source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Pittsburgh, Cleveland & Toledo Railroad Company v. Tod.

      Proceedings of railroad corporation for appropriation of property — Determination of probate judge may be reviewed on error, when — Section 6420, Revised Statutes — Motion for new trial not necessary, when — Time for filing bill of exceptions —Requirement of section 3280, Revised Statutes — Railroad corporation — Condemnation proceedings — Court procedure.■ .
    1. In proceedings for the appropriation of property by a private corporation the determination of the preliminary questions by the probate, judge, as required by section 6420, Revised Statutes, may be reviewed on error.
    2. A motion for a new trial, or rehearing, of such preliminary questions is not necessary.
    3. The time within which a bill of exceptions on such hearing should be taken is to be computed from the day on which said questions are determined, if no motion for a new trial is filed, and if a motion for a new trial is filed from the day the motion for a new trial is overruled.
    4. The time within which a petition in error must be filed in the court of common pleas is to be computed from the final judgment of the probate court either dismissing the petition or confirming the verdict of the jury.
    5. If the court of common pleas reverses the judgment of the probate court for error in the determination of either of the preliminary questions it should retain the case and hear and determine such questions de novo.

    6. The filing with the secretary of state of the certificate required by section 3280, Revised Statutes, is a condition precedent to the right to appropriate property for the construction of a branch railroad.
    (No. 8886
    Decided March 21, 1905.)
    Error to the Circuit Court of Trumbull county.
    On the twenty-sixth day of June, 1903, the plaintiff in error, The Pittsburgh, Cleveland & Toledo Railroad Company, hereinafter referred to as the plaintiff, filed in the probate court of Trumbull county its petition against the defendants in error, Sarah K. Tod et ah, hereinafter referred to as the defendants, to appropriate certain property therein described upon which to construct a branch railroad.
    August 14, 1903, the probate judge, as required by section 6420, Eevised Statutes, heard the preliminary questions and determined them for the plaintiff.
    September 9, 1903, the jury returned a verdict assessing compensation and damages, and on the same day the defendants filed a motion for a new trial, setting forth as grounds therefor not only alleged errors on the trial, but also that on the preliminary hearing plaintiff had offered no evidence tending to prove its right to make the appropriation and that the probate judge had erred in finding and determining that the plaintiff had such right.
    On September 10, 1903, twenty-seven days after the preliminary hearing and before the motion for a new trial had been passed upon, the defendants filed a bill of exceptions containing the evidence offered on the preliminary hearing.
    September 24,1903, the motion for a new trial was overruled and judgment entered confirming the verdict, and the defendants filed a bill of exceptions containing all of the evidence, that offered on the preliminary hearing as well as that offered on the trial.
    On September 26, 1903, forty-one days after the preliminary hearing, but less than thirty days after the judgment of confirmation, the defendants filed a petition in error in the court of common pleas.
    The plaintiff filed two motions in the court of common pleas; one to strike the petition in error and the bill of exceptions from the files on the ground that the hill was not taken and signed according to law, and the other to strike from the petition in error so much thereof as related to the preliminary hearing.
    The court of common pleas, without passing on either motion, affirmed the judgment, and the defendants prosecuted error in the circuit court.
    In the circuit court plaintiff filed a motion similar' to its second motion in the court of common pleas.
    The circuit court overruled this motion and found that the probate judge erred in determining that the plaintiff had the right to appropriate, for the reason that there was no evidence offered on the hearing before him tending to prove that the president and directors of the plaintiff had acknowledged and filed with the secretary of state a certificate as required by section 3280, and that the probate court had on this ground erred in entering a judgment of confirmation, and that the court of common pleas had erred in affirming the judgment of the probate court, and reversed and set aside the judgments and the determination of the probate judge and the verdict of the jury and remanded the cause to the probate court “for a new preliminary hearing to be proceeded in according to law and the rights of said parties thereto.”
    Plaintiff prosecutes error in this court.

      Messrs. Arrel, McVey & Tayler, for plaintiff in error,
    cited, and commented upon the following cases: Street Railway Co. v. Street Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 362; Ibid, 50 Ohio St., 603; Ide v. Churchill, 14 Ohio St., 372; Bridge Co. v. Magruder et al., 63 Ohio St., 455; Cable Company Case, 68 Ohio St., 306; The Ohio Postal Tel. v. Railway

      Co., 11 Dec., 52; 8 N. P., 121; Wagner v. Railway Co., 38 Ohio St., 32; Railway v. Bailey, 39 Ohio St., 170; Railroad Co. v. Traction Co., 14 Dec., 22; Railway Co. v. Tel. Cable Co., 68 Ohio St., 306; Railway Co. v. Telegraph Cable Co., 12 Circ. Dec., 522; 22 C. C. R., 555; 3 Am. R. & C. Cases, 670; 12 Am. R. R. Cas., 475, 505, 508 and 509; Humphreys v. Mooney, 5 Col., 282; 6 Am. Corp. Cas., 292; Abbott v. Smelting & Refining Co., 4 Neb., 416; 8 Am. Corp. Cas., 305; Jones v. Aspen Hardware Co., 29 L. R. A., 143-145; Maryland Tube & Iron Works v. West End Imp. Co., 39 L. R. A., 810; Doty v. Patterson, 56 N. E. Rep., 668; 1900 A. Am. Digest, p. —; Balinger’s Ann. Codes and St., secs. 4251, 4252; Spokane & I. Lumber Co. v. Loy, 21 Wash., 501; Mokelumne Hill Mining Co. v. Woodbury, 14 Cal., 424; Spring Valley Water Works v. San Francisco, 22 Cal., 440; Heald v. Owen, 44 N. W. Rep., 210; Bushnell v. Consolidated Ice Machine Co., 27 N. E. Rep., 596; Bon Aqua Improvement Co. v. Standard Fire Ins. Co., 12 S. E. Rep., 771; Chattanooga R. & C. R. Co. v. Evans, 66 Fed. Rep., 809; Callender v. Railway Co., 11 Ohio St., 516; secs. 254, 260, 2780-31, 3226, 3236, 3237, 3238, 3238a, 3239, 3244, 3262, 3263, 3264, 3273, 3275, 3280, 3282, 3282-2, 3282-3, 3395, 3396, 5656, 5673, 5674, 5674a, 6420, 6421, 6422, 6437 and 6707, Rev. Stat.

      Mr. A. W. Jones; Mr. T. H. Oillmer and Mr. Charles Fillius, for defendant in error,
    cited and commented upon the following cases:

      Railway Co. v. Railway, 3 Circ. Dec., 566; 6 C. C. R., 52; State ex rel. v. Judges Hamilton County, 69 Ohio St., 381; Turner v. Turner, 17 Ohio St., 450;
      Minnear v. Holloway, 56 Ohio St., 148; Railway Co. v. Cable Co., 68 Ohio St., 306; 50 O. L., 201-205; Toledo Consolidated Street Railway Co. v. Toledo Elec. Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 362; Wilmes v. Railway Co., 29 Minn., 242; Railway Co. v. Waldo, 70 Mo., 629; Railroad Co. v. Merrill, 25 Kan., 421; Welch v. Railway Co., 27 Wis., 108; Driver v. Railroad Co., 32 "Wis., 569; Poughkeepsie Railroad Co., 63 Barb., 151; Railroad Co., 31 Hun, 461; Railway Co. v. Dresel, 110 Ill., 89; Railway Co. v. Snyder, 5 Dec., 480; 5 N. P., 461; Railway Co. v. Murphy, 19 Minn., 500; Railway Co. v. Voorheis, 52 Mich., 506; Hartshorn v. Railway Co., 52 Ia., 613; Cummins v. Railroad, 63 Ia., 397; Railroad Co. v. Huncheon, 130 Ind., 529; Pierce on Railroads, 212; Randolph on Railroads, 173; secs. 3239, 3272, 3280, 6422, 6423, Rev. Stat.
   Summers, J.

The questions presented are questions of practice in appropriation proceedings by a private corporation.

The principal contentions on the part of counsel for plaintiff are: First, Error cannot be prosecuted to review the determination of the preliminary questions by the probate judge; Second, If error lies, a motion for a.new trial is necessary; Third, If a motion for a new trial is not necessary, still the petition in error must be filed within thirty days from the determination of the preliminary questions; and Fourth, The filing of the certificate mentioned in section 3280, Revised Statutes, is not a condition precedent to the right to make an appropriation.

Section 6420, Revised Statutes, provides that the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation, and that upon these questions the burden of proof shall he upon the corporation. Section 6421, Revised Statutes, provides that if the judge determines these questions for the corporation he shall issue an order and a venire for a jury. • Section 6422, Revised Statutes, reads: “The owners of each separate parcel, right, or interest, shall he entitled to a separate trial by jury, verdict, and judgment. They shall hold the affirmative on the trial, which shall be conducted, and evidence shall he admitted, and hills of'exception may he taken, as provided in civil actions.” Section 6437, Revised Statutes, provides that either party may file a petition in error in the court of common pleas within thirty days from the rendition of the final judgment in the probate court and that the proceedings in error shall he conducted as in civil actions, and that notwithstanding the pendency of the proceedings in error, the corporation may, on the rendition of the final judgment in the probate court, pay into that court the amount of the judgment and proceed to enter upon and appropriate the property. And section 6438, Revised Statutes, provides that if the court of common pleas reverse the judgment, it shall retain the cause for trial and final judgment, as in other cases.

The contention is, that these sections provide for two separate proceedings: First, A finding and determination of the right to appropriate; and, Second, A trial in which compensation and damages are assessed; that the taking of a hill of exceptions ■on the trial only is provided for, and that cornsequently error to proceedings on the trial only is contemplated.

The constitution of 1851 restricted the exercise of the right of eminent domain. Theretofore the compensation, if any, was assessed hy a commission, or commissioners, and a deduction made of the benefits, and the commissioners generally found the benefits equal to the value of the property taken [Kramer v. Cleveland & Pittsburgh Railroad Co., 5 Ohio St., 140; The Toledo, Ann Arbor & Northern Michigan Railway Co. v. Toledo & Michigan Belt Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 521; Willyard v. Hamilton, 7 Ohio, pt. 2, 111;] but thereunder compensation was required to be assessed by a jury, and without any deduction for benefits, and it made necessary new legislation on the subject of appropriation. Accordingly, on April 30, 1852, an act was passed (50 O. L., 201) providing the mode of procedure. It provided when the corporation was unable to agree with the owner upon the compensation to he paid, it should file a statement with the probate judge, and then provided for a jury for a view of the premises, and thereafter for a trial, to be conducted in the same manner that the trial of civil causes is conducted in the court of common pleas. Section 9 of that act reads as follows: “All proceedings hereinafter provided for in the probate court shall he open to exceptions, in the same manner that exceptions are or may be taken in civil suits in the court of common pleas; and either party may take the same up to the court of common pleas of the proper county, .on a writ of certiorari, which shall be issued of course by the clerk thereof, upon the filing of a precipe, in which case such exceptions, signed and sealed by the prohate judge, shall be taken and considered as a part of the record of such proceedings.” It was also provided that if the court of common pleas reversed the judgment, it should retain the case for trial, and other provisions were made which it is not necessary to notice.

In 1872, the act of 1852, with numerous amendments which had been made thereto, was repealed, and its provisions, together with such new provisions as time and the increasing number of applications had shown to be desirable,, were comprised in a new act (69 O. L., 88). This act for the first time provided for a preliminary hearing. Section 3 of the act provided that the probate judge, before issuing a venire for a jury, should proceed to inquire and determine the questions which he is now by section 6920, Revised Statutes, required to hear and determine, and that the corporation should satisfy the court affirmatively by satisfactory proof; and section 12 of this act provided: “All the proceedings herein provided for in the probate court, shall be open to exceptions, in the same manner that exceptions are or may be taken in civil suits in the court of common pleas; and either party may file a petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judgment in the probate court, and thereupon the proceedings in error shall be proceeded in, in all respects, as is now provided by law in like cases.” This is as broad as section 9 of the original act, and while that act did not provide for a preliminary hearing on the questions;of the corporate existence of the corporation, its legal right to make appropriation of private property, its inability to agree with the owner, and the necessity of the appropriation, still all of them, excepting the last [and that Ranney, J., in Giesy v. C. W. & Z. Railroad Co., 4 Ohio St., 308, 324, said ought to he there,] were in the case, and they were subject to review. Atlantic & Ohio Railroad Co. v. Sullivant, 5 Ohio St., 276; Atkinson et al. v. M. & C. Railroad Co., 15 Ohio St., 21; Powers v. Railway Co., 33 Ohio St., 429; Giesy v. C. W. & Z. Railroad Co., 4 Ohio St., 308.

The provisions of this act were carried into the revision of the statutes of 1880, and while, looking alone to section 6422, it may appear that bills of exception on the trial only are provided for, yet no reason for and no purpose to so change the law is apparent, and it is therefore to be presumed that such was not the intention. Indeed, the commissioners who revised the statutes refer to section 12 of the act of 1872 as one of the sources of section 6222. The fact that the burden of proof is on the corporation on the hearing of the preliminary questions and that the property owner has the affirmative on the trial is of no significance in determining the right to review. In providing that the property owner should have the affirmative the legislature was conferring a privilege and not imposing a burden. 52 O. L., 51.

Again, if the determination of these questions for the corporation may not be reviewed, neither may a determination against it, and it hardly will be contended that the legislature intended to make a great public improvement depend, without possibility of review, upon the sole determination of the probate judge as to the legal right of the corporation to make appropriations of property or as to the necessity of the taking of a particular property.

Legal attainments are not among the statutory qualifications of the incumbents of that office and many of them have not had a legal training and are not attorneys at law. That the determination of these questions was confided to the probate judge because of especial fitness and not from considerations of convenience and that therefore his determination of them was intended to be final, is not warranted, we think, and for the consideration following. Soon after the passage of the act of 1852 it was amended so that in the event the probate judge was interested it was his duty to certify the proceedings to the court of common pleas, where it was provided these questions should be determined and all the proceedings be had, and it was provided that. an appeal might be taken to or error prosecuted in the district court. The reason the proceedings were to be commenced originally in the probate court is that it was thought the public interests required a speedy remedy. At that time there were many counties without a resident common pleas judge, and that court met only at stated terms, while in each county there was a probate court.

The next question is whether it is necessary in order that the determination of the preliminary questions may be reviewed on error to file a motion for a new trial. Section 6411, Eevised Statutes, provides that “The provisions of law governing' civil proceedings in the court of common pleas shall, so far as applicable, govern like proceedings in the probate court,” when there is no provision on the subject in the title relating to procedure in the probate court. Section 5305, Eevised Statutes, defines, new trial. “A new trial is a re-examination in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision of the court. ’ ’ An appropriation proceeding is not a civil action, but a special proceeding. Section 6416 prescribes what the petition in such proceedings shall contain, and section 6420 provides that the probate judge shall hear and determine the questions therein specified. Section 6415 provides that appropriations can be made only when the corporation is unable to agree with the owner as to the compensation to be paid for the property. It is proper, but not necessary, to aver in the petition the fact that the corporation and the owner are unable to agree, and it is not necessary that this and the other questions to be determined by the probate judge be put in issue by any pleading, and whether denied or not they do not present issues of fact, but are conditions precedent, prescribed by the legislature, to the right of eminent domain, or to the exercise of such right, and the determination of them by the probate judge is not a trial within the meaning of the statutes relating to motions for a new trial, and a motion for a new trial is not necessary to a review of the determination of these questions.

The next contention is, that the petition in error to review the determination of these preliminary questions must be filed within thirty days from the time of their determination.

We have already referred .to section 6437, and it has been held, and we think correctly, in the circuit courts of the first and sixth circuits, in well considered opinions by very able'judges, that the final judgment here referred to is the judgment confirming the verdict. The Cincinnati, Jackson & Mackinaw Railroad Co. v. Barcalow, 2 Circ. Dec., 413; 4 C. C. R., 49; The Toledo, Ann Arbor & Northern Michigan Railway Co. v. Toledo & Michigan Belt Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 521. The determination of the preliminary questions by the probate judge is not a final judgment any more than is an order sustaining or overruling a demurrer. Of course, if the probate judge should determine these questions against the expropriator and then enter a judgment' dismissing the petition, that would be a final judgment from the rendition of which either party might within thirty days file a petition in error. That the preliminary hearing is merely one step in the proceeding and that the legislature did not contemplate separate proceedings in error as to the preliminary hearing and the trial, is all very clear when the acts of 1872 and 1852 are considered. The source of all the confusion is the revision of the statutes. No change in the law was intended, but the transposition and abbreviation of parts of the act of 1872 were for the purpose of scientific arrangement and revision. There are other questions of practice that are not settled by the statutes, and they, so far as appears from the reported cases, still are, after fifty years, unsettled, although the obscurity of the statute was regretted hy Eanney, J., in Giesy v. C. W. & Z. Railroad Co., 4 Ohio St., 308. When and how are exceptions to matters on the preliminary hearing to be saved, under section 5298 or section 5301, and is the time limited by the time for filing a petition in error? And, although a motion for a new trial be unnecessary, may objections to what transpired at the prelirainary hearing be made ground for a motion fob a new trial, and, if so, then is the time of the overruling of the motion the time from which the time for taking a bill of exceptions is to be computed? And may a bill of exceptions relating to the trial be taken within the time fixed by the civil code, or must it be within the time limited for the filing of the petition in error? And if the common pleas court reverses the judgment of the probate court solely on the ground of errors on the trial, may or must there be another hearing and determination of the preliminary questions? Or vice versa, if the court of common pleas reverses the judgment solely on the ground of error in the determination of the preliminary questions, may or must there be a new trial on the questions of compensation and damages? Questions of practice, like innumerable others, that might be settled by a few lines in a statute, but which those who encounter them have been too indifferent to endeavor to have remedied or prefer to keep as an asset in their warehouse of valuable experience.

Counsel for plaintiff contends that the court could not have reached the conclusion it did in The Covington & Cincinnati Bridge Co. v. Magruder, 63 Ohio St., 455, excepting upon the assumption that the determination of the preliminary questions is not subject to review, while counsel for defendants as conclusive of the rights to review rely upon the later cases — The C. C. C. & St. L. Railway Co. v. The Ohio Postal Telegraph Cable Co., 68 Ohio St., 306; The State ex rel. v. The Judges, 69 Ohio St., 372. It appears from the record in the first case that the Bridge Company filed its petition in the prohate court to appropriate certain land. March 6, 1896, the probate judge determined the preliminary questions for the company. The defendant excepted, and on March 9, within three days, filed a motion for a new trial, which was overruled on April 6, to which defendants excepted, and on May 6, within thirty days, a bill of exceptions containing all of the evidence on the preliminary hearing was allowed, signed, and ordered made a part of the record. The jury returned a verdict on April 30. A motion for a new trial was filed on May 2, within three days, overruled on June 23, and on that day a judgment of confirmation was entered and a bill of exceptions taken and filed. In the court of common pl'eas a motion to strike from the files the bill of exceptions taken , on the preliminary hearing was made and overruled. This action of the court was assigned as error in the circuit court and in this court, the contention of counsel being that a motion for a new trial was not necessary and that the bill not having been allowed within fifty days from the determination of the preliminary questions, was not taken in time. A further statement of the ease will be found in the official report. The objection to the bill of exceptions is not noticed in the opinion, but the question was made, and, as the question determined seems to have depended on the bill, the case may be considered authority for the conclusion that although it is not necessary to file a motion for a new trial, or rehearing, of the preliminary questions by the probate judge, yet, when such motion is filed within three days from such determination, the time for taking a bill of exceptions, as to matters assigned in the motion as grounds for a new trial, is to be computed from the day that the motion for a new trial is overruled, and is in accord with the rule established in Weaver v. The C. S. & H. Railway Co., 55 Ohio St., 491.

The opinion in the case of The Covington & Cincinnati Bridge Co. v. Mag ruder et al., supra, is not to be interpreted as authority that the preliminary questions determined by the probate judge may not be reviewed. ' Such an interpretation would bring the case in direct conflict with the first paragraph of the syllabus *in the later case of State ex rel. v. The Judges, 69 Ohio St., 372. In the Bridge Company case the common pleas court when it reversed the judgment of the probate court for error in the determination of the preliminary questions and for error in overruling the motion of plaintiffs in error to set aside the verdict of the jury and for a new trial, did not retain the case for hearing and trial, but, as is plainly pointed out in the opinion, without hearing the preliminary questions “upon further consideration of the' ‘ petition in error, the record and proceedings of the probate court and the argument of counsel’ found that there existed no right nor necessity for the appropriation of the interest of the defendants in the described property, and thereupon rendered final judgment.” When a judgment is reversed by the court of common pleas for error in the determination of the preliminary questions the court of common pleas must retain the case and hear and determine these questions de novo, and it is clearly error for it to determine them upon the evidence in the record of the hearing before the probate judge, unless the parties see proper so to submit them, and in the Bridge Company case it does not appear that they did, hnt on the contrary that the defendant in error, the Bridge Company, excepted to the court making any finding. This action of the court in determining without a hearing that there was no right nor necessity for the appropriation, and in dismissing the petition without retaining the case for a hearing and trial, is the error pointed out in the fore part of the opinion in that case, and the opinion so interpreted is consistent with the ruling in The State ex rel. v. The Judges, supra.

The next question is whether the filing with the secretary of state of the certificate specified in section 3280, Eevised Statutes, is a condition precedent to the right to construct the branch road therein authorized.' The petition avers that such certificate had been made and filed, but the record shows no proof of such facts.

Section 3280, Eevised Statutes: “A company may construct branches from the main line to towns or places within the limits of any county through or into which its road passes, .or to a connection with any railroad which is or may be built within this state, or to any coal or other mine, stone quarry, plastic clay, pottery clay and fire clay pit or banks, ore or shale banks, if, at a meeting of the stockholders called for that purpose, the holders of a majority of the capital stock of the company, by a vote, in person or by proxy, so determine; and upon such determination the president and directors shall make and acknowledge a certificate setting forth the facts, and file the same with the secretary of state.”

The contention is that .this provision of the statute is merely directory; that compliance with it is not made a condition precedent to the right to construct the branch road; and, therefore, that the right may be questioned only in a proceeding in qua warranto.

Counsel say: “In respect to the organization of a corporation in Ohio, section 3239 provides, that ‘upon such filing of the articles of incorporation, the persons who subscribe the same, etc., shall thereafter be deemed a body corporate. ’ Of course, until such filing under that section the subscribers would not be a corporation.

“So in case of amendments to the articles of incorporation, allowed by section 3238a, provision is made for the filing of a certificate of such amendment with the secretary of state; then follows the provision that ‘no such amendment shall take effect until filed for record with the secretary of state as herein provided.’

“For the filing of the certificate of the amendment with the secretary of state is a condition precedent.

“Section 3273 provides that, ‘when a change of line or termini is made a duly authenticated copy of the same shall be filed with the secretary of state/ and ‘when so filed such change shall be considered as made. ’

“Here is evidently a condition precedent, without which the change cannot be considered as made.”

The legislative policy seems to be not merely to direct filing with the secretary of state, but to make such requirement a condition precedent, and in view of such policy we are not at liberty to be hypercritical of the language used or to assume that if such was the intention another “if” would have been used, for all as well as part of the sentence that follows the “if” may he predicated upon it.

Section 3237 requires the articles of incorporation of a railroad company to set forth the termini of its road and the counties in or through which it or its branches shall pass, and if the line or termini are changed the change must be described in the resolution providing for it and a copy must he filed with the secretary of state and be by him recorded “with the proper reference on- the record of the articles of incorporation, and, when so filed, such change shall he considered as made.” If, when the construction of branches is proposed as a part of the original improvement, it is a condition precedent that they he described in the articles of incorporation, or when a change of line or termini is desired, it is a condition precedent that it he certified to the secretary of state, is it not equally important that a subsequent determination to construct branches he so certified?

No question is made as to the time within which either of the hills of exceptions was taken, and as the record shows an exception to the determination of the preliminary questions and that the defendants “are allowed the statutory time to prepare and have allowed a hill of exceptions, ’ ’ and as one was taken on the twenty-seventh day, we are not called upon to determine whether the hill taken on the overruling of the motion for a new trial was taken in time to preserve the exceptions on the preliminary hearing.

It appearing, therefore, that no proof was offered of the making and filing of a certificate of the deter-urination to build the branch road, the judgment of the circuit court reversing the judgment of the common pleas court is

Affirmed.

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


author: Crew, J.

text:
    State Life Insurance Company v. Harvey.

      Policy of life insurance — Not to take effect until first premium paid — Agent of company issues policy to himself — Son-in-law of agent, stranger to the policy — Furnishes money to agent to pay premium — Agent does not account to the company for premium — Agent’s wife, the beneficiary, cannot recover on the policy.

    1. Where a policy of life insurance contains the provision that the policy “shall not take effect until the first premium shall have been paid to and accepted by the company or an authorized agent,” — the payment of such premium, unless waived, is necessary to put said policy in force.
    2. H., who was agent of a life insurance company, procured from said company the issuance to himself of a policy of insurance on his own life, which policy contained the above clause or provision as to prepayment of the first premium. Upon the delivery of said policy, H., being unable to pay said first premium, D., his son-in-law, who was a stranger to said policy, for the purpose of paying said premium for H., furnished or paid to H., himself, as agent for said insurance company, the amount due from the latter to said insurance company as and for said first premium. This transaction was without the knowledge or consent of the insurance company and no part of the money received by H. was ever accounted for or paid over by him to said insurance company.

      Held: H. could not act for himself and for his principal in the same transaction, and the payment to and receipt by him pf the money from D. was not a payment of the premium to the insurance company or its authorized agent, apd such payment was not a compliance with the condition of the policy and did,not bind the company or put said policy in force.
    (No. 8530
    Decided March 21, 1905.)
    Error to the Circuit Court of Tuscarawas county.
    The facts found in the record in this case, so far as they are pertinent to the question considered and determined by this court, are as follows: -On the eighth day of November, 1900, W. "W. Harvey, by contract and appointment, became an agent of the State Life Insurance Company of Indianapolis, Indiana, for certain counties in the state of Ohio. While this contract and appointment was still in full force and effect, and while said W. W. Harvey was yet acting as the agent of said State Life Insurance Company, he made application to said company for a policy of insurance on his own life. The application so made by him was in writing, was in the usual form and was on one of the company’s blanks such as was ordinarily used in making application for a policy of insurance. In due course a policy for $5,000 was issued upon said application and the same was forwarded to said W. W. Harvey by mail. This policy was by its terms made payable to Margaret S. Harvey, wife of the insured, if living, otherwise to the legal representatives or assigns of the said W. W. Harvey. Before making application for this insurance Harvey entered into an arrangement with one A. V. Donahey, his son-in-law, by which it was understood and agreed between them that if Harvey would make application to said State Life Insurance Company for a policy of life insurance on his own life, for $5,000, and should procure the issuance of such policy, then and in that event if he should at any time be unable to meet and pay the premiums on said policy, as they fell due, he, Dona-hey, -would pay them for him. This arrangement between Harvey and Donahey was not disclosed to, or known by the insurance company. A life policy for $5,000 was issued to W. W. Harvey on December 19,1900, and he being unable to pay the premium of $37.95, which by the terms of the policy was due thereon upon delivery of said policy and the payment of which was a condition precedent to the taking effect of said policy, notified Donahey of his inability to make such payment, whereupon Donahey furnished or paid to him the sum of about $19.00, being the amount of the premium then due, less the commission of Harvey as agent, and Harvey thereupon delivered to Donahey the following receipt which with others had been forwarded to him with the policy for collection.
    No. 31356. $37.95.
    The State Life Insurance Company, INDIANAPOLIS, INDIANA.
    Received from William W. Harvey, of Canal Dover, O., the sum of thirty-seven and 95-100 dollars, being the quarter annual premium on Policy No. 18411, for $5,000, due on the nineteenth day of December, 1900, which pays the regular premium up to the nineteenth day of March, 1901.
    This receipt to be valid must be signed by the president or secretary, and countersigned by an authorized agent of the company.
    W. S. Wynn,

      Secretary.

    Countersigned this......day of......, 189..

      ........................Agent.

      When the next premium was due Donahey again furnished or paid to Harvey the amount thereof less Harvey’s commission and received from him a like receipt. Neither of these receipts was countersigned by any one. Before the next installment of premium was due Harvey died. At the time of his death no premium had been paid to the company on this policy except in the manner above stated, and no part of the money furnished or paid by Donahey to Harvey was ever turned over or paid to the company or accounted for by Harvey as agent. W. W. Harvey, the insured, died on the fourteenth day of June, 1901, about six months after the policy had been issued. On September 7, 1901, the defendant in error, Margaret S. Harvey, the beneficiary named in said policy, brought her action in the court of common pleas of Tuscarawas county against the plaintiff in error to recover the amount of said insurance. In that action, the defendant, the State Life Insurance Company, pleaded among other defenses that the policy sued on never became and never was a valid contract of insurance for the reason that no premium was ever paid thereon to the company or its authorized agent as required by the terms of said application and policy. This was denied by reply.
    At the close of the plaintiff’s testimony a motion was made by the defendant, the State Life Insurance Company, asking the court to direct a verdict in its favor, which motion was overruled and proper exceptions noted. The cause was submitted to a jury and resulted in a verdict and judgment in favor of the plaintiff, Margaret S. Harvey, for the full amount claimed. This judgment was affirmed by the circuit court. Plaintiff in error now asks that this judgment of affirmance may be reversed and that judgment may be rendered in its favor upon the undisputed facts.

      Mr. Charles F. Coffin; Mr. P. 8. Olmstead and Mr. Gilbert H. Stewart, for plaintiff in error.
    All oral negotiations relating to a contract of insurance are merged in the contract when executed. Elliott on Insurance, sec. 108; Higginson v. Dall, 13 Mass., 96; Insurance Co. v. Lyman, 15 Wall., 664; Insurance Co. v. Mowry, 96 U. S., 544; Fayerweather v. Phenix Ins. Co., 6 L. R. A., 805.
    An agent dealing with the subject-matter of his agency in his own name and on his own behalf, will not as to that transaction, be deemed an agent but a principal and as to all acts relating to such transaction he must deal “at arm’s length” with his principal. Kerr on Insurance, sec. 79.
    The case of Spare v. Home Ins. Co., 19 Fed., 14, was a case involving the precise question involved here, that is, whether one can, as a matter of law, act as agent in a matter in which he had an interest adverse to his principal for whom he is agent in other matters.
    The cases above cited and quoted all announce, and elaborate the reasons for the legal principle, that no man can act for himself and his principal in the same transaction, although the facts in said cases are somewhat different from the facts in the case now before this court. No two cases, arising in different jurisdictions and between different parties, will ever present quite the same facts. But given certain essential facts and the principle controls everywhere.

      It is always a satisfaction, however, to he able to cite a case that raises and decides the question at issue on practically the same facts.
    It is with pleasure, therefore, that we direct the attention of the court to the case of Neuendorff v. World Mutual Life Ins. Co., 69 N. Y., 389.
    . In Ruckman v. Bergholz, 8 Vroom, 437, it is said, “The rule requires a man to put off the character of agent when he assumes that of principal. ’ ’
    In Stewart v. Mather, 32 Wis., 344, the court lays down the same rule.
    In Batholemew v. Leach, 7 Watts, 472, “The same doctrine is required of a confidential agent while he consents to act as such, and there must be an unambiguous relinquishment of his agency before he can acquire a personal interest in the subject of it.”
    It is not deemed necessary to cite further authorities. The logic of the proposition is irresistible.. Though the courts had never spoken on the subject,, it would be none the less true as a pure abstraction that a man cannot be, at the same time, two diametrically contradictory characters.
    It is submitted that in so far as it may be contended' that section 3625, Revised Statutes, has for its purpose the authorization and protection of fraud committed by an agent of a life insurance company against the company, such contention will be held void as against public policy and the principles of common morality. Such a statute has its purpose and a legitimate purpose, but it will certainly not be contended seriously that the legislature could authorize and make legal, theft, burglary or murder.
    There is no better settled principle of the law than that in all cases where the knowledge of an agent is to' be imputed to the principal, such knowledge will not be so imputed where the conduct of the agent is such as raises a clear implication that he would not communicate the fact in controversy to his principal, as when the communication of such fact would necessarily prevent the consummation of a fraudulent scheme the agent was engaged in perpetrating.
    ' Upon this question the court is referred to the following authorities: Innerarity et al. v. Merchants’ Nat. Bank, 1 N. E. Rep., 282; Western Mortgage & Investment Co. v. Ganzer, 11 C. C. A., 371; Thomson-Houston Electric Co. v. Capitol Electric Co., 12 C. C. A., 643; Hudson v. Randolph, 13 C. C. A., 402.
    A beneficiary in a life insurance policy, even though she may be the wife of the insured and may have a “vested right” in the policy, takes her interest with all of the restrictions of the policy and subject to every defense, which the company issuing the policy might have had as against the insured himself. Mutual Life Insurance Co. v. Kelly, 114 Fed., 268; Keller v. Home Ins. Co., 69 S. W. Rep., 612; Carpenter v. Insurance Co., 5 Fed. Cas., 105; Treat v. Merchants’ Life Assn., 64 N. E. Rep., 992; Forbes v. Union Central Ins. Co., 51 N. E. Rep., 84; Burruss v. N. L. Association, 32 S. E. Rep., 49.
    First: We think that we have shown by an abundance of authorities that the court committed error in overruling the motion of plaintiff in error to strike out certain parts of the petition of defendant in error and in admitting the testimony of Donahey as to conversations touching a contract of insurance which was afterward reduced to writing.
    Second: Inasmuch as an agent employed with reference to certain subject-matter, ceases to be an agent the moment he deals with such subject-matter for his own benefit, the court erred in instructing the jury that payment of a sum of money equal to the premium on his policy of insurance by Donahey to Harvey was a payment to the company, and for same reason the court erred in charging the jury that since Harvey was the agent of the insurance company generally, the company Would be charged with knowledge of the fraud that Harvey was engaged in perpetrating against the company and would therefore be deprived of its defense to such 'fraud by the provisions of the Ohio statute.
    Third: We think we have shown, beyond any possible doubt that every beneficiary of a life insurance policy takes his or her rights • under such policy by virtue of the terms and stipulations of the policy contract, and that such beneficiary is bound by all the statements made by the assured in his application for such policy.

      Messrs. Richards & McCullough, for defendant in error:
    Proofs of death were duly made although waived in writing by the company, which denied all liability upon the policy upon the grounds:
    First: That Harvey could not act as its agent in dealing with Donahey for the policy, of which Harvey’s wife was the beneficiary.
    Second: That the premiums were not received by the company, and that payment to Harvey was not payment to the company.
    Third: That the policy is void by reason of certain answers made by Harvey in the application upon which the policy was issued.

      If the first objection is resolved against the company, the second and third must fall; for it is conceded by the record that Harvey was the agent of the company when he filed the application and sent it to the company, and hence must have had knowledge ■of the truth or falsity of the answers therein; hence if he was the agent of the company, the third objection comes within section 3625, Revised Statutes.
    Further, it is conceded by the record that Harvey was the agent of the company when he collected the premiums from Donahey. We claim that if he was agent of the company, payment to him would be payment to the company.
    Was Harvey the agent of the company in the procurement of this policy for his wife?
    By section 3112, Revised Statutes, husband and wife may enter into any contract or transaction with each other, or with any other person, which either might if unmarried; and by section 3114, Revised Statutes, she may take, hold, and dispose of property, real or personal, the same as if unmarried.
    If a married woman can contract directly with her husband, a contract made for her benefit with him as agent of another, is certainly good.
    Harvey was the duly commissioned agent of the defendant, authorized to make contracts of insurance, collect premiums and forward them to the ■company, and deliver policies of insurance to parties contracting therefor.
    A life insurance agent, soliciting and procuring for an insurance company, risks and applications upon which policies are to be issued, who fills up the application, is the agent of the insurance company and not of the applicant for insurance, and if he makes a mistake in preparing the application and stating the facts in it, or makes a false statement therein, the insurance company is hound thereby. Mieritz v. Insurance Co., 11 Dec., 759; 8 N. P., 422.
    And he is the agent of the company notwithstanding a contrary stipulation in the application. Insurance Co. v. Chamberlain, 132 U. S., 304.
    It was as though Mrs. Harvey had procured the policy upon the life of her husband and paid the premiums thereon, making the policy her own separate property upon which even her husband’s creditors could have no claim.
    So that Harvey was, in fact, a stranger to the transaction as to any benefit to accrue therefrom, after the policy was issued.
    It was not necessary that Mrs. Harvey should pay the premiums. Another person might pay them for her.
    The interest of the beneficiary is so distinct from that of the person whose life is insured, that even the acts or declarations of the latter are not evidence against the beneficiary; and the wife, as to the policy, is to be treated as a feme sole. Insurance Co. v. Applegate, 7 Ohio St., 292; Insurance Co. v. Cheever, 36 Ohio St., 201.
    Where a policy of insurance is taken by one for the benefit of another, it is in the nature of an executed gift, and the beneficiary may maintain an action on the promise. Manhattan Ins. Co. v. Smith, 44 Ohio St., 163; Pingrey v. Insurance Co., 144 Mass., 382.
    There is also a rule of law in the matter of agency that has long been recognized by the courts, and that is a rule of ratification, which may be either expressed- or implied. It may be inferred from circumstances, which the law considers equivalent to an express ratification. 1 Am. & Eng. Encv. Law, 1195 and 1196, first note.
    Now, in the application made by Harvey to the company, is a place for the signature of the person who ivas acting as the agent of the company ivhen the> application was made, and turning to the application upon which the policy was issued, we see that Harvey signed it as to his answers, and then his name is signed to it as agent and general agent of the company, thus notifying the company that in this matter he was acting as agent for it; and the company, thus notified by the application, ratified the action of Harvey as its agent, issued the policy, and sent it to him for delivery to the beneficiary.

    The conduct of the principal will be liberally construed in favor of a ratification or adoption of the acts of the agent. Szymanski v. Plassan, 96 Am. Dec., 382.
    Further, Harvey being the agent of the company at the time the application was made, and necessarily knowing the truth or falsity of the answers therein, the company is bound by virtue of section 3625. Revised Statutes, by such answers, for the legal effect of-the statute is the same as if copied into and made a part of the policy. The John Hancock Life Ins. Co. v. Warren, 59 Ohio St., 46; Metropolitan Life Ins. Co. v. Howle, 62 Ohio St., 204.
    It is contended that the premiums were not received by the company and that payment to Harvey was not payment to the company. As Harvey was the duly commissioned agent of the defendant, authorized to make contracts of insurance,, collect premiums and forward them to the company, and deliver policies of insurance to parties contracting therefor, payment to Harvey was payment to the company.
    But the policy which the company forwarded to Harvey as its agent, for delivery, acknowledges the receipt of the first premium, and where an insurance company delivers a policy which on its face acknowledges the receipt of the first premium.
    The presumption is that the premium was paid on delivery of the policy. Kerr on Insurance, 290; Elliott on Insurance, sec. 358.
    But the record shows that the company only not only received from Harvey the application signed by him as agent, not only forwarded the policy to him for delivery and collection of the first premium, but sent to him, from, time to time, receipts to be delivered by him on Ms collection of the premiums.

    The company having treated Harvey as its agent to receive the premiums and sent him receipts therefor which he delivered to Donahey on payment of the premiums, is estopped as against Mrs. Harvey to deny that they were paid. Insurance Co. v. Hamilton, 41 Ohio St., 275.
    Another person than the beneficiary may pay the premiums. Kritline v. Beneficial Assn., 5 Dec., 592; 7 N. P., 439.
   Crew, J.

Among other stipulations and provisions contained in the application made by W. W. Harvey to the plaintiff in error, the State Life Insurance Company, for the policy of insurance that is here in suit, — which application by the express terms of said policy became itself a part of the contract of insurance, was the following clause or provision, to-wit:

“It is hereby agreed that all the foregoing statements and answers, and also those I make to the company’s medical examiner, are warranted to be full, complete and true, and are offered to the company as a consideration for the contract, which shall not take effect until this application, which I agree to complete by submitting to a medical examination, has been accepted by the company, at the home office in Indianapolis, Indiana, and the first premium shall have been paid to and accepted by the company or an authorized agent during the life and good, health of the person herein proposed for insurance.”

The above stipulation or provision, that the contract of insurance shall not take effect until the first premium shall have been paid to and accepted by the insurance company or an authorized agent during the life and good health of the person proposed for insurance, being a reasonable and proper limitation or condition, was one the insurance company had a legal right to make. And being a condition precedent such prepayment of the premium, unless waived, was necessary to be made in order to put said policy in force, or to make said contract of insurance effective so as to bind the insurance company. Primarily the performance of this condition rested upon Harvey whose duty and obligation it was, if he would have the benefit of his contract and would put said policy in force, to pay to the insurance company, or to some one of its agents authorized to receive the same, the amount of said first premium. How, if at all in the present case, did he fulfill or discharge this obligation? It is not •claimed, nor would the facts justify such claim, that Harvey himself ever paid said premium or that he ever in any manner accounted to the State Life Insurance Company therefor. The only payment of such premium relied upon or claimed in the present case, is a payment alleged to have been made by Donahey to W. W. Harvey himself. As recited in the statement of facts in this case, it appears from the record, that after the policy of insurance upon which this suit was brought had been issued to and received by Harvey, that he, being unable to pay the premium which was due thereon upon the delivery of said policy, communicated that fact to Donahey, his son-in-law, who thereupon, but without the knowledge or consent of said insurance company, furnished or paid to Harvey by way of attempted settlement or payment of said premium a sum of money equal to the amount of the premium then due on said policy, less Harvey’s commission as agent. It is the contention or claim of counsel for defendant in error, that the alleged payment so made was a sufficient payment of the premium then due, that it was made to an agent of said insurance company authorized to receive it, and that it was therefore in legal effect payment of said premium to the insurance company itself. Or differently stated the claim made is, that the payment by Donahey to Harvey as agent for and on behalf of Harvey as obligor, of the debt or obligation owing from the latter to the insurance company, was an authorized payment, and that it had the effect to satisfy and discharge the insurance company’s claim for the premium then due and to thereby put in force said policy or contract of insurance.

This claim, we think, is untenable, and its fallacy and unsoundness is to be found in the premise upon which it is predicated, namely, the assumption that in such transaction Harvey was the authorized agent of the insurance company. The principle is elementary, and the rule of law well settled by adjudication, that an agent dealing with the subject matter - of his agency can not enter into a contract with himself in respect thereto that will be binding upon his principal, unless the contract be approved by the principal with full knowledge of all the facts. He cannot at the same time and in the same transaction be both obligor and obligee. And where an agent undertakes to act for himself in any matter, he cannot in the same transaction and as to the same matter act for and represent his principal, but in such case, as to such transaction the law will regard the relation of principal and agent as at an end and will treat him as a principal. Applying this rule to the present case it follows, we think, that Harvey could not bind the insurance company to the receipt of money paid to himself at his own instance and on account of his own debt or obligation owing to said insurance company, where such payment was made, to and received by him without the knowledge or consent of the company, and where the money so received was never accounted for or paid over by him to the company. In that transaction, Harvey was acting not for the insurance company, but for himself, in his own interest and on his own behalf. In legal contemplation he was not then the agent of the insurance company, but was a principal, and therefore could not bind the company by his act, and such payment to and receipt by him would not constitute or be, payment to tbe company. We are of opinion, therefore, upon this record, that the circuit court erred in not reversing the judgment of the court of common pleas for overruling the motion of the plaintiff in error asking the court to direct a verdict in its favor.

The judgment of the circuit court ivill he reversed and judgment entered for the plaintiff in error upon the undisputed facts.

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


author: Price, J.

text:
    Jones v. Willis, Administrator.

      Executor of will — Not required to give bond — Indebted to Ms testator — Dies while in office without having inventoried indebtedness — As asset of testator’s estate — Administrator of deceased executor appointed — Administrator reports no assets of testator came to deceased executor — Section 6175a, Revised Statutes — Legatees of will claim amounts due testator from executor — Said indebtedness held to be money in hands of executor — That probate court had jurisdiction over administrator of executor — Settlement of estates — Probate procedure — Rights of legatees.

    An executor of a will, which dispensed with his giving bond and who gave none, was, at the time of his appointment and qualification as such executor, indebted to his testator in a considerable sum which was due, and he died while in office, without having inventoried the amount of said indebtedness as a part of the assets of the testator’s estate, and before an account was due or filed. An administrator of the estate of the deceased executor was appointed, who was cited by the probate court of the county where he was appointed, to render an account of the administration of the deceased executor as required by section 6175a, Revised Statutes, and in response to tbe citation, tbe administrator reported to the court in writing that no assets or property of tbe estate of tbe testator ever came into tbe bands of tbe deceased executor, and that at the death of the latter, be bad none of tbe assets of said estate in bis bands.
    To this report, legatees under tbe will filed exceptions, which set out tbe character and amounts of tbe indebtedness due from tbe executor to tbe testator at tbe time of tbe former’s appointment, which exceptions were beard on evidence, and upon such hearing tbe probate court found tbe amount sp due, and charged tbe same against tbe estate of tbe executor. All the debts of the testator bad been paid and the court ordered tbe administrator of tbe executor to pay tbe amount so found due to tbe parties entitled thereto. Held:

    (1) That such indebtedness, being ascertained, it is to be considered and treated as so much money in tbe bands of tbe executor and as part of the assets of the testator’s estate.
    (2) That if tbe probate court properly acquired jurisdiction over tbe administrator of tbe deceased executor and tbe subject-matter, its findings and judgment as to tbe amount of such indebtedness, are conclusive until reversed or modified, or otherwise adjudged erroneous.
    (3) The deceased executor having given no bond and having died before any account was due or filed, it became tbe duty of his administrator to so administer upon tbe estate of tbe deceased executor, as to provide for tbe satisfaction of the' amount charged against bis estate by the 'probate court, and on bis neglect or refusal to act in tbe premises, and it appears that all tbe testator’s debts have been paid, tbe legatees, under said will may bring and maintain an action against tbe estate of tbe deceased executor, for an account and to. recover tbe amounts due them under tbe will.
    (No. 8583
    Decided March 21, 1905.)
    Error, to the Circuit Court of Fayette county.
    The plaintiff in error was plaintiff in each of the lower courts, and in her amended and supplemental petition filed in the court of common pleas, asked a recovery against the defendant as administrator of the estate of William. E. Willis on an account to be taken according to tbe averments of tbe petition. Tbe claim set up arises out of the provisions of tbe last will and testament of James M. Willis and tbe alleged wrongs and default of William E. Willis, executor of said will, who is also now deceased and of whose estate tbe defendant in error is administrator.
    Tbe following is a copy of tbe material part of the will of James M. Willis, as it appears in tbe amended and supplemental petition:
    “Item 8. I give and devise to my said son, James W. Willis, tbe sum of six thousand dollars ($6,000) for tbe purpose of being expended in general improvements on said 350 acres so devised to him. But whatever part of the said sum I may expend on said farm or pay to him to be expended thereon in my lifetime and take bis receipt therefor or charge to him on account, is to be taken and considered as ad-' vancements upon said sum of $6,000 and to be charged against tbe same by my executors in tbe settlement of said sum of $6,000. This item has no connection with said dwelling bouse and barn provided for in Item 7. All I may advance to him for tbe purpose of this item, if over tbe sum of $6,000, is to be considered under Item 9 below.
    “Item 9. All tbe balance and residue of my estate I give and bequeath to my three children, namely, William E. Willis, James W. Willis and Laura B. Willis, as follows:
    “One-third part thereof to my son, William E. Willis.
    “One-third part thereof to my daughter, Laura B. Willis.

      “The remaining one-third part I will and direct my executors hereinafter named, whom I nominate and appoint trustees for that purpose,, to invest in good first mortgage real estate securities.in Fayette county, Ohio, and pay the net annual proceeds thereof to my said son, James W. Willis, for and during -his natural life. The said six thousand dollars devised to my said son, James W. Willis, in Item 8 of this codicil, for the purpose of determining the residue provided for in this item, is to he considered a part of said residue and the sum to be retained and invested by said trustees is the one-third of the whole residue, including said $6,000 so to be paid to my said son for general improvements of said land. That is to say, my son, William R. Willis, and my daughter, Laura B. Willis, are each to have a sum equal to one-third of said residue and the said sum of $6,000 and my son, James W. Willis, to have the sum of $6,000 as above provided, and the said trustees to have a sum equal to each of William R., Laura B. less said sum of $6,000. If the said sum should be more than $6,000 as provided in Item 8, that excess to be considered. At the death of my son, James W. Willis, the principal of said money as devised to said trustees for the use of James W., I devise to the heirs of the body of my said son, James W. Willis, if he should have issue of his body. But if he should die without issue, then and in that case I will and devise said sum to the heirs of the body of my said son, William R. Willis, and my daughter, Laura B. Willis, one-half to each, but if my said daughter should die without issue, then I devise the whole of said funds to the heirs of the body of my son, William R. Willis. ”

      William E. Willis,- now deceased, was appointed by the will as one of its executors and relieved of giving a bond, and after the probate of the will he ■accepted the appointment and duly qualified, but .gave no bond.
    The testator, James M. Willis, departed this life ■on or about the sixteenth day of August, 1888.
    The substance of the other material facts contained in the amended petition appear in the opinion.
    The court of common pleas sustained a general ■demurrer to the amended petition and tendered judgment against the plaintiff, who took the case on ■appeal to the circuit court, where the demurrer was again sustained and judgment rendered that the defendants go hence without day and recover their •costs to be taxed. This proceeding is to obtain a reversal of the judgment of the circuit court.

      Mr. Humphrey Jones, for plaintiff in error,
    cited and commented upon the following authorities:

      Jones, Admr. v. Willis, Admr., 66 Ohio St., 114; Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392; Raab’s Estate, 16 Ohio St., 273, Braiden v. Mercer, 44 Ohio St., 345; Gardner v. Ashbrook, 53 Ohio St., 778; Netting v. Strickland, 9 Circ. Dec., 844; Newton v. Hammond, 38 Ohio St., 435; Gorman v. Taylor, 43 Ohio St., 90; Douglas v. Day, 28 Ohio St., 178; Slagle v. Entreken, 44 Ohio St., 637; Stiver v. Stiver, 8 Ohio, 217; Pedan v. Robb, 8 Ohio, 227; McDonald v. Aten, 1 Ohio St., 293; McAfee v. Phillips, 25 Ohio St., 374; 2 Williams on Executors, 2005; 2 Woerner on American Law of Administration, sec. 500; 7 Am. & Eng. Ency. Law, 399, 401; sec. 2606, N. Y. Stat.; Fithian’s Estate, 3 N. Y. S., 194; Butler’s Estate, 9 N. Y. S., 641; Barnes v. Stover, 89 N. Y., 1; Nowell v. Nowell, 2 Me., 75; Grout v. Chamberlain, 4 Mass., 611; Storer v. Storer, 6 Mass., 390; Russel’s Ecclesiastical Law, 427; Toller’s Law of Executors, 492; sec. 11, art. 93, Maryland Code of 1860; Smithers v. Hooper, 23 Md., 286; Howard v. Howard, 26 Ala., 684; Steen v. Steen, 25 Miss., 513; Beall v. New Mexico, 16 Wall., 540; Estate of Plummer Sidwell, 67 Ohio St., 464; Brown v. Reed, 56 Ohio St., 270; 2 Woerner’s American Law of Administration, sec. 534; State v. Gheston, 51 Md., 382; Kirby v. State, 51 Md., 393; 3 Williams on Executors, 1993, 1984-7, 1987-90; 2 Woerner on American Law of Administration, sec. 382; 7 Am. & Eng. Ency Law, 391; Waldsmith v. Waldsmith, 2 Ohio, 157; 3 Williams on Executors, 1894; Stewart v. Treasurer, 4 Ohio, 100; Spotswood v. Price, 3 Hen. & Munf., 123; Eppes v. Smith, 4 Munf., 466; 1 McCord, 76; 4 Conn., 445; King v. Beeler, 4 Bibb, 83; Jackson, Admr. v. O’Brannin, 14 Ohio St., 177; Greer v. Ohio, 2 Ohio St., 574; Taylor v. Thorn, 29 Ohio St., 573; Thomas v. Chamberlain, 39 Ohio St., 112; 3 Williams on Executors, 2006; Cram v. Green’s Admr., 6 Ohio, 430; Curtis v. Cisna, etc., 1 Ohio, 435; Grosvenor v. Austin et al., 6 Ohio, 112; McDowl v. Charles, 6 Johns. Ch., 136; McKay v. Green, 3 Johns. Ch., 59; Piatt v. St. Clair Heirs, 6 Ohio, 227; McLaughlin v. McLaughlin, 4 Ohio St., 508; Dawson v. Dawson, 25 Ohio St., 443; Green v. Green, 5 Ohio, 278; Davis v. Hutchings, 8 Circ. Dec., 52; 15 C. C. R., 174; Armstrong v. Grandin, 39 Ohio St., 369; sec. 8, art. 4 of the Const.; 71 O. L., 77; 2 Redfield on Wills, 91 and note; 22 O. L., 118; secs. 524, 6016, 6020, 6068, 6069, 6105, 6107, 6108, 6175, 6175a, 6179, 6180, 6187, 6195, 6200, 6209, 6250, 6291, Rev. Stat.

      Messrs. Harper & Harper, for defendants in error,
    cited and commented upon the following authorities:

      Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392; Jones’ Admr. v. Willis’ Admr., 66 Ohio St., 114; Piatt et al. v. Longworth, 27 Ohio St., 186; 1 Pomeroy’s Equity Jurisprudence, secs. 347, 348 and 349 and note to section 350 on p. 468; secs. 4981, 4982, 6113, 6175, Rev. Stat.
   Price, J.

The plaintiff in error, and who was plaintiff in the lower courts, was unmarried when the will of James M. Willis was executed, and she was correctly named therein as Laura B. Willis, one of the residuary legatees under said will. In addition to the facts set out in the statement of this case, her amended petition, in substance, avers that when William R. Willis, deceased, was appointed executor of the will of James M. Willis, he was indebted to the estate of the latter in the sum of about $15,000, which sum" became assets in the hands "of such executor which belonged to the estate of the testator, but that said executor departed this life without having rendered any account of his doings as executor, and before any account was due from or required of him, and that the defendant, J. Madison Willis, was appointed as the administrator of his estate, and that in October, 1892, upon citation of the probate court, this administrator filed in that court a statement or account of the doings of William R.~Willis as executor of the will of James M. Willis, deceased; in which statement or account, the - administrator of the estate of the executor, claimed that no assets or property of the estate of James M. Willis ever came into the hands of William R. Willis as such executor, and that William R. Willis at his death, had in his hands none of the assets of said estate.

Exceptions were filed to the statement or account hy the plaintiff and another party interested, and upon hearing of the account and exceptions thereto, the probate court overruled some and sustained others. The court found and adjudged that on the eighth day of March, 1881, there was due and owing from William R. Willis to said James M. Willis the sum of $2,500 on a note, on which no payments had been made, and that said indebtedness continued to be due and owing during the remainder of the lifetime of said James M. Willis, and that the same was a valid and subsisting claim in favor of the estate of James M. Willis, with which the said William R. Willis as such executor should have charged himself, and that his administrator should be charged with said indebtedness in his account, and ordered him to pay the same to the administrator with the will annexed, of said James M. Willis.5

The court further found and adjudged that on the seventh of March, 1884, there was due from William R. Willis to James M. Willis the sum of $385, on which no payments had been made, and that this indebtedness existed at the death of said James M. Willis, and when said William R. Willis became the executor of the will of said James M. Willis, and that said debt became assets of the latter’s estate with which the executor should have charged himself, and that the administrator of the estate of the exeentor should be charged with the Same. The same formal finding was made as to an indebtedness of $1,505.58 from William E. to James M. Willis from the seventh of January, 1885, which remained due and unpaid when William E. became executor of the will, and thus became assets of the estate of said James M. Willis. The same formal finding was also made as to an indebtedness of William E. to James M. Willis in the sum of $760, from January 26, 1885; and another item of indebtedness of $1,-551.21, due from April 13, 1886; and another of $4,379.50 due since March 1,1888. It is alleged that each and all of these several sums were due from said William E. to James M. Willis, when the former became the exeentor of the will of the latter and became assets of the estate of the testator in the hands of such exeentor with which he should have charged himself, and which should be charged to the estate of the exeentor, and the probate court so charged the account of his administrator. The probate court also charged the estate of the exeentor with farm rent due from William E. to the estate of James M. Willis the sum of $800.

It is alleged that the above amounts so found in the hands of William E. Willis as exeentor, and with which his estate should be charged, as of the first day of January, 1894, aggregate $19,182.81, and; that said sum should at said time have been paid over to the parties entitled thereto under the will of James M. Willis, deceased.

The petition next alleges that said defendant, J.. Madison Willis, as administrator, has ever since the entering of the finding and judgment of the probate court, neglected to pay any portion of said amounts so found in the hands of William R. Willis as such executor and with which his estate was charged as aforesaid, to the parties entitled thereto; and that all the debts of the estate of James M. Willis had theretofore been fully paid.

The plaintiff says that as one of the legatees under said will, she is entitled to receive one-third of the total residuary personal estate of said James M. Willis, and that in equity she is entitled to receive from the defendant, J. Madison Willis, as administrator of the estate of William R. Willis, such sum in excess of an equal one-third part of the present amount of said finding and judgment of the probate court, as will, in connection with what has already been received from said estate of James M. Willis, and her share and interest of the moneys in the hands of Humphrey Jones, as administrator, amount to and equal her full one-third share of said residuary estate, which she has demanded of the defendant, but that he refuses to pay any part of it. It is next alleged that the defendant, as administrator of the estate of William R. Willis, has taken no steps to reduce into money any of the property or estate of William R. Willis for the purpose of meeting the obligation to pay said sum of $19,-182.81, as charged against the estate of said William R. Willis, but on the contrary has suffered his heirs at law to take and appropriate to themselves all the personal estate of the said William R., so that the same has become lost and now is impossible of recovery, and refuses to take any steps for the purpose of bringing to sale any portion of the real estate of William R. Willis for the purpose of paying the just claims against his estate; that as administrator the defendant has filed no inventory or any account in settlement of the estate of William E. Willis.

The plaintiff says she brings this suit in behalf of herself and all others interested in the estate of James M. Willis, who choose to become parties hereto, and she names the other parties as all who are so interested.

The prayer is for an account to be taken of the amount due to the respective legatees and distributees, and that she may have a decree against the defendant as administrator for such portion of the moneys found and adjudged against the estate of William E. Willis by the probate court as she is properly entitled to.

The foregoing is the substance of a very lengthy pleading, and the sole inquiry is, does it state a cause of action?

The examination of this question has developed some points of difficulty, and has required us to investigate quite a field of statutory provisions, and adjudicated cases construing such provisions. The pathway of this investigation is not at all times clear and free from doubt, but we have emerged from the labor in hand with some conclusions which we regard as properly drawn from the facts pleaded and admitted by the demurrer.

It is no longer an open question in Ohio, that-where the debtor of a deceased person is appointed executor or administrator, the debt becomes assets in his hands; and on exceptions to his final account, claiming that he had omitted to charge himself with such debt, the court may hear evidence and determine the validity of snch claim and the amount of such debt. Raab’s Estate, 16 Ohio St., 274. See also Tracy’s Admr. v. Card’s Admr., 2 Ohio St., 431; McGaughey, Admr. v. Jacoby et al., 54 Ohio St., 487.

In Raab ’s Estate, supra, it is said on page 283 r “Nor do we perceive any well grounded distinction to be taken as to the powers and duties of the probate court on exception to the account of the administrator, whether the exception be grounded on the neglect of the administrator to charge himself with a debt due from him to the decedent, or his neglect to' inventory or charge himself with any other property or money belonging to the estate, for under the statute, a debt due from the administrator to the decedent, is assets in his hands, for which he is accountable on settlement of the estate, whether it be included in the inventory or not.” In McGaughey, Admr. v. Jacoby et al., supra, it is held that “the indebtedness of an executor to his testator is assets with which he is chargeable at its maturity, as so much money in his hands; and the sureties on his bond are liable for his failure to administer and distribute the same according to law and the will, although he was insolvent at the time of his appointment, and continued to be so until the settlement of his final account.” On page 501, it is said by Williams, C. J.: “Debts due from the executor to the testator, are by force of section 6069 (Revised Statutes) transmuted into money in his hands, and being so, in the language of the court in Hall v. Pratt, 5 Ohio, 73, 'no act of the parties can return them back to an obligation;’ so that they cannot be classed with uncollectible nor uncollected debts within the purview of section 6181. ”

The foregoing is law very familiar to the legal profession, hut it is here re-stated on the theory that the effect of well-known law is ofttimes overlooked.

According to the established rule, the indebtedness of William R. Willis to James M. Willis at the time the former was appointed executor of the will of the latter, was then transmuted into money and he became thereafter chargeable with it as money, whether inventoried or not, and this money remained in his hands as a charge against him as executor in the sum of $19,182.81, .unchanged by any account filed or any order or judgment of any court relieving him therefrom. Such appears from the averments of the amended petition and the findings and judgment of the probate court made a part of that pleading.

It must be kept in mind also, that William R. Willis as executor was not required to give bond, and none was given. He died without having filed any account, and before any account was due to be filed, and, as we must in law presume, with the above sum of money'in his hands. The defendant in error became the administrator of his estate. As such the statute required of him the performance of certain duties. Section 6175a, Revised Statutes, provides: “When an executor or administrator has died or shall by reason df insanity or incompetency, as provided by law, be placed under guardianship before the estate is fully administered, it shall be the duty of the executor, administrator or guardian of such deceased or incompetent executor or administrator to render a final account of decedent’s Or ward’s administration within six months after his appointment.” In connection with this provision, we may consider what was required hy William B. Willis as executor by section 6069, Bevised Statutes, which reads: “The naming of any person executor in a will, shall not operate as a bequest of any just claim which the testator had against such executor; but such claim shall be among the credits and effects of the deceased, in the inventory; and the executor shall be liable for the same, as for so much money in his hands at the time such debt or demand becomes due; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased.” This transmutation of the debt into money, satisfied the debt so that it no longer existed. Inasmuch, as the executor, William B. Willis, died charged with whatever valid or just indebtedness was due and owing from him to his testator, what duty in reference thereto, devolved upon the administrator of his estate, under the provisions of section 6175a, supra¶ It required him “to render a final account of such decedent’s * * * administration within six months after his appointment. ’ ’

If, in this case, the administrator of the estate of the executor had found on file in the prohate court, an inventory taken by William B. Willis as executor, in which he reported-the amount he owed his testator as a part of the assets of his estate, the duty of the administrator of the estate of the deceaséd executor, would have been plain, because the returning and filing of such an inventory would have been a step in the due administration of the estate by the executor, and would have to be considered by his administrator when he came to render the final account required by section 6175a, supra.

But we are led to assume that no such item appeared in the inventory filed by the executor, if he filed any such instrument at all. It seems therefore that the administrator of the executor was cited by the probate court to file the account required by statute. He responded, as the petition avers, that no assets or property of the estate of James M. Willis ever came into the hands of William R. Willis as executor, and that William R. Willis, at his death had in his hands none of the assets of the estate.

To this response to the citation exceptions • were filed by parties in interest, and the hearing was had and findings made thereon by the probate court which already appear in this opinion. It would seem to be clear, that the legatees under the will of James M. Willis were not bound to accept as true, the answer made to the citation and they express their disapproval by their exceptions. It may be true that in specie, the debt due from the executor to his testator was not actually in the hands of the ex■ecutor at his death, but in law it was so, and transmuted into money and as such, a charge against him. And of course that charge remained against his estate after his death. If he failed to report in the inventory or account, as in this case, it was competent for the legatees interested in the estate of the "testator to establish the charge by other competent evidence. This was attempted by the exceptions, the purpose of which was to require the administrator of the deceased executor to file the account which the executor should have filed if he had lived to fully administer upon the estate. The proceedings on the exceptions developed the facts as to the executor ’s indebtedness to his testator and, which, if true,, should have appeared in the inventory of his estate. It was during his administration of the estate, that he failed to inventory that part of its assets, but it was within the jurisdiction of the probate court, had' he filed an account omitting- the charge against him, to hear evidence and correct the account according to the facts. So when he died without account, and his administrator came to render an account for him, it would seem that the error of the deceased executor could be corrected on hearing in the probate court, as was done in this case. For the purposes of this, demurrer, we assume the truth of the facts alleged in the amended petition, and, that the probate court had jurisdiction to entertain and pass on the exceptions as well as to make the findings and orders alleged. The lack of this jurisdiction is not as. yet made a question in this case, and we do not assume to determine what is not in some manner put. in issue.

The special ground of controversy appears to involve the plaintiff’s right to bring and maintain this action. It is earnestly contended by defendant in error that she has no such rightthat if she has any remedy, it is tort for damages — devastavit of the executor, William R. Willis. Counsel in their brief assert, — “if she (plaintiff) is entitled, as a legatee, to one-third of the residuary estate of James M. Willis, she may be then entitled to recover against the estate of William R. Willis damages to an amount of one-third of the assets of the estate of James M. Willis converted by William R. Willis, while acting as executor, to his own use.”

Such an action for damages would lie against the estate of William R. Willis, say counsel. It will he observed that the present action is against the estate of William R. Willis and not against his administrator individually. ' We agree with counsel, that some one in some form of action, has a right to sue. But counsel cite in support of their proposition Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392; Jones, Admr. v. Willis, Admr., 66 Ohio St., 114.

We fail to find in Tracy v. Card, supra, any holding that can bear on the present plaintiff’s right to maintain this action. Many questions are discussed in that case, but it decides nothing to support the contention here. The same may be said of Curtis v. Lynch, supra. The syllabus of that case is: “L. being administrator of CL, died without having settled his account with the estate. The administrator of L. filed in the probate court the account of L. as such administrator, to which the ádministrator de bonis non of C. filed exceptions, and the court on hearing, found a balance due from the estate of L. to the estate of C. The administrator de bonis non of C. brought suit against the administrator of L. on the finding of the probate court, to recover the balance so due to the estate of C. Held: That the administrator de bonis non can not maintain an action on such finding against the representatives of the deceased administrator, but that he must seek his remedy under the statutes on thq administration bond of the decedent. ’ ’ A perusal of the opinion of the court will show that our. present question was not involved, and that the right of an administrator de bonis non to sue in the case there presented was the single question under discussion. It did not undertake to determine who else might sne on the facts stated, unless an inference may be drawn from the language of the court at the bottom of page 398, where it is said: “Where the deceased administrator had disposed of the goods of the estate ’wrongfully the wrong died with him. # * # But such suit could be maintained only by creditors, legatees and distributees of the first decedent.” This seems to be the declaration of a rule quite unfavorable to the defendant in error, and 5 Randolph, 51, and other-cases are cited in its support.

Nor is his claim aided by Jones, Admr. v. Willis, Admr., 66 Ohio St., supra. That, too, was an action brought by an administrator de bonis non, and it concerned the very estate so conspicuous in this case.. The present counsel made that contest and, it involved the right of such administrator to sue and recover for the same default alleged in this action. The point decided in that case is stated in the syllabus : ‘ ‘ The personal representative of an executor who died in office, before an account was due or filed in reference to the'trust, is not. liable, under section 6020, Revised Statutes, to the administrator de bonis non of the testator in an action brought against him alone as such personal representative, to recover for unadministered assets of such testator where none of' such assets came into the possession or under the control of such personal representative. ’ ’

The construction of section 6020, supra, was the bone of contention in that case, and the administrator de bonis non claimed his right, to sue under that section which reads: “An administrator or executor appointed in place of an administrator or executor who has resigned, been removed, or whose letters have been revoked or authority extinguished, shall be entitled to the possession of all the personal effects and assets of the estate unadministered, and may maintain a suit against the former executor or administrator and his sureties on administration bond for the same, and for all damages arising from the maladministration or omission of the former executor or administrator.”

The holding in that case, is to the effect that section 6020 did not embrace a case where the administrator or executor died in office as was the fact, and the right to sue was denied. The cases of Tracy v. Card, supra, and Curtis v. Lynch, supra, were there cited and followed.

We see no support in either of those decisions for the contention of defendant in error. But it is insisted that the plaintiff’s remedy, if she has one, is in tort for damages for devastavit. This proposition deserves some consideration. The amended petition alleges that all the debts against the estate of James M. Willis, testator, had been paid and, that too, before the citation of defendant in error, and the findings and order of the probate court made in pursuance thereof, so that no one but the legatees and residuary legatees are interested in the amount for. which the deceased executor should have accounted. While ordinarily, the rights of such legatees to sue and recover must wait the order of distribution to be made by the court, in this case such order can never be made, because the deceased executor, William R. Willis, never filed an account upon which an order of distribution could be made, and if such order is indispensable even on these facts, then the legatees are without remedy.

We cannot concur in this view. There can be no order of distribution on any account filed by William R. as executor, for he filed none, and no citation could be issued against him to file one, for he died before an account was due.

Again, it is to be assumed from the averments of the amended petition that the estate of James M. Willis was and is solvent, and his will clearly fixes what the legacies are, and the claims of the legatees or residuary legatees, being fixed by the will need not be presented to the executor or his administrator for allowance. So the will fixes the .amounts to which, the legatees are entitled and the mode by which they are determined.

And if the findings of the probate court are correct in fixing the amount of money into which William R.’s indebtedness to his testator was transmuted, it would seem that the way is clear for the legatees and residuary legatees to enforce their rights.

The plaintiff avers that all persons interested have been made parties to this suit and if the facts necessary to make a cause of action in tort for devastavit, appear in the amended petition, it is not material what the form of action may be called, whether an action in equity or at law, or for devastavit, since the code has abolished the forms of action and marshaled them under the name of civil actions. If the action should be for devastavit, an accounting would be necessary. The amount of damages would depend on the amount chargeable and the amount of legal credits to which the executor would be entitled, for payments and disbursements made under the will and for all sums expended on behalf of the estate.

Besides this fact, the purpose of an action for devastavit is to fix a liability on the administrator or executor personally for his waste or conversion of assets.

Such an action is not available here, because the executor, who committed the waste or conversion, if any was committed, died before an account was due, and hence no such suit can be instituted against him. It cannot lie against his administrator in that form because it is not alleged that he committed the waste or conversion of assets of the éstate of James M. Willis. ' We think the argument fails to sustain the proposition as to that character of remedy.

All parties in interest being before the court in this action, a multiplicity of suits by various legatees is avoided, and whether under favor of' section 6200, Revised Statutes, or on the broad principles of equity, we are of opinion, the present action is prop- ‘ erly brought and can be maintained. It seems to be the only remedy. The executor, William R., was not. under bond and died without accounting. There should be and we think there is a remedy in the legatees and residuary legatees to enforce their rights under the will.

This action is against the estate of the deceased executor; and a. proper judgment or decree can be carried into effect upon equitable rules and principles and possibly in the method provided in section 6107, Revised Statutes.

The last proposition made for defendant in error,., is that the case made in the amended petition is; barred by the statute of limitations, and we are. referred to sections 6113, 4981 and 4982, Revised Statutes.

We think neither of these sections is applicable to the case at bar.

We conclude that the circuit court erred in sustaining the demurrer and for this error, its judgment is reversed and the cause remanded to that court for further proceedings according to law.

‘Judgment reversed and cause remanded.

Davis,' C. J., Shauck, Crew and Spear, JJ., concur.

Summers, J., not sitting.