author: Hitchcock, C. J.

text:
    The State of Ohio, for the use of Mount Pleasant Bank, v. Amos Conway and others.
    In an action upon a sheriff’s bond, where the breach assigned is for a misfeasance, the action will he barred unless commenced within one year after the cause of action accrued.
    The application of the statute of limitations in actions upon such bonds, does not depend so much upon the form of action, as upon the cause of action appearing in the assignment of breaches.
    This is a scire facias reserved in Morgan county.
    The action is commenced by the Mount Pleasant Bank, which seeks to be made party to, and have execution upon, a judgment rendered by this court, at the November term, 1843, in the county of Morgan, at the suit of the State of Ohio, for the use of Nathaniel Haines, against the defendants, as the securities of Charles E. Alden, former sheriff of said county of Morgan, upon his official bond. The writ bears date September Id, 1849.
    To this scire facias the defendants pleaded in several pleas, that the causes of action set forth in the breaches assigned therein did not accrue within one year next before the date of the writ; that said causes of action did not accrue within four years; and also that the said causes of action did not accrue within six years. They also in the same manner pleaded that said causes of action did not accrue within one, four or six years next before the date of the judgment recovered for the use of Haines, against the defendants.

      To these several pleas there was a general demurrer.

      H. J. Jewett, for plaintiff.
    <7. B. Cfoddard, and B. Hayward, for defendants.
   Hitchcock, C. J.

This scire facias is prosecuted pursuant to the second section of the act of February 23, 1816, “ pointing out the manner in which suits may be prosecuted, on the bonds of executors, administrators and officers.” Swan’s Stat. 162.

The first section of the act authorizes any person who shall be injured by the misconduct of an officer, within the state, to institute a suit in the name of the obligee of the official bond of such officer, for the use of the person injured, against the officer and his securities, and to recover judgment for the amount of the bond; upon which judgment an execution may be issued for such sum as will indemnify the person so suing.

In the second section it is provided, “ that it shall be lawful for any other person, injured as aforesaid, to proceed by scire facias; provided that the plaintiff shall always set forth, the breaches, on which he may intend relying to support his suit; and provided, also, nothing in this act shall be so construed as to prohibit such executor, administrator or officer, and his securities, from pleading any matter which may be pertinent to their defense.”

A question has been discussed by counsel in thi3 case as to the character of the writ of scire facias, whether it is to be considered as an original action, or merely a judicial writ for the continuation of an action already commenced. It seems to me that, so far as the present case is concerned, this is not a question of much importance. There are cases provided for in our statutes, in which a writ of scire facias has the same effect as an original writ. The scire facias referred to in the before recited statute is somewhat of this character. The breaches must be assigned in the same manner, and with as much particularity, as if it was an original action upon the bond. And the right is secured to the defendants to plead any matter which is pertinent to their defense. I do not suppose that the defendants could in this proceeding put in issue the execution of the bond. This question is settled by the judgment in the original case. But any other pertinent matter which was not, and could not have been put in issue in that case, and which is matter of defense, may be pleaded by the defendants.

The defendants were the securities of Charles F. Alden, former sheriff of Morgan county, upon his official bond, and at the November term of the supreme court, 1843, judgment was recovered against them as such securities, in an action in the name of the State of Ohio, the obligee in the bond, for the use of Nathaniel Haines.

This scire facias is prosecuted for the purpose, on the part of the Mount Pleasant Bank, of having execution against the defendants upon the judgment so as aforesaid rendered. It is stated in the scire facias that at the June term, 1839, of the court of common pleas for Belmont county, the Mount Pleasant Bank recovered judgment against Benjamin J. Buckman for $1851.48. That a scire facias was issued upon the judgment, directed to the sheriff of Morgan oounty; Charles F. Alden, then being sheriff of Morgan county, received the writ, and in due time levied upon a large stock of merchandise, and according to his return, the property levied upon was offered for sale, but not sold for want of bidders. Alden continued to be sheriff of Morgan county until the winter of 1840, or spring of. 1841, during which period various writs of execution were issued upon this judgment, and placed in his hands. No sale was effected, and each execution was returned that no sale had been made for want of bidders. Sometime in the winter of 1840-41, Alden absconded, and William Parish was, by the court of common pleas, appointed sheriff, to fill out the unexpired term of Alden. On the 7th of April, 1841, a writ of pluries vendi was placed in his hands, upon which he made return that the property levied upon could not be found.

The breaches assigned in the case are that the sheriff’s return as to the property levied upon, was false. That his returns upon the subsequent writs were false, and that he permitted the property to be squandered.

It -vyill be seen that there is no breach alleged, that Alden, the sheriff, had received any money for the use of the bank upon these executions, or otherwise, which he neglected to pay over, but the charge is that he had been guilty of a misfeasance in office in making a false return, etc. And the question presented to the court is, as to what part of the statute of limitations is applicable to a case of this character.

This case, so far as this question is concerned, may be treated precisely as if it were an original action upon the bond. Taking this view of it, counsel for plaintiff contend that it can only be barred after the lapse of fifteen years from the time the cause of action accrued, that being the time limited by the statute, in “ actions upon the case, covenant and debt, founded upon a specialty, or any agreement, contract or promise, in-writing.” But we can hardly carry out the intention of the legislature by looking alone at the form of action, especially where, as in the present case, the action is not sustained by the introduction of the instrument declared upon. The gist of the action here is, not the bond, but the false return charged against the sheriff; and that false return, if established by proof, would entitle the plaintiff to recover, if he could recover any thing, an amount equal to the damages by him actually sustained.

The same statute, however, enacts that' “ actions against officers for nonfeasance or malfeasance in office,” shall be commenced within one year from the time the cause of action accrued. This clause in the statute is general, and does not apply to any form of action. Taking it in its connection, it is as follows : “Actions of trespass for any injury done to the person; actions of slander for words spoken, or for libel; actions for malicious prosecutions, and for false imprisonment; actions against officers for nonfeasance and misfeasance in office, and actions of debt qui tarn, within one year.”

Now, under this part of the statute, had the plaintiff in this case brought suit against Alden for the false return, it must have been brought within one year after the cause of action ao* crued. Suppose the case had been against him, and him alone, upon the bond, and the only breach assigned had been, as in the case now before us, a false return, or any other malfeasance or misfeasance in office, must not that action have been brought within one year ? The actual cause of action is not the execution of the bond: that is more in the nature of a collateral security ; but the cause of action is the misfeasance, the false return. Without proof of the false return, there could be no recovery. The action is, in effect, although not so in form, an action against an officer for misfeasance in office. So far as actions of this character are concerned, the limitation acts upon the cause, not the form of action. And the effect of the statute cannot be evaded by any change of the form of action.,

If I am correct in these views, then it follows that had Alden alone been sued upon this bond, and the breach assigned as it now is, he might have availed himself of the one year limitation provided in the statute. And surely his securities are in no worse situation than he himself would have been. If he could escape liability, they certainly can.

This question has never before been presented to this court sitting in bank. But one involving the same principle was presented to the court in Morgan county, in 1846. It was the case of the State of Ohio v. Fouts et al., and is reported in the Western Law Journal, vol. 4, 166.

The action was upon a sheriff’s bond, dated in 1833, and the breach alleged was, that the sheriff, having in his hands an execution against Stone, in favor of B. & S.,for whose use the suit was brought, levied upon certain personal chattels, which he left in Stone’s possession, by means whereof they were lost and squandered, and the debt of the creditors thereby lost.

The defendants pleaded the statute of limitations of one year; to which plea the plaintiff demurred. In the court of common pleas the demurrer was overruled, and judgment entered for the defendants. This judgment was affirmed in the supreme court.

This decision was made, it is true, but by two members of the court, and is not, therefore, authoritative. But we have examined that case, and are unanimous in the opinion that it was correctly decided.

The only difference between that case and the one under consideration is, that was upon the bond and under the first section of the aforesaid act regulating this class of actions, and this is a scire facias under the second section of the same act. But this, in reality, does not vary the case, because the defendants in scire facias are allowed, by the law itself, to plead “ any matter which may be pertinent to their defense.”

The opinion herein expressed is strongly corroborated in the case of Daws v. Shed, 16 Mass. 6. That was a suit upon a bond given in 1797 by Shed, as security for Bacon, conditioned for the due administration of an estate. In 1816 a judgment was recovered against the administrator, upon which execution was issued and returned unsatisfied. The security set up as a defense that no suit had been commenced against the administrator within four years, as is required by the laws of Massachusetts, and the court sustained the defense.

If within one year after the cause of action accrued, the Mount Pleasant Bank had commenced suit against Alden, and in the termination of that suit had recovered judgment against him for this false return, then indeed the securities might have been holden upon the bond. Or if an action' had been commenced upon the bond within one year after the cause of action accrued, they might have been liable. But, as it seems to the court, the first plea of the defendants, that the cause of action set forth in the breaches assigned in the scire facias, did not accrue within one year, is a bar to the plaintiff’s action. The demurrer to that plea is therefore overruled.

This decision disposes of the case, and renders it unnecessary for the court to pass upon the other pleas filed. But as the question is argued by counsel, whether the statute should commence running, at the recovery of the judgment by Haines, or the time the cause of action actually accrued, it is proper to say that this question does not necessarily arise. The proper mode of presenting this question would have been for the plaintiff to have replied, setting forth the time that Haines actually commenced suit upon the bond, and that by the commencement of that suit his right of action was suspended. As the record now appears before the court, there is nothing from which we can ascertain whether the plaintiff’s cause of action was or was not barred before Haines instituted proceedings upon the bond. If a case should ever be .presented, where it should appear that another action was pending upon the bond at the time of the malfeasance or nonfeasance complained of, it might be a grave question whether a person injured by such malfeasance or misfeasance should not have one year after the determination of the original suit, within which to sue out his scire facias. But it will be soon enough to determine that question when it becomes necessary for the final disposition of a case.

Judgment will he entered for the defendant.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    Henry Newsom’s Adm’r v. Michael Ran.
    The defendant is not excused from filing his plea within the rule because the plaintiff has failed to comply with an order to give security for costs.
    A writ may be indorsed for costs, by order of court, after service and return; and if such order appear of record, scire facias will lie against the surety.
    It is within the discretion of the court of common pleas to receive or reject a plea of the statute of limitations after the rule day for pleading has expired and the party is in default.
    This is a writ of error to the Supreme Court for Logan county.
    The original action was assumpsit. The declaration sets forth that the said Henry Newsom, in his life time, under and by virtue of a power of attorney, executed by the plaintiff, Michael Ran, and his wife, Chloe Ran, received the distributive share of the said Michael, in right of his said wife, in the estate of James Newsom, deceased, then in the hands of the court or its proper officers in Champaign county, amounting to some three-hundred dollars. It also contains the common counts for money had and received, etc. Plea, the general issue.
    At the April term, 1848, of the common pleas, judgment-was rendered for plaintiff.
    The defendant moved for a new trial, which motion was overruled.
    In the progress of the trial, sundry bills of exceptions were-tendered by defendant’s attorney, which were sealed by the-court, and made part of the record.
    The case was heard in the supreme court for Logan county,, at the June term, 1848, upon errors assigned, sixteen in number, and the judgment of the court of common pleas was affirmed.
    It is brought into this court by writ of error to the supreme court for the county, the errors assigned being,
    First, That the declaration and matters therein contained are not sufficient in law to maintain the action.
    Second, That the court erred in affirming the judgment of the court of common pleas.

      Third, That judgment was rendered for the defendant in-error, when by law it should have been rendered for the plaintiff in error.
    The material facts, as they appear from the record, to determine the questions of law arising upon which the writ of error was allowed, are, that the plaintiff below, being a non-resident of the county, was required to give security for costs, in ninety days from the time when the order was granted, which was at the May term, 1847. The order was complied with on the 25th of the same May, by making the usual indorsement on. the writ, the declaration having been filed the day previous. July 22d, 1847, after the expiration of the rule day for plead ing, the defendant filed his demurrer to the first count in the •declaration, and three special pleas of the statute of limitations; •one claiming a bar of six years, the others of four years. At the succeeding term, the demurrer and pleas were stricken from the files, and the defendant had leave to plead the general issue.

      B. Stanton, for plaintiff in error.
    The defendant below was not bound to plead till the plaintiff had given security for costs; nor was he required to examine the files to ascertain whether security had been entered, till after the expiration of the rule. The defendant is not required to incur the expense of preparing for trial, when it is uncertain whether the security will be given. And in this case it never was, in fact, given, since an indorsement on the writ after service and return, is not a compliance with the order. Consequently the defendant was not in default when he interposed the plea of the statute of limitations. Noble v. Shearer, 6 Ohio Rep. 426; McVicker v. Ludlow’s Heirs, 1 and 2 Ohio Rep. Cond. 398.
    The pleas interposed were issuable pleas. They tendered an issue to the plaintiff. Courts are disposed to evade the general statute of limitatioms, regarding it as an inequitable defense. But an administrator may rightfully avail himself of the statute which requires claims to be prosecuted within four years from the granting of administration. It is to enable him to settle up the estate. But the claim still subsists against the heirs. Mattoon v. Clapp’s Adm’rs, 8 Ohio Rep. 248. The administrator is bound to make the defense, and neglecting to do so, he makes himself personally reponsible for the amount of the judgment. Brown v. Anderson, 13 Mass. Rep. 201; Scott v. Hancock, Ibid. 162; Thompson v. Brown, 16 Mass. Rep. 172; Emerson v. Thompson, 16 Mass. Rep. 429; Heath v. Watts, 5 Pick. Rep. 140.

      Wm. Lawrence and 8. W Andrews, for defendant.
    We maintain, in reply to the argument for the plaintiff in error,
    1. That the rule for costs did not extend, expressly or by implication, the rule for pleading. The rules for pleading are general, and operate upon all cases, unless modified by some special rule. The rule for costs is a special rule, having in view a specific object, and beyond that purpose no effect. Both are subsisting rules, not repugnant to each other, and the one does not in terms or by implication affect the other. All special rules are subject to the operation of the general ones, just as all special laws are controlled by the general ones, unless otherwise provided. Both must be construed together in a manner to give full effect to each. 6 Dane’s Ab. Ch. 196, art. 5 ; 9 Bacon Ab. Tit. Stat. I, 3 — 11. The hazard of incurring the ixpense incident upon a preparation for trial, may be avoided, by extending the rule day' for pleading when the rule is entered, requiring security for costs.
    2. The indorsement of the writ for costs after service, under the rule for costs, is a compliance with the rule, and the defendant below was bound to plead. This is not very material, for if the rule for costs was not complied with, the defendant below, under the operation of the rules for pleading, was bound to plead. The only effect of a failure to comply with a rule for costs is, that the plaintiff may be non-suited, unless his default is in some way excused. But the defendant below waived his right to object to the form in which security was put in, by pleading, by moving to open up his default, by omitting to move a non-suit, and by assigning upon the record, as a reason for asking to open up the default, that his plea was filed after the security was put in, and before the expiration of the ninety day rule. McVicker v. Ludlow's Heirs, 1 and 2 Ohio Rep. Cond. 398; 2 Mass. Rep. 102; 5 Mass. Rep. 98. But at all events, the rule for costs was abundantly complied with by the indorsement, though after service. Wright’s Rep. 177; 6 and 7 Ohio Rep. Cond. 180; 1 and 2 Ohio Rep. Cond. 399.
    3. The defendant below being in default, the court was sustained by numerous authorities, by principle and sound reason, in refusing to allow the plea of the administrator’s statute of limitations to be'filed, or rather, in striking from the files those which had been improperly placed there. It is an inequitable plea, and should not be allowed where the party has failed to avail himself of it in the first instance. All the reasons which exist for applying this rule to the general statute of limitations, exist also for applying it to the administrator’s statute. Sheets v. Baldwin’s Adm’r, 12 Ohio Rep. 132. The only reason assigned in argument for permitting a plea of the administrator’s statute after default is, that it is different in principle from the general statute — that the general statute extinguishes the remedy, and is hence inequitable, while the administrator’s statute merely discharges the administrator, for the purpose of settling the estate, but the claim is still valid against assets in the hands of heirs. Now, it so happens that, as to the class of claims in this case, the law gives no remedy against assets in the hands of heirs. This is clear, (Swan’s Stat. 382, sec. 232,) and hence no reason exists for any distinction between the two statutes. So far as shown in argument, the rule contended for by the plaintiff in error, has never been applied to the Mass. Stat. of 1788, from which our statute was taken.
   Spalding, J.

We have examined the declaration filed in the court below, and are satisfied that it i# sufficient, in all respects, to sustain the action.

The second assignment, embracing, as it does, the consideration of sixteen distinct propositions, in the nature of objections to the proceedings in the common pleas, could not be disposed of so readily, if counsel for plaintiff in error had not, in his argument, confined his attention to the following inquiries, which he probably deems the only questions in the case:

1st. Was the defendant in default by not pleading before the plaintiff had complied with a rule requiring him to give securi ty for costs ?

2d. If in default, had the court a right to shut out the plea of the statute of limitations ?

It appears that the plaintiff below was a non-resident. The writ, issued April 26, 1847, was served and returned without an indorser for costs. On the third day of May, 1847, the plaintiff was ruled to give security for costs in ninety days. On the 25th day of May, the following indorsement was made on the writ:

“ I acknowledge myself security for costs in this case.
“J. Leister.”

On the 24th day of May, 1847, the plaintiff filed his declaration. On the 22d day of July, and after the day for pleading, according to the rules of court, had passed by, the defendant filed his demurrer to the first count in plaintiff’s declaration, and three special pleas of the statute of limitations; one setting up a bar of six years, and the two others claiming that suit was not commenced within four years from the day on which letters testamentary issued to defendant.

At the August term, 1847, the court, on motion, struck off the demurrer and pleas thus filed by defendant, but permitted him to plead the general issue, and that only.

As to the first proposition, we are of opinion that the 'failure of plaintiff to enter bail for costs, would furnish no sufficient excuse to the defendant for failing to plead within the rule. To hold otherwise would be in effect to rule, that the violation of an order of court by one party, would justify the violation of another and different rule by the opposite party; and, when carried out, would lead a court into inextricable difficulty.

The only safe course is, for the courts to require a strict compliance with their rules and orders by all parties.

In the case under consideration, the defendant should have interposed his plea within the time limited by the rules of the court of common pleas of Logan county. If the plaintiff had failed, for more than ninety days, to enter bail for costs, he would have been turned out of court, on the motion of defendant.

The expense or inconvenience attending the filing of a plea, is a suggestion not worthy of serious consideration.

But in this case, it seems the plaintiff did procure a responsible free-holder in the county, to indorse the writ for costs, before the rule for pleading had expired.

It is only objected that a bond was not taken, for it is claimed that an indorsement of the writ, after service, was not a compliance with the rule.

This court has never yet decided that an indorsement of the writ, after service, did not bind the surety for the costs of suit. On the contrary, it was diréctly decided on the circuit, in Noble v. Markly et al. (Wright’s Rep. 177), that such an indorsement was obligatory.

The same case was subsequently brought into bank, where it was decided that the remedy was not by scire facias, on that indorsement, as it formed no part of the record.

But Judge Wood, in giving the opinion of the court, adds, “We do not say that such an indorsement is not a contract, which would obligate the indorsers to pay the costs.” 6 Ohio Rep. 428.

Eor the convenience of the profession we shall hold, that an indorsement of the writ, after service and return, will bind the surety for the costs; and if the order for such indorsement be entered upon the journal, a scire facias may be sustained against such surety.'

The default of the defendant being established, it only remains to inquire, was it error in the common pleas to refuse to him the privilege of interposing a plea of the statute of limitations ?

This is not a plea to the merits, and consequently is not ordinarily received after the rule day. See Sheets v. Baldwin’s Adm’rs, 12 Ohio Rep. 120, and numerous authorities therein cited.

The court say, in that case, that the authorities show a concurrent course of decisions, in the English and American courts, that after the expiration of the rule day, or when the issue is closed, or a party is in default, the plea of the statute-of limitations ought not to be permitted; that it is a strict legal defense, and which a party may, and must, at his peril, see that he pleads in time, or its benefits to him are lost.”

We are unable to take any distinction, in principle, between the administrator’s bar of four years, and the general limitation of actions.

Extraordinary circumstances will often demand a relaxation of the rule in both cases, and perhaps oftener in the case of executors and administrators than in any other.

The whole matter rests in the sound discretion of the court in which the pleas are to be entered, and we have no fear that this discretion will be abused. We are satisfied that it has not been in the present case.

Judgment affirmed.


author: Avert, J.

text:
    Andrew Painter v. John Painter and others.
    Parol evidence cannot be admitted to contradict or explain the contents of a will.
    This is a bill in chancery reserved in Richland county.
    The bill alleges that the complainant is a son, and one of the heirs, of Jacob Painter, late of said county, deceased; that on the 20th of December, 1835, said Jacob, his father, made his last will and testament, the items of which, so far as they affect the construction of the will, are as follows :
    “ Item 1st. I give and bequeath to my beloved wife, Christiana Painter, the third of my estate during her widowhood^ but if, after my death, she should marry another, then in that ■case her third is cut off.
    “ Item 2d. I devise that all my children shall be equally divided with, after my decease, of my estate.
    “ Item 8d. My son, John Painter, has received heretofore ■one thousand dollars, which stands in part of his portion.
    “ Item 4th. My son, Andrew Painter, has received heretofore out of my estate the sum of twelve hundred dollars, which stands in part of his portion.
    “ Item 5th. My daughter, Margaret Goldsmith, has received heretofore out of my estate the sum of eight hundred dollars, which stands in part of her portion.
    “ Item 6th. I give and bequeath to my two youngest daughters, Mary and Christiana Painter, an equal portion out of my estate, after ,my decease, with the former part of my family, •allowing all my children to be divided with equally and alike.”
    The bill further charges, that the testator died on the 27th •of July, 1845 ; that about 20 or 22 years before the date of the will, his father entered two quarter sections of land in Rich-land county, and gave one of the tracts to his son John; he at the same time, or shortly afterwards, requested complainant to take possession of the other, and stated that he would make him a deed for it; complainant did take possession, and paid the taxes for two years and upwards; but after he had been in possession and paid the taxes, his father became involved in a lawsuit with one Williams, and in consequence thereof, determined to make sale of the land, and did sell it, stating to complainant that he would give him a full equal share of his property and make him a deed for another quarter section of land, or give him the value thereof in money, which has never been ■done. The complainant never got any thing from his father but a colt and a rifle-gun, and he did not owe him any thing; that his father for some years before he made his will'was intemperate, and at times disordered in his imagination; and before and at the time of making his will, he became vexed with complainant, and imagined things under the influence of intoxication which had no foundation in fact; that at the time the will was executed, he was laboring under derangement of mind, and imagined he had given complainant $1,200, when in truth he had not given him that sum, or any part of it; his father during the last year of his life frequently expressed a desire to make him a deed of a lot he owned in Bentley’s addition to Mansfield, and to give him notes of hand, stating it was to make him equal in his will with his other children ; that the will which he had signed did not do complainant justice; that it would require the lot and notes which he intended to give, to make the amount of the $1,200 as specified in the will; that unless complainant allowed him to give the deed and notes he would make another will. Complainant states that his father never gave the deed or notes, and by the influence of his wife and others, was prevented from making another will; and that charging complainant with the $1,200 was a mistake of his father. The prayer of the bill is, that the will be avoided so far as it relates to the charge of $1,200; that complainant be decreed to receive a full equal share of the estate, and such other relief as may be agreeable to equity. The widow and other children of the testator are made defendants. The case as to one of the defendants stands upon answer and testimony, as to the others,, upon demurrer to the bill.
    • T.-W. Bartley $ John Sherman, for complainant.
    The will of the testator provides for an equal distribution of his estate among all his children, but charges several of them with advancements, and among the rest it charges the complainant with an advancement to the amount of $1,200, in the following-words: “Myson Andrew Painter has received heretofore out of my estate the sum of twelve hundred dollars, which stands in part of his portion.”
    This charge in the will is unjust and untrue; the complainant never having m fact, received the advancement here charged to him. Upon this point, the proof is clear and certain, not only from all the circumstances connected with the case, but also from the positive, distinct and repeated declarations of the testator before his death.
    The testator had, in his lifetime, given the complainant a quarter section of land, worth, about the time the will was made, not far from $1,200, as appears from the depositions of Judge Parker and others. The testator did not, however, convey this land by deed to the complainant; and after some time, in consequence of a change of circumstances and pecuniary embarrassments, he sold the land and applied the proceeds to his own use, promising the complainant that he would some time thereafter give him another quarter of land, or the value in money, which was never done.
    It is clear, from the proof, that it was either in view of this contemplated and promised advancement, or by a mistake made under undue influences and while at variance with the complainant, that the testator made this groundless charge of $1,200 in his will, and the most probable inference from the testimony, is the former.
    The object of this bill in chancery is not to alter or change the bequests of the testator, but to relieve the complainant from a charge of an advancement never in fact received, and thereby carry out the true intention of the testator. And the only question in controversy is, whether a court of equity can grant relief in such a case.
    There is no ground for controversy as to the intention of the testator in this will. The manifest intention was an equal division of his property among all his children. This is twice expressed in the will. The 2d item in the will uses this language : “I desire that all my children shall be equally divided with, after my decease, of my estate.”
    And the 6th item uses this language : “ I give and bequeath to my two youngest daughters, Mary and Christiana Painter, an equal portion out of my estate after my decease, with the former part of my family, allowing all my children to he divi ded with equal and alike.”

      This intention of the testator was frequently repeated in the latter part of his life and on his death bed.
    If, therefore, this false charge of an advancement to the com plainant is allowed to stand, it defeats the clearly expressed and repeated intention of the testator.
    It is well settled that in a court of equity the manifest intention of the testator is the governing principle, and every rule of construction must yield to it. If, therefore, there be any rule by which the court in this case can carry out the evident intention of this testator, it will be adopted.
    A charge for an advancement to an heir or legatee is sometimes made by a testator in his account books, and sometimes in his will. In either case it does not constitute a "devise in the will, but is simply an incident which must be made subordinate to the disposition of the property intended to be made. Parol testimony, therefore, touching a charge in a will for an advancement, stands upon different ground from parol testimony which would effect or change a bequest of property to a devisee. The latter shows the disposition the testator intends to make of his property, and the former is simply incidental and subordinate to it. Where, therefore, a testator provides for an equal distribution of his property among his devisees, and to carry out this intention charges certain devisees with advancements, which he either has made or is about to make, but afterwards, contrary to his expectations and intentions, by a change of property, the advancements are not consummated or realized, but the property is appropriated otherwise by the testator, if parol evidence could not be used to show the failure of the advancement, the manifest intention of the testator would be defeated.
    The rule that parol evidence cannot be used to contradict, vary or explain a written instrument, has very many exceptions to it.
    A receipt or account in writing is always subject to be explained, varied or controlled by parol evidence. See Johnson v. Weed, 9 Johns. 310; Gerrish v. Washburn, 9 Pick. 338; Badger v. Jones, 12 Pick. 371; Southwick v. Hayden, 7 Cow, 334; Keene v. Meade, 3 Pet. 7.

      In case of mistake or fraud, parol evidence is always admissible to contradict or vary a deed or other instrument. See Daniel v. Mitchell, 1 Story 172; Gist v. Gist, 1 Bai. Eq 343; McCall v. Harrison, 1 Brock. 126; Bradbury v. White, 4 Greenl. 391; Slee v. Manhattan Co., 1 Paige 48; Mark v. Pell, 1 Johns. Ch. 594; Westbrook v. Harbeson, 2 McCord’s Ch. 115.
    It is true that parol evidence is not admissible to explain or show the meaning or intention of a will expressed on its face, for this must be gathered from the context, and by construction; but parol evidence, it is said, is admissible to explain a latent ambiguity and certain matters dehors the will, and it is sometimes necessary to ascertain the intention of the testator, in order to give full effect to it. See Founereau v. Poyntz, 1 Bro. C. C. 472; Abbot v. Massey, 3 Vesey 140.
    Parol evidence may be given to show mistake and point out the object of the testator’s bounty. This does not contravene the will, but may become necessary to give the intended and true effect of it. Goodinge v. Goodinge, 1 Vesey 331; Hampshire v. Pierce, 2 Vesey 216; Attorney Greneral v. Hudson, 1 P. Williams 674; Roberts on Frauds 20; Abbot v. Massey, 6 Vesey, jr. 148; Founereau v. Poyntz, 1 Brown C. C. 472; Salwood v. Mildmay, 3 Vesey, jr. 306, and a case in 1 Vesey, jr. 259; Pultney v. Darlington, 1 Brown C. C. 177; Druce v. Dennison, 6 Vesey, jr. 385.
    It is settled that if in a will there be a mistake in the computation of a legacy, it will be rectified in equity. Milner v. Milner, 1 Ves. R. 106; Danners v. Manning, 2 Bro. Ch. R. 18; Door v. Geary, 1 Ves. R. 255, 256.
    So it is said if there be a mistake in the name, or description, or number of the legatees intended to take, or in the property intended to be bequeathed, equity will correct it, and parol evidence is admissible for that purpose. Stebbing v. Walkley, 2 Bro. Ch. 85; River’s case, 1 Atk. R. 410; Parsons v. Parsons, 1 Vesey, jr. 266.
    If the mistake be such that had the testator not labored under it he would have acted differently in making his will, equity will rectify the error, and for this purpose receive parol evidence. See Smith v. Maitland, 1 Ves. 363; Campbell v. French, 3 Ves. 321; Kennell v. Abbott, 4 Ves. R. 808; Geer v. Wind’s Ex’r, 4 Desau. 85.
    The authorities above referred to bear upon the general principle relied on by the complainant. But there are two cases in the 5th of Watts, decided by one of the most eminent judges of'Pennsylvania, strictly analogous to the case before the court. Where a testator directed in his will that each child should be charged in the distribution with what he had given them and had charged them on his books, it was held by the court that the charges on book might be shown by parol evidence to he false or even excessive. Hoak v. Hoak, 5 Watts 80. Or that the sum charged had been paid by the child, etc., before the death of the testator. Musselman’s estate, 5 Watts 9.
    These two cases decide the identical question now presented. In both these cases the question was as to the power of a court of equity to rectify a mistake of a testator in charging an advancement to a legatee, and that too upon parol evidence. In these eases the charges for the advancement were made in the will and book referred to as showing the amount. The parol evidence did not simply affect the book, therefore, but the will which charged legatees with what appeared on the book.
    In the case before the court, the governing object of the testator was to make an equal division of his property among his children at his death. Particular expression in the will, therefore, which stand in the way of this, must be construed and made subordinate to it, or be disregarded. In inserting the charges for advances to different devisees, his manifest intention was to place all his children on an equality at his death. It is not rational to suppose that he intended to insert a false and unfounded charge in his will against his son Andrew that would defeat his proclaimed and repeated intention expressed in his will. It is abundantly clear that he charged the advancements in his will, for the purpose of making his children equal participants in his estate at his death, taking into the account what he had actually given some, and what he intended during Ms lifetime to give to others, and what he should leave them all at his death.

      James Stewart, for defendants.
    This bill in chancery is prosecuted by Andrew Painter against the executor and devisees in the will of Jacob Painter, deceased, for the purpose of establishing by proof the fact that the testator, Jacob Painter, labored under a mistake or misapprehension in relation to the complainant (who is one of the testator’s sons) at the time of executing the will in question, •by means of which mistake, as is alleged, the testator was induced erroneously to charge the complainant by the will with a previous advance of “ twelve hundred dollarsand to direct that that sum should stand as a part of his portion under the will. The prayer is for relief against this charge and direction in the will.
    It appears from the bill that the will was executed on the 29th December, A. D. 1835, and that the testator survived till the 27th day of July, A. D. 1845. That the will has been admitted to probate, etc.
    The devise is in the following words: “ I desire that all my ■children shall be equally divided with, after my decease, of my estate.” Then follows a statement by the testator of the several sums of money by Mm previously advanced to different children; with directions, in every instance, that the sum stated shall stand or go in part of the share respectively devised to such child. Indeed it may be inferred from this will that the principal motive of the testator, in the execution of it, was to declare the amount of these several advancements; and to provide that •each of them, as stated by him, should be deducted in the final distribution of his estate from the share of each child thus .advanced.
    The statement of his advancement to the complainant is as follows: “ My son Andrew Painter has received heretofore, out of my estate, the sum of twelve hundred dollars, which stands in part of his portion.”
    The complainant claims by his bill that he had not received “ twelve hundered dollars,” nor any sum whatever out of his father’s estate, and that the testator in declaring that sum to have been advanced to him, and in directing the same to “stand in part of Ms portion,” was mistaken, and committed an error; not intending at the time to do that which was actually done. He further claims that it is a right secured to him by law, to show by parol or extrinsic proof, this supposed error and mistake of his father ; and upon his making such showing, that this court have the power by law to reform the instrument, so far as it bears adversely upon his interest; and to relieve him from an unreasonable or mistaken exercise of the testamentary discretion of his ancestor.

    I believe I have not stated unfairly the position assumed for the complainant in this bill.
    I deny that any sufficient evidence is furnished in the papers to show that the testator in fact labored under the alleged mistake or misapprehension, at the publication of this will.
    But admitting for the argument, that the testator did labor under the mistake or misapprehension supposed by the bill, at the time of publishing this will; and that in fact the advancement of “ twelve hundred dollars ” to the complainant had not been made. The question arises can a court of equity rectify the mistake and reform the will ?
    I hold that it cannot. It may be conceded that if this testator had charged this complainant in a book with various sums in money or other property from time to time advanced (as in the cases cited from 5 Watts 9 and 80, Musselman’s estate and Hoak v. Hoak,) and had directed by the will that such advances as he had thus made and charged, should be ascertained and deducted from the share devised, the rights of the complainant would not be concluded by such book and charges. And why ? Because the question would not be on the devise, but on the subject of it. The authenticity of the book and the amount and validity of the charges found on it,' would be open to controversy between the executor and devisee; and might be ascertained and settled by extrinsic evidence, adducible by either or both. In such evidence nothing is offered in explanation of the will, or in addition to it. 1 Jarman on Wills 367 (at top), and 368 (margin). Indeed a court would not allow, in such cases, the executor on settlement to deduct such charges from the share of any devisee adversely, without some showing to establish the authenticity of the book, and the charges therein; and the devisee would be at liberty to controvert the same by similar evidence. This was the principle on which the two cases were ruled in 5 Watts. It is evident therefore that they do not sustain the position assumed by the complainant in this case, for he undertakes by proof, aliunde, to controvert the will. Whereas, in the cases cited from Watts, the legal construction of the will was ascertained, per se ipsa. In fact the proper construction was plain, and was not controverted ; and the evidence offered by the devisee, and sanctioned by the supreme court of Pennsylvania, was confined exclusively to the description of the thing devised ; or which was the same, to the description of the advances directed by the will to be deducted from the share devised; and was consistent with the ■written will.

    But in the will under consideration at bar, the advancement is declared .to be “ twelve hundred dollars;” and that sum is directed by the will to “ stand in part of the complainant’s portion.” There is hére no room for controversy and proof, about what the testator intended to embrace within the devise. He has cut off all controversy and all extrinsic proof, by adopting and expressing in his will, in numbers, the amount of the advancement to be deducted, instead of leaving it to be ascertained from a description, as in the cases in 5 Watts. See Nil rule for the construction of wills, 2 Jarm. 742 (margin).

      The complainant in this case is compelled to assault by his averments and evidence, the plain and positive averments and evidence of the written will. In this conflict which shall stand ? for one or the other must of necessity yield. Now this court will not hear parol evidence either to contradict, add to or explain the contents of a will. 1 Jarman on Wills 349. And it is said that no principle of the law relating to wills is more fully established, or more familiar in its application. Lord Walpole v. Earl of Cholmondley, cited in 1 Jar. on Wills 350, 351; Earl of Newbury v. Countess of Newbury, Ib. 353, 354. And where the question is on the interpretation of wills, it is clear that parol evidence of the actual intention of the testator is inadmissible for the purpose of controlling or influencing the construction of the written will — the language of which must be interpreted, when seeking the intent of the testator, according to its proper and usual acceptation. 1 Jarman on Wills 358. We must ascertain and determine the meaning or intention of a testator by the words used. Beaumont v. Field, 2 Chitty’s Rep. 275; Comstock v. Vandeusen, 5 Pick. 166. “ The ascertainment of intention from the will itself, falls within the province of the court, and when the sense is incomplete, the deficiency cannot be supplied by extrinsic evidence.” Chief Justice Gibson, in Vernor v. Henry, 3 Watts 392. From these and numerous cases that might be compiled on this point, it is established that neither courts of equity nor law will pass by and disregard the written will, nor import into it or engraft upon it an intention independent of the terms of the instrument itself. Hall v. Hill, 1 Conn. and L. 140, 145, et infra.
    Parol evidence is inadmissible for the purpose of correcting a mistake of fact in a will. 3 Cowr. and Hill’s Notes 1384, 1489, 1426, and the catalogue of cases which their- industry has furnished. Avery v. Chappel, 6 Conn. Rep. 270; 2 Atk. 373; Duke of Rutland v. Duchess of Rutland, 2 P. Williams 209; Nichols v. Osborn, Ibid. 420.
    There is here no uncertainty or ambiguity apparent on the face of the instrument; and if there were, the uncertainty 01 ambiguity must be such as to avoid the instrument, before the admission of parol evidence would be received, to explain it. Westhoff v. Dracourt, 3 Watts 240, 243; Chichester v. Oxander, cited 1 Jar. on Wills 359. No latent ambiguity is raised by the evidence in these papers; for the question made is not who shall take the devise, nor what was intended to be embraced in and to pass in virtue of the devise, but that the testator had a different intention from the one which he clearly expresses on the face of the will. 1 Jarman on Wills 370, 371, 372 (in the margin); 3 Watts 243. Now I have shown that the intent of a testator must be obtained from the words used in the will; and that upon that question parol or extrinsic evidence is rejected; See XYI rule laid down in 2 Jarman on Wills 743, margin.
    Judge Story, 1 Eq. Com. §179, page 190 et sub., says that in regard to mistakes in wills there is no doubt that courts of equity have jurisdiction to correct them when they are apparent on the face of the will, or may be made out by a due construction of its terms; for in cases of wills the intention will prevail over the -words. But then the mistake must be apparent on the face of the will; otherwise there can be no relief; for :-at least since the statute of frauds, which requires wills to be in writing, parol evidence or evidence dehors the -will is not admissible to vary or control the terms of the will, although it is •admissible to remove a latent ambiguity. But, he adds, the •mistake, in order to lead to relief, must be a clear mistake

       or a clear omission, demonstrable.from the structure and scope of the will, as in the computation of a legacy; in the name and description or number of legatees, or in the property intended to be bequeathed. But he also says the mistake must be clearly made out; for if left doubtful, equity will not interfere. And so if the .words of a bequest are plain, evidence of a different intention is inadmissible to establish a mistake. Neither will equity rectify a mistake, however apparent, if it does not appear what the testator would have done in the case if there had been no mistake. Ib. §180, 181; Nourse v. Finch, 1 Ves. 355, 56, 57, et sub.
    It is insisted for the complainant that inasmuch as the testator declared, in the will, his desire, that all his children should “ be divided with equally,” out of his estate, this court will hear extrinsic evidence to guide them in effecting a literal equality of distribution. I have already shown that when it is not a question of description, either of the power to take, or of the thing devised, the intention of the testator must be obtained from the will itself. And in this will, although the testator makes and repeats the general intent, to divide his estate equally among his children, he prescribes, in dear and precise terms, the rule by which that distribution is to be effected. And that rule cannot he departed from; for it is evident from the will itself, that the testator, at the time he executed the instrument, contemplated and intended such equality of distribution only, as the application of the rule should produce. The declaration that the complainant had already, received the sum of twelve hundred dollars out of his estate, and the direction that that sum should stand in part of his portion, demonstrate that the testator did not intend to devise to him a literally equal share of such estate as should remain to be divided after his decease; and so with the others to whom the testator had made advances.. The same rule of construction and of distribution is applicable, and must be enforced as to them.
    If the foregoing views and authorities should be found correct and applicable, I flatter myself, they will be conclusive of the case made in this bill, and the demurrer will be sustained.
    The point assumed by counsel that there is here a revocation of the devise to the complainant, is untenable, because, 1st, It is not within the case presented by the bill; 2d, All the devise made to the complainant, or intended to he

      made (as I have already shown) has been received by him, oi remains to be distributed to him; 3d, Admitting that the devise to the complainant is, in effect, the land described in the papers, there is no evidence that the land was sold by the testator subsequent to the devise.
    The particular tract of land described, was in fact sold by the testator several years before the execution of the will; and this fact may be gathered from the bill and testimony, although there is some appearance of design to conceal it.
    I have said nothing on the tendency of the testimony presented by the complainant; for, if the views I have submitted are to prevail, this will be unnecessary. I advised the respondents to present no testimony on their part; nor did I avail myself of any cross-examination of the complainant’s witnesses. If, however, I shall be found to have misapprehended the law applicable to the facts set forth in this bill, and the demurrer shall be overruled, I ask to be placed under leave to file answers for the demurrants, and to put in testimony on their behalf.

      Tills claim of tlie complainant seems to me to controvert tlie accuracy of tlie XII rale for the construction of wills, collated in 2 Jarman on Wills 743 (margin.)

      This is no more than the ambiguitas latens.ff the extinguishment of which by parol evidence is iliustatadind J-avman on "Wills 870, 71, 72, et sub.

       This declaration, although untrue, cannot affect or control the positive devise. See N"H rule of construction, laid down in 2 Jarman on Wills 742, in margin. .

   Avert, J.

We shall assume it to be a fact in the case, that the land which had been given to the complainant, was sold by his father to a third person, before the date of the will. This is probably in accordance with the true state of facts, but Avhether so or not, the bill does not give the time of the date, nor show by necessary averments, that the land belonged to the complainant when the will was executed. No argument, therefore, which might be drawn from a different state of facts, can be made applicable to the question arising upon the demurrer. That question is, whether the bill makes a case for relief in equity. The complainant has given a statement in detail of facts, circumstances and declarations of the testator, which, as he supposes, taken altogether, and in connection with the will, furnish a sufficient ground for relief. He alleges that his father had given him a tract of land, which he afterwards took back, and sold to another person, promising that he would give to the complainant an equal share of his property; that he would give him a deed for another quarter section of land, or the value of it in money; but, the complainant says, instead of fufilling his promises, he executed a will, in which he erroneously charged the complainant with $1,200 as previously received, and died without correcting the error. If there is any truth in the insinuation contained in the bill, that the testator made the charge of $1,200 because at the time he had become vexed at the complainant, the intention and design to cut him off to that extent would appear to be established ; and in that case, though the motive which actuated the testator might not be approved, still his purpose, if he had the requisite capacity for making a will, could not be defeated by the court, consistently with any known rule of the law. So if from derangement, or such a disordered state of mind, as is suggested in another part of the bill, the testator, at the time of executing his will, could imagine that he had given complainant the $1200, when there was not the least foundation, in fact, for such a conceit, there might doubtless have been found a remedy for the complainant, if he had made his application in time and in a proper manner; but it would be through a mode of proceeding different from that adopted in the present case. But further, it is insisted that in making this charge, there was a mistake of the testator, in consequence of which the complainant is unjustly subjected to a loss, to the amount of that charge, and that a court of equity has power to correct the alleged mistake.

Can any inference in support of such mistake be drawn from the whole of the transaction respecting the land, as set forth in the bill ? It is alleged indeed that the testator, at a former period, had given to the complainant a tract of land ; but though he was owner, of this when executing his will, he knew also that no writings had been drawn ; that no title had ever passed by the gift; that he had reserved the control over the land, and claiming to be himself the owner, had sold and conveyed it to another person. He knew that his son had received no benefit from the land, and therefore that he ought not to be charged in the will with the price of it. In the opinion of the court, the charge is not shown to have any connection with a previous advancement of land, and receives no explanation from the circumstances of the transaction as they are stated.

But it is urged in argument on behalf of the complainant, that the charge was made in view of a contemplated and promised advancement by the testator. In considering this argument it will be necessary to inquire from what sources evidence may legitimately be drawn to prove the intention and purpose of the testator at the time of making the charge. If from the will alone, the evidence will be found upon inspection to be exceedingly limited. The charge complained of is in these words, “ Item 4th. My son Andrew Painter has received heretofore out of my estate the sum'of twelve hundred dollars, which stands in part of his portion.” There is nothing in the will alluding to the manner in which the sum had been received, nor an intimation of any purposed advancement; all that is found is the bare statement of the fact, in the above words copied from the will. Now how is this statement, which in clear language is retrospective, taking notice of the sum as received heretofore, to become prospective and to mean an advancement hereafter to be made ? This it will be seen also is a statement by the testator of a fact, not derived from information .communicated to him by others, but if true, within his own knowledge. May such a statement of a testator, who has power- according to our law to distribute his property as he will amongst his children, be contradicted, and declared to be untrue ? But if this may be done, and other parts of the will be examined for that purpose, no contradiction will be discerned. All the aid to be derived from other parts of the will to control or affect the statement, is found in the intention of the testator upon different occasions expressed in the will, to make all his children equal. But the charge is made while he is making a distribution of his estate which he intends shall be equal. It is to be presumed, then, taking the will alone as the guide, that he considered the charge necessary in order to make the distribution equal.

But showing no explanation of "the charge in the will itself, is the complainant at liberty to resort to other evidence to prove what was the intention of the testator, and what were the real facts in the case ? what statements he made at the time of executing his will, and before and after ? such for instance, as that he never actually gave his son anything; that when he made the charge he intended to advance the amount of it in his lifetime; that unless this should be done his estate would not be divided equally, and in such case he would make another will; that he intended to divide his estate equally amongst his children, etc. No doubt, by refusing such evidence it may Sometimes happen that the real intention of the testator will fail of being accomplished; and perhaps it may be so in the present case. But, whatever may sometimes be the consequence of excluding the evidence, is such proof admissible under the law? We decide that it is not. A will must be executed agreeably to the forms prescribed in our statute, or it can have no power to pass the title to property real or personal; it will be entirely void. The statute, after giving the power to execute the will, provides also several modes of revoking it. It may be revoked altogether, or in certain particulars altered by another will or codicil, or by another instrument of writing, but before either one of these can have any effect upon a will, it must be itself executed with all the formalities required in the case of a valid will. The testator may undertake by a writing, which clearly expresses his intention, to explain some statements in his will, or to alter some of its provisipns; but unless two witnesses have put their names upon the writing, and it is otherwise executed like a will, it cannot be received in evidence. Is it to be supposed then, that loose declarations, or even clearly expressed wishes of a testator, not signified in the manner pointed out, can be received in evidence, and be held sufficient to revoke a will, or to control its provisions ?

“As the law requires wills to be in writing, it cannot permit parol evidence to be adduced, either to contradict, add to or explain the contents of such wills; no principle connected with the law of wills is more firmly established or familiar in its application than this.” 2 Jarman on Wills 848, 349.

The counsel for the complainant has cited two cases from the 5-Watts. The first is Musselman’s Estate, 9. The testator had seven children, and the will contained this expression : “ I have kept a book account of advancements made by me to my children respectively, to which reference must be had in making the following division, and so much as shall at my death stand charged against either of my children, shall be taken as part of the share allotted to such child ; each child shall receive from the estate as much as will make him equal with that one of the seven who has received most.” In the book of accounts referred to in the will was found a list of charges against the different children. One of them had settled with the father and repaid all the advancements up to a certain date, but the items were not erased from the list. The court decided that the words “ so much as at my death shall stand charged,” were not intended to give effect to an unfounded charge that ■would defeat his proclaimed intent. The court add: “ he might doubtless have peremptorily directed the book, in whatever condition found at his death, to be taken for conclusive proof of the state of the accounts; but he has not done so.” This case, as we view it, is an authority against the present complainant. The court, from a construction of the will alone, declare that it was not the intention of the testator to make the book conclusive proof. If his language had shown that he intended it to be conclusive, the court would have held it to be so. In the case under consideration, there is no uncertainty in the expressions, nor any doubt of the intention as appearing upon the face of the will.

The other case in Watts, page 80, Hoak v. Hoak, related also to advancements made and entered on book against the testator’s several children. The court in this case also, as in the former, gave a construction to the language of the will, and by that construction determined what was the intention of the testator. It was from the words of the will determined that the book was not meant to be conclusive. Neither of these cases is authority for allowing parol proof to contradict or explain the words of a will.

In the construction of wills, the great object is always to ascertain the intention of the testator. That intention is made known by language. It may be awkward, obscure and ungrammatical, but it must be language ; and one of the important rules for the construction of wills is, that its language must be interpreted according to its proper acceptation. In accordance with this rule was the determination in 8 Watts 240, where two rooms of a house had been devised to a woman for life, with the privilege of selecting the two which should best suit her. The house was a three stoi-y brick building, situated in a business place, upon Market Square, in Pittsburgh. The testator expressed in the will his intention to be, that she should have a shelter or home during her life. She selected the two rooms in the lower story, which were nearly equal in value to all the rest of the house ; one of the rooms was occupied as an office before and after the death of the testator. Yet as the words of the will would embrace these rooms, the claim of the devisee, according to the selection she had made, was sustained.

But though the intention of a testator is to be ascertained by the expressions he uses, it is not denied, that parol testimony is admissible in questions arising in reference to the disposition of the estate. It is admissible to explain a latent ambiguity. Where extrinsic evidence creates the difficulty, it must be admissible for the purpose of explaining or in removing it. The situation of the testator in regard to his property, his declarations, the situation and circumstances of the property, and the relation of the persons named in the will, may all, it is conceded, be the subjects of proof upon the trial, but not for the purpose of altering or in any way changing the will itself.

The testimony on file in this case has not been looked into by the court. The cause is decided upon the demurrer alone; and it determines, that nothing as set forth in the bill, by the testator said, done, or omitted, at the time of executing his will or at any time afterwards, can alter, contradict, or control the words used by him in the will itself.

The bill is dismissed.


text:
    William T. Bascom v. Isaac Parrish.
    Where a motion for a new trial in the court of common pleas is overruled by a division in opinion of the judges, the bill of exceptions is sufficient if signed by no more than the two judges who refused to sustain the motion.
    This is a writ of error to the Court of Common Pleas of Morgan county.
    The case was reserved for the purpose of settling a question of practice. The question is presented b.y the foltawing extracts from the transcripts of the common pleas and supreme court:
    From the common pleas journal: “ And afterwards, to wit, at the term of the court held at the court house in the town of McConnelsville in said county, on the 28th day of September, to wit, at the September term of said court, A.D. 1849, before the Hon. Arius Nye, President Judge, and the Hon. Nathaniel Sheppard, Oliver H. Keyser and Alexander McConnell, the associate judges of said court, this cause came on to be heard upon the motion of the said plaintiff for a new trial, for reasons on file, and was argued by counsel: On con sideration whereof, and the court being equally divided, it is ordered that said motion be overruled. Whereupon came the attorney of the said plaintiff and tendered his bill of ex ceptions to the opinion of the court in overruling said motion,” etc.
    From the supreme court journal: “ The bill of exceptions in this case being signed by but two of the judges of the court of common pleas, the question whether it is valid is reserved for decision in bank.”

      William T. Bascom, in person, for plaintiff in error.

      John B. Hanna, for defendant.
   Spalding, J.

Our statute prescribes, that “ when a party to a suit, in any court of common pleas within this state, alleges an exception to any order or judgment of such court, it shall be the duty of the judges of such county concurring in such order or judgment, if required by such party during the term, to sign and seal a bill containing such exception or exceptions as heretofore, in order that such bill of exceptions may, if such party desire it, be made a part of the record in such suit.” Swan’s Stat. 676, sec. 96.

By a decision of the judges in the court below, the motion for a new trial was overruled. Two of those judges were of opinion that the new trial should be had. To this opinion the plaintiff did not except.'

Two of the judges were of the opinion that the motion should be overruled, and they, in effect, made the order overruling the same. To this order the plaintiff did except, and the statute makes it the duty of the judges concurring in the order (and none others) to seal the bill. They did so in the ease before us. We hold that the law has been complied with, and that the bill of exceptions is sufficient.

Case remanded to the county for further proceedings.


text:
    Ann Barkaloo’s Administrator v. Jacob Emerick and others.
    Where an estate has been fully settled, and all the moneys in the hands of the administrator have been paid over in. pursuance of an order of court should a will be discovered and proved subsequent to such settlement, the executor cannot compel the former administrator to account for the money or property by him received and paid over.
    Whore an individual has been compelled by a judgment or decree, to pay over moneys in his hands, the record of the judgment or decree may bo given in evidence by him, to prove the payment, in a suit subsequently commenced against him for the same money, by one who was not a party to the original suit.
    This is a bill in chancery reserved in Butler county.
    The hill is filed by Levi Richmond, administrator, with tho will annexed, of Ann Barkaloo, against Jacob Emerick, James Harding, David Young, John Barkaloo, Jaques Barkaloo and Thomas P. Barkaloo, and is submitted upon bill, answers, replications, exhibits and testimony.

      V. Chase, for complainant.

      Woods Belh, for defendants.
   Hitchcock, C. J.

There is no little confusion in this case, growing out of the circumstances under which it originated, and the uncertainty of the object which the complainant has in view in the prosecution of the proceeding, and it will be necessary to look to the case, so far as each defendant is concerned, as if it were a case against that defendant alone. Where especially does the necessity exist as to the defendants Harding, Emerick and Young, so far as relief is sought against them ?

It appears, from the bill, answers, exhibits and testimony, that on the 22d July, 1888, Ann Barkaloo made and executed a last will and testament, and died soon thereafter; but the pre cise time of her death does not appear. But at the July term of the court of common pleas, 1838, of Butler county, this will was presented to the court for probate. The will, how ever, was not approved by the court, but the consideration of the question was postponed to the next term; and by consent of all interested, it was ordered by the court, that the personal property and assets of the estate should be delivered into the possession of James Harding, to be by him held subject to the further order of the court.

At the next succeeding term of the court, Harding was'appointed administrator of the estate, and we hear nothing further about the will, until 1844.

At the May term, 1841, of the same court, Harding’s administration account was settled with the court, and a balance found to be in his hands for distribution, amounting to two thousand ninety-eight dollars and eighty-five cents.

On the 31st July, 1839, the defendants Jaques Barkaloo and John Barkaloo, filed a bill in the same court of common pleas against Harding, Jaques Spear, Tunis Spear and Robert Spear. In this bill the complainants alleged that they were the next of kin, being the uncles of the said Ann Barkaloo, and were entitled to her personal estate; that Jaques, Tunis and Robert Spear, also claimed the property, being the cousins of the said Ann Barkaloo, and that Harding refused to pay over the property, until it should first be decided by the court who was entitled thereto.

This bill was answered by the respective defendants, and at the February term, 1840, a final decree was entered, directing the defendant Harding to pay over to the said Jaques and John Barkaloo, whatever amount should remain in his hands upon the final settlement of the estate.

In pursuance of this decree, Harding paid over to Jaques and John Barkaloo, the amount found by the court to be in his hands upon the settlement so as aforesaid made at the May term, 1841.

There is nothing before the court to show that .the will of Ann Barkaloo was ever admitted to probate; but in 1844, three years after the estate had been finally settled as before stated, administration upon her estate, with the will annexed, was granted to the complainant Levi Richmond, and soon thereafter the present bill was filed.

The object of the bill, so far as the defendant Harding is concerned, is to compel him again to account for the property which came into his hands. It is true he is charged in the bill with having wasted the estate. But there is no evidence of waste unless it was waste to pay the debts due from the'estate, and to pay over the balance as he was directed by a court of competent jurisdiction.

It is objected by the complainant, that the copy of the record in the ease of John and Jaques Barkaloo, is not competent evidence in this case, because he'was not a party to that suit. The object of the introduction of that record was to show that Harding had fully accounted for the property which came into his hands, and that he had, after the payment of debts, paid the balance under a decree of a competent tribunal. That such a record was competent evidence for this purpose, was held by the court, in the case of Brown v. Winstanley and Wife, decided at the present term and reported on page 67 of this volume. „ ''

But it is said that this payment is not in accordance with the will, and therefore not available as a defense by Harding. That part of the will referred to, directs as follows : “ After all my debts are paid, all moneys, and all my household goods and movable property, to be divided as follows, to wit: an equal share to go to Thomas P. Barkaloo, son of Jaques Barkaloo; also an equal share to go to Cornelia Barkaloo, daughter of Jaques Barkaloo; also an equal share to go to Mary Ann MeNealy, daughter of Jaques Barkaloo; also an equal share to go to Sarah Barkaloo, daughter of Jaques Barkaloo; also an equal share to go to Nancy Barkaloo, daughter of Jaques Barkaloo; also an equal share to Harriet Barkaloo, daughter of Jaques Barkaloo; .also an equal share to go to John G. Barkaloo, my uncle.” It is true the decree of the court is not in accordance with this will, and there is nothing suprising in this. This will had once been presented for probate, but had been rejected. The case then stood as if there were no will. So far as judicial action could go, this instrument, now claimed to be a will, was void as such, for the want of necessary proof to sustain it. Under such circumstances, the estate must be settled and distributed as an intestate estate. And here it may be proper to remark, that it is a little surprising that this will, which had been rejected by the court of common pleas, should, after the lapse of six years, be resuscitated. How resuscitated we know not. In the meantime, Jaques Barkaloo, father of six of the legatees, and John Barkaloo, himself a legatee, had prosecuted the case in chancery before referred to. Is it possible that these legatees were ignorant of the pendency of that suit ? If not, then why did they not, if they intended to claim under the will, make that claim known ? Why rest until the decree is entered and complied with, and then come forward and attempt to enforce a second payment of the administrator ? It cannot be done. From any thing which appears, the estate was honestly settled by the administrator, and the 'surplus in his hands properly disposed of. Equity does not require any thing fur ther. Law does not require it.

It is attempted to charge Emerick upon the ground that he was a debtor of Ann Barkaloo, and therefore liable to pay to the complainant not only what is now due from him, but also what he has paid to the former administrator, and to his assignees. The case shows that Emerick was indebted to Ann Barkaloo, to whom he had given promissory notes, due at different periods, the last not until 1849. These notes Harding, the administrator, charged himself with as cash, and in performance of the decree against him in favor of Jaques and John Barkaloo, assigned such of said notes as were unpaid to the said Jaques and John.

The amount unpaid by Emerick he states he is willing to pay when it shall fall due, but denies that any in fact is due the estate of Ann Barkaloo, because as he says, the notes have become the property of David Young. Since the institution of this suit, a part or all of the amount due from him has, under an order of court, been paid by him to a receiver, to be appropriated as the court shall direct.

The case of David Young, another defendant, is as follows: As before stated, in pursuance of the decree in favor of Jaques Barkaloo and John Barkaloo, against the defendant Harding, Harding assigned over the Emerick notes to Jaques and John, who received the same as so much money. By the assignment they became the legal owners of these notes. In the spring or summer of 1841, Jaques and John Barkaloo sold, transferred and assigned these notes to the defendant Young, for which he paid them a valuable consideration. The amount paid does not appear in the case, but he insists that it was as much as they were worth. By this transaction Young became the legal owner of the notes and entitled to receive the money thereon. This took place after the decree of 1839, declaring Jaques and John Barkaloo the rightful distributees of the estate of Ann Barkaloo, and three years before this bill was filed.- Probably three years before the will was proved. As to this, however, we do not know, for we are not informed, at what time the will was proved, if proved at all. The object of the bill, so far as Young is concerned, is to compel him to deliver up to the com plainant, such of the notes as have not been paid, and where he has received payment, to compel him to pay over the money

' It seems to the court that this would be manifestly inequitable and unjust. The notes are his by fair and bona fide pur chase, from the rightful owners, and the complainant has no claim either in law or equity upon him.’

From the case so far, it seems that neither of the defendants hitherto named, have anything in their hands belonging to the plaintiff as administrator, or to the legatees named in the will. Shall those legatees, then, be deprived of their right ? This does not follow of necessity. The money, or the property which they claim and which of right belongs to them under the will of Aim Barkaloo, bas passed into the posssession of Jagues and John Barkaloo,-and it has thus passed in virtue of the decision of a competent legal tribunal. Circumstances which have since transpired, show that this was a misdirection of the-property, and it seems to the court that Jaques and John maybe held to account for it.

But, so far as we can see, the only object of this bill is to recover this property for the benefit of these legatees. It does not appear that there are any debts due from the estate of Ann Barkaloo. Those were all settled under the administration of 1888. Such being the facts, it seems to the court that the-legatees should be made parties to the suit, and when that is done, as at present advised, we see no difficulty in rendering a decree which shall do justice between them and their father and uncle.

The bill will be dismissed as to the defendants Harding, Emerick and Young, with costs, and remanded to the county, and continued as to the other defendants, with leave to the complainant to’amend by making new parties.


author: Avert, J. Spalding, J.,

text:
    Mary Nolan v. Samuel Urmston.
    Where a purchaser of a tract of land, after receiving his deed, executed a. mortgage to the vendor for the unpaid purchase money, went into possession and remained in possession several years; but having paid no part of the mortgage debt, agreed verbally with the mortgagee to give up his interest for a specified sum, in pursuance of which agreement he took the consideration, yielded up the possession to a person authorized by the mortgagee to receive it, and the person so authorized, after occupying it for a time, purchased the land for a full price from the mortgagee, and took a deed in fee simple, with covenants of seizin and warranty; Held, that he might sustain a bill in equity to quiet the title, against the original vendee or his heirs.
    Where the facts are found in the original decree, they will on a bill of review be taken as true, without an examination of the depositions.
    This is a bill of review reserved in Hamilton

      The bill was filed to reverse a decree rendered by the supreme court in Hamilton county, at the April term, 1841. The original bill in the case was brought by said Urmston against ■■said Mary Nolan, the heirs of Bartholomew Nolan and the heirs •of William Barr. It set forth that in September, 1819, one William Barr sold and by deed in fee simple conveyed to said Bartholomew Nolan, a tract of land of fifty acres, in the bill particularly described, and in the October following took a mortgage from Nolan and wife to secure the payment of the purchase money, amounting to $525.23 ; averring that Nolan went into possession of the land, and did not pay the balance of the purchase money, but applied to Barr to take back the land, and release him from the mortgage debt, and refund to him so much of the purchase money as should be deemed just; that an agreement was made between the parties — Barr gave Nolan $100, and Nolan yielded possession to Barr, but no conveyance was made by Nolan except the mortgage before stated, and none was necessary, as the legal estate was forfeited by the non-payment of the notes. Afterwards, about the 27th of March, 1834, Barr and wife conveyed the land to complainant Urmston, with covenants of seizin and warranty, for the sum of $600; that Urmston went into possession with the knowledge and consent of Nolan, and had up to that time remained in possession; that Nolan during his lifetime made no claim to the property; but that since his death his widow and heirs had set up a claim, by which his title was prejudiced ; that defendants refused to release their pretended claim. The bill contained a prayer for general relief. The bill of review further states that the defendant Mary Nolan answered the original bill, admitting that the allegations as to the purchase by her husband, the deed from Barr and the possession, were true, that he lived on the premises till 1829, that the mortgage was executed as set forth ; hut denying that her husband applied to Barr to take back the property, or agreed to receive the sum of one hundred dollars for the purpose alleged, or that he ever yielded up the possession to Barr, or ever left the premises ex cept with the purpose to return again when able to pay the debt; she avers that her husband paid to Barr $500 cash, and was to pay $500 more, the full amount of the purchase money; she states the death of her husband, and that in the fall of 1836 she obtained her dower in the premises ; that since then several of the children, giving their names, had conveyed their interest in the premises to her.
    After testimony in the case had been taken by both parties, the substance of which is set out, the decree aforesaid of April term, 1841, was rendered by the court, which gave to Urmston the relief sought; securing to him his title to the whole premises, except the dower right aforesaid of said Mary Noland, and •ordering the defendants to execute releases.
    The complainant in the bill of review avers that the decree is erroneous and ought to be reversed, and assigns for cause that it appears by the bill and is found by the decree, that when complainant filed his bill of peace he was not possessed of, nor did he hold the legal title to the land in the bill mentioned, but the same was in some of defendants.
    >S. J. Thompson, for complainant.

      Chase, Ball Soadley, for defendant.
   Avert, J.

This case-was before the court at the last term, and examined upon a plea put in by the defendant, that the bill was not filed in time, within the five years allowed for that purpose by our statute. But the plea was overruled on the ground that the time under the act commenced to run from the day when the decree was actually rendered, and not from the first day of the term. 17 Ohio Rep. 170.

We have now to decide whether the case made by the bill is such as to justify the decree rendered, and if so can the decree be reversed for the want of sufficient evidence to support it.

Barr, while the owner of the land, conveyed it by deed in fee simple to Nolan, who afterwards executed a mortgage of the Same premises' to the vendor to secure the unpaid purchase money, went into possession, made improvements, and after re maining in possession for a number of years, agreed verbally to give up all his interest to the vendor, for the sum of one hundred dollars. In pursuance of such agreement Nolan received the consideration and gave up the possession of the land to a person authorized by the mortgagee to receive it. The person so receiving possession, remained upon the land for a time and then purchased it for a full price, from the original vendor, and took from him a deed in fee simple with covenants of seizin and warranty.

There is nothing in this statement of the case, showing any acts inconsistent with equity, either on the part of Barr, the mortgagee, who had bought in, as may be supposed, Nolan’s equity of redemption, or on the part of Urmston, the complainant in the -original bill, who may have supposed that he had taken by his purchase, the entire title to the premises. The mortgagee’s equity of redemption is not an interest that cannot be affected except by a deed duly executed. It will receive indeed as against the claim of the mortgagee and his assignee the favorable consideration of a court of equity, but.still it may be forfeited, or made to pass by decree to a bona fide purchaser of the premises. If Urmston had made only a verbal agreement to purchase of Barr and Nolan, who, together, had a perfect title to the land, and had gone into possession and occupied as he shows he has done in this case, he would, upon payment of the purchase money, have been entitled to a decree for a conveyance in fee. If Nolan had encouraged Urmston to pay off Barr, or had stood by and permitted him to purchase under a belief that he had given up his interest to Barr, a court of equity would grant relief to the purchaser, and decree to him an unincumbered title.

There is a provision in the act regulating proceedings in chancery, (Swan’s Statutes 792,) by which any person having the legal title and the possession of land, may file a petition against any one setting up a claim thereto, and if the complainant es* tablishes his title to the lands, the defendant shall be decreed ■ to release his claim. Under this statute, the original bill seems evidently to have been drawn, and it is not perceived that there was any allegation omitted, which was essential to give the court ample jurisdiction, or to authorize the precise decree which was desired in the case. The statute requires a legal title. The legal title, when the condition of the mortgage is broken, as between the parties, vests in the mortgagee, and remains in him until satisfaction. 15 Ohio Rep. 786 ; 16 Ibid. 125. Barr then had the legal title, and could have maintained an action of ejectment against Nolan or any other person to recover the possession. His conveyance passed this legal title to Urmston, who then could also have obtained possession by ejectment, if it had become necessary. But having already the possession and the legal title, he could proceed no further at law, nor would he have any necessity for doing so. Against any one, however, who should in this state of things, assert a claim to the premises, he had a right to institute proceedings in equity, and on proving the claim to be unfounded, to obtain a decree for the release of such claim. He did proceed against the defendants to the original bjll, one of whom is the present complainant, because, as it appears, they set up a claim to the land; and. on the hearing upon the evidence, he obtained a decree, in which it was found and declared as follows: “ That-Barr conveyed to Nolan the premises by deed ; that Nolan re-conveyed the same premises to Barr by way of mortgage to secure three notes for an unpaid balance of purchase money, amounting to f523.53 ; that no part of the notes was piaid, but Nolan afterwards agreed to release his -right and title to the land, and give, up possession to the plaintiff Urmston on payment by Barr of one hundred dollars,” which sum was paid by Urmston on an order given on him by Barr to .Nolan, and possession was relinquished accordingly to Urmston, who .went into possession, received a conveyance from Barrj paid him. a full price for the land, and has .ever since remained in possession thereof,- and is entitled to the relief sought. And thereupon it was ordered and decreed, that, within 30 days from the taking of the decree, the defendants, the heirs and widow of Nolan, should execute and deliver to Urmston a good and sufficient deed of release of all their right, title and interest in the premises, saving any right of dower acquired by said Mary Nolan under the decree set forth in her answer; and in default thereof, that the decree stand as such release ; and that the defendant be perpetually bound from setting up any claim to the premises, either at law or in equity, saving the right of dower aforesaid.

The defendant, in this bill of review, claims that the original bill contained all' the allegations required, to authorize a decree for the relief prayed for; and that the decree as above set forth, contains, within itself, all the evidence needed to support the case made in the bill. And such is the opinion of the court. The court in the 15 O. R. 313, says : That the exhibits and depositions are open for examination, unless the facts are found in the decree, but when they are so found, the court, on a bill of review, will only inquire whether they are sufficient, if true, to sustain the decree.” By this decree all the required facts are distinctly found by the court, and therefore without any reference to the exhibits and testimony, the decree must be sustained. But we have examined the depositions, and we find in them satisfactory evidence of all the facts stated in the decree.

The bill of review is dismissed.

Caldwell, J., having been of counsel for one of the parties, did not sit in the case.

Spalding, J.,

though concurring with the other members of the court sitting in the case, in the decree dismissing the bill, holding that the original decree was correct, and sustained by the proof in the case, dissented from so much of the opinion of the court as denies to a court of chancery, on a bill of review, the power to examine and pass upon the testimony, when the facts have been found by the original decree. He admitted the practice had prevailed to some extent in Ohio, as was held by the court, but insisted that it operated injuriously; and so far as he was concerned, he desired it to be considered an open question.'