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    *John U. Giesy v. The Cincinnati, Wilmington and Zanesville Railroad Company.
    The act of’April 30,1852, conferring upon the probate court jurisdiction in cases for the appropriation of private property to the use of corporations authorized to construct public improvements, is a constitutional enactment,
    Proceedings under that act may be instituted, jointly, against all the owners of property lying in the county and sought to be appropriated; but after the return of the jury from the view, each owner of distinct property is entitled to a separate trial.
    The general assembly possesses the constitutional power to confer upon a corporation authorized to construct a railroad, the right to appropriate grounds necessary for its use for a depot.

    The act of February 11, 1848, confers such right; and the act of 1852 is sufficiently comprehensive to give it effect, whether the proceeding is controlled by article 1, section 19, or article 13, section 5, of the constitution.
    The power of eminent domain is not conferred by either of these sections; they simply prescribe modes for, and limitations upon, its exercise.
    The power is an inseparable incident of sovereignty, and its exercise, for the-accomplishment of lawful objects, is conferred upon the general assembly in the general grant of legislative authority.
    It may be used to appropriate lands for a public highway of any kind,; and this whether the road is built and owned by the public, or by a corporation-as a public instrumentality: provided it is kept open for public use, as a. matter of right; or, according to the nature of. the work, the corporation is made a common carrier of goods or passengers.
    It may be exercised directly or indirectly by the general assembly, without the intervention of the judiciary, except for determining the amount of compensation. But the courts possess full power to determine its proper limits,, and to prevent abuses in its exercise.
    The power rests upon the public necessity, and can only be exercised where such-necessity exists.
    But this necessity relates rather to the nature of the property, and the uses to which it is applied, than to the exigencies of the particular case; and it is-no objection to the exercise of the power, that lands, equally feasible, could be obtained by purchase.
    *Only such interest as will answer the public wants can be taken; and it can be held only so long as it is used by the public, and can not be-diverted to any other purpose.
    The provisions of article 1, section 19, and article 13, section 5, of the constitution — the one requiring compensation to be made without deduction for benefits, when property is appropriated to a public use, and the other providing for compensation irrespective of benefits, where it is taken by a corporation for a right of way — are, in legal effect, identical. ,
    When taken under either section, its fair market value in cash, at the time it is-taken, must be paid to the owner; and the jury, in assessing the amount, have no right to consider or make any use of the fact that it has been increased in value by the proposal or construction of the improvement.
    Petition in error, reserved in Fairfield county.
    The petition was filed in the district court to reverse a judgment of the court of common pleas, in a proceeding in certiorari. Thecertiorari was resorted to to reverse certain proceedings of the probate court, on an application by the Cincinnati, Wilmington, and Zanesville Railroad Co., for tlie appropriation of lands owned by John U. Giesy and Jacob Bowmaster. The court of common poleas affirmed the judgment of the probate court.
    In the probate court, the application states that the corporation “desires to apoporopriato” the lots in question “to its use, and to use and occupoy the same as pan-cel of its depot grounds in Lancaster,” and concludes: “Said corporation therefore requires the proceedings necessary to condemn said poroporty for that pmrpose to be had before you.” The language of the application as to Bowmaster was like that as to Giesy.
    A plea to the jurisdiction was interposed, on the ground that the “ said probate court has no propter or constitutional jurisdiction in or over the subject-matter in controversy.” To this pfiea, replication was filed. The plea was overruled.
    Giesy then moved the court to dismiss the application, alleging that the C., W. and Z. R. R. Co. “ have no ptower or legal constitutional ^authority to condemn and appropriate, without the consent of the said Giesy, said real estate as described and set forth in said specifications, to the uses and purposes of said conpany, as prayed for in said specification.” This motion was overruled.
    Before the inpancling of the jury, the defendant, Giesy, “ objected to proceeding in this case any further, for the reason that the judge of said probate court is the regularly appointed, qualified, acting- treasurer of said C., \Y. and Z. R. R. Co., at a fixed salary of $600 per annum;” and the objection being overruled, exception was taken.
    A jury was then inpanelod and sworn justly and impartially, according- to the best judgment of the jurors, to assess the damages in money which Bowmaster and Giesy would each sustain by reason of the appropriaton of such property to the use of the company in the proceedings now pjending — the oath concluding: “And you do further swear that you will fully, faithfully, and impartially estimate and assess the amount of such compensation, irrespective of any benefit to them of any improvement proposed by said corporation.” The sheriff was then commanded to conduct the jurors to view the property, in presence of Mr. Brazee on the part of the corporation, and Mr. Yan Trump and Newton Schleich, on the piart of the owners, appointed by the court. The view was had accordingly, and, after hearing evidence and arguments, the jury rendered separate ver-, ■diets. It that Giesy objected to^the proposition of the, ■counsel of the company to try the cases óf Bowmaster and Giesy jointly, but that the objection was overruled, and the overruling excepted to. It also appears that Giesy moved to substitute for the oath actually administered, an oath “to assess the amount of compensation for said real estate described and set forth in said specification, at its present cash value, without deduction for any general enhancement of value to said real estate, arising from the construction of the said railroad of the said C., W. and Z. R. *R. Co.,” ■and objected to the oath as administered. The motion and objection being overruled, exception was taken. A witness being asked, “ what is the present cash value of the twelve lots of Mr. Giesy, excluding any increase or contemplated increase of value, arising from the construction of the C., W. and Z. R. R.?” Giesy objected to the question; his objection was overruled; the question and ánswer was permitted to go to the jury, and Giesy excepted. Another bill of exception is in substance as follows: Giesy propounded the following question to a witness: “(the question in issue to the jury being the amount of compensation to be allowed to the said Giesy for the real estate described in said specifications, to wit, taking into view all the elements which have gone to enhance the value of real estate in and about Lancaster, including the general advancement of value to said lots arising from the location and construction of plaintiff’s railroad) what is the present cash value of said twelve lots?” The counsel for the company objected to this question, and the objection being sustained, the defendant excepted. “ Whereupon,” proceeds the record, “ the court limited the examination of the witnesses on the behalf of the said defendant, Giesy, to the question of the present cash value of said lots, excluding therefrom all enhancement of value to said lots arising from the construction of said C., W. and Z. R. R.; to which ruling of the ocurt the said defendant, Giesy, by his counsel, excepted.” The verdict of the jury being rendered, Giesy moved for a new trial, and the motion being overruled, he took exception.
    In the district court the assignment of errors was as follows:
    1. The said court of common pleas erred in not reversing the judgment of said probate court, upon the ground of the overruling by said probate court, the plea of your petitioner, to the jurisdiction of said probate court.
    2. The said court of common pleas erred in not reversing the judgment of said probate court, upon the ground of the overruling by tbe said probate court, of the motion to dismiss said cause, *for the reason as set forth in the motion of your petitioner, which said motion is contained in the record of the proceedings herewith filed as aforesaid.
    3. The said court of common pleas erred in not reversing the judgment of said probate court, upon the ground that the said probate judge was disqualified to sit in said cause, because of his being-the regularly appointed, qualified, and acting treasurer of said Cincinnati, Wilmington and Zanesville • Railroad Company, at a fixed salary of six hundred dollars per annum.
    4. The said court of common pleas erred in not reversing th& judgment of the said probate court, upon the ground that the jury, before said probate court, were impaneled and sworn, and testimony submitted to said jury, in the manner and form as set forth in said record, herewith filed as aforesaid.
    5. The said court of common pleas erred in not reversing the judgment of said probate court, upon the ground of error of the said probate court in administering the oath to said jury, in the manner and form as set forth in said record, herewith filed as aforesaid.
    6. The said court of common pleas erred in not reversing the-judgment of the said probate court, upon the ground of said probate court overruling the objection made by your petitioner, before said probate court, to certain testimony offered by the said Cincinnati, Wilmington and Zanesville Railroad Company, and permitting-said testimony to go to the jury, as shown by said record, herewith filed as aforesaid.
    7. That said court of common pleas erred in not reversing the-judgment of said probate court, upon the ground that said probate court ruled out certain testimony offered by your petitioner at the trial of said cause in said probate court, as shown by said record, herewith filed as aforesaid.
    8. Other manifest errors.
    *P. Van Trump, for plaintiff in error, made the following points:
    I. The framers of the constitution, by conferring upon probate courts “ such other jurisdiction, in any county or counties, as may be provided by law ” (Const. Art. 4, see. 8), had in view special legislation. The statute of April 30, 1852, being in the nature of a -general law, is unconstitutional.
    II. The probate judge, before whom this case was tried, being, as the record shows, the treasurer of the defendant in error, at a fixed annual salary, was disqualified at common law as well as under the .statute. See section 3 of statute of March 14, 1854, Swan’s Rev. Stat. 232.
    III. The defendant in error had no legal power or constitutional authority to condemn and appropriate, without and against the -consent of the plaintiff, his real estate to the uses and purposes of the company. Section 5, of article 13, of the constitution, only confers the power upon corporations to appropriate a right of way —an easement — not, as sought in this proceeding, the entire property of the locus in quo. The power of a railroad company to appropriate land for depot grounds will not be construed to exist by implication, unless such a case is made out in terms, that the acquisition of the particular property sought to be appropriated is essential to the existence of the corporation. The act of April 30, 1852, under which these proceedings were commenced, does not confer, in terms, the power to condemn property for the purpose of depot grounds, nor do either of the supplementary acts confer that power; if they did, they would be unconstitutional and void'.
    The provisions of section 19 of the bill of rights, and section 5 'Of the article on corporations in the constitution, upon which the company in this case have planted themselves, can not be made to stand together, if depot grounds are held to bo included in the term “right of way.”
    IY. Each owner of distinct property within the county sought *to be appropriated, is entitled to a separate trial under the statute. All that was in the legislative mind, when the form of the oath to the jury was framed, as contained in section 5 of the statute of April 30,1852 (Swan’s Rev. Stat. 233), was an intention to meet and cover a case, where several persons were jointly interested in the property sought to be condemned.
    Y. The amount of compensation for the real estate sought to be appropriated, must be assessed at its true cash value, without deduction for any general enhancement of value to such real estate .arising from the construction of the railroad.
    The assessors appointed to assess damages to individuals through whose lands the public canals of the state passed, in the discharge of tbeir assessorial duties, under tbe act of 1825, deducted from tbe damages sustained the general enhancement of value, either to the! specific property itself or to any other property of the owner, produced by the public improvements proposed by the state. It was this rule of practice and the law as claimed in the case of Symonds v. City of Cincinnati, 14 Ohio, 147, which the framers of the new constitution intended to overthrow by adding the significant clause, “Without deduction for benefits to any property of the owner,” to section 19 of the bill of rights. See 2 Debates Ohio Conv. 178. See also Cooper v. Williams, 4 Ohio, 287; Meacham v. Fitchburg Railroad Co., 4 Cushing, 291; 1 Am. Railway Cases, 584. There is no more propriety or legal force in the proposition, that the government may project a public improvement, seize a portion of the property of one of its citizens, and then compensate him for the-value of the property thus taken, by charging him with the benefits thereby conferred upon his other property,' than in one citizen-charging another for benefits which he has voluntarily conferred.

      Brazee & Son, for defendant in error, made the following points :
    I. The probate court has been properly vested with jurisdiction *in cases of this description. The probate court was unknown to our old constitution. By a wise and useful provision, the framers-of the new constitution imparted to it the jurisdiction specifically enumerated, and to the general assembly they imparted the power to make it subservient to the changing wants and necessities of the people. While section 8, of article 4, of the new constitution, admits-of the limited jurisdiction claimed by opposing counsel, it also-admits of such other general jurisdiction as the wisdom of the legislature may impart to it. In the act of April 30,1852, we have a clear and explicit legislative construction of this clause of the constitution.
    II. The act of March 14, 1854 (Swan’s Rev. Stat. 232), makes the interest of the judge, in the company whose rights are the subject of his judicial action, the means of disqualifying him to - act. A treasurer of a corporation has, as such, no legal interest in the company. The reason operating on the legislative mind, which, induced the disqualification of directors of companies may be supposed to have been the known fact, that directors are uniformly chosen from the body of stockholders.
    III. It is proper to consider section 19 of the bill of rights, and-: section 5, article 13, of the constitution, together, both being provisions on the same subject-matter. The former declares the inviolability of all private property and its subserviency to the public welfare; it also prescribes the rule of compensation and the mode by which it shall be ascertained. The latter is not a grant of power to corporations, nor to the general assembly, but a rule for legislative action. Without it, the legislative power over the subject-matter, of appropriating private property to public uses, would stand unimpaired. That power arises as well from the general principles tnat lie at the foundation of the government, as from its express recognition in the bill of rights.
    The terms “ right of way ” embrace all lands required for the uses of the company, as incidental to the right of way; such as lands for stations,.side-tracks, depots, turn-tables, machine-shops, *and other kindred purposes. A railroad without these fácilities would be worthless to its owners, as property, and of no value to the public.
    The legislature have provided a mode for the condemnation of property outside of the railroad track. Section 1 of the act of April 30, 1852 (Swan’s Rev..Stat. 232). Section 4 of the act of May 1,1852 (Swan’s Rev. Stat. 200), confers upon railroad companies, not only the power of laying the track, but also the authority to construct and maintain such depots, as the corporation may deem necessary.
    IY. Two persons holding separate property sought to be condemned, may be united as defendants in the same proceeding, under the statute. The provisions of the statute warrant such joinder. Swan’s Rev. Stat. 232, secs. 2, 3, 5. The mode- of proceeding, therein authorized, leads to expedition in transacting the business, and to great saving of costs, without any disadvantages arising to any one.
    Y. The true rule of damages, as fixed by our existing constitution and laws, is, that no part of the value of the property taken shall be paid by benefits conferred, by the making of the railroad on Other property of the plaintiff in error. This construction is consistent with the language used, and suppresses the evil complained of under the old constitution. The increased value arises Out of the act of the company in making their road, and not in degree from the expenditure or labor of the owner. The claim of the plaintiff in error is not sustained or countenanced by .any rule of justice or equity.

      H H. Hunter, for plaintiff in error, in reply.
    The provision in section 19, of the bill of rights, is a dead letter, in so far as it authorizes the seizure of private property for any public use, which entitles the owner to be paid, or secured in its payment, before the seizure, until the legislature shall, by law, prescribe the cases in which the seizure may be made, and provide in *what way the amount of the compensation to the owner shall be ascertained. This has not been dono, so as to embrace the case now before the court. There is a defect of legislation, as applicable to this case, in two material particulars, viz:
    1. In the grant of the power to the defendant, to aj)propriate the property in question of the plaintiff to the use proposed, against the will of the plaintiff.
    2. Because there is no provision made by law, enacted pursuant to the provisions of section 19, of the bill of rights, prescribing in what way the amount of compensation to be made to the plaintiff shall be ascertained.
    The draftsmen of the act of April 30, 1852, had in view section 5, of article 13, of the new constitution, which is specifically limited to appropriations of the l’ight of way to the use of corporations.
    The two clauses of the constitution in question are widely different, and by no means identical in meaning. The consequence of this is, that the operation of the act of April 30,1852, can not be extended to any case, except the one case of appropriations for right of way, under section 5, article 13, of the constitution. If this be so, the further consequence is, that no provision of law has been made for other cases, including the case in hand, unless the term “ right of way,” in the constitution, includes easements for all purposes needful for the use of a railroad. But there is no legal necessity thus to strain the meaning- of these terms, for section 19, of the bill of rights, very clearly covers all jiossible cases, and would cover this of the “right of way” also, if it were not specially provided for by section 5, of article 13.
    But even if the true interpretation of both clauses of the constitution should be the same, and that be, in effect, that no deduction shall be made on account of anticipated benefits arising from the location of the road, the rulings of the court are not warranted. If one of the incidental causes of enhanced value happens tobe an established, actually located railroad, the corporate body owning the road has no right, legal or equitable, in any form, to *assert any claim to or in the property, by reason of the reflected value given to it by its road. And if it desires to appropriate the property to its own use, as in this case, for depot purposes, it has no right, consistently with sound principles, to have it at a reduced value, on the ground that a part of its real value arises as an incident from the location of a road.
    Section 5, of article 13, of the constitution, relates, in express terms, to a “right of way,” a thing in contemplation — a “proposed” thing ; and provides, in reference to it, that in estimating the value of property to be condemned to be used for the right of way, it shall be done irrespective of benefits from any improvements proposed by the corporation. The enhancement of value of the property of others,, by “ proposed ” improvements of this kind, can no longer be a commodity which such corporation can compel people to take for their property.
    But, under section 19, of the bill of rights, the owner of property is entitled to it with all the value it has, arising from whatever cause actually existing; such as an actual fixed location of a road in the near vicinity of the property, whereby, as an actual existing fact, the property sought to be condemned had come to be enhanced •in value.
   Ranney, J.

The case presents a number of very interesting and important questions, relating to the appropriation of private property to the uses of railroad corporations. The proceeding was prosecuted under the provisions of the act of April 30, 1852 (Swan’s Rev. Stat. 232), in the probate court of Fairfield county. From such of the assignments of error as have been pressed upon our attention in argument, the following propositions are presented:

1. It is claimed, that the probate judge, being then treasurer of the company, but not interested in its stock, was incompetent to sit iupon the trial of the case.

2. That the probate court had no jurisdiction.

*3. That the court erred in compelling the plaintiff in error ■to go to trial jointly with another person, with whom he had no common interest, but whose separate property was sought to be appropriated.

4. That tbe company had no legal or constitutional authority to appropriate lands for depot grounds.

5. That the court erred in holding that the increase of value to the property, arising from the construction of the road, should be excluded from the amount assessed to the owmer.

1. We do not find it necessary to express any opinion upon the first question presented. If the position was well taken, it was the duty of the probate court to have certified the cause to the court of common pleas. For reasons hereafter stated we must reverse this judgment; and the case will then go to the common pleas for final judgment, in pursuance of the provisions of section 10 of the act referred to. In no event can the probate judge be again called upon to act.

2. The second position relied upon is grounded upon the assumed unconstitutionality of the act under which the proceedings were had; and involves a denial of the capacity of the probate court to receive, jurisdiction in such cases by a general law. Section 8, of article 4, of the constitution, provides: “The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators, and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators, and guardians, and such other jurisdiction in any county, or counties, as may be provided by law.”

This jurisdiction, it is evident, must depend upon a proper construction of the last clause of the section, which was added to the original draft by way of amendment, and is not very happily expressed. It is not doubted that the general assembly might confer this jurisdiction in one or more counties ; but it is *said it must be conferred by a special or local law, and can not be extended to all the counties of the state by a general enactment. The legislature has uniformly construed it differently. Not only the act now drawn in question, but the act investing that court with jurisdiction in minor offenses, are general laws extending to all the counties. This repeated expression of opinion on the part of the legislative body is not only entitled to great respect, but is absolutely binding upon us, until it is made unquestionably to appear that they have mistaken their powers, and a clear incompatibility between the constitution anú the law is established. 1 Ohio, 77. We are far from be~ ing convinced that any such repugnancy exists. The words “in any county or counties,” were probably used rather as enabling-than restrictive language, and were designed to permit the general assembly — notwithstanding the provision of section 26 of article 2, requiring “ all laws of a general nature to have a uniform operation throughout the state” — in its discretion, to confer upon the-probate court more extended powers in some counties than in others. Upon the opposite construction, a power to confer the jurisdiction •in one county by a local enactment is a power to confer it in all the counties in the same manner; which brings us to the absurd conclusion that the legislature is competent to do by ninety laws what it is incompetent to do by one.

3. It appears from the record that the company commenced proceedings at the same time, and by two separate statements, against, the plaintiff in error, for the condemnation of twelve lots in his addition to the town of Lancaster, and against one Jacob Bowmaster for the appropriation of one lot belonging to him. The second bill of exceptions shows it to have been admitted that the two cases-were entirely separate, and that the parties held their property by distinct titles. Under these circumstances the court, at the instance-of counsel for the company, and against the objection of the plaintiff, ordered the jury to be impaneled *and the evidence to be given in both eases, at the same time, and jointly. In this, we think, the court most clearly erred. To a certain extent, the subject is not without difficulty; but there is none whatever, in saying the joint trial was wholly unauthorized. The second section of the law very properly allows the corporation to embrace in its statement, a description of all the property, lying in the county, which it desires to appropriate; and requires it to name the owner of each parcel, and the uses to which it intends to subject the.property. A jury is then to be selected, in the same manner and from the same persons, as the regular juries of the county, for which a venire issues, returnable on a specified day, and at the-same time a notice to each owner, “ of the time when such jury will meet at the office of said judge.” So far, all is plain. But-how shall the jury be impaneled ? In each case separately, or for all the cases embraced in the statement jointly? Upon this subject, the statute, like too much of our legislation, is full of doubt and obscurity. It expressly gives the right of challenge for cause to either party. The right of each owner to retain upon the panel ¡such members of the regular jury, as neither the company nor himself could except to, would seem to be almost equally important ; but it is seriously impaired, if he is bound to submit to challenges made by other owners. I am, however, inclined to think that the law subjects him to this inconvenience, and contemplates but a single jury, to be composed of those against whom no just ■exception can be alleged, by any of the parties interested. But as no challenges were made in this case, it does not call for a definitive •opinion. Admitting the court to have proceeded irregularly, it does not appear that the plaintiff was injured. But there is a limit to this proceeding in common.

If the law, for the benefit of the corporation, compels each individual owner to submit to such inconveniences, as may be necessary to enable them to appropriate all the lands they may desire in the county, in a single proceeding, and with the view *of a single jury, it does not compel him to proceed jointly after the jury have returned from the view, nor to encounter the jargon, confusion, and uncertainty of a joint litigation. He has, then, the right to demand that his rights and interests shall engage the separate attention and examination of the jury, upon such evidence .as he may be able to produce — the 6th section expressly providing, that witnesses may be examined before said jury, after their return to the court aforesaid, and the trial in each case shall be ■conducted thereafter in said probate court, in the same manner that the trial of civil cases is conducted in the court of common pleas of the county in which said proceeding is had.”

In denying the plaintiff in error this right, the court most manifestly erred.

4. The lots sought to be appropriated, are described in the statement filed by the company, as a necessary part of its depot grounds in Lancaster. The plaintiff’s counsel deny that it has any power •to condemn -property for that purpose. One of them seems to insist that the general assembly could have conferred no such power, “ unless it was shown in the case made by the company, tlia-t the very existence of the corporation depended upon a resort to this extreme medicine of the constitution and both concur in •claiming that the act under which the proceedings were prosecuted, extends no further than to carry into effect section 5, •of article 13, of the constitution, which provides only for an -.appropriation of the right of and that, it is not altogether insufficient, but inconsistent, with the exercise of any authority under section 19 of the bill of rights. The argument amounts to this : By the latter section the property is to be paid for “ without deduction for benefits to any property of the owner which necessarily covers its true value in money, from whatever-.causes derived; but it may be assessed by any number of persons' a jury, and without the intervention of a court of justice. By the-first, it is to be assessed by a *jury of twelve men, in a court of record ; and is to be valued “ irrespective of any benefit from-any improvement proposed by such corporation.” In the one-case, allowing the owner the benefit of any increase arising from, the construction of the work ; and in the other, depriving him of it. And inasmuch as the act referred to, requires the jury to be-sworn to assess the amount irrespective of these benefits, it can not be extended beyond the purposes for which that mode of assessment is provided.

We do not concur in either position. This company was incorporated on the 4th of February, 1851 (49 Ohio L. L. 424), and was-invested with all the rights, and made subject to all the restrictions, of the general railroad act of February 11, 1848 (2 Curw. Rev. Stat. 1396). By section 9 of that act, the company is expressly authorized to appropriate such property as may be deemed necessary for-its railroad, including “necessaryside-tracks,demote,workshops,and water-stationswhile the first section of the act of 1852, provided that all appropriations thereafter made, either “for the right of way, or for any other purpose which might be within the legal authority of such corporation,” should be made and conducted under that act.

So far as the argument is based upon any supposed difference between these two sections of the constitution, as to the mode of assessment, or the amount to be paid, we think it, for reasons hereafter stated, wholly unfounded. It is, therefore, entirely immaterial which section is looked to for the governing principle. If either warrants the proceeding, there is no want of legislation to give it effect.

The question comes to this: Had the general assembly power to confer upon the corporation the right to condemn property for depot purposes ? The first thing to be borne in mind is, that neither of the sections referred to attempts to confer the power of eminent domain. They simply prescribe modes for, and limitations upon, its exercise. The itself is an incident of sovereignty, and its exercise was delegated by'the ^sovereign ■power to the general assembly, in the general grant of legislative .authority. It may be defined to be the right of the sovereign, without the consent of the owner, when necessary, to make private property subservient to the public welfare.”

It rests upon the public necessity- — subordinates the rights of one to the welfare of all — and is just as broad as that necessity, and no broader. If the wants of the public are attained by the acqui-sition of an easement, nothing more can be taken; if the whole interest is required, the whole may be appropriated. Whether this power is derived from an implied condition in every grant, by which, property is held under the government; and whether, where no constitutional restraints exist, it may be exercised without making ■.compensation, are rather questions for ingenious speculation than of practical importance. It is enough that its existence is everywhere acknowledged, and that its exercise for many important purposes, both in peace and war, in the direct form of appropriation •and the indirect method of taxation, is absolutely necessary to enlabie any government to attain the great ends for which it is instituted ; while no enlightened government, at this day, attempts to •appropriate without compensation, and, in this country, it is everywhere enforced by constitutional provisions.

In this state, the power is lodged with the general assembly, to be used when necessary to the attainment of its -lawful purposes, •.and, in my judgment, can neither be surrendered, impaired, nor •abridged by that body.

One of these purposes, inferior to none in its influence upon the •comfort, convenience, and prosperity of the people, and the security of the state, is .the obligation to provide for the construction of public highways. I use the term in its largest sense, without any restriction as to the character of the structure, or the mode of travel •and transportation upon it. Such works can not be constructed without subjecting, to the use of the public, the lands of private individuals, situated in the particular localities necessary *to be occupied by these improvements. They must be had, either with or without the consent of the owner. As he has the power to withhold his assent, and as the necessary functions of government ought not to be paralyzed by the will of a single .individual, nor the interests of all be made subservient to the whim or of it has always presented one of the most clear and unquestionable instances for tbe exercise of tbe power of eminent domain.

In tbe accomplishment of these purposes, when not expressly restricted by the constitution, the whole field of means and instrumentalities is left open to the choice of the general assembly. Such works may be constructed, in whole or in part, by the public, by means of taxation; or through the instrumentality and with the means of private individuals incorporated for the purpose; and, .under suitable regulations — according to the nature of the work— obligated to keep them open for general use, or made common carriers of passengers or goods. In either mode the great end is attained — a public highway, open to the use and necessary to the ■convenience, or business and social intercourse, of the public at large. If the latter is adopted, the private owner yields the use of' his property only to the public, and just so much, and no more, as will answer their purposes — the corporation being a mere trustee •of the interest for their use, with no power to divert it to any other purpose, or to hold it one moment longer than it is made to serve the uses for which it was appropriated. The Cincinnati, Wilmington and Zanesville Railroad Company v. Clinton County, 1 Ohio St. 77; Chagrin Falls and Cleveland Plank-road Company v. Cane, 2 Ib. 419.

The power of eminent domain is rather a political than judicial power, and by our constitution, its exercise is intrusted to the general assembly, so far as determining the necessity and propriety of the appropriation is concerned; while the courts are only invested with authority to -determine the amount of compensation to be paid. The power may be exercised directly by that *body, or through subordinate agencies; and while it would seem to me much more consistent with a proper regard for private rights, that the question of necessity as well as compensation should here, as in England, be determined by some impartial public tribunal, 1 am not prepared to say that any well-founded constitutional objection exists to committing its exercise to the corporation authorized to construct the work, as has been generally done in this state. In saying that the exercise of this power properly belongs to the general assembly, and not to the judiciary, I do not intend to express a doubt, that in cases where its limits have been exceeded, or its .spirit and purpose abused, a judicial remedy may not be afforded. If the legislature, by a direct exercise of authority, should undertake to appropriate property for purposes beyond the scope of this' power; or if any subordinate agency, under a power properly conferred, should abuse the authority by using it irregularly, oppressively, or in bad faith, there can be no doubt of the power of the courts to furnish an effectual remedy against such illegal acts.

I have said that a public necessity must exist to warrant the exercise of this power; but I am very far from agreeing that it must be that controlling necessity upon which the very existence of the corporation depends, spoken of by counsel. I think this doctrine, and that advanced by the chancellor in Beekman v. The Saratoga and Schenectady Railroad, 3 Paige, 45, that the power “ may be exercised, not only where the safety, but also where the interest, or even the expediency of the state is concerned,” about equally at fault. The ■ subject is not, at this day, altogether at large. The power has been exercised so long, and has been so often subjected to judicial scrutiny, as to leave little difficulty in assigning its proper limits. It will be found, upon examination, that the necessity upon which the proper exercise of the power depends, relates rather to the nature of the property and the uses to which it is applied, than to the exigencies of the particular case in which it is exercised. Nearly all personal ^property, in time of peace, is excluded from its operation, because the state can go into market upon an equal footing with other purchasers, and supply its wants in that manner. But where lands, connected with precise localities, are needed for a public highway, or any of its necessary appendages, a case of public necessity is established; and it is no objection to the exercise of the power, that other lands, equally feasible, can be obtained by purchase.

These views necessarily lead to the conclusion that upon any question, bearing in any manner upon this case, connected with the appropriation of private property, it can make no difference whether-the power is exercised directly by the state, for a work belonging to the state, or by a corporation as a public instrumentality, in the-name and under the authority of the state: provided the work for which it is taken is public in its nature and uses, and is open to iliense of the public, under reasonable regulations, as a matter of right and not merely of favor; and that it is enough to establish a public necessity, when it appears that lands are necessary for such a work, without going further and showing that it could not be constructed, without the use of the particular property sought to bo appropriated. And this brings us to the precise question stated: Does the appropriation of land to be used for depot purposes, as well as the track of a railroad, fall within the spirit and purpose of this power?' We see no reason to doubt it. The necessity for fixed property, situate in particular localities, is just as urgent and indispensable in the one case as in the other. Indeed, without the use of grounds-upon which to receive and discharge freight and passengers, the-track itself would be useless; and if the proceeding could only be referred to that provision of the constitution which specifically regulates the appropriation of a right of way, there could be very little doubt that such indispensable appendages to the use of the track would be covered by its terms. Nor does the argument that such an appropriation can not be made, derive any support *from the suggestion, that a fee is taken in the one case and a mere easement in the other, for the reason that when a fee is required, the-power extends to its appropriation; and for the still more conclusive-reason, that no such difference, in our opinion, exists. The use of the property is all the public interests require in either case, and consequently all that can be appropriated; but, being a perpetual and exclusive use, it may, and ordinarily does, cover the whole value of the property. The quantity of land that may be appropriated for this purpose is left, it is true, very indefinite. It is clear, however, that only so much can be taken as is necessary to be used in that manner. And with the power of the courts to prevent abuses, and the certainty that it can be held only so long as it is-thus used, and can not be diverted to any other purpose, there may be little danger of attempts to get too much.

5. The last question presented relates to the rule of compensation adopted by the probate court.

Upon various questions arising upon the introduction of evidence,, the court in effect held, that there should be excluded from the-present value of the plaintiff’s property so much as had been added to it by the construction of the railroad, and that he should have a, verdict only for so much as the property would have been worth if the road had not been proposed or built. These decisions seem to have been based upon.the idea, that the proceeding was to-be governed wholly by section 5 of the corporation article,, and upon the controlling effect of the word “irrespective,” used in that section. While it is admitted upon all hands that property taken for any public use, without the intervention of a corporation, must be paid for at its full value at the time it is taken, without any regard to the causes that may have contributed to make up that value, it seems to be argued or assumed by counsel upon both sides (but with different objects), that a different rule is established when a right of way is appropriated to the uses of a corporation, and that, in such case, any increase of the lvalue of the property arising from the contemplated construction of the road, should be excluded from the compensation awarded: the one case, it is said, being controlled by section 19 of the bill of rights, and the other by the section above referred to; thus, in the construction’ of the same description of improvements, making the constitution discriminate in favor of corporations, and against the public; so that, if the state should undertake to make a free turnpike, it might be obliged to pay moré, and the owners of property taken might be entitled to receive more, than though the same work was undertaken by a corporation, with the right to receive tolls for the use of the road when built. Upon this subject we have the misfortune to differ in toto, not only with the court below, but with counsel. We find nothing in the language, history, or purposes of either provision to warrant such a distinction; and we find it difficult to imagine a more palpable perversion of the spirit and object of section 5 of article 13 than such a distinction involves. To our understanding, these sections provide for no two rules of justice or obligation; but to every intent, and for every purpose, having the least relation to the present controversy, they are, in legal effect, identical.

Section 19 of. the bill of rights commences with providing for the inviolability of private property, but declaring its subserviency to the public welfare, upon making a compensation in money to the owner. The balance of the section is taken up with directing how, when, and in what manner this compensation shall be ascertained and paid. As to the mode of ascertaining the amount, it provides: “ Such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

Section 5 of article 13 is confined exclusively to appropriations by corporations of the right of way; and provides that they shall not be made until full compensation therefor, to be ascertained by a jury of twelve men in a court of record, is “ first made in money, or first secured by a deposit of money, to *the owner, irrespective of .any benefit from any improvement proposed by such corporation.”

The identity of these provisions, as to the course of proceeding required to ascertain the compensation to be awarded, has been settled by this court, in the case of Lamb and McKee v. Lane; in which it was held, that the jury referred to in the first of these sections, was the common-law jury of twelve men, and that such a jury belong to, and could exercise its functions only in, a court of record. The rule of compensation prescribed in this section for the .government of the jury, has been rightly apprehended in the argument ; but how a different rule is elicited from the language of the other section, is not easily perceived. By the one, the compensation is tobe assessed “ without deduction for benefits,” and by the other, “irrespective of benefits;” and by each, a full compensation is required. Now, when is a man fully compensated for his property? Most clearly and unquestionably, when he is paid its full value, and never before. The word “ irrespective ” relates to this full compensation, and binds the jury to assess the amount, without looking at or regarding, any benefits contemplated by the construction of the improvement. When this is done, and this consideration wholly excluded, the jury have nothing to do but ascertain the fair market value of the property taken; which is but saying that nothing shall be deducted from that value on account of such benefits. The opposite construction, so far from requiring the assessment to be made irrespective of these benefits, in effect compels the jury to ascertain their value to the property, and to deduct so much as they have increased it; thus using a word introduced for the sole benefit of the property-holder, in such manner as to deprive him of a portion of the acknowledged present value of his property, or to allow him to be paid for a part of its value in benefits; and, at the same time, fastens upon the constitution the gross inconsistency of allowing a corporation to procure the right of way upon easier terms than ■could be done by the public.

*But, it may be asked, why was this section retained, if it is identical with the section in the bill of rights ? It might be more difficult to show an absolute necessity for it than to give it a proper construction. It will be remembered by those who are curious to trace its history, that each article of the constitution came from a separate committee, and redundant provisions were therefore almost unavoidable. In this instance, however, the section as originally introduced served a distinct purpose, and differed from that in the bill of rights, in requiring the money, in all cases, to be paid ■before the property was taken. It was afterward made to conform in. this particular by amendment, and then retained by a direct vote' upon a motion to strike it out. It was quite impossible to arrive at the motives of all those who voted to retain it; but it is certain that many considered it expedient to do so, for the purpose of foreclosing, by the implication it afforded, any question as to the power to appropriate property to the uses of a corporation authorized to construct a public improvement. We do not now say that it may not, in some possible particulars, differ from the section in the bill of rights; but upon the question now under consideration, the intention of the convention to make them alike is placed beyond all doubt, from the fact that it went to the committee of revision with, positive instructions “to make the rule of compensation therein provided, correspond with that established ” in the section of the bill of rights referred to. 2 Const. Debates, 850.

For these reasons, we are clear in the opinion that no such distinction as that attempted to be made, can be supported; and that the probate court wholly misconceived the true meaning of section-5 of article 13. -That whether property is appropriated directly by the public, or through the intervention of a corporation, the-owner is entitled to receive its fair market value at the time it is-taken — as much as he might fairly expect to be able to sell it to others for, if it was not taken — and that this amount is not to be increased from the necessity of.the public *or the corporation to have it, on the one hand; nor diminished from any necessity of the owner to dispose of it, on the other. It is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardian; and without any regard to the external causes that may have .contributed to make up its present value. The jury are not required to consider how much, nor permitted to make any use of the fact that it may have increased in value by the proposal or construction of the work for which it is taken. To allow this to be done would not only be unjust, but would effect a partial revival of the very abuse which it was a leading purpose of these constitutional provisions to correct.

It would be unjust, because it establishes for a corporation what is done for no one else — a sort of right in the property of others, to-the reflected benefits of its improvement; itself submitting to no reciprocity by affording others a compensation for the effect of their improvements, upon the property of the corporation. And it is doubly unjust where, as must very often happen, the increase in •value accrued to the benefit of a former owner, and has been bought and paid for by the present holder, from whom the property is taken at a diminished price.

Upon the whole case, we are clear in the opinion that the probate court erred in the two particulars pointed out, and the court of common pleas in affirming its judgment. Both judgments are therefore reversed, and the cause remanded to the court of common pleas for further proceedings.


source: Caselaw Access Project

author: Thurman, C. J.

license: Public Domain

text:
    *Martha Thompson (Administratrix of James Thompson, deceased,) v. Jacob W. Thompson and Nelson McCollister.
    It seems to be a well-settled principle, that the purchaser of an unincumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction.
    .A will is to be construed in the light afforded by the circumstances under which it was made, and the subjects to which it relates.
    And its terms are not, of necessity, to be construed technically and with a strict reference to grammatical accuracy, but sensibly an.d liberally, in order to give effect to the testator’s intentions.
    Nor is it to be so construed as to destroy ail benefit from a devise, if it ean consistently be avoided.
    A testator may, by an express direction in his will, charge his personal estate with the removal of an incumbrance upon his realty, although not personally bound for the debt; or, he may do so by dispositions and language that are tantamount to an express direction; as, where the continuance of the charge primarily on the land would be repugnant to some of the provisions of the will and defeat them. In this, as in other cases, the principal object of regard is the testator’s intention.
    If one person, upon a sufficient consideration, make a promise to another, for the benefit of a third person, such third person may maintain an action at law upon the promise.
    Error to the court of common pleas of Pickaway county.
    The plaintiff, as administratrix, with the will annexed, of James Thompson, deceased, in the course of her administration of said •estate, in the year 1852, paid to the Ohio Life Insurance and Trust Company the snm of $700, principal, and three installments of interest, amounting to the sum of $87.30, being the amount then due. on a mortgage to said company, made by ¥m. Hamilton, in 1835,1 on lot No. 147, in Circleville, Ohio.
    *On the settlement of her accounts with the probate court of said county, the defendants, being heirs and legatees of said deceased, excepted to this payment to the Trust Company, as they had', notified the administratrix they should do, before the same was made. Their exceptions were heard and overruled by the probate court, and the payment allowed to the administratrix. The defendants appealed to the court of common pleas, where, upon final hearing, the decision of the probate court was reversed.
    This petition in error was filed in the district court, by the administratrix, to reverse the decision in the common pleas, and the district court reserved the question presented, and sent it to this court for its decision.
    The question in controversy arises upon the following agreed' statement of facts:

      “ One William Hamilton, being the owner of lot No. 147, in Circleville, on the 17th of July, 1835, mortgaged the same to the Ohio Life Insurance and Trust Company, to secure the payment of $700, loaned from said company. Said lot was afterward conveyed by Hamilton to J. L. Eranklin, subject to said mortgage, and by Franklin to J. L. Green, subject to the same incumbrance. On the 27th of April, a. d. 1844, J. L. Green conveyed said lot to James Thompson, the testator — the consideration $450 ; and the deed a general warranty, except as follows: ‘ Which said property is subject to the lien of a mortgage, to secure the payment of the sum of $700, executed by W. Hamilton and wife to the Ohio Life Insurance and Trust Company (dated as above), and is hereby conveyed to said Thompson, subject to the lien and incumbrance of said mortgage.’ In making said conveyance, the amount of said mortgage was deducted from the purchase money, and the consideration in the deed-was for the balance of $450. Said Thompson paid the semi-annual interest, due on said mortgage, from the time of his purchase till his death, and died on the 3d day of November, a. d. 1850, and, by his last will and testament, duly proved, etc., devised said lot, No. *147, to his daughter Lucinda; and it is admitted that the following clauses of said will are all that are applicable to the question in controversy, to wit:

      “ Item 1. It is my will that, out of my personal estate, my just debts be first paid, and that the residue of my personal estate be equally divided between my children.”
    “Item 5. I devise and bequeath to my daughter Lucinda Thompson, during the term of her natural life, lot No. 147, in the town of Circleville, and county of Pickaway, with the appurtenances thereto belonging. Also, 200 acres of land in said_Yellow Bud tract, running across the same from east to west, parallel with Martha Ann’s said tract, in said Yellow Bud lands. At the death of the said Lucinda, the said lot and 200 acres of land to be equally divided among her children.”
    “ Item 9. In case any of my aforesaid children, to whom I have made devises, shall die without issue, it is my will that the property hereby devised to such one as shall die without issue, shall be held and enjoyed by the rest of my children then living, until the last of my children shall die, when the property thus held shall be equally divided among my grandchildren.”

      Page & Renick, for plaintiff in error, presented an argument, of which the following is the substance:
    I. It is admitted as the rule in England, that if a man dies leaving a debt of his own contracting, which is a charge on his real estate, his personalty is the primary fund for payment. If he leaves real estate subject to a debt contracted by another, the heir or devisee takes such realty subject to the debt. In the case of a debt contracted by himself, his personalty is bound by it, unless he plainly manifests an intention to exempt it. In the case of a debt imposed on the realty by another, he must manifest an intention to charge his personalty, otherwise it is exonerated. The intention of the party from whom both funds proceed is the governing principle. Where an estate has been purchased ^subject to a mortgage, and the purchaser remains entirely passive, the land continues subject to the charge, and neither the executor nor the heir of the purchaser is liable for the payment of it. Where the purchaser dies intestate, the charge can be thrown on his personal estate, as the primary fund only, by acts or circumstances evincing a decided intention to make the debt personally his own.
    II. As to the acts and circumstances which are held to evince such intention, there is considerable conflict among the cases, and as the present case is one of a will, it is not necessary to offer a criticism upon the authorities.

    “ As to wills, the result of the cases seems to be,” says Chancellor Kent, “ that the testator may, by express directions, charge such incumbrance on his personal assets; or even without express v; ords, he may do it by dispositions and language that are tantamount; as if, for instance, the continuance of the charge primarily on the land, would be repugnant to some of the provisions in the will, and defeat them.” Cumberland v. Codrington, 3 Johns. Cas. 372.
    III. Thompson, the testator in this case, did not, by express directions, charge the mortgage in favor of the Ohio Life Insurance and Trust Company, upon his personal property; but he has done so by dispositions and language that are tantamount: the continuance of the charge on the land, would be repugnant to the provisions of his will. By the will, the lot was devised: 1. To his daughter Lucinda during life. 2. At her death, the said lot to be equally divided among her children. 3. In the event of her death without children, the said lot to be held and enjoyed by the rest of the testator’s children then living, until the whole of them should be dead. 4. Upon the death of all the children of the testator, the said lot to be equally divided among all his grandchildren.
    *It is perceived that the" testator has carved several estates out of one inheritance, viz: first, an estate for life; second, a contingent remainder .in fee simple; third, an executory devise for life ; and fourth, an executory remainder in fee simple.
    It is evident that this testator’s intention was to keep this property in his family. He determined that it should not pass into the hand of strangers until every child of his was dead. Hone of his children had, upon any contingency, a fee simple; that is, the power to convey the premises in question to a stranger. Whether this provision in his will proceeded from attachment to that property, or distrust of the devisee, or a wish to provide for her and her children, in such a manner that improvidence, fraud, or accident could not deprive her of the bequest, it is not necessary for the court to determine. He had the power to dispose of his estate, according to his own inclination, and from motives sufficient in his own mind, he resolved to continue these premises in his family during a certain period. The fact that he did so determine, seems too evident for argument. Now, at the death of the testator, there was :a large incumbrance on the estate which he had thus disposed of. That incumbrance was due, and it was to be extinguished by some person. If it was not to be discharged by his executor, then, upon whom rested the obligation to pay it? Upon the devisee of the life estate, or upon her children, who were not then in existence ? Upon her brothers and sisters, who might never inherit ; -or upon their offspring, whose existence and inheritance were still more contingent and remote ? Did the burden rest upon any single person, or all these persons? If upon more than one, in what manner was the debt to be apportioned ? Is it to be supposed the testator intended that his daughter Lucinda should assume the incumbrance ? Why should this duty rest exclusively upon her, when her interest was but a life estate, and the fee simple was devised to others ? Will it be maintained that it was the duty of the remainder-men to pay the debt ? It would not seem reasonable to .require payment of them, ^because their interest in the premises was contingent, and very distant. They might discharge the incumbrance and yet never enjoy the estate. Supposing the obligation to lie upon Lucinda Thompson, what would be the consequence of her neglect or inability to pay the mortgage? On the -other hand, if the persons who are to enjoy the remainder of the •estate should fail to pay it, what becomes of the inheritance ? The direct consequence of a neglect, refusal, or inability of the devisee to pay the mortgage debt, would be a sale of the premises to a stranger in fee simple. A sale of the lot in fee simple would defeat the intention of the testator. Therefore, the continuance of this charge primarily on the land, would be repugnant to the provisions of the will. If so, it was the duty of the executor to discharge the debt out of the personal assets.
    IY. It is deemed a valid argument, in constitutional law, to imply from the grant of a power the ordinary means of its enjoyment .and execution. A power to create implies a power to preserve. A power to destroy, if wielded by a different hand, is hostile to and incompatible with these powers to create and preserve. Where the repugnancy exists, the hostile power must yield. By parity of rea•son, from a devise may be implied also a devise for the necessary and ordinary means of enjoyment and execution. To devise an estate for a certain purpose, is to devise the ordinary means of exeeuting that purpose. To make a bequest subject to such infirmities' as will inevitably destroy the purpose of the bequest is a gross repugnancy, which is never to be inferred. It is to be presumed that a testator would not leave it in the power of accident or fraud to defeat his intentions, especially where it is a matter of so little difficulty, by removing the incumbrance, to effectuate his purpose. It is, therefore, not an unnatural inference that he designed to remove all the obstacles in the way of executing his intentions, which he had the power to remove.
    Y. Estates may arise from implication — a plantation or square *of buildings may be bestowed on a person by mere inference of law. 1 Jarman, chap. 17 ; Walker v. Whiting, 23 Pick. 317. If so, may not an incumbrance to the enjoyment of an estate •be removed by implication ? When that incumbrance must defeat the intent of the testator, by destroying the devise, is it not a fair inference that he did not intend the object of the devise to be disappointed of his bounty ?
    It is a rule in the construction of wills, that repugnant expressions must yield to an intention and purpose expressed or apparent upon the general context. With greater propriety we may affirm that an incumbrance, which it was a matter of choice with the testator.to extinguish, and the continuance of which will inevitably defeat his intention, apparent in the general context of his will, is a repugnance which must yield and be removed. The court is bound to give effect to a devise wherever they can, and if one mode of construction will support the devise, and the opposite may defeat it, the latter must be rejected.
    YI. But it may be objected that a superior title in a third person would, equally with an incumbrance, defeat the devise.
    It is answered that the instances are not parallel. The devise of an estate subject to a mere incumbrance, and of one to which a third person has a better right, are not analogous cases. In the former case, the testator has a right to devise the estate; he can dispose of the premises, and the charge upon them is not inconsistent with the passing of fee. But when he attempts to devise an estate which belongs to another, no interest passes, and the devise is absolutely void. An executor can not be compelled to purchase an estate in which the testator had no interest, for the benefit of a legatee. But it is the duty of an executor, in most cases, to dis>charge a mere incumbrance on the realty.

      If the title to lands devised prove invalid, it is an accident or misfortune, not contemplated by the parties or law, and defeats' beyond remedy, both the intention of the testator and the object of his bounty. The opposite counsel might, with as much reason, *reply that the will is defeated when the premises are swallowed up by an inundation or earthquake.
    It may not be in the power of an executor, or the testator himself, to purchase or extinguish a superior title. The owner may obstinately refuse to receive ten times the value, and no court has authority to compel him. The case of a mere pecuniary incumbrance, a mortgage for money lent, is as different from the subsistence of a better title in another, as storm, flood, and fire are from-human agency.
    YII. Neither is a comparison to be made between this case and’ dower. Inchoate dower is not an incumbrance; for the covenant against incumbrances, it is held in Ohio, does not extend to it. It has no existence during the life of the testator. It is a mere possibility or contingent interest. It comes into existence after the husband’s death, at the same moment with the devise, and, for a period,, they co-exist. It never can, as an incumbrance or superior title,, sweep away the estate. The dower of Thompson’s widow can not by any possibility bring the premises devised to a judicial sale, but the mortgage may.
    YIII. There is' another fact in the ease which may be of importance. The testator paid the interest on this mortgage during' his lifetime, and in his will, directed that out of his personal estate his just debts should be paid. In point of fact, he regarded this-' debt as his own, dreaming little of the subtle discussions in Cumberland v. Codrington.
    IX. But even if there was no will in this case, the decision of the court of common pleas is erroneous; for the rule which distinguishes between an incumbrance imposed on the realty by the deceased, and one imposed prior to his purchase, has never been adopted in Ohio.
    It would be difficult to assign any reason for this distinction in the nature of things, in justice or policy. It never could have occurred to a legislator or jurist. No theorist in law would have-dreamed of it. It is a mere whimsicality, the consequence of an ^artificial reasoning so subtle as almost to escape the notice of the understanding.

      A distinction so destitute of reason must have originated, as did many rules of law, in some case of great hardship in which judges endeavored to escape from some rigid and unjust rule, the offspring of the feudal system.
    Two reasons are usually assigned for the rule in question :
    1. It is said in case of an incumbrance imposed by another, the purchaser has not made the debt his own — it is not his debt, and ■ consequently his personalty is exonerated. This reason is false; for it is decided that if the purchaser expressly promises to pay the debt, yet it remains an exclusive charge on the realty; that the fact of making a promise to pay the debt does not charge the personal assets. But does not the purchaser by such promise make 'the debt his own in every legal sense ? May he not be sued upon the promise, and his personal and real property taken in execution ? If so, how can it be said that the purchaser has not made •the debt his own?
    In all cases where the buyer takes the land subject to a mortgage, as Thompson did in the present instance, whether he covenants with his vendor or not, to pay the incumbrance, he is bound without any specific contract to indemnify him. If so, as between the vendor and purchaser, the incumbrance becomes, to most intents and purposes,’the debt of the latter. Such was the language ■ of Lord Thurlow, in Tweddell v. Tweddell, 2 Bro. 101, 152 ; Felsh v. Taylor, 13 Pick. 133; Swasey v. Little, 7 Pick. 296; Ewen v. Jones, 2 Ld. Raym. 937.
    If the court are convinced that the purchaser of an incumbered estate, in point of fact, makes the debt his own, at least to certain intents and purposes, then is not his executor bound (under section ■S3, Swan’s Stat. 353) to discharge the incumbrance as much as .any other debt of the deceased ?
    2. Another reason commonly given, is this : Where the incumbrance was placed on the land before it came into the *hands ■of the-purchaser, his personal estate is not augmented by the debt, .and therefore should not bear the charge.
    This reason is also untrue; for in many cases, if not m all, the purchaser of the incumbered estate receives the benefit of the incumbrance in the diminished amount of purchase money paid by him. He assumes the charge on the realty, and retains in his, own hands the amount of the incumbrance, instead of paying it to the -vendor. His personal estate is therefore directly augmented. ■

      I suppose the real cause of the difference taken between a debt, contracted by the deceased himself, and by another, is this: In. England all the lands descended to the eldest son, and the per., sonal estate was distributed equally among all the children. This rule of law arose from a disposition to cherish a landed aristocracy. No matter however great the landed estate, it descended to-* the eldest son, without being subject to the debts of the deceased; and his personalty, after paying his debts, was divided among his-offspring.
    To remedy this hardship, in later times, judges sought by this distinction to cast the burden on the heir, and relieve the remainder of the children. They attempted, as they did in many other-instances, to escape from the operation of a hard rule of feudal-, law, by an artificial distinction.
    All the English cases evince a decided struggle, on the part of" the courts, against reason and common sense, to cast the burden of' the incumbrance upon the heir, and to relieve the personal assets, for the benefit of the younger children.
    Taking this view of the origin of the rule, there might have-been cause for resorting to the distinction in England. But in this * country, where the whole estate of the deceased descends equally to all his heirs, the rule in question is not merely a senseless technicality, but it is a positive evil. It is an evil because it is an unnecessary multiplication of artificial rules of law. And it is an-evil because no testator, except a lawyer, is aware of the existence of the law, and dying in ignorance of it, he may neglect *to exonerate from the incumbrance real estate which he may have • devised, thereby doing injustice to one legatee and bequeathing-him a worthless inheritance.
    If, when the reason for a law ceases, the law ceases, then there is no cause for an enlightened court at this day, to declare that the • rule in controversy shall be in force hereafter in Ohio. Jarman (2 vol. on Wills, 563, 564, 1 Am. ed.) regrets that the rule was ever-established in England.

      C. N. Olds, for defendant in error, presented an argument, of' which the following is the substance:
    1. The indebtedness of the Trust Company was not an incumbrance placed on the lot by the testator, but was contracted by Hamilton nine years before Thompson purchased. It had been con-tinned, while the lot passed through the hands of two prior pur- . chasers, and it remained till Thompson’s death the debt of Hamilton, charged, however, upon this particular property. Neither ' Thompson nor any one else had ever agreed with Hamilton to pay this indebtedness for him. All the purchasers subsequent to Hamilton had ever done to connect themselves with the debt, was to receive the lot with the knowledge that it was subject to, and charged with, this incumbrance, and to keep the incumbrance to its original .amount, by the payment of the semi-annual interest accruing thereon.
    Under this state of case, the rule of law, as settled by all the authorities extant, both English and American, is, that this incumbrance follows the real estate, as devised, and remains a charge upon it in the hands of the heir. 2 Jarm. on Wills, 557-559 .(marginal).
    The same principle is laid down, in a still stronger form, in Lechmere v. Charlton, 15 Ves. 197, 198 (marginal).
    In Cumberland v. Codrington, 3 Johns. Ch. 228-235, the whole question in all its bearings, is discussed, in a most elaborate and masterly manner, by Chancellor Kent. The summary of his ^decision in that case is much stronger than is required to sustain the case at bar.
    The same doctrine is adopted and approved by the Supreme Court of the United States, in McLean v. McLellan, 10 Pet. 625.
    In the examination I have given this case, I have not been able to find a single authority, either in England or America, that is in conflict with, or disturbs in any degree, the course of the decisions ■and authorities above quoted. It is an unbroken and uniform current, flowing in the same channel through the equity jurisj)rudence of ■both countries. As counsel upon the other side have equally failed to find any such conflicting authorities, I think it is safe to adopt the language of the United States Supreme Court, in 10 Peters, and say, “ there is no doctrine better established.”

    II. But counsel for plaintiff would escape the force of this “ well-established doctrine,” by attempting to show that Thompson, the testator, intended by his will to charge this Trust Company debt .upon his personal estate.
    There is no doubt that Thompson, by his will, might have made this debt a charge upon his personal estate. In the language of ■Chancellor Kent, he might have done so, “ by an direction in his will, or by dispositions or language equivalent to an express •direction.” But has he done so?
    This inquiry raises a question of intention, and that intention is to-be sought for in the terms of the will itself. It may appear, from what the testator has there said, or it may appear equally well from what he has not said.
    It is not claimed that there is any express direction in the will -that this debt should be paid out of his personal estate. Certainly no such direction is contained in item 1 of the will, which provides “that his just debts Shall be first paid out of his personal estate;” for the testator had never, either directly or indirectly, made this •debt his own. The Trust Company could not sue him for it. They had no claim whatever upon him personally. Their right •of action was upon the bond and mortgage of Hamilton. If *he (Hamilton) failed to pay the bond, when called on for payment, they could then assert their claim, through the mortgagee, against the lot, but not against Thompson.
    Is there any other direction to pay this debt contained in any other item of the will? Certainly not. The fact is, in the entire will, from the beginning to the end of it, not a single allusion is made to this Trust Company debt, in any form whatever. Is there .any reason for this silence ? Can the intention of the testator be found in what he has not said? I think it can, and that very -clearly.
    This mortgage to the Trust Company had rested upon that lot, at the time of Thompson’s death, for more than fifteen years. It had been on the lot, in the hands of three different owners, for nine years before he purchased it. He bought subject to this incumbrance. He knew very well that the deed from Green to himself .gave him title only to such interest in this lot as might remain after the prior incumbrance to the Trust Company wus satisfied. The only estate he took by his deed was the equity of redemption. He held this title voluntarily for six years. He could at any time have ■paid off the mortgage, and secured the absolute title in fee to him-self; but he preferred to hold it otherwise, as the two owners before him had done. He found it to his advantage, doubtless, not to pay off the incumbrance, as he had the possession and enjoyment of the entire property, by the payment of the interest only on a large portion of the purchase money. And when he made his will, and gave Hu's lot to his daughter, he devised to her exactly what he had purchased for himself, and what he had chosen to hold for six years, — - that was, this equity of redemption, and nothing more. It was all the interest in that lot he could give, for it was all he ever possessed. He might have directed his executor to biry the fee-simple for her-by paying off the mortgage, but he did not. He might have lifted the mortgage himself after the devise was made, for his will bears date almost two years before his death; but he did not. *The fact that his will is utterly silent as to this incumbrance is, under all the circumstances, a most significant fact. This very silence declares his intention, clear as any language could have' expressed it. If it had been his intention to give this lot to his daughter, clear of the incumbrance upon it, there was an obvious necessity for him to say so; but if he intended to give her exactly what he had himself possessed, there was no allusion to the mortgage required, and his-will should have been worded exactly as it is.
    III. Counsel for plaintiff assume; erroneously, that this incumbrance had to be extinguished by some person. On the contrary, there was no.one asking for its extinguishment. It had been due for the last fourteen years, and yet the Trust Company had not demanded its payment. It was expressly understood, when the debt was created, that it was not to be paid at maturity. These Trust Company mortgages, as a matter of public notoriety, differ widely from an ordinary mortgage debt. The 'Toan and incumbrance assume more of the character of a perpetuity than any other form of indebtedness in Ohio. The object of the company is to secure a permanent- investment of its capital, and its interest is promoted by a continuance of the incumbrance as long as possible. The owner of the land also finds it equally to his advantage to let the incumbrance remain upon it; for, while he paid only for the equity of redemption (that is, for the residuum after the mortgage had been deducted), he has the actual possession and enjoyment of the entire property, and this possession and enjoyment fully compensate him for the payment of the interest accruing on the mortgage. This matter Thompson well understood, for he had practiced upon it for six years; and the fact that he must have understood it, gives character to this devise in the form he has made it. Silence as to the incumbrance is not evidence of an oversight or omission of what he intended to say. This very silence, as I have before said, speaks forth his intention.
    *IV. But counsel for plaintiff insist, that the intention of testator is shown by the fact that he has, in his will, carved out of' this lot, as devised, four particular estates, which may be defeated if the Trust Company mortgage is not paid off by the administratrix.. To this proposition, I may reply—
    1. If the testator had so little knowledge-of legal technicalities-that he “ never dreamed of the subtle discussions in Cumberland and Codrington,” how could he have ever apprehended all the nice technicalities which counsel throw around these four particular estates ? ¥e are now seeking for the intention of the testator; and I venture to assert that he had never heard so much as the names of these four particular estates in all his lifetime; and if they had been named in his hearing, he could not have understood their meaning- and legal attributes. It is idle, therefore, to suppose that he intended to protect estates of whose existence and attributes he had never dreamed.
    2. Again, why must these estates be defeated, if the Trust Company mortgage is not paid off? Can they not exist together ? Is-this incumbrance inconsistent with the life estate of Lucinda Hall, which she receives by the will, or with the other three estates therein created? Are not the possession and enjoyment of the entire property for life a sufficient inducement for her to pay the annual interest on the Trust Company debt ? It was inducement enough to her father, why not to her ? If the Trust Company could, as counsel for plaintiff suggests, force a sale of the premises in case the interest was not paid, and thereby pass the title in fee simple to a stranger, it only shows a still stronger inducement to the devisees to keep-this incumbrance under their own control.
    3. But, again, the estate in this lot, which the testator received by his conveyance from G-reen, -was, in his estimation, a valuable estate. Ho estimated this equity of redemption, at the time of his purchase, at $450. The increased value which he had afterward' added to it, by buildings and other improvements, *does not appear in the agreed statement of facts; but it does ajipear that he desired to keep this property in his family, and its increased and increasing value may be safely inferred. His daughter, then, takes-by the devise a valuable estate for life — valuable in spite of the incumbrance; the residuum, after the mortgage should be paid off by h :‘-r, would be a worthy gift for a father to bestow and a daughter to receive. The devise, then, can not be defeated, even were she-compelled to pay this mortgage.
    The same reasoning applies with equal force to the other three-•estates; and more especially when we remember that all these estates .are to be enjoyed in the testator’s own family, among his children .and grandchildren.
    4. But still, again, an examination of item 5 of the will shows ■that this devise of lot Ho. 147, is coupled with a devise of'200 acres •of land to the same party. The lot and the land together constitute the devise. It is an entire thing. They are together in the mind of the testator, and they descend together: The four estates, named by counsel, are carved out of the lot and land together, as one thing. Suppose, then, the title to the lot should fail entirely, or that the incumbrance to the Trust Company should consume it wholly, does that defeat the devise? Does not the land remain, and •does not the devise operate upon it ? How, then, can it be said that the extinguishment of the mortgage by the heir will be repugnant to the terms of the will and defeat the devise ? It might as well be claimed that if the title to ten acres of the two hundred should fail in the hands of the devisee, therefore the whole devise must be defeated.
    5. But there is a more general reply to this proposition.
    It will not do for an executor or administrator to infer an intention •of the testator, that he should pay out money of the estate, in all ■cases where a devise might otherwise be defeated. There may be an outstanding title in a stranger, by which a devise may be wholly defeated, and yet the administrator can not buy in *that -title to protect devised premises. The life estate of Lucinda Hall in these premises might be forfeited and wholly lost to her, under ■our statute (Swan, 935), by the non-payment of taxes; but the .administratrix could not pay these taxes out of the personal estate, to prevent this devise to her from being thus defeated. The devise ■may fail, or be defeated, in a variety of ways; but the administrator has no right to interfere, unless the intention of the testator to that ■effect appears by “ an express direction, or by dispositions or language ■equivalent to an express direction." In other words, the intention of the testator must be so apparent, that it is in reality a command to his administrator to do as the testator has willed. The administrator 'can create no new liabilities for the estate he represents; he can assume no new obligations. The rights of all parties concerned are ■settled and fixed by the will and the death of the testator. The administrator holds a trust, to be administered impartially, for all ■concerned. Hé stands between the creditors and the heirs, responsible alike to both. The rights of those entitled to the personal estate are as much under his protection as are the rights of devisees of the real estate. The law knows no favorites; and the administrator is a mere creature of the law, to do its bidding.

      The ablest case will be found in 3 Johns. Cas. 229, Cumberland o. Codrington, in which Chancellor Kent has cited and discussed all the cases.

   Thurman, C. J.

It seems to be a well-settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that .account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction. Tweddell v. Tweddell, 2 Bro. C. 154, margin; Woods v. Hungerford, 3 Ves. Jr. (Sumner’s ed.) 132, margin; Waring v. Ward, 7 Ves. Jr. (Sumner’s ed.) 337, margin ; Earl of Oxford v. Lady Rodney, 14 Ves. Jr. (Sumner’s ed.) 423, margin.

In the case before us, the agreed statement of facts is somewhat ^defective in not expressly showing whether there was an abatement in the price, on account of the mortgage to the Trust ■Company, upon the sales from Hamilton, the mortgagor, to Franklin, and from Franklin to Creen; nevertheless, we think that this ought to be presumed from the admitted facts, that both conveyances were expressly subject to the mortgage, and that Creen, in selling to Thompson, deducted the amount of the mortgage debt from the value of the lot, and made his conveyance expressly subject to the incumbrance. It is difficult to see why he made this abatement, unless he was bound to indemnify Franklin, or how he could be thus bound if the latter was under no obligation to indemnify Hamilton. For if there was no such liability, then Hamilton —not only as between himself and the Trust Company, but also as between himself and those claiming under him — was bound to pay the mortgage debt; and if he was able to do so — and there is no showing, in the case, to the contrary — the value of Creen’s estate was the full value of the lot; and it is not to be presumed that he would take less for it; much less, that he would abate over two-thirds of it.

Indeed, these conclusions are not gainsaid by the defendants’ counsel, for he does not deny the liability of either Franklin or Green; and the scope of his argument seems to admit it. Without laying any stress, however, upon this fact, we think their liability ought to be presumed for the reasons already stated.

That Thompson became bound to indemnify Green is sufficiently obvious, and as Green was under a like obligation to Franklin, and the latter under a similar liability to Hamilton, the mortgagor, it follows that the only just method by which Thompson could perform his duty, was to discharge the mortgage debt. For although, as between the Trust Company and these several parties, it was-Hamilton’s debt; yet, as between Hamilton, Franklin, Green, and Thompson, it was, equitably, Thompson’s debt. And so he treated' it, for he paid the interest on it to the Trust Company, from the date of his purchase to the time of his death; and *it does-not appear that he ever asserted a claim against any one for reimbursement.

In the meantime he made his will, by which he directed his just debts to be paid out of his personal estate, and devised this lot tolos daughter Lucinda, then sole and unmarried, for her life, with remainder in fee to her children, should she die leaving any; but if she should leave none, then to his other children, and the survivors and survivor of them, for life ; and the remainder in fee to his grandchildren.

Upon this will — in the light afforded by the circumstances under which it was made and the subjects to which it relates — we are to-decide, whether the testator designed to provide that the mortgage debt aforesaid should be paid out of his personal estate. And wears unanimously of the opinion that he did, and that he employed-adequate terms to effect his intention. He expressly directed his-just debts to be paid out of his personal estate ; and although it may be true that, technically speaking, this was not his debt, yet. this is by no means decisive of the question. The terms of a will are not, of necessity, to be construed technically and with a strict reference to grammatical accuracy; but they are to be viewed sensibly and liberally, in order to give effect to the testator’s intentions. Of all the instruments that need the benefit of a liberal construction — a construction that prefers substance to mere form— wills need it the most.

Now we have seen that, substantially, this was Thompson’s-debt; that, justly and equitably, it was his, and that he must have so regarded it. What is more natural, then, than that he should call it, what he believed it to be, his debt, and that he should suppose it to be included in a direction to pay his debts ? That he did so suppose, we entertain no serious doubt. Not only for the-¡reasons already given do we think so, but these reasons are greatly .strengthened by the other provisions of the will. The testator knew that the Trust Company could demand payment whenever .it chose to do so, and that, if payment should not be *made, the mortgage would be foreclosed and his devisees lose the estate. And although he might not have anticipated a speedy demand, yet he surely could not have presumed that it would be deferred until Bucinda’s death, and the enjoyment of the estate by her children, should she leave any; much less could he have supposed that it would be delayed until the fee should vest in his grandchildren, .should that event occur. And yet, by his various devises, he manifested the strongest possible wish that the property should remain .in his family — giving to none of his own children, in any event, more than a life estate, and limiting the fee to some, or all, of his grandchildren. This intention, so clearly exhibited and so well effectuated by various provisions, is wholly inconsistent with the idea that he meant that his devisees should have nothing but the ■equity of redemption. And besides, had that been his design, it is altogether probable that he would have said, in express terms, that they were to take subject to the mortgage. He had so taken, ■with a clause to that effect in his deed, and he would very likely have inserted a similar clause in drafting his devise; for it will hardly be imagined that he omitted to do so because he supposed it unnecessary. We have no reason to think that he was at all versed in the subtle distinctions and recondite learning that appear in the arguments before us, and that it was owing to his legal lore and sound judgment that he omitted what would have made his intention perfectly manifest. We can well enough understand how he could call that his debt, which -he regarded as such, and which was so in reality, though not technically, and, therefore, why it is that we do not find it specially provided in the will that his executors should pay it; but that he omitted to say that his devisees should take the lot, cum onere, because he knew that the .law would cast the burden on them if he did not expressly shift it, is what we do not believe.

We have seen that it was the intention of the testator to keep the property in his family, and that he could not reasonably .expect that the collection of the mortgage debt would be deferred *until the remainder-men should come into possession. It ¿follows, that if he designed to devise the estate, cum onere, he expected the incumbrance to be removed by his daughter Lucinda ;, for he could not suppose that it would be removed by those to whom he had contingently devised a mere estate for life. But is it reasonable to believe that he expected her to discharge it? It amounted to over two-thirds of the value of the lot, and required a considerable sum of money to pay it off, and she was to have but a life estate. To discharge it would be to pay more than the life' estate would be worth, and the devise to her would be an injury instead of a benefit. At least this is the presumption arising upon the agreed statement of facts, and that is all we can look at. But a will is not to be so construed as to destroy all benefit from a devise, if it can consistently be avoided. “ As to wills,” said Chancellor Kent (in Cumberland v. Codrington, 3 Johns. Ch. 372), “the result of the cases seems to be, that the testator may, by express directions, charge such incumbrance upon his personal assets; or, even without express words, he may do it by dispositions and language that are tantamount; as if, for instance, the continuance of the charge primarily on the land, would be repugnant to some of' the provisions of the will, and defeat them.”

I have so far considered the case upon the assumption that Thompson did not expressly promise Green to pay the debt, that view of the case being the most favorable one for the defendant in error. If he did make such a promise, it was upon a sufficient consideration, and an action of assumpsit could have been maintained upon, it by the Trust Company — it being well settled, “that if one person makes a promise to another, for the benefit of a third person, that third person may maintain an action at law on that promise.” Cumberland v. Codrington, 3 Johns. Ch. 254, and cases there cited; Crumbaugh v. Kugler, 3 Ohio St. 549. And if such were the case, there could be no doubt that Thompson was a debtor for the money, and that his liability was .covered by the clause in his will directing; his debts to be paid. But it *is, to say the least of it, doubtful whether the agreed statement of facts would warrant us in finding that such an express promise was made, and we prefer to place oui* decision on the other view of the case, with which we are entirely satisfied.

The judgment of the common pleas must be reversed.