author: Spear, J.

text:
    Cross v. Armstrong.

      Life insurance — Revised Statutes, section 3628 — Exemption of fund from execution — Foreign company — Foreign judgment — Interpleader.
    1. Section 3628 of the Revised Statutes, which provides that a person may effect insurance on his life for benefit of his widow or children, and the amount of insurance coming due shall be payable to such widow or children exempt from claims of the representatives and creditors of such person, but the amount of annual premiums shall not exceed §>150, and in case of excess there shall be paid to the beneficiaries such portion of the insurance as the sum of $150 will bear to the whole annual premium, and the residue to the representatives of the deceased, applies as well to a policy issued by a company organized and conducted outside the limits of Ohio as to a policy issued by a company of this state.
    2. In a suit brought against the company, by the widow of such insured person, upon a policy in which she is named as the beneficiary, in a court in the state where such company is located, and in which suit, by direction of the court, the company brings into court a sum of money sufficient to satisfy the amount due on the policy, and obtains an order requiring the administrator, resident of Ohio, to appear and interplead with such widow as to their respective claims under the policy, service in Ohio of copy of such order, and of citation upon such administrator, does not give the court jurisdiction of his person, and (there being no appearance nor other service on such administrator) a judgment in the action purporting to debar him from any claim or right as against such widow is, as to him, void.
    Error to the District Court of Tuscarawas county.
    The action below was commenced by the filing in the court of common pleas of a petition which, in substance, alleges :
    That the plaintiff is the administrator of ¥m, Armstrong ; that the assets are insufficient to pay the debts, and that the defendant is the widow of the deceased. The intestate, April 26,1870, effected an insurance upon his life, for the sum of $10,000, in the Provident Life and Trust Company of Philadelphia, Pa., then doing business in Ohio as an insurance company, and caused the policy to be made payable on its face to his wife, Polly Armstrong, the defendant. By the terms of the policy, the assured, William Armstrong, agreed to pay, and did annually pay, the sum of $594 yearly premium for such insurance, from the date of the policy until the time of his death, which occurred March, 1879. The intestate, at the time of his death, held the policy in his possession at bis domicile in Ohio. The deceased, the plaintiff, and the defendant, were always citizens of, and domiciled in this state. After the death of the assured, the defendant obtained possession of the policy, collected of the company the entire amount secured thereby, and surrendered it to the company; and she now holds the sum of $7,475.75 of the $10,000 received by her, for the use of the plaintiff, as the representative of the deceased.
    To this an answer was filed, which alleges in substance:

      First That the Provident Life and Trust Company is ,a corporation organized under the laws of Pennsylvania; 'that the insurance contract mentioned in the petition was effected in that state, to be performed and was-performed in that state; and that by the laws of Pennsylvania, and by virtue of the contract, the right vested in the defendant to receive the whole of the insurance money secured by the policy for her sole use and benefit.

      Second. That July, 25, 1879, the defendant instituted a suit in a common pleas court of the city of Philadelphia upon that policy, against the insurance company, to recover the $10,000 named therein; that before plea pleaded, the company came into court and suggested that the adminis- . trator of William Armstrong claimed to have some interest in the insurance fund, and prayed for leave to bring the money into court and for an interpleader between the said Polly Armstrong and'the administrator of her husband, touching their rights, respectively, to the proceeds of such insurance; that such leave was granted, and a rule entered requiring the administrator to show cause why an inter-pleader should not be awarded between him and Polly Armstrong to determine their respective rights and ownership in the fund agreeably to fhe laws of Pennsylvania, a copy of which rule, under the seal of the court, was, pursuant to the laws of Pennsylvania and the practice in said court, delivered to said administrator at the county of Tuscarawas, and state of Ohio, together wdth a letter from the attorney of the company, notifying him that under the laws of that state it was necessary for him to appear. Afterward, the rule being made absolute, and the money having been paid into court, a citation was duly issued under seal, requiring and summoning the administrator to appear in court and interplead, and notifying him that in case of default the monies would be awarded to said Polly, and he declared estopped and debarred from any further right or claim therein, which citation, pursuant to the laws of Pennsylvania, was duly served on the administrator by delivering the same to him at said county of Tuscarawas. The administrator not appearing, the court adjudged and decreed that the entire futid be paid to Polly, and that the administrator be estopped and debarred from all claim to any part of said fund or in the policy of insurance.
    To this answer the plaintiff interposed a general demurrer. The court of common pleas overruled the demurrer and rendered judgment for defendant, which judgment was affirmed by the district court. To obtain a reversal of these judgments, the petition in error is filed in this court.

      II. T. Stockwell, for plaintiff in error.
    The law of Pennsylvania was not sufficiently pleaded in the answer. The allegation on that subject is a mere conclusion of law, wholly destitute of any element of fact; and there are no facts stated in the answer that justify such conclusion. Peterson v. Roach, 32 Ohio St. 374, P. C. & St. L. Ry. Co. v. Moore, 33 Ohio St. 384; Mitchell v. Treasurer Franklin Co., 25 Ohio St. 153; Commissioners v. Noyes, 35 Ohio St. 207.
    The assured having performed all the conditions of the policy, and having the same in his possession at his domicile, in Ohio, upon his death the laws of this state operated upon and vested the title thereto, and the fund in controversy, according to section 3628 of the Revised Statutes.
    The law of the domicile controls as to the title, transfer, succession, and distribution of personal property and dioses in action. Swearingen v. Morris, 14 Ohio St. 424; Fuller v. Steiglitz, 27 Ohio St. 355; Story Con. Laws, secs. 21, 51, 362, 379n., 380, 381.
    The Pennsylvania judgment was, as to the plaintiff, a nullity. In order that a judgment of a sister state can have any force or effect in this state, the court rendering it must have had jurisdiction of the subject-matter and the party. Pennywit v. Foote, 27 Ohio St. 600; Hemminway v. Davis, 24 Ohio St. 150; Story Con. Laws, secs. 539, 546, 609;
      Hall v. Williams, 6 Pick. 232; Bissell v. Briggs, 9 Mass. 462; Scott v. Noble, 72 Pa. St. 115; Price v. Hickok, 39 Vt. 292.
    The proceedings in the Pennsylvania court had none of the essential requisites of a proceeding in rem.

      J. T. O’Donnell and Alexis Cope, for defendant in error.
    The contract of insurance was made in Pennsylvania and was to be and was performed in that state.
    A contract of insurance is to be interpreted by the law of the place where made. Story Con. Laws, secs. 271-283 ; 2 Par. Con. 707.
    The place of the contract governs as to its nature, obligation, and interpretation. Story Con. Laws, secs. 258a, 263; Lowther v. Lawrence, W. 180, 186, 187; Walker v. Whitehead, 16 Wall. 314-317; Milliken v. Pratt, 125 Mass. 382; Pom. Int. Con. Law, secs. 592-594; Green v. Collins, 3 Cliff. 494. And also as to the capacity of persons to contract, Story Con. Laws, sec. 241; 2 Par. Con. 702. So also as to the validity of the contract. Story Con. Laws, sec. 242.
    These principles apply to insurance contracts. Ricker v. Charter Oak Life Ins. Co., 27 Minn. 195; Eadie v. Slimmon, 26 N. Y. 9; North America Life Ins. Co. v. Wilson, 111 Mass. 542; Thwing v. Great Western Insurance Co., 111 Mass. 109; Pomeroy v. Insurance Co., 40 Ill. 400; Fuller v. Linzee, 135 Mass. 468.
    In the following cases a directly opposite view is held from that taken in Morris v. Penn Mut. Life Ins. Co., 120 Mass. 503, and Holmes v. Charter Oak Life Ins. Co., 131 Mass. 64, where it was held that the non-forfeiture law of Massachusetts applied to insurance contracts made outside the state, and which cases stand alone and unsupported. Shattuck v. Mut. Life Ins. Co., 4 Cliff. 598; Desmazes v. Mut. Ben. Life Ins. Co., 7 Ins. L. Jour. 926; Whitcomb v. Phœnix Mut. Life Ins. Co., 8 Rep. 642; Smith v. Mut. Life Ins. Co., 5 Fed. Rep. 582.
    When the plaintiff would have no right of action by the laws of the state where the contract was made and to be executed, lie can have no right here. When a contrract is made within the jurisdiction of a foreign state, and contemplates no action outside of that jurisdiction, it is clear that the question of its validity must be determined solely by the laws of that state. Knowlton v. Erie Railway Co., 19 Ohio St. 263-268.
    Matters bearing on the execution, the interpretation, and the validity of a contract are determined by-the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Scudder v. Union National Bank, 91 U. S. 406.
    When the Provident Life and Trust Company was sued by the widow upon the policy, filed its suggestion, not denying but admitting its indebtedness, asked that an interpleader be awarded, and brought the money into court to be paid to whomsoever the court should direct, the court thus obtained jurisdiction of the fund, and from that time forward the proceeding was essentially a proceeding in rem. The court having thus obtained jurisdiction of the res, and having given proper notice, as required by the laws of the state of Penusylvania, had ample power to hear and determine as to all the rights of the parties in and to the fund, and having so heard and determined, the parties are bound by the judgment. Cooper v. Reynolds, 10 Wall. 308; Tyler v. Defrees, 11 Wall. 344; Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294; Grunn v. Plant, 94 U. S. 669; Hunt v. Hunt, 72 N. Y. 239-241; Matthews v. Densmore, 109 U. S. 219; Story Eq. Jur., secs. 64k, 65, 800-824; Rorer Jud. Sales, secs. 59-62; Freem. Judg., sec. 606; Pelton v. Platner, 13 Ohio, 209; Paine v. Moreland, 15 Ohio, 445.
    It is not a question of the succession of personal property or dioses in action. The decedent had no title to the policy. Ho could not assign or transfer it without the consent of the. beneficiary, and could not dispose of it by will. The policy belonged, the moment it was issued, to the beneficiary. The life insui’ed had no legal or equitable interest in it. Allis v. Ware, 10 Ins. L. Jour. 651; Ricker v. Charter Oak Life Co., supra; Wagner v. Karman, 7 Am. Law Rec. 670.
   Spear, J.

The questions arising in the case are presented by the demurrer to the answer. It will be observed that there is no denial of the allegations that at the time of the effecting of the insurance upon the life of'William Armstrong he and the defendant were residents of and domiciled in Ohio, and that they continued to so reside until his death, and she has ever since resided within the state; that the premiums, $594 each year, were wholly paid ■by the husband ; that the debts of the estate are over three thousand dollars, while the assets are not more than seven hundred, and that the defendant has received from the insurance company the entire amount of the insurance money covered by the policy, ten thousand dollars.

The claim of the plaintiff is based upon the statute of Ohio, section 3268, while the defendant’s claim is that the rights of the parties are measured by the laws of Pennsylvania, the place where the contract was made and was to be enforced, and that those rights have been adjudicated and determined by the decree and judgment of the court of common pleas of Philadelphia, set up in the second defense of the answer. It is urged that by the common law the contract of insurance is to be construed by the law of the place where made; that the law of that place governs as to the nature, obligation, and interpretation of the contract; that when the plaintiff would have no right of action by the law of the state where the contract was made and to be performed, he can have none here, and that, by the laws of Pennsylvania and by virtue of the contract, the right vested in the defendant to receive for her own exclusive use the whole of the money secured by the policy.

Assuming, without holding, that the law of Pennsylvania is sufficiently pleaded in the answer, and that unless the question is determined by the statute referred to, the claim made by the defendant as to the effect of the law of Pennsylvania upon the rights of the parties here is conclusive, how, if at all, are those rights affected by section 3628 of the-Revised Statutes? That section reads as follows :

“Any person may effect an insurance on his life, for any definite period of time, or for the term of his natural life, to inure to the sole benefit of his widow and children, or of either, as he may cause to be appointed and provided in the policy; and the sum or net amount of insurance becoming due and payable by the terms of insurance shall be payable to his widow, or to his children, for their own use, as provided in the policy, exempt from all claims by the representatives and creditors of such person; but the amount of premium annually paid on such policy shall not exceed the sum of one hundred and fifty dollars, and, in case of such excess, there shall be paid to the beneficiaries named in the policy such portion of the insurance as the sum of one hundred and fifty dollars will bear to the whole annual premium, and the residue to the representatives of the deceased.”

In obtaining an insurance of this kiud the manifest intent of the husband is to make provision for those dependent upon him, a purpose every way rightful and laudable. It is to be done by applying, from year to year, the money of the husband, obtained from proceeds of his own labor or otherwise, to the future use and benefit of those who stand in such relation to him as to give them a natural claim to his efforts, forethought, and bounty. And up to a.certain point, as to expenditure, such provision may legally be made. -In the same spirit our laws allow to the widow dower in lands, use of the mansion-house one year, a homestead right, a year’s support out of the personalty, a given proportion of the residuum after debts are paid, and certain specific articles of personal property, if such the deceased possessed. But the same laws recognize others as having rights as regards the property of the deceased. The creditors are not to be wholly ignored, even though there be a needy widow and needy children. As to the section referred to, while it recognizes the right of the husband to make provision for those of the family, who may survive, to the extent, of one hundred and fifty dollars yearly thus invested, it also provides that as to insurance effected by payments over that sum it shall inure to the legal representative. No question is made that as to contracts with Ohio companies the statute would apply. Should it receive such construction as to confine its operation to that class of contracts? It is not doubted that it is competent for the gen- , eral assembly to enact laws which in effect forbid citizens of the state from resorting to the courts of sister states for 'the purpose of defeating the operation of laws of Ohio as to questions which affect the rights of other citizens of Ohio. The law which gives to a debtor, the head of a family, and not the owner of a homestead, an exemption as against a claim of a creditor in attachment, where the sum due the debtor is shown to be necessary for the support of the family, is a law of that kind, inasmuch as it is held that such creditor may be enjoined from bringing action in courts out of Ohio where no such exemption could be permitted. And the law in question, if it applies to policies issued by companies other than those organized in Ohio, is an inhibition against citizens of Ohio placing moneys beyond the reach of creditors by entering into contracts with insurance companies organized out of this state. It will be noticed that the words of the statute do not limit its application. The language is comprehensive, and in terms it applies to all contracts of insurance obtained by citizens of the state. Why should we assume that the legislature intended that if the company happen to be a home company the statute applies, while if one located in another state it does not apply? Why not assume, rather, that that body.intended to correct the mischief which the very enactment of the statute raises the implication then existed ? It is but the ordinary rule to give such construction to statutes as will advance the remedy and correct the mischief. Applying the law only to home companies would, in great measure, defeat the very purpose apparent in this legislation. The general assembly must be assumed to have at least such general and common knowledge upon subjects of legislation as ia possessed by citizens at large, and it is matter of common information that the great proportion of policies written upon the lives of citizens of Ohio are issued by companies organized outside the state, and there is little doubt that this was true in a larger sense even, at the time this statute was enacted (1847), than it is now. Statistics, believed to be reliable, show that in the year 1884, out of about fifteen thousand policies and certificates written upon the lives of citizens of this state more than ten thousand were written by foreign companies, and out of thirty-three millions of dollars, gross amount covered by those policies and certificates, nearly twenty-five millions were in policies issued by foreign companies. It is probable that, prior to the organization of the various relief and aid associations now so common, the disproportion was greater than the above figures show.

The parties to this litigation are citizens of the state of Ohio, and were when rights under this policy accrued. Those rights are being adjudicated in the courts of Ohio. Why should those courts ignore our own law, or make it subordinate to the law of another state? We think they should not. To do so would permit a citizen largely indebted to invest his capital and earnings to an unlimited amount for the benefit of members of his family in insurance contracts in distant states, thus working a fraud upon deserving creditors by placing such sums beyond their reach, nothwithstanding such investments would be in spirit a plain violation of the whole policy of our laws regulating the respective rights of debtor and creditor. Very much more might be said in elaboration of this view, but we deem it unnecessary to take farther space, as we feel confident that enough has been indicated to make it clear that tne demurrer, as to the first defense of the answer, was well taken and should have been sustained.

Does the second defense set up in the answer stand in the way of a recovery ? The contention on part of defendant is that by the judgment of the Philadelphia court the matter in issue here is res adjudicate/,, and this is so if that court had jurisdiction of the subject-matter and of the person of the plaintiff. The record shows that the service on the plaintiff was by delivering to him, in Ohio, a copy of the rule of court requiring him to show cause why the court should not give direction to the company to bring the $10,000, owing by it on the policy, into court, and why he should not interplead with Mrs. Armstrong as to. conflicting rights to such money, together with a letter from the company’s attorney advising him to appear, and by like service afterward of a copy of a rule absolute and of citation to appearand interplead. Is such notice sufficient to require an Ohio administrator to go to another state to litigate in the courts of that state, with a citizen of Ohio, questions arising under the laws of Ohio affecting the estate which he represents, or refuse at his peril? It is probable that no injustice would in this case be done if the question were put in this way : Can a resident of Ohio resort to the courts of another state and there compel an administrator, resident of Ohio, and deriving his authority from the courts of this state, to litigate a dispute existing between them, wherein the rights of the administrator depends upon the law of Ohio, for the express purpose of evading the effect of our statute, and of obtaining a judgment which would be contrary to the law of the domicile of both ?

It is urged that when the company asked that an inter-pleader be awarded, and brought the money owing by it into court, the court then obtained jurisdiction of the fund, and from that time forward the proceeding was one essentially in rem, and the court having thus obtained jurisdiction of the res, and having given notice-according to the laws of Pennsylvania, had ample power to hear and determine, and having so heard and determined, the parties are bound by the judgment. That such proceeding could be in rem seems a novel doctrine. “In rem ” is understood to be a technical term, taken from the Roman law, and there used to distinguish an action against the thing from one against the person, the terms in rem and in personam always being the opposite one of the other; an act in personam, being one done or directed against a specific person, while an act in rem was one done with reference to no specific person, but against or with reference to a specific thing, and so against whom it might concern, or “ all the world.” A proceeding brought to determine the status of the thing itself, the particular thing, and which is confined to the subject-matter in specie, is in rem, the judgment being intended to determine the state or condition, and, ipso facto, to render the thing what the judgment declares it to be, while a proceeding which seeks the recovery of a personal judgmeut is in personam. In the former, process maybe served on the thing itself, and by such service and making proclamation, the court is authorized to decide upon it without other notice to persons, all the world being parties; while in the latter, in order to give the court power to adjudge, there must be service upon those whose rights are sought to be affected. As regards rights, the terms signify the antithesis of “available against a particular person,” and “ available against the world at large.” Thus, “jura in personam are rights primarily available against specific persons, jura in rem rights only available against the world at large.” Beyond this, a judgment or decree is in rem, or in the nature of a judgment in rem, when it binds third persons, such as the sentence of a court of admiralty on a question of prize, or a decree of other courts upon the personal status or relation of the party, such as dissolution of marriage contract, bastardy, etc., a decree in probate court admitting a will to probate and record, granting administration, etc., or a decree of a court of a foreign country as to the status of a person domiciled there. ¥e quote from Freeman on Judgments the definition of judgment in rem given by that author: “An adjudication against some person or thing, or upon the status of some subject-matter, which, wherever audwhenever binding upon any person, is equally binding upon all persons.” In contrast, a judgmeut in per sonant is, •“ in form, as well as substance, between the parties claiming the right; and that it is so inter partes appears by the record itself.” Woodruff v. Taylor, 20 Vt. 65. From all which it appears that a judgment in rem, at least when against any thing, may bind the res in the absence of any personal notice to the parties interested, but a judgment in personam, as we have seen, can have no validity except upon service upon the interested parties, or what is equivalent to it. J Why was the Philadelphia action, in its nature, not a proceeding between parties claiming right to money due under the policy, rather than a proceeding to determine the status of such money? If it was the former, then the efficacy of the judgment depended upon having the parties before the court, so that their conflicting claims could be adjudicated if the latter, then it would appear to be one wherein the court’s judgment would have been effectual and conclusive, without reference to whether the parties were before the court or not, and the rights of both of them could have been as well settled by the filing of a bill by the insurance company and the bringing of the money into court, and without the presence, by service or appearance, of either of the parties claiming to be interested in the fund. 'Tt was not the status of avy particular money-that was to be determined, for any money which was a legal tender would have effectually satisfied the claim of the party receiving it; nor was there any claim primarily by even the widow, much less the administrator, to any money in speciej, nor did either the company or the widow, at any time,“claim or admit that the administrator had any money or property within the jurisdiction of the court, or valid claim to any subject-matter sought to be affected by the decree to be rendered. The proceeding was clearly one of interpleader, and that only. We do not understand that an action in personam, simply because a debtor brings money, the right to recover which is in contention, and gives to the custody of the court a sum sufficient to discnarge his debt, changes into an action in remj/or that an interpleader suit is, in its nature,.a proceeding in rem,] In the Philadelphia case the company could have begun the action by original bill and obtained a complete standing in court, if, with other proper averments, the pleader had alleged a willingness to bring the money into court. Manifestly, the action thus begun would not have been in rem. Then,’ does the mere fact that the company (the debtor) being sued, voluntarily delivers money to the clerk of the court rather than keep it in its own safe, or to its credit in bank, or loaned upon call, change the action from one in personam to one in rem ? We think notj

It will be borne in mind that the Philadelphia suit was essentially unlike an attempt to reach, by process of attachment, the property of an absent party. It was rather an attempt to estop the administrator from claiming any recovery against the company, to draw the estate of William Armstrong to a distant state for settlement, and an attempt to compel the administrator to litigate, against his will, in a Pennsylvania court, a controversy affecting the estate, and with another resident of Ohio; hence the class of cases which treat proceedings in attachment as substantially proceedings in rem have no application to the case at bar.

If the case made in the answer can not be treated as a suit in rem it appears clear that the judgment rendered is void as against the administrator for want of jurisdiction at least of his person. No support is given that judgment by the constitutional provision and the act of congress of 1790, passed pursuant to it, which gives in all states the same faith and credit to a judgment of a state as it has by law or usage in the courts of the state where rendered; for, whatever strict construction was given that provision by the earlier decisions, it is now well settled that parties sought to be affected by a judgment rendered in another state are not precluded from showingthat the court wherein the action was pending had no jurisdiction, either of subject-matter or of the person, for in order to entitle a judgment rendered to such full faith and credit the court must have had jurisdiction as well of parties as of subject-matter.

The law on this point is well stated by Johnson, J., in Pennywit v. Foote, 27 Ohio St. 618, as follows : “ Prom a careful review of numerous cases, we find the rule now well settled that neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court in which the judgment offered in evidence was rendered, and such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist, and this is true either as to the subject-matter or the person, or in proceedings in rem as to the thing.”

The state of Pennsylvania could not extend its sovereignty into the state of Ohio; it could not in an action in personam compel a citizen of this state to respond to the process of its courts served in this state. “ No sovereignty can extend its process beyond its own territorial limits to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals.” Story on Conflict of Laws, section 539. “ The jurisdiction of state courts is limited by state lines, and, upon principle, it is difficult to see how the order of a court, served upon a party out of the state in which it is issued, can have any greater effect than knowledge brought home to the party in any other way. Mere knowledge of the pendency of a suit in the courts of another state, without service of the process, or an appearance, .is not sufficient, of itself, to compromise the rights of the party in this state.” Ewers v. Coffin, 1 Cushing, 23, 28.

The conclusion we have reached is strengthened by a consideration of the policy and provisions of our statute which directs in what county an administrator maybe sued. Section 5031 of tbe Revised Statutes provides that actions against an executor, administrator, guardian, or trustee, maybe brought in the county wherein he was appointed or resides, in which case summons may issue to any county. Now, had this widow brought an action in Ohio to settle the rights of the parties to the amount due on this policy, the above section would seem to limit jurisdiction of such action to the courts of the county of Tuscarawas, and while so careful a provision is made as to the situs of suits against administrators in this state it would appear anomalous to permit the defendant, by choosing a court in another state, to compel the administrator to follow her there to defend the claims of the estate he represented.

We are of opinion that the demurrer to the answer should have been sustained.

Judgments reversed.


source: Caselaw Access Project

author: Minshall, J. Spear, J.

license: Public Domain

text:
    The State ex rel. Crawford v. McGregor.

      Sheriff — How vacancy in office filled— Coroner — Revised Statutes, sections 11, 1202, 1208, 1219 — Elections—Canvassing hoard — Mandamus.
    1. Where the offices of sheriff and coroner both become vacant, the county-commissioners may, the court of common pleas not being in session, fill the vacancy in the office of sheriff, by the appointment of a suitable person to hold for the unexpired term of the sheriff, whose place the appointment is made to fill, although the vacancies should occur more than thirty days before the next November election; section 1208, and not section 11, of the Revised Statutes, applying to such case.
    2. Where a person, elected to the office of sheriff for a full term at a biennial election, as provided in section 1202.of the Revised Statutes, dies after he has qualified, but before the commencement of the term to which he had been elected, the term to which he had been elected is, in contemplation of section 1208, to be regarded as his place;” and this is so, although, for a part of the time, it was filled by the coroner under section 1219 of the Revised Statutes.
    3. The clerk of the court of common pleas and the justices called to his assistance to abstract the votes of an annual election, can not be required by mandamus to abstract votes cast for a person or persons for an office, unless the same is required to be filled by the electors at such election.

      Mandamus.

      J. A. Ambler, George E. Baldwin, J. J. Grant, D. F. Beinoehl, and Joseph Frease Son, for relator.

      Harrison, Olds §• Marsh, Powell k Ricketts, John C. Welty, and Austin Lynch, for defendants.
   Minshall, J.

At the general election of October, 1883, James Lee was elected sheriff of Stark county for the full term of two years, commencing, as the statute (section 1202, Revised Statutes) provides, on the first Monday of January, 1884. He qualified, entered upon and performed the duties of the office until December 8, 1885, when he died. He had, however, at the previous general election, been re-elected for a full term, and had given bond and qualified as required by law, previous to his death.

Upon the death of Lee, Augustus Leininger, the coroner of the county, who had been elected for a full term at the October election of 1884, entered upon and performed the duties of the office of sheriff until January 7, 1886, the expiration of Lee’s first term. At which time, his term as coroner not expiring until the first Monday of January, 1887, he gave bond as acting sheriff of the county, entered upon and continued to perform the duties of the office of sheriff until September 10,1886, at which time he resigned his office of coroner ; and, the court of common pleas not then being in session, was immediately appointed by the commissioners of the county to fill the vacancy in the office of sheriff'. Leininger at once accepted the appointment, gave bond, qualified and entered upon the duties of the office as such appointee, and continues to do so under his appointment, and claims the right to do so until the first Monday of January, 1888, the expiration of the term to which Lee was re-elected. He therefore made no proclamation for the election of a sheriff, at the last general election ; but, it being claimed that there was a sheriff to be elected, the relator was placed in nomination by his friends, and received over 7,000 votes ; others were voted for, but he received the greatest number cast for any one person; and if, under tbe law, the electors of the county had the right to fill, by election, the unexpired part of the term to which Lee had been re-elected, there is not much doubt but that the relator was elected to fill the same at the last November election, and the respondents should have counted the votes cast for him, and have made the proper return. The clerk and his associates in the canvassing board, claiming that there was no such election to be held, refused to abstract the Votes that had been cast .for any person for the office of sheriff. This suit is prosecuted to compel the respondents to do what they have refused to do.

It may be conceded that it was not the duty of the clerk and the justices, as a canvassing board, to determine that there was no election of sheriff’ to be held, and to refuse, for such reason, to count and abstract the votes that had been cast for the different persons as sheriff. Nevertheless, as the remedy sought in this action can only be had when the right is clear, if there was no vacancy in the office of sheriff of Stark county to be filled by an election, the writ should be refused, as it is neither the policy nor the practice of courts to require the doing of a vain thimr.

The questions arise upon the construction of sections 11 and 1208 of the Revised Statutes. These questions are: (1) whether the general provision of section 11, or the special provision of section 1208, applies; and (2) if the special provision of the latter section applies, then what is the proper interpretation of the clause contained in it, that the person appointed as therein provided shall “hold his office for and during the unexpired term of -the sheriff whose place he fills.”

The provisions of these two sections, requiring a construction, are as follows : “ Sec. 11. When an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy. . . .” “Sec.'1208. When the offices of sheriff and coroner become vacant, the court of common pleas, if in session, or the county commissioners, if the court is not in session, shall appoint some suitable person to fill the vacancy in the office of sheriff, who shall give bond and take the oath of office prescribed for the sheriff, and hold his office for and during the unexpired term of the sheriff whose place he fills. . . .”

The general provisions of section 11 and the special provision of section 1208 of the Revised Statutes are in apparent conflict. Both can not apply to the case. Under the general provisions of section 11, the office of sheriff being an elective one, the successor of Leininger, an appointee, should have been elected at the last November election, that being the next proper election, as it was held more than thirty days after the vacancy in the office of sheriff occurred. Eor we can not agree with counsel for the respondents that the term, “ the next proper election,” as used in this section, might, as applied to this case, mean the next election of a sheriff for a full term. If such had been the intention of the legislature, it would have used language more appropriate to its expression.

But we think this section does not apply to this case. The provisions of section 1208 can, and should, be read as an exception to the general provisions of section 'll. This is in accordance with the established rule of construction, where the general provisions of a statute are varied by the special provisions of the same or another statute relative to the subject. The courts presume an intention in the legislature to be consistent in the making of laws; and also to have had a purpose in each enactment and all its provisions. Special circumstances often create a necessity for appropriate special provisions, differing from the general rule upon the same subject; and so, where such provisions are found in a statute, different from the general provisions that would apply to the case, the courts must assume that the special provisions were made for adequate reasons, and give them effect by construing them as exceptions to the general rule contained in the general provisions of the statute. In this way, without disregarding any of its provisions, effect is 'given to each and all the provisions of a statute. Potter’s Dwarris, 272; Sedgwick Stat. Law, 423. And where, as in this case, the special provisions of one section, operating as an exception to the more general provisions of another, are uniform in operation throughout the state, they are not in conflict with the constitutional provision requiring all laws of a general nature to have such operation.

What, then, is the proper interpretation of the clause in section 1208, that the person appointed sheriff, as therein provided, shall “ hold his office for and during the unexpired term of the sheriff whose place he fills.” It will not be claimed that, if Lee had lived and entered upon his second term, though but for one day, the person who might have been appointed to fill the vacancy thus created would not have held during the unexpired term of the deceased; for the appointee, under this section, is, in all cases, to hold for “ the unexpired term of the sheriff' whose place he fills.” But was the full term made vacant by the death of Lee several weeks before the first Monday of January, 1886, any the less his “ place” than the part that would have remained of it had he lived to enter upon and exercise the duties of sheriff for oue day before he died? In either case liis title must be regarded as relating to a future period of time; aud there is no more verbal accuracy in designating a part'of the term as his place, than in so designating the whole. He had the same title to the whole term that he would have had to an unexpired part of it, had he lived to enter upon the term itself. By his election and qualification he had been clothed with the political right or authority to enter upon the performance of the duties of the office as soon as the term began. An entry upon the performance of the duties of an office is not requisite to the title to do so. A house that has been completed is none the less the house of the owner, though not yet occupied by Mm.

The point, however, made is, that when Lee died, Leininger, being coroner, became, under section 1219, Revised Statutes, sheriff for and during Ms term of coroner, ending on the first Monday of January, 1887; and, therefore, when he resigned his office of coroner on September 10, 1886, the place that was to be filled in the office of sheriff was the unexpired part of his term as sheriff, ex officio. There are several objections to this view. In the first place, it would not help the relator; as, in such case, there would have been no vacancy in the office of sheriff to fill at the last November election, and there-is no provision in the law for filling a prospective vacancy in the office by election, other than the biennial elections provided for in section 1202, Revised Statutes. Each election so held is for a term of two years, beginning on the first Monday of January next after the election. The election, the commissioners may order, under section 1208, is to fill an existing vacancy in the office, created by death, resignation, removal, or permanent disability of the sheriff. It is to fill, not a prospective, but an actual vacancy occurring from any of the enumerated causes. In the next place, under section 1219, the coroner does not become the sheriff of the county; the provision is, that “ during the time when the-office of sheriff is vacant in any county, the coroner thereof shall be bound to perform all the duties, and be vested with all the powers, of sheriff of said county.” He does not cease to be coroner by the office of sheriff becoming vacant; on the contrary, he continues to be coroner, and as such performs the duties of sheriff during the vacancy in that office, If for any reason the office of coroner thereafter becomes vacant, then a vacancy occurs in the offices of sheriff and coroner, unless the former had been previously filled by an election ordered by the commissioners under the provisions of section 1208. But when not filled in this way, there is none the less a vacancy in the office of sheriff, because the duties of the office are performed by the coroner under the provisions of section 1219. This is apparent from the fact that it is competent to the commissioners to order it to be filled, although there may be no vacancy in the office of coroner, and that officer may be performing the duties of sheriff pro hac vice. The clause in section 1208 conferring this power on the commissioners reads as follows: “In case of vacancy in either office by death, resignation, removal, or permanent disability of the sheriff or coroner, if, in the opinion of the county commissioners, the public interest require it, they may . . . order a special election to fill the vacancy.” Hence, in contemplation of the statute, a vacancy exists in the office of sheriff whenever the person elected or appointed as sheriff ceases for any reason to be sheriff, although its duties may for the time being be performed by a coroner acting as sheriff; as the power conferred is to order an election to fill a vacancy, if one occurs “ in either office.” But this language would be entirely inappropriate if no vacancy occurs in the office of sheriff, so long as there is an incumbent in the office of coroner required to perform the duties of sheriff under section 1219, Revised Statutes.

Writ refused.

Spear, J.

I find myself compelled to dissent from the judgment rendered. The holding is that the case presented does not authorize the awarding of a writ of mandamus, because the relator has not shown that ho is a party beneficially interested within the meaning of the statute;, in other words, that to award, the writ would be doing a vain thing. The evidence shows that each of the four political parties having organizations in the county of Stark, at their several nominating conventions, nominated a candidate for sheriff, one of them being the person who was then holding the office of coroner and ex-officio sheriff; that later, and before the election, he withdrew from the contest, and was not voted for at the election; that the other three continued in the field and were voted for, the relator receiving over seven thousand votes, many more than a majority of all the votes cast for sheriff, the total vote on the general ticket in the county being over fifteen thousand. The officers of the several election precincts, save two, duly forwarded the returns to the clerk, as re quired by law, and there is no question but that the election was every-where legally conducted, the returns in due form, and no suspicion exists that any are false, forged, or fraudulent.

The statute regulating the manner in which the votes shall be canvassed requires that the clerk and two justices of the peace shall proceed to open the several returns made to the clerk’s office, and make abstracts of the votes cast; that in making the abstracts they shall not decide 6n the validity of the returns, but shall be governed by the number of votes stated in the poll-book, and shall certify and sign .the abstracts. The duty here enjoined the clerk refuses to perform. Such refusal prevents the relator from having a standing to prosecute an action in quo warranto, or other proper form, to contest with the occupant his right to the office.

I take the liberty, with due deference, of suggesting that the showing thus made presents a case of sufficient gravity to warrant the court in awarding a writ directing the clerk to perform the plain duty required by statute, and that such action would not be the doing of a vain thing. Nor, as I think, is the defendant in a position to ask the court, iu this case, to anticipate the future, and determine what would he the result of a ease between the relator and the occupant, should one be instituted, I am not aware that any member of the court doubts that it was the duty of the clerk to abstract and certify the returns for sheriff, and for one I am disposed to say so, and am content to delay deciding a quo warranto ease until such time as such case may be brought. Believing that it is a tolerably proper thing for an officer to perform a sworn duty, I am of opinion that the making of the order prayed for would prove salutary, and that the purpose and policy of the law would be advanced by awarding the writ.


author: By the Court.

text:
    William M. Este v. William M. Wilshire et al.

      Arrest — Civil action — Fraxidulent obligation— Witness — Criminating ques‘ Hons — Revised Statutes, section 5492.
    Error to the District Court of Hamilton county.

      Wulsin &; Perkins and C. B. Matthews, for plaintiff in error.

      Wright § Wright, for defendant in error.
   By the Court.

1. The defendants, Wilshire & Thomas, were arrested at the suit of Este, upon an affidavit filed by him stating in substance that on July 26, 1882, he directed the said defendants, then acting as his brokers, to sell his stocks and account to him for the proceeds; that they thereupon at once sold the same, received the money, amounting to $3,281.36 over and above all charges, and embezzled and converted the same to their own use.

Held, that thereby the defendants fraudulently incurred an obligation to their principal, the said Este, within the meaning of the fifth clause of section 5492 of the Revised Statutes, and warranted their arrest under the provisions of said section.

2. The defendants filed a motion to vacate the order of arrest, and for that purpose also filed their own affidavits, controverting the statements of the plaintiff's affidavit, and stating facts tending to exonerate themselves from the charge contained therein:

Held, that it was then competent to the plaintiff to examine them as to any thing relative to the change, although it might tend to criminate them. A party can not, in such case, testify in his own behalf, and then refuse to answer questions on the ground that the answer will tend to criminate him.

Judgment reversed and cause remanded.

Owen, O. J., dissents from the second proposition.


text:
    Slagle v. Entrekin.

      Administrator de bonis non — -Effects and assets recoverable — Acceptance of resignation — Jurisdiction of probate court — Bond—Breach—Revised Statutes, section G020.
    1. The language “ personal effects and assets of the estate unadministered,” used in section 6020 of the Revised Statutes, includes the indebtedness of an administrator, resigned, to the estate on account of assets received and converted to his own use, as well as such “effects” and “assets ” as remain in specie, and may be recovered by his successor in an action upon the administration bond.
    2. By accepting the resignation of an administrator, pending the settlement of his accounts, the probate court-does not thereby lose its jurisdiction over his person, or the settlement of his accounts, and may proceed to hear and determine exceptions thereto, and ascertain the amount due from him to the estate, in like manner, as if he had continued in the execution of his trust; and the amount so found due will, in the absence of fraud and collusion, be conclusive, not only upon him hut upon his sureties, in an action upon the administration bond, unless an appeal has been taken, or the judgment'has been reversed upon a proceeding in error.
    3. Where, upon the settlement of the accounts of an administrator or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the probate court, it is not error, in the court, to order its payment to his successor in the administration of the estate.
    4. The averment of a failure of an administrator or executor, who has resigned, to pay to his successor, the amount found due from him on the settlement of his accounts, is a sufficient assignment of a breach of the condition of his bond “to administer according to law” the assets of the estate.
    5. The omission of an administrator to give a bond with the requisite number of sureties upon it, will not affect his right to recover in an action where letters have been issued by the probate court upon the bond as given, and remain unrevoked.
    Error to the District Court of Ross county.

      M. 3. Williams, for plaintiffs in error.

      W. E. Evans and John C.-Entrekin, for defendant in error.
   By the Court.

The action below was a suit by John C. Entrekin, administrator de bonis non of Jacob Slagel, deceased, upon-the bond of his predecessors, Henry and Erank Slagel and their sureties, to recover the amount found due the estate on the settlement of their accounts in the probate court of the county.

On November 19, 1878, the executors filed their final account in the probate court, previous to which a number of accounts had been filed, none of which had, however, been settled. Exceptions were filed by one of the legatees, and a motion made to remove them for maladministration. During the pendency of this motion and the settlement of their accounts, they tendered their resignations, which were accepted by the court on August 29, 1879, and on the 1st of November, following, the court appointed Entrekin as succeeding administrator, who also filed exceptions to the account of his predecessors, the Slagels. Subsequently, the court having heard the exceptions, settled the account, and found that there was due the estate from the executors the sum of $9,422, which it ordered to be paid “to John C. Entrekin, as administrator de bonis non, with the will annexed, of Jacob Slagel, deceased.”

The breach of the bond assigned in the petition was the failure of said Slagels, on demand, to pay to said Entrekin, as administrator, etc., said sum of money, with interest.

The defendants, in their answers, averred that there was not the amount due from them as found by the probate court, and the sureties also denied the title of Entrikin as administrator.

No appeal was taken from the judgment and order of the probate court, and the same remain in full force and unreversed.

Evidence was offered on the trial, and ruled out, tending to show that there was not the amount due from the Slagels, as executors, as found by the probate court. There was,however, no avermentinthe answers of any fraud or collusion in the settlement of the account, nor was there any offer of evidence to that effect.

, The court charged the jury that “ the probate court had the power to accept the resignation of the executors, pending the final settlement of their accounts, and to appoint a successor, as was done, without affecting its power and jurisdiction over the settlement of their accounts.” And also that “the account as settled in the probate court is, as to the amount due, final between the parties to this suit; it being in full force and unreversed.”

Various requests, intended to open up to the jury the question as to the accuracy of the finding and determination of the probate court as to the amount due from the executors at the time of their resignation, were made and refused by the court; to all which exceptions were duly reserved.

Held, 1, That under section '6020, Revised Statutes, an administrator or executor appointed to fill the place of one who has resigned or been removed, etc., is entitled to receive from the latter his indebtedness to the estate on account of assets received and converted to his own use; the language, “personal effects and assets of the estate unadministered,” as used in this section, includes such indebtedness as well as such “ effects ” and “ assets ” as remain in specie, and he-may maintain a suit against such former administrator or executor, and his sureties on his administration bond, and recover the same. Under our statute, the assets of an estate are not regarded as administered until they have been collected and applied as required by law or the will of the testator. Tracy v. Card, 2 Ohio St. 431; Curtis v. Lynch, Admr., 19 Ohio St. 392; Douglas v. Day, 28 Ohio St. 175; Casoni v. Jerome, 58 N. Y. 321; Balch v. Hooper, 32 Minn 158

2 That where an admininistrator or executor resigns, pending the settlement of his accounts, and his resignation is accepted, the court does not thereby losp its jurisdiction over his person, nor the settlement of his accounts, and may proceed to hear and determine exceptions thereto, and ascertain the amount due from .him to the estate in like manner, as if he had continued in the execution of his trust. Casoni v. Jerome, supra.

3 That the amount found due from an administrator or executor to the estate on the settlement of his accounts in the probate court is, in the absence of fraud oi collusion, binding not only upon Mm, but also upon Ms sureties, in an action upon the administration bond, unless an appeal has been taken or the judgment has been reversed upon a proceeding in error. Casoni v. Jerome, supra; Braiden v. Mercer, 44 Ohio St. 339; Shroyer v. Richmond, 16 Ohio St. 455; Wehrle v. Wehrle, 39 Ohio St. 365; Todd v. Lewis, 2 Handy, 281.

4. That where upon the settlement of the accounts of an administrator or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the probate court, it is not error, in the court, to order its payment to his successor in the administration of the estate. It is not an order of distribution, but a judgment in favor of the estate against him upon the settlement of his accounts for assets received and unadministered, and to which, under section 6020, Revised Statutes, the succeeding administrator is entitled. Balch v. Hooper, supra; Sanford v. Gilman, 44 Conn. 461.

5. That the averment of a failure of an administrator or executor, who has resigned, to pay to his successor the amount found due from him in the settlement of his accounts, is a sufficient assignment of a breach of the condition of his bond “ to administer according to law ” the assets of the estate. Rev. Stats., sees. 6020, 6214; Luce v. Treasurer, etc., Wright, 655; Gutridge v. Vanatta, 27 Ohio St. 366; O’Conner v. State, 18 Ohio, 226.

6. It was disclosed by the evidence in the case that there is but one surety on the bond of Entrekin; the statute requires two. A bond should not be accepted with less than the required number of sureties upon it; and he maybe required, at any time, to give a proper bond, if it has not heretofore been done. But the omission to give a bond with the requisite number of sureties upon it can not defeat his right to recover in this action, so long as the title conferred by his letters from the probate court remains unrevoked. It is voidable, but not void, and can not therefore be collaterally impeached. Schouler Exr., § 142, and cases cited; Bigelow v. Comegys, 5 Ohio St. 256.

Judgment affirmed.


text:
    Ratterman v. The State.

      Dow law liquor lax — Duly of county treasurer to pay funds to city treasurer — Act of May 14, 1886.
    In a suit brought by a city treasurer against a county treasurer to require him to pay over moneys collected by him as taxes under the act of May 14, 1886, entitled “An act providing against the evils resulting from the traffic in intoxicating liquors,” an answer which alleges that such “ money was paid under protest and to avoid the distraint provided by said law,” does not state a defense; and in such case it is the duty of such county treasurer to pay over money so collected, according to law.
    Error to the Circuit Court of Hamilton county.

      Rufus B. Smith, county solicitor, for plaintiff in error.

      Coppock, Cox § Gallagher, city solicitors, for defendant in error.
   By the Court.

Error is prosecuted here by the treasurer of Hamilton county against the state on relation of the treasurer of the city of Cincinnati, to reverse the judgment of the circuit court of Hamilton county awarding a writ of peremptory mandamus.

It appears by the petition in the court below that the relator is the treasurer of the city of Cincinnati, and the defendant the treasurer of Hamilton county. As such treasurer the defendant, previous to and on the 20th day of December, 1886, collected from persons carrying on the business of trafficking in intoxicating liquors a large amount of money under the provisions of the statute passed 'May 14, 1886, entitled “An act providing against the evils resulting from the sale of intoxicating liquors.” Under the provisions of that act, three-fourths of the money so collected is payable to the treasurer of the city of Cincinnati. On the 30th day of December, 1886, the auditor of Hamilton county, at request of relator, drew his warrant on the treasurer of Hamilton county (defendant), for the sum of one thousand dollars, a sum much less than two-thirds of the amount which would be payable to the city from the sum so collected. This warrant was presented to the defendant and payment demanded, which was refused.

The answer admits the collection, on and before the 20th of December, of an amount not less than four hundred thousand dollars, and sets up a defense that “ all of said money was paid under protest and to avoid the distraint provided by said law; that in many cases the protests were in writing, and in others they were verbal; that no grounds for said protests were given, and defendant does not know in any case what the ground of protest is; that he believes in many cases said ground of protest is the unconstitutionality of said law, but whether it is the sole ground in any case, and if so in what cases, he is unable to state, and has no means of knowing.”

To this answer the relator demurred.

The answer is clearly insufficient. Waiving the objection that it does not contain facts showing that the payments were involuntary, another objection exists which is fatal to the pleading. The defendant is sued in his official capacity as treasurer. He admits that as treasurer he made the collection of taxes. The money thus obtained was, therefore, in the treasury. The defendant makes the ob- , jection that he can not safely pay over the money because he will be liable to suits in his individual capacity on the part of the protesting tax-payers, and must retain the money until such liability is determined. The tax-payer has one year in which to sue, and the cause may remain undisposed of an indefinite time. This claim is without merit.

The law (see sections 1115 to 1128, Revised Statutes) makes it the duty of the county treasurer on or before the 15th day of February, and on or before the 10th day of August of each year, to settle with the auditor for all taxes collected at the time of making such settlement, and immediately after each settlement, on demand and presentation of proper warrant, pay to the township treasurer, city treasurer, or other proper officer, all moneys in the county treasury belonging to any township, city, village, hamlet, or school district. And when the local authorities so request, the auditor may draw, and the treasurer shall pay, on such draft to township or city treasurers, any sum not exceeding two-thirds of the current collection of taxes for such local authorities respectively, in advance of the semi-annual settlement. If the treasurer fails to make any settlement required by law, or to pay over any money at the time and in the manner required by law, suit shall be instituted against him and his sureties for the amount due and ten per cent penalty, and the commissioners may then forthwith remove such treasurer and appoint some person to fill the vacancy. And such treasurer, on such removal, shall deliver to his successor all moneys, books, papers, and other property in his possession as treasurer.

Having received this money as treasurer, the defendant must pay it out according to law. Any other course on the part of county treasurers would work infinite embarrassment to the state and to the several counties, municipalities, towns, and school districts entitled to portions of the public moneys. They might be left without funds during the litigation, and the administration of the public affairs be greatly, if not wholly, obstructed, while the money to which they were entitled was lying idle in the hands of the treasurer subject to the perils as to safety incident to such situation. O’Neall v. Commissioners, 27 Md. 240; Smyth v. Titcomb, 31 Me. 272; Evans v. Trenton, 24 N. J. Law (4 Zab.), 764; San Francisco v. Ford, 52 Cal. 198.

If the duty to pay over, notwithstanding the possibility of being held personally for taxes paid under protest, works a hardship on the treasurer, it is one which he must be held to have anticipated. He took the office voluntarily. Office-holding is not compulsory. If a treasurer so circumstanced finds the risks of the position too great or the burdens too heavy there is no legal obstacle in the way of his avoiding the one and relieving himself of the other by a resignation.

The demurrer was properly sustained.

Judgment affirmed.


author: Diokman, J.

text:
    McGill v. Deming.

      Dower — Foreign divorce for aggression of husband — Subsequent marriage.

      /{. A woman divoreed a vinculo by reason of the aggression of her husband, within the meaning of the act entitled “an act concerning divorce and alimony,” passed March 11, 1853, who subsequently marries another man during the life of her first husband — if she survive the latter — will be entitled to dower in the real estate' of which the first husband was seized at any time during the coverture, f c- / ' . /A~
    2. Where husband and wife were actually domiciled in the state of California, and the wife, by reason of the aggression of her husband within the meaning of the act of March 11, 1853, was there divorced from him by a competent tribunal, having jurisdiction of both parties, and of the subject-matter of the action, upon surviving him she became entitled to dower in his real estate in Ohio, of which he was seized during the coverture, although, after the decree of divorce and during his life, she had by marriage become the wife of another man.

      ft. In an action brought by the wife for divorce in a cour.t in California, she alleged among other things in her complaint, that on account of ill-treatment by her husband she had been compelled to leave him, and had never since lived or cohabited with him; and that continuously, for more than three years ’last past, he had been and then was habitually intemperate. The court found as facts, that the wife by reason of the • husband’s intemperance and cruel treatment, had been compelled to leave him; that for more than two years immediately preceding the filing of her complaint, the husband had been guilty of habitual intemperance ; and it appearing to the court from the testimony in the case that all the material allegations in the complaint had been sustained and established, a divorce from the bonds of matrimony was decreed to the wife. Held, that the^wife was divorced by reason of the aggression of her husband, within the meaning of the Ohio statute of March 11, 1883.
    Appeal, reserved in the District Court of Trumbull, county.
    On the 5th day of October, 1877, Olive McGill, ‘ wife of Lot McGill, filed her petition in the court of common pleas of Trumbull county against the defendant in error, Ransom L. Deming and others, claiming dower in one hundred and seventy acres of land situated in the township of Yienna in that county. Judgment was rendered by the court of common pleas against the plaintiff, dismiss-mg her petition, and an appeal was thereupon taken by her to the district court.
    At the March term, 1884, of the district court, the cause came on for trial upon petition, answer, and reply, and the court, upon the cause being submitted, found the facts to be as follows:
    On the 24th day of March, , 1836, Olive McGill— then Olive Tyler — was joined in marriage to one Jacob Barnhisel, both then residing in the county of Trumbull, and state of Ohio. They continued there to reside until the year 1852, when they rémoved to the state of California, and there resided until their respective deaths — Jacob Barnhisel dying in the month of April, 1872, and Olive McGill dying after the commencement of this action.
    In the year 1835, Jacob Barnhisel became seized in fee-simple of the land in which Olive McGill claims dower, and so remained seized until the 4th day of September, 1852, when such land, pursuant to a sale upon execution, 'was conveyed by the sheriff of Trumbull county to one John W. Powers, under whom the defendant, Ransom L. Deming, acquired title to such land, and held the same at the commencement of this action.
    On the 25th day of March, 1871, Olive Barnhisel commenced, in the district court of the 15th judicial district of the state of California, a court of competent jurisdiction .in, matters of divorce, her action against Jacob Barnhisel for a divorce, by reason of the aggression of her husband, alleging in her complaint as follows: “ That in 1855, on account of the constant intemperance of the defendant and his ill-treatment, plaintiff was compelled, and did, leave him, and has never since lived or cohabited with him; that continuously, for more than three years last past, defendant has been, and now is, habitually intemperate, and, by reason of such intemperance, has been all that time, and still is, incapable. of attending to his ordinary affairs in business.” Jacob Barnhisel was personally served with summons to appear in the action and answer the complaint filed therein. The court, ou final hearing, found as facts: 1st. That more than twenty years prior thereto, the plaintiff and defendant were lawfully married to each other, and ever since had been husband and wife. 2d. That the plaintiff and defendant were continuously, for more than six months immediately preceding the filing of the complaint, residents of California. 3d. That the plaintiff, by reason of the defendant’s intemperance and cruel treatment, was compelled to leave him. 4th. That the defendant, for more than two years immediately preceding the filing of the complaint, was guilty of habitual intemperance. And, it appearing to the court, as set forth in the final decree, that all the material allegations of the complaint had been sustained and established, by testimony free from all legal exceptions as to its competency, admissibility, or sufficiency, the court on the 15th day of September, 1871, ordered, adjudged, and decreed that the marriage between Olive Barnhisel and Jacob Barnhisel be dissolved, and that the parties and each of. them be freed and absolutely released from the bonds of matrimony existing between them, and from all the obligations thereof.
    At and during all the time of the proceedings and judgment of divorce it was provided by the statutes of California as follows:
    “ Section 5092. Divorces may be granted for any of the following causes: ... 2. Extreme cruelty. . . . 5. Habitual intemperance.”
    “ Section 5106. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a coui’se of great mental anguish upon an innocent party.”
    ■ “ Section 5107. Habitual intemperance must continue one year before it is a ground of divoi’ce.”
    The action was duly conducted under and aecoi’ding to the provisions of the laws of the state of California, and the decree of divorce remained and was in fall force from the rendition thereof during all the life-time of Olive McGill and J acob Barnhisel and thereafter.
    After the decree of divorce, and before her request to have dower assigned to her, and before the commencement of her action for dower, Olive Barnhisel intermarried with one Lot McGill, and on the second day of October, 1877, duly requested to have dower assigned to her in the one hundred and seventy acres of land described in her petition, which was then and there refused.
    At the March term, 1883, of the district court, the death of Olive McGill was suggested, and her administrator, F. L. McLain, was made party plaintiff in the action.
    Upon the facts so as aforesaid found, the court were unanimously of opinion that difficult and important questions of law had arisen for determination, to wit:
    1. Whether, upon the facts aforesaid, Olive McGill, at the time of commencing this action, was entitled to have dower assigned to her in the premises described in the petition.
    2. Whether Olive McGill, either at the time of so requesting assignment of dower to her, or at the time of commencing this action, was the widow of Jacob Barnhisel, within the meaning of the act of the general assembly of Ohio, entitled an act relating to dower, as amended by an act passed March 27, 1858, entitled “An act to amend an act entitled an act relating to dower,” passed January 28, 1823 (1824.)
    3. Whether Olive McGill was divorced from Jacob Barnhisel for his aggression, within the meaning of the seventh section of the act of the general assembly of Ohio, entitled “An act concerning divorce and alimony,” passed March 11, 1853.
    4. Whether the administrator of Olive McGill is entitled to relief in this action.
    And on motion of both parties thereto, it was, by the unanimous opinion of the court, ordered that the cause, upon the facts aforesaid and the pleadings therein, he reserved for decision and judgment in the supreme court of this state.
    Hutchins, Campbell $ Johnson, for plaintiff.
    The answer is probably intended to assert, as matter of law, that the plaintiff, although lawfully divorced in the state of California for an aggression of the husband, recognized as ground for divorce in that state, is not entitled to dower in land in. Ohio, uuless the ground was such that she would have been entitled to a divorce in Ohio. But this claim ■ is untenable. If “ aggression,” in our statute, means only an Ohio aggression, or a fault which the Ohio statute defined to be an aggression for which a divorce might be granted, then the word divorce, used in the same section, must mean a divorce granted under the laws of Ohio by the courts of Ohio.
    But the statutory provision protecting the dower rights of the wife is broader than the provision defining the causes for which divorces may be granted. The former is intended to apply to dower in lands in Ohio, whether a resident of the state or not. The language is general and not limited to divorces granted in this state. If a divorce be granted for an aggression of the husband, which is made a ground of divorce in any state where granted by a court of competent jurisdiction, having jurisdiction of the parties, the wife shall not be barred of her dower in the lands of her husband situate in this state, and she shall have all the privileges and immunities in reference to her title to lands in Ohio, by virtue of her marital rights, which are granted to a married woman, a citizen of Ohio, lawfully divorced by the courts of this state.
    The constitution of the United States provides, article 4:
    “ Section 1. Full faith and credit shall be given in each state to the public acts, records, and-judicial proceedings of every other state. . . .
    “ Section 2. The citizens of each state shall be entitled to all privileges and immunities of the several states.”

      See construction of these provisions in Slaughter-House Cases, 16 Wall. 36.
    Hence the divorce granted in California, where the court had full jurisdiction of the parties and subject-matter, is valid here. Cheever v. Wilson, 9 Wall. 108.
    The plaintiff was entitled to dower in the lands of her husband in Ohio, notwithstanding the foreign divorce. Gould v. Crow, 57 Mo. 200; Harding v. Alden, 9 Me. 140.

      George M. Tuttle, for defendant.
    The right to dower in the state of Ohio is limited and defined by statute. Rice v. Lumley, 10 Ohio St. 596.
    At common law a divorced woman was not entitled to dower. “ She must be the actual wife of the party at the time of his decease. If she be divorced a vinculo matrimonii, she shall not be endowed. 2 Black. Com. 130; Co. Litt. 32a; Com. Big. Tit. Bower, A. 2.
    There are two statutes in Ohio, by the limitations of which the right of dower is defined,'and by-one of these the right of the demandant is conferred, if it exists.
    The first of these is the act entitled “ an act relating to dower,” passed- January 28, 1824. 1 S. & C. 586.
    So far as this statute confers the right of dower, it is limited to “ the widow of a person dying.”
    Upon the granting of the divorce in California the demandant ceased to be the wife of Jacob Barnhisel. Cox v. Cox, 19 Ohio St. 510; Van Fossen v. The State, 37 Ohio St. 318.
    It was expressly held in Rice v. Lumley, 10 Ohio St. 596, that “ dower is provided for by statute in Ohio, and is only allowed to the widow who was the wife of the person dying, at the time of his death.”
    In Lamkin v. Knapp, 20 Ohio St. 454, the question was whether, after a decree of divorce, obtained by the demand-ant under the statute of 1840, and her subsequent marriage before the decease of the divorced husband, she Was still entitled to dower. It was held that she was; but that her title was by virtue of the statute regulating divorces, and not the statute of dower.
    That a woman divorced from her husband is not his widow, was held arguendo in Charlton v. Miller, 27 Ohio St. 298, 305.
    But the petitioner is supposed to have rested her claim to dower upon section seven of the act concerning divorce and alimony. 1 S. & O. 502.
    The determination in the divorce cause in California inculpated the defendant in the charge only of habitual intemperance for one year. Was this divorce a divorce for the aggression of the husband within the meaning of the statute in question ?
    Upon the most obvious principles of construction, it is evident that the provisions of section seven of the divorce act have direct reference to divorces under the laws of this state.
    Not only is this view required by the principle that each portion of a statute shall be construed by its context, by the subject-matter of the whole, and by its general design? but reasons still more decisive are afforded by the section in question. Every one of its integral provisions, unless it be this, is an express direction to the courts, who may grant the divorces in question. And even this clause is qualified by a limitation which implies that in the very proceeding to which the effect relied upon is given, the whole of the land might be given as alimony. It is also evident that the term aggression, in the clause relating to the husband, is used in the same sense as in that relating to the wife. The clause relating to the wife expressly is a direction to the court granting the divorce.
    This view was very decisively applied by Hitchcock, J., in Mansfield v. McIntyre, 10 Ohio, 27, 30, to the sixth section of the act which governed that case. It is equally applicable here, and, unless the authority of that case can be questioned, it is decisive here.
    If these views are correct, a divorce in California on the ground of habitual intemperance for one year is not a divorce for the aggression of the husband-within the meaning of section seven of the act concerning divorce and alimony. It is not, although the aggression may be a ground of divorce under the statute of California. It is not, though a divorce may have been granted for that cause under a statute in the courts of that state.
   Diokman, J.

Wherever the common law has obtained, the estate of dower has been recognized as an existing institution. It has, however, been so regulated and modified by positive law that it would seem to be solely a creature of the statute. The claim for dower, under consideration, derives its main support from statutory provisions.

Under the act of 1824, “ concerning divorce and alimony ” (29 Ohio L. 431), although it contained no express provision in regard to the assignment of dower when the divorce was obtained by the wife, the doctrine was pronounced in Mansfield v. McIntyre, 10 Ohio, 27, that if the divorce be decreed in consequence of the aggression of the husband, the wife would not be barred of her right of dower, but, upon tbe death of her husband, might enforce thát right in the same manner she might have done, had she continued to live with him uutil the day of his death. A divorced wife was regarded by the court as the widow of her former husband after his decease, and, as such widow, entitled to dower by virtue of the act of January 28, 1823 (1824), “ relating to dower,” which provided that the widow of any person dying shall be endowed ” of all the lands, of which he was seized as an estate of inheritance, at any time during the coverture. But, in Rice v. Lumley, 10 Ohio St. 596, it was the judgment of a majority of the court that dower is only allowed to the widow who was the wife of the person dying at the time of his death ; and that a woman, who, under the act of 1824, concerning divorce, had obtained a divorce a vinculo matrimonii, from her husband for his misconduct, and by subsequent marriage had become the wife of another person, if she survived her first husband, was not his widow at the time of Ms decease, within the terms of the act relating to dower, and was not dowable of his real estate.

The provision “that the widow of any person dying shall be endowed” was retained in the act of March 27, 1858 (55 Ohio L. 24), amending the aforementioned act, relating to dower ; but the act of 1824, concerning divorce, was repealed by the act of 1840 (38 Ohio L. 37). Section five of the act of 1840 specially provides for the wife’s dower, where a divorce is granted for the aggression of the husband, and enacts that, if in such case the wife survive her husband, she shall be entitled to her right of dower in his real estate of which he was seized during the coverture. The case at bar comes within the purview of the “ act concerning divorce and alimony,” passed March 11, 1853 (S & O. 509), the seventh section of which, in all that pertains to the subject of divorce, is in the same words with section five of the act of 1840, which the act of 1853 repealed, and reads as follows :

“ Section VII. That where a divorce shall be granted, by reason of the aggression of the husband, ... if the wife survive her husband, she shall also be entitled to her right of dower in the real estate of her husband, not allowed to her as alimony, of which he was seized at any time during the coverture, and to which she had not relinquished her right of dower; but if the divorce shall arise by reason of the aggression of the wife, she shall be barred of all right of dower in the lands of which her husband shall be seized at the time of the filing of the petition for divorce, or which he may.thereafter acquire, whether there be issue or not.”

In the case of Lamkin v. Knapp, 20 Ohio St. 454, that portion of section five of the act of 1840 came under consideration which provided that “ where a divorce is granted by reason of the aggression of the husband,”- in addition to alimony, “if the wife survive her husbaud, she shall also be entitled to her right of dowerand it was held that, by virtue of this provision, the marriage of the wife, after divorce, to another person, during the life of her first husband, did not bar her right of dower, and if she survived her first husband she became entitled to be endowed of the real estate of which he was seized during the coverture. Although after divorce she might not be his widow within the terms of the statute relating to dower, yet, if she survived him, the right of dower would be preserved to her by the terms of the statute concerning divorce. The word “wife” was used to designate the person who had been divorced- for the aggression of the husband, and in the event of surviving him dower was to be assigned to her whether she had married or remained unmarried. Survivorship was the only condition annexed by the statute.

In the light of adjudication and statutory interpretation, it is manifest that had Olive Barnhisel been divorced from her husband by a tribunal of this state, by reason of his aggression, she would, upon her surviving him, have been dowable of the one hundred and seventy acres, of land of which the defendant in error claims the ownership, notwithstanding her intermarriage with McGill after the divorce and during the life-time of her first husband. This right would have inured to her, not by virtue of the act relating to dower, which endows “ the widow of any person dying,” but under the provisions of the act concerning divorce.

It is contended, however, that the divorce of Olive Barnhisel was not granted by reason of the aggression of her husband within the meaning of the act of March 11? 1853 : first, because his misconduct was not equivalent to the aggression contemplated by that statute; and second, because that statute was applicable only to divorces decreed by our own courts

Among the causes of divorce declared by o.ur own statute were extreme cruelty and habitual drunkenness for three years; and during all the time of the proceedings for divorce instituted by Olive Barnhisel, it was provided by the statutes of California that divorces might be granted in that state for extreme cruelty, and habitual intemperance which had continued one year. It is shown in the finding of the facts by the district court that in the divorce proceedings in California, Olive Barnhisel .alleged in her complaint that in 1855, on account of ill-treatment by her husband, she had been compelled to leave him, and had never since lived or cohabited with him. She furthermore alleged that continuously, for more than three years next preceding, he had been habitually intemperate, and by reason of such intemperance had been all that time and then was, incapable of attending to his ordinary affairs or business. The cause having been referred to a commis-sioner, to take the proofs as to the matters and things set out in the complaint, and the commissioner having made his report, the court found among other facts that Olive Barnhisel, by reason of her husband’s intemperance and cruel treatment, had been compelled to leave him, and that for more than two years immediately preceding the filing of the complaint in the case, he had been guilty of habitual intemperance. And the final decree of divorce was pro.nounced, as therein set forth, upon its appearing to the court that all the material allegations of the complaint had been sustained and established by testimony free from all legal exceptions as to its competency, admissibility, or sufficiency. It is presumable that our district court based its finding of facts in reference to the divorce upon the record and judicial proceedings of the court in California, 'as duly authenticated in accordance with the act of congress. The decree of divorce was rendered for the cause of cruelty, and habitual intemperance for more than two years. Eor aught that appears the habitual intemperance had continued for three years and ■ more. One of the material allegations of the complaint being that Jacob Barnhisel continuously for more than three years had been habitually intemperate, and the court having found all such allegations to have been sustained, we think that his cruelty and habitual intemperance constituted an aggression, within the meaning of the act of 1853, adequate to entitle his divorced wife to dower in his lands.

But the question arises whether the divorces referred to in section seven of the act of 1853 include those that are decreed by courts of states other than our own, and whether the divorce granted in California to Olive Barnhisel should have availed her in maintaining her claim for dower in the real estate situated in Ohio. Jacob Barnhisel and wife, at the time they were divorced, were and had been domiciled in California for over eighteen years. It was there that the dereliction of duty and acts of aggression occurred for which, the divorce was granted to his wife. The case was not, therefore, one of removal from this state to evade the operation of our own divorce laws. The court pronouncing the decree of divorcehad acquired unquestioned jurisdiction of both parties and of the subject-matter of the action. Indeed, no tribunal in any other state could, at the time, have properly taken cognizance of the action. It is a rule dictated by reason and justice, and grounded in public policy and convenience, that the courts of a country where both parties are domiciled may adjudicate in regard to the validity, continuance, or dissolution of the marriage relation. And it is now firmly held that where parties are actually domiciled in the country, and a sentence of divorce is pronounced between them by a competent tribunal, having jurisdiction over the case, the sentence is valid and ought to be held every-where a complete dissolution of the marriage, in whatever country it may have been originally celebrated. Story Confl. Laws, § 597.. It is, therefore, the settled doctrine, that a judgment of divorce granted by the coui’ts of one state, and valid there by the local laws of such state, is valid in every other state in the Union, if the respondent was duly and actually served with process, or appeared voluntarily and submitted to the jurisdiction. Cheever v. Wilson, 9 Wall. 108.

The constitution of the United States requires that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings in every other state.” And, by act of congress, such records and judicial proceedings, when duly authenticated, are to have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence such records are or shall be taken. It is well settled that these provisions apply to judicial proceedings in cases of divorce as well as in other causes.

A judgment in an action for divorce is in the nature of a judgment in rem. It determines the question of marriage relations, or of personal status, as against all the world, and is, therefore, conclusive, not only upon the parties litigating in the cause, but upon strangers. 1 Greenlf. Ev., § 525; 1 Stark. Ev. 288. Such a judgment is as conclusive upon Deming, the defendant in error, as it would have been upon Jacob Barnhisel, if his wife, after the divorce, had commenced proceedings against him in this state for alimony.

It is said in Cox v. Cox, 19 Ohio St. 511, that the principle, upon which rests the validity of decrees of divorce granted by the tribunals of other states, does not require that they should be allowed 'to operate in the foreign jurisdiction beyond the dissolution of the marriage. But it may with reason be also said that justice between the parties does not require that such divorces shall, in all cases, have no effect upon property except in the forum where they are decreed. While it is a principle of general recognition that real or immovable property ought to be left to be adjudged by the law of the place where the property is situated, as not within the reach of extra-territorial law, it is not inconsistent with this principle to accord to a foreign divorce the same effect upon real property located beyond the forum of the'decree, that is given to divorces of the same class decreed within the jurisdiction where such property is situated. . In considering the incidents to a foreign divorce Judge Story says: “In respect to real or immovable property, the same effects would in general be attributed to such divorce-as would ordinarily belong to. a divorce of the same sort by the lex loci rei sitce. If a dissolution of the marriage would there be consequent upon such a divorce, and would there extinguish the right of dower . . . according to such local law, then the like effects would be attributed to the foreign divorce which worked a like dissolution of the marriage.” CoiifL. Laws, § 230e. And so, upon the same principle, if a right of dower, according to such local law, would accrue upon the granting of a divorce by a local tribunal, the like effect would follow a foreign divorce of the same sort decreed by a competent tribunal. The foreign divorce would not be recognized as exerting an extra-territorial force, proprio vigore, but would owe its effect rather to its conformity to the law of the place where the real property might be situated. A divorce granted to the wife by reason of the aggression of her husband by a competent court in California — both parties being there domiciled in good faith — would thus, in a claim of dower in Ohio lands, have a like effect with a divorce for an aggression of the same sort decreed by oue of our own courts.

Our attention is called to the case of Mansfield v. McIntyre, supra, au application for dower after divorce granted to the petitioner’s husband. The act of 1824, concerning divorce and alimony, provided that when the cause of divorce arose from the aggression of the wife she should be barred of her right of dower. John Mansfield, the husband of the plaintiff, procured an ex parte divorce from her in Kentucky, because of her continued absence from him for a long period of time. What was the cause of this separation is not shown, but, according to the statement of facts in the case, it was probably by mutual agreement of the parties. The court held that the decree of divorce pronounced in Kentucky did not bar the plaintiff’s right of dower in lands lying in Ohio. It is not shown that the cause for granting the divorce in Kentucky was such an aggression of the wife as would have been sufficient, if committed in this state, to bar her dower within the meaning of our statute. There seems to have been a defective or ambiguous record of the proceedings in divorce in Ken-, tueky, and Hitchcock, J., in delivering the opinion, said: “ Ey our law, when a divorce is decreed, both parties are absolved from the obligations of the marriage contract. In looking into the decree in the present ease, however, I find that, although John Mansfield is divorced from his wife, she is not, in terms, released from any of her obligations to him. For aught that appears in the decree she still continued to be his wife.” Under such circumstances, the court could not have been expected to make the decree pronounced in Kentucky a basis for refusing the application for dower. But these circumstances find no counterpart in the ease under consideration; and the Kentucky divorce for the alleged aggression of the wife can not stand on the same plane with the California divorce for the aggression of the husband.

In construing the words in section seven of the act of 1853, where a divorce shall be granted by reason of the aggression of the husband,” it will be observed that the language of the statute is not limited to divorces decreed in Ohio, but is general, and may embrace divorces decreed in any other state. In the case of Harding v. Alden, 9 Greenlf. (Me.), 140, a husband deserted his wife in the state of Maine and went into North Carolina, and she removed into Rhode Island. Afterward he committed adultery in North Carolina, for which cause he was divorced from the bonds of matrimony by the supreme judicial court of Rhode Island, he having been personally cited to appear, but refusing so to do. It was held that the divorce was valid; and that the wife was entitled to dower in the lands held by the husband in the state of Maine during the coverture, in the same manner as if they had both continued to reside in Maine, and the divorce had been there decreed. The court say : “ If the divorce decreed in Rhode Island is valid here, the remaining question is, whether the wife was thereupon entitled to dower in any estate of inheritance of which the husband was seized during the coverture. The statute allows it in the lands of the husband where a divorce is decreed for the cause of adultery committed by the husband, to be assigned in the same manner as if he were dead. The language is general, and is not limited to divorces decreed,within the state.” The doctrine of this case in reference to dower is, we think, in harmony with onr own statute. We see nothing in the seventh section of the statute incompatible with extending its provisions to the case of a wife divorced from her husband in another state,' and nothing to indicate that it was the intention of the legislature to restrict its provisions to divorces granted only by our own tribunals. It was not, we think, the legislative intent, and it would do violence to the spirit of the statute, if the husband could remove with his wife to another state, leaving the bulk of.his property behind, and after there becoming domiciled could, by maltreatment or misconduct, force his wife to obtain a divorce, and thereby deprive her of her dower in his real estate in Ohio; Such a construction of the statute, as would enable the husband thus to act in fraud of the rights of the wife, could not have entered into the legislative mind.

By virtue of coverture and seizin of the inheritance in her husb'and, Olive Barnhisel acquired inchoate dower in his real estate — a valuable vested right or interest in his lands — which, though contingent, became consummate upon her surviving him, and entitled her to an assignment of dower in such lands. Under the statute, her right of dower might have been barred by jointure, or by leaving her husband and dwelling with another man in a state of adultery; or it might have been extinguished by deed, or in some other statutory mode, but it could not have been defeated by any separate act of the husband during coverture. The divorce by reason of the aggressive acts of her husband, decreed by a competent tribunal in California, did not work a forfeiture of her right of dower; and no act of her own, before or after the decree of divorce, is disclosed in the record, that would cause a'forfeiture or divestiture of her dower in the real estate of. which Jacob Barnhisel was seized during the coverture.

During the pendency of the action in the district court, Olive McGill having died, her death was suggested, and her administrator, F. D. McBain, was made party plaintiff; and the question arose, whether such administrator was entitled to relief in the action. Before the passage of the act of February 12,1863 (60 Ohio L. 10) proceedings by the widow for an assignment of dower were abated by For death, and in such case, there could be no revivor. But under section 5711 of the Revised Statutes, as under the act of 1863, in the event of the widow’s death before the assignment of her dower or before entry of the final judgment, the action may be revived in the name of her executor or administrator; and a decree may be rendered for a sum equal to one-third of the rental value of the real estate, of which she would have been dowable had she lived, from the time of filing her petition until her death, after deducting one-third of the necessary expenses.

In conformity with these views, we think a judgment should be entered for the plaintiff.

Judgment accordingly.