the duty of the trial court to so construe and apply Rule 6 as to enforce the suspension of the demur-rage charges in the manner stated.

The shipments involved in this case were interstate shipments, and jurisdiction to determine controversies arising upon such claims as are set forth here, including the duty and power to construe rules, has been conferred upon the Interstate Commerce Commission by congress. Equality between shippers in all relations with carriers is the object sought to be attained in the legislation regulating shipments, rates and railroads. It seems to be well settled that the commission has exclusive primary jurisdiction in such matters. Uniform rules and uniform construction of rules are essential to secure the objects sought and to prevent the confusion which would result from one rule being held in one jurisdiction and another rule in another jurisdiction. The courts may not, as an original •question, exert authority over subjects which primarily come within the jurisdiction of the Interstate Commerce Commission. (Tex. & Pac. Ry. Co. v. American Tie & Timber Co., 234 U. S., 138, and Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S., 426.) Therefore, it having been shown by the agreed statement of facts which was filed in the case that the claim of the plaintiff of 150 debit days on demurrage account was correct, the courts below were correct in allowing the claim for that amount. The Coal Company is not without a remedy if it has a legal claim against the Railroad Company for the alleged wrongful delays described in its answer, but it must seek its relief in the forum which has been clothed with authority to deal with the subject.

We have carefully examined the record and the briefs of counsel with reference to the other assign- . ments of error, but we do not find any prejudicial error, and the judgments of the courts below will be affirmed.

Judgments affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.


author: Newman, J.

text:
    The State, ex rel. Coles, Jr., v. Shook et al.

      Execution — Exemptions — Statutes liberally construed• — Purchase money — Apportionment of judgment — Merger of accounts.

    1. Laws exempting property of a debtor from execution are to be construed liberally in his favor. A statutory provision in the nature of an exception to the general law on the subject of exemptions should be given a strict construction.
    2. The provision in Section 11738, General Code, that no personal property shall be exempt from execution on a judgment rendered for the purchase price or any part thereof, relates only to a.judgment rendered exclusively for the purchase price or a part of the purchase price of the property.
    8. A judgment rendered in a case where a claim for the purchase price of property is combined with a book account for merchandise is an entirety and indivisible, and a court, in a mandamus proceeding brought by the judgment debtor to require an officer in whose hands an execution has been placed for levy to set off certain property as an -exemption, is without power to apportion the judgment.
    (No. 15607
    Decided January 22, 1918.)

      Error to the Court of Appeals of Franklin county.
    This proceeding, originating in the common pleas court of Franklin county, was one in mandamus to compel the defendants as bailiffs of the municipal court of the city of Columbus (the successor of the justices’ court) to set off to the relator as exempt from execution a certain photográphic camera taken in execution on a judgment in favor of the W. C. Dunn Photo Supply Company. The case was submitted to the common pleas court on an agreed statement of facts. That court stated its conclusions of fact, in substance, as follows: The relator purchased from the W. C. Dunn Photo Supply Company a No. 10 Cerket camera at an agreed price of $290. He paid $100 cash, and gave ten notes of $19 each to cover the balance, secured by chattel mortgage on the camera in question. Two of these notes were paid. The relator, after the purchase of the camera, purchased from time to time from the W. C. Dunn Photo Supply Company certain items of merchandise, which were charged against him on an open book account. On the 10th day of September, 1914, the W. C. Dunn Photo Supply Company commenced an action before a justice of the peace of Montgomery township, Franklin county, Ohio, against the relator as upon an open account in the sum of $265.20. This included the amount remaining unpaid upon the camera and the balance due on the open account for merchandise. On October 16, 1914, a default judgment was rendered against the relator in the sum of $255.81, the relator having paid $10 after the proceeding was begun in the justices’ court. The amount of the balance due on the camera and the amount due on the open book account were merged in one judgment. An execution was issued and levied by the defendants in error on the camera in question. The relator is a married man, the head and support of a family, with whom he is living, and whom he is supporting, and is a citizen and resident of the city of Columbus, Ohio, and was such at the time of the issue and levy of the execution. Neither he nor his wife was or is the owner of a homestead or any real estate whatever, and the personal property owned by them, including the camera, does not exceed in value the sum of $500.
    The relator made demand that the camera be set off to him as exempt under the laws of Ohio, which demand was refused, and thereupon he instituted the proceeding in mandamus.
    The court found as its conclusion of law that the relator was not entitled to exemptions as against part of the judgment, amounting to $152 and interest, but that as against the balance of the judgment he was entitled to his exemptions. The petition of the relator was dismissed at his costs, and a motion for a new trial was overruled. Error was prosecuted to the court of appeals where the judgment of the common pleas court was affirmed. Upon application of the relator the court of appeals was directed to certify its record to this court.

      Mr. James C. Nicholson, for plaintiff in error.

      Mr. Horace S. Kerr, for defendants in error.
   Newman, J.

It is provided in Section 11738, General Code, that a husband and wife living together, resident of this state, and not the owner of a homestead, may hold exempt from levy and sale property to be selected, not exceeding $500 in value, in addition to the amount of chattel property otherwise by law exempt. That section contains, also, this provision: “No personal property shall be exempt from execution on a judgment rendered for the purchase price or any part thereof.”

The court of appeals was of the opinion that under this provision so much of the judgment as was represented by the unpaid purchase money was superior to the homestead exemption. The, common pleas court had reached the same conclusion, and in support thereof cited Green v. Bass, 83 Ohio St., 378, where Frost v. Shaw, 3 Ohio St., 271, was approved and followed. In Green v. Bass, supra, the holding was that the owner of the senior chattel mortgage did not, by recovering a judgment on the note which was secured and causing execution to be levied on the chattels mortgaged, waive the priority of his lien. In Frost v. Shaw, supra, it was held that in the case of the chattel mortgage the owner waives the benefit of the exemption, so far as the incumbrance extended or was operative, and that, where a mortgagee at the maturity of his debt, having the right to the possession of the property mortgaged, saw proper to reduce his debt to judgment and have the property sold under the authority of an execution for the payment of his debt, the debtor sustained no injury in the right of possession of the property, which would support an action of trespass, even though the chattels mortgaged and sold belonged to the enumerated articles exempted by law from execution.

The relator in the instant case had executed a chattel mortgage to secure the payment of the notes given in part payment of the purchase price of the camera. If, in the action brought by the W. C. Dunn Photo Supply Company against him in the justices’ court, the claim had been confined to one based on these notes, the judgment debtor could not, under the holding in the Bass case, supra, have complained had the camera been levied on and sold oh execution; but, in view of the fact that in the instant case judgment was not rendered exclusively on the notes given for the purchase price of the camera, we do not think the two cases to which we have referred are in point.

That part of Section 11738, General Code, which is quoted. above, is a comparatively recent enactment, and by force of its provision the vendor of personal property who is not secured by a chattel mortgage stands on an equal footing, so far as the right of the judgment debtor to claim exemptions is concerned, with the vendor who has such security*. But the question for our determination is whether it has application in the instant case.

The creditor had two classes of claims against his debtor. Certain personal property was not exempt from execution on a judgment rendered upon one class of these claims. As to a judgment rendered upon the other class the same property was exempt. The creditor saw fit to combine his claims in one action, and they were merged in one judgment rendered by default. The provision of the statute upon which counsel relies and upon which the court of appeals based its conclusion is a statutory provision in the nature of an exception to the general exemption law. It is the policy of this state, as it is elsewhere, to construe laws exempting property of a debtor upon execution liberally in his favor, and it is the duty of courts to see that the beneficial object of the law is accomplished. It would follow, then, that a provision in the nature of an exception to the general law on the subject of exemptions should be strictly construed. The provision of the statute in question is that no personal property shall be exempt from execution on a judgment rendered for the purchase price or any part thereof. The judgment in the instant case is not a judgment for the purchase price or a part of the purchase price of the camera. It is for a part of the purchase price and in addition thereto for an amount due on a book account for merchandise. No exception as to exemptions is made by this statute in the case of a judgment a part of which only is for the purchase price or a part of the same. The judgment must be exclusively for the purchase money or a part thereof.

This was not a case where the judgment rendered in the justices’ court was being reviewed on error. It was a proceeding in mandamus, and the judg-. ment before the lower courts was an entirety and indivisible. The claim for the balance of the purchase money for the camera and the claim on the book account had become united and merged. We do not see upon what theory a court in a mandamus proceeding, or an officer in whose hands an execution is placed, can analyze a judgment for the purpose of ascertaining the several items which might be included in it. We think the lower courts were without power to apportion the judgment.

It is said that to permit the relator to exempt the property in question from execution would work a hardship to the creditor and would destroy the efficacy of the provision above quoted. If the creditor did not see fit to bring a suit in foreclosure on the chattel mortgage, he could have brought an action on the notes for the purchase price and reduced these notes to judgment, and the provision of the statute would have fully protected his rights. But when he combined in one action the balance due on the purchase price of the camera and his account for merchandise he waived his right to proceed under the provision we have quoted.

For the reasons we have given the judgment of the court of appeals is reversed, and, upon the undisputed facts in the case, judgment is rendered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Nichols, C. J., Jones, Matthias, Johnson and .Donahue, JJ., concur.