author: Shauck, J.

text:
    The Aetna Life Insurance Co. of Hartford, Connecticut v. Dorney, an Infant, by Turley, His Guardian.

      Accident insurance policy — Exempts from liability if death ensues from disease — Such defense not limited by Sections -3625 and 3626, Revised Statutes — Instructions to jury — Section 5201, Revised Statutes — Court may ash for special findings in a general verdict.

    1. Under favor of Section 5201, Revised Statutes, counsel may request the court to instruct the jury if they return a general verdict to find specially upon particular questions of fact stated in writing, hut it is not error to refuse a request, to instruct the jury to return a special verdict answering such questions.
    2. If a policy of insurance against accident contains a stipulation that the insurer shall not he liable on account of the death of the assured if it results wholly or partly from infirmity or disease, the stipulation is available as a defense notwithstanding Sections. 3625 and 3626, Revised Statutes, whose effect is limited to defenses founded on fraud or misstate,ment in the application.
    (Decided March 31, 1903.)
    Error to the Circuit Court of Hancock county.
    The defendant in error, as beneficiary, brought suit in the court of common pleas against the company upon a policy of insurance against accident to recover on account of the death of George S. Dorney, alleged to have resulted from accident. The cause and manner are thus alleged in the petition:
    “On said twenty-third day of October, 1899, at about eleven o’clock in the forenoon, said George S. Dorney, with the aid of a servant was clearing away some rubbish on grounds adjoining said brick and tile factory, and which had been used in connection with said business, and in so doing it became necessary to remove a certain stone a short distance, said stone weighing about 150 pounds, and thinking it heavier than his said servant should lift and remove alone, he took hold of one side with his servant on the other side and together they lifted and undertook to carry it a short distance required, but in so doing, without any negligence, want of care or overexertion and wholly by accident beyond foresight, expectation and as an unusual effect, and thereby as a direct result caused and produced a rupture and hole through the stomach of said George S. Dorney, said rupture being about three-fourths of an inch in diameter, causing the contents of his stomach to escape into the abdomen, and thereby caused immediate and intense suffering and his death within thirty-six hours thereafter. Immediately after said accident the excessive agony and extreme pain marked visibly upon the body the deadly injury received by said accident and so remained afterwards until his decease.
    “Plaintiff says that a post mortem examination made known the facts that at some period during the life of said George S. Dorney — probably several years before his decease — what is generally known as a round ulcer had made a hole through the stomach of said George S. Dorney of about three-fourths of an inch in diameter at its base, malting the hole through the walls of the stomach of about three-eighths of an inch in diameter. This opening nature had kindly patched by growing a fold of the omentum or covering of the bowels over the opening-and so closing it like a patch. Said condition is not very uncommon and the cure so complete as to leave no injurious consequences or knowledge of weakness or danger.

      “But in the case of said George S. Dorney it was at the post mortem ascertained that the patch by this accident was torn off this opening and thereby the result above stated followed.”
    For its defense the company relied upon the stipulations of the policy restricting its liability to injuries resulting from accidents, and particularly upon the following limitation expressed in the policy.
    “This insurance does not cover disappearance; nor suicide; nor the result of injuries, fatal or otherwise, inflicted intentionally by the insured, or intentionally by any other person (except assaults committed for the sole purpose of burglary or robbery) ; nor the result, fatal or otherwise,of injuries of which there is no visible mark upon the body (the body itself in case of death not being taken as such mark); nor the result, fatal or otherwise, of voluntary or involuntary taking of poison, contact with poisonous substances, inhaling of any gas or vapor or of sunstroke or freezing. This insurance does not cover in event of accident or death, loss of limb or sight, or disability, resulting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form proximate or contributory, as a primary, secondary or final cause of accident, injury, disability or death.”
    To bring the case within those stipulations of the policy, its answer contained the following allegations:
    “It says said policy was issued by defendant and accepted by said George S. Dorney upon the express conditions, and which conditions are inserted in said policy as a part thereof, that said insurance should not cover the result, fatal or otherwise, of injuries of which there is no visible mark upon the body, the body itself in case of death not being taken as such mark. And further that said insurance should not cover in event of accident or death, loss of limb or sight or disability resulting wholly or partly, directly or indirectly, from bodily or mental infirmity, or disease in any form proximate or contributory, as a primary, secondary or final cause of accident, injury, disability or death; nor did said insurance cover injuries resulting from excessive labor or overexertion.
    “It says the death of said George S. Dorney did •not result solely from bodily injuries effected through .external, violent and accidental means, but it says for a long period of time next preceding his death said decedent had suffered from an affection and disease known as ulcer of the stomach. That shortly prior to his death said disease of the stomach had so far advanced that thereby and by reason of the same a hole about three-eighths of an inch in diameter was made ■through the walls of the stomach allowing the escape of the contents of the stomach into the abdominal cavity, producing what is known as peritonitis, thereby causing said suffering and death of said George S. Dorney. It says there was no visible mark of any injury or injuries whatever upon the body of said decedent George S. Dorney.”
    The evidence introduced upon the trial showed the circumstances of the death of the assured to have been substantially as alleged in the petition. It also showed that a post mortem examination was made by and in the presence of a number of physicians whose testimony tended to show, if indeed it did not conclusively establish, that for two or three years before his death the assured had been afflicted with ulcer of the stomach which had resulted in the complete perforation of that organ; that while nature had thrown a thin patch over the perforation the organ never became normally strong, and that the perforation was present as a contributing, even as the primary, cause of death.
    Before the argument the court refused numerous instructions which the defendant requested, among them the following:
    “Fourth — If you find from the facts and circumstances proved that the coats of the stomach of said George S. Dorney had been eaten through by an ulcer and was left in a weakened and diseased condition, and that but for such diseased and weakened •condition of his stomach the injury which caused his death would not have resulted from anything he did on the twenty-third of October, 1899, then and in that case the plaintiff can not recover and your verdict must be for the defendant.”
    The record further shows that: “The defendant requested the court to instruct the jury to return a special verdict, answering the following questions, to-wit:
    “First Question — On the twenty-third of October, 1899, before said Dorney took hold of the stone referred to in the pleadings, was his stomach in a sound or unsound condition? Answer.
    “Second Question — On the twenty-third of October, 1899, before said Dorney took hold of the stone referred to in the pleadings, was his stomach in a diseased or unsound condition? Answer.
    “Third Question — If you answe^ that his stomach was diseased, then answer whether by reason of the disease his stomach was in a weakened condition? Answer.
    “Fourth Question — If you answer that his stomach was in a weakened condition on that morning, then would anything he did on that day have caused the injury if it had not been for such weakened and diseased condition?” * * *
    The court refused to instruct the jury to answer-these questions of fact, or any of them, and to all of these refusals the defendant excepted. A verdict was¡ returned in favor of the plaintiff; the defendant’s, motion for a new trial was overruled, and a judgment was entered upon the verdict. In the circuit court the judgment was affirmed.

      Mr. John Poe and Mr. Merle Newton Poe, for plaintiff in error,
    cited and commented upon the following authorities:

      Ford v. Osborne, 45 Ohio St., 1; Shahan v. Swan, 48 Ohio St., 25; Feder v. Traveling Men’s Assn., 70 Am. St. Rep., 212; Barry v. Accident Assn., 23 Fed. Rep., 712; Paul v. Travelers’ Ins. Co., 8 Am. St. Rep., 758; Menneiley v. Assurance Corporation, 51 Am. St. Rep., 716; Southard v. Assurance Co., 34 Conn., 574; Bacon v. United States Assn., 123 N. Y., 304; Sinclair v. Insurance Co., 3 Ell. & Ell., 478; Railroad Co. v. McCamey, 5 Circ. Dec., 631; 12 C. C. R., 543; Railway Co. v. Village of St. Bernard, 10 Circ. Dec., 415; 19 C. C. R., 299; Monroeville v. Root, 54 Ohio St., 523; Gottschalk v. Witter, 25 Ohio St., 76; Davis v. Guarnieri, 45 Ohio St., 470.

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

      Walrath v. Insurance Co., 9 Circ. Dec., 233; 16 C. C. R., 426; Travelers’ Ins. Co. v. Myers, 62 Ohio St., 529; West v. Insurance Co., 27 Ohio St., 1; Miner v. Insurance Co., 3 Dec., 289; Wood on Ins., 141; Healey v. Mutual Accident Assn., 25 N. E. Rep., 52; Paul
      v. Insurance Co., 20 N. E. Rep., 347; 1 System Legal Med., 587; McGlinchey v. Fidelity & Casualty Co., 80 Me., 251; Insurance Co. v. Crandal, 120 U. S., 527; Freeman v. Mercantile Accident Assn., 30 N. E. Rep., 1013; Carnes v. Traveling Men’s Assn., 106 Ia., 281; Pennington v. Insurance Co., 52 N. W. Rep., 482; Hall v. Masonic Assn., 57 N. W. Rep., 366; Insurance Co. v. Burroughs, 69 Pa. St., 43; Travelers’ Ins. Co. v. Dunlap, 160 Ill., 642; Metropolitan Acc. Assn. v. Froiland, 161 Ill., 30; Wehle v. United States Assn., 60 Am. St. Rep., 600; American Accident Co. v. Reigart, 94 Ky., 547 (42 Am. St. Rep., 374) ; Gilson v. Canal Co., 36 Am. St. Rep., 860; Paul v. Travelers’ Ins. Co., 112 N. Y., 472; United States Assn. v. Barry, 131 U. S., 100; Martin v. Insurance Co., 1 Fos. & Fur, 505; Accident Assn. v. Hubbell, 56 Ohio St., 516; Railroad Co. v. Marsh, 9 Circ. Dec., 581; 17 C. C. R., 13.
   Shauck, J.

The case does not require us to place an estimate on the learning which the briefs exhibit with respect to the lexigraphic meaning of the word accident, nor need we determine the effect of the stipulation of the policy from which it is claimed that rules of evidence had been prescribed for determining whether death resulted from accident. The stipulation by which the company is exempted from liability “in the event of death resulting wholly or partly, directly or indirectly, from infirmity or disease in any form, procuring or contributing, as a primary, secondary or final cause of death” is definitive of the obligation which the company assumed in consideration of the premium paid. It distinguishes the liability assumed from the larger liability which is incident to general insurance. By excluding a portion of the liability of a general insurer, .it takes account of considerations which would materially and legitimately weigh in determining the amount of the premium. Being a contractual limitation upon the liability assumed it is not obnoxious to criticism as an attempt to limit the evidence by which the beneficiary may establish the facts which bring his case within, the liability fixed by the terms of the contract.

It is in vain that the defendant in error invokes the provisions of Sections 3625 and 3626, Bevised Statutes, as against these stipulations of' the policy. Those sections, under the conditions therein prescribed, prevent defenses upon the ground of fraudulent applications, but they do not apply to a case like this where the defense is founded upon a limiting stipulation of the policy.

No consideration is presented in the briefs which raises any doubt respecting the right of the company to rely upon this stipulation of the policy, but while the particular questions of fact which counsel for the company propounded upon the trial to be answered by the jury Avere pertinent in view of the stipulation of the policy and the evidence relating to the cause of the death of the assured, the record shows that counsel made a request which was not authorized by the statute. It appears from the record that the request was that the court should “instruct the jury to return a special verdict, answering the questions” propounded. The provision of the statute by which this is supposed to have been authorized is found in Section 5201, Be-vised Statutes: “In all cases, when requested by either party, the court shall instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon.” Very-plainly the statute contemplates that the answers to such questions of fact shall be returned with a general verdict, and it does not authorize the request made in this case that the court direct the jury to return a special verdict answering the questions submitted. The purpose in view in requiring the finding on such particular questions of fact is to test the correctness of the general verdict. Railroad Co. v. Hawkins, 64 Ohio St., 391; Gale v. Priddy, 66 Ohio St., 400.

But the refusal of the court to give to the jury for their guidance in determining upon the' general ver-, diet the requested instruction set out in the statement of the case must have been prompted by the view that the stipulation under consideration limiting the lia-' bility of the company to a death resulting from accident alone is invalid. For that conclusion there is no basis either in reason or in the decided cases. The instruction requested was pertinent in view of the stipulations of the policy, the issues of fact made by the pleadings, and the evidence offered by the plaintiff below. By it the jury would have been directed to inquire whether the conditions set out in the policy as excluding the liability of the company actually existed, and to return a verdict in its favor, if upon the evidence it should be found that those conditions existed. The judgments of the circuit court and court of common pleas are

Reversed.

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


source: Caselaw Access Project

author: Davis, J. Shauck, J.

license: Public Domain

text:
    Hutchings v. Davis, Exr.

      Dower right — Right in distributive share — No election between rights conferred by statute, when — Will directs conversion of realty into personalty — Widow elects to receive dower in money — Does not therefore elect either under or against the will — Not precluded from receiving widow's distributive share — In the personalty resulting; from such conversion— Law of distribution — Law of wills.

    1. There can he no election between rights conferred by statute, unless the statute provides for it. The courts cannot, by means of any real or imagined equities, limit, qualify or annul rights granted by legislative enactment.
    2. There is no such inconsistency between the right of dower and the distributive share in personalty, as to make the taking of one an exclusion of the other.
    3. Where a widow, in a proceeding to sell real estate according to a direction in her husband’s will in which the testator makes a disposition of his whole estate without making any provision for her, elects to receive and is paid the value of her dower in money, she does not thereby elect to take either under or against the will. She stands solely on her statutory right of dower.
    4. The positive direction by a testator to sell all of his real estate and to blend the proceeds with his personal property in one fund for the distribution of his whole estate according to the scheme of the will, makes an absolute conversion for all purposes into personal property, which should be distributed as personal property, even if the special object intended by the testator should fail. And the effects of the conversion extend to, and may be claimed, not only by those who claim under or through the will, but also by those who are not entitled under the will, but are entitled directly from or under the testator.
    6. A widow for whom no provision is made in her husband’s will and who has been paid the value of her dower in money from the proceeds of the sale of real estate, converted into personal property, pursuant to a direction in the will, is not thereby precluded from asserting and receiving the widow’s distributive share in such proceeds, as well as in the other personal property of the testator.

      <6. A widow or widower is not entitled to interest on the distributive share in personalty, because the distributive share cannot be known until the amount of personal property subject to distribution has been ascertained and the distributive share computed therefrom.
    (Decided March 31, 1903.)
    Ebrok to the Circuit Court of Cuyahoga county.
    On the twelfth day of September, 1894, William Hutchings, living in Cuyahoga county, died leaving a will of which the following is a .copy:
    “I William Hutchins of Chagrin Falls County of Cuyahoga State of Ohio being in health and of sound mind do make, publish and declare this my last will and testament.
    “My will is my hereinafter named executor shall pay my just debts arising from reasonable steps taken in connection with funeral expenses Doctors Bills etc. etc.
    “I give and devise a.nd dispose of what shall or may be left of my proper as is hereinafter described
    “1 I give to my late wife’s family in England as follows. John Boothe Down $500.00 five hundred dollars. To Thomas Booth Downs widow $500. five hundred dollars. To her sister Ann Kelly $500 five hundred dollars, the Avhole to be paid within eighteen months after my death.
    “2. I give to Isalina Davis $500 five hundred dollars. To my brother Robert Hutchins $300.00 Three hundred dollars. To my sisters Mary Mount-joy Grace Isaacs and Catherine Isaacs, $200. each two hundred dollars. To my late wifes sister in law Mary Down, and her daughter Mary A. Steel $200.00 two hundred dollars and to my late brother Philips 2 daughters $200.00 each. . To my faithful employe Joseph Davis $500. five hundred dollars. To Mary Jane Howard $100.00 and to George Sheldon $5.00 five dollars
    “Charitable Purposes.
    “1 I give $1,000 One thousand dollars for a Countys Poors House when ever built or bought. Until then safely invest the money and give the annual proceeds to the deserving poor of Chagrin Falls, who do not regularly receive help from the Town.
    “2. I give $1,000 one thousand dollars toward either the purchase or building of a Congregational Church parsonage in Chagrin Falls, if the trustees so provide.'
    “3. I give $500 five hundred,dollars to the Bible Christian Conference in England for their China Mission.
    “My will is also that my live stock and farming ■utensils of every kind be sold within six months of my death. The Enterprise Mills, my interest in the business of Stoneman & Hutchins, with what of real estate is not sold of any and all kinds shall be disposed of, and business settled up if possible within 2 'two years of my death.
    “And further, the proceeds arising therefrom, with all, from any and all sources, due to me from Mortgage, Bank or Bills unpaid át my death, be'used in paying all before specified as my indebtedness and to my Legatees, and the Charaties. And the balance be divided between the children living at my death of the hereinafter named Brothers and sisters of my late wife and myself, viz: Robert Hutchins, Philip Hutchins, (2 daughters) William Down Mary Mount-joy, Grace Isaacs, my late sister Elizabeth Nokes, and Catherine Isaacs. P. S. (Henry Nokes had 100 dollars deduct and proper divide with them. -

      “I seriously affirm that it is my will that the first who takes legal steps to break this will shall loose all I promised, but one dollar.
    “I appoint my esteemed friend Joseph Davis of Chagrin Falls my sole executor of this my last will- and testament hereby revoking all former wills of mine.”
    The will was executed on the twenty-fourth of November, 1893. At that time he was a widower. He married the plaintiff in error, January, 1894, and no provision, as will be observed, was made for her in the will. In June, 1895, the executor of Hutchings sold, at public sale, under an order of the probate court, all of the real estate of which William Hutchings died seized. To this action the widow was made a defendant and filed her answer, setting up her dower interest in the land, waived the assignment of the same by metes and bounds, and elected to take the value of the same in money, which was accordingly paid to her. The executor entered upon his duties as such September 29, 1894, and on May 12, 1898, he filed an account. Exceptions were filed to the account of the executor in the probate court on the ground, first, that the plaintiff in error was not allowed any interest on the amount due and owing to her; and, second, that she was not allowed any distributive share in the money which was the proceeds of said sale of land. The probate court overruled both the exceptions of the widow and held that she was not entitled to any interest on any amount due her, and not entitled to any interest in the money received from the sale of the lands and on hand for distribution, and ordered a distribution regardless of her claim to be allowed a share in the $15,000 proceeds of the sale of said land.

      On petition in error in the court of common pleas that court adjudged that the widow should recover interest to the amount of $1,700 on her several claims after one year from the time the executor was appointed and qualified, and the court overruled the claim of the plaintiff that she was entitled to a distributive share in the $15,000 arising from the sale of real estate, and in that respect affirmed the judgment of the probate court. The circuit court reversed the judgment of the court of common pleas as to the interest claim and affirmed the judgment of the probate court in regard to the distributive share in the proceeds of the real estate. In this petition in error the plaintiff in error seeks to reverse the judgment of the circuit court on both grounds.

      Mr. James M. Jones, for plaintiff in error.
    We claim that the directions contained in William Hutchings’ will, to sell and convert into money all his land, is construed by all the court to be an equitable conversion of the same into personal property, as fully as he himself could do if he was alive, and as fully and as completely as if he had sold the land by contract before his death, and had not received the pay therefor. And that' therefore the petitioner in error, as his widow, is entitled to her distributive share of one-third of the net proceeds of his said thirteen pieces of real estate, amounting to over $15,000, as well as in all his other personal property, wholly regardless of the fact that she had been allowed dower in said lands, which fact we claim is entirely immaterial. Furguson v. Stuart, 14 Ohio 140; 5 Wheat., 563; Collier v. Collier, 3 Ohio St., 369;
      Griswold v. Frink, 22 Ohio St., 79; Richey v. Johnson, 30 Ohio St., 288; Collier v. Grimesey, 36 Ohio St., 17; Barber v. Hite, 39 Ohio St., 185.
    There are numerous other authorities and all concur in the general doctrine of equitable conversion. Smith v. Loewenstein, 50 Ohio St., 346; Philips v. Furgerson, 1 L. R. A., 837; Peter v. Beverly, 10 Pet., 562; Brolasky v. Gally, 51 Pa. St., 509; Weed v. Smull, 7 Pai. Ch., 574; Clarke v. Sawyer, 2 Sandf. Ch., 377; Simonds v. Simonds, 3 Metc., 563; 33 Ala., 196; Johnson v. Bennett, 39 Barb., 237; 19 N. J. Eq., 375 ; 28 Ill., 43; Peter v. Beverly, 10 Pet., 562; 23 Md., 273; Hood v. Hood, 85 N. Y., 561; 1 Md. Ch., 296; Wilson v. Hall, 3 Circ. Dec., 589; 6 C. C. R., 575.
    Where personal property is converted, by direction, into land, it will descend as realty though no actual conversion has taken place, and will pass under a provision of the testator’s will devising his land. 3 A. D. K., 254; Greenhill v. Greenhill, 2 Vern., 679; 12 Ves. Jr., 161; 17 Ves. Jr., 64; Robinson v. Botkin, 181 Ill., 182; Stewart v. Railway Co., 50 N. W. Rep., 854; Sweeney v. Horn, 190 Pa. St., 237.
    And we claim that the widow would be entitled to dower in lands made so by merely equitable conversion; that the husband would be entitled to curtesy in it, and it would descend to the heir as land. 2 Spence’s Eq., 264; 19 N. J. Eq., 64; Haggard v. Rout, 6 B. Mon., 247; Konvalinka v. Schlegel, 104 N. Y., 131; Page’s Estate, 75 Pa. St., 87; Ramsden v. Langley, 2 Vern., 536.
    If a man should direct by a will that $50,000 in cash should be converted into realty, can anybody imagine that she would be deprived of her dower interest in the realty, thus equitably converted? She couldn’t have her third interest in the $50,000, because it would not be on hand for distribution.
    An equitable conversion of real estate cannot withdraw or annul any pre-existing right or lien, like a dower interest, mechanic’s lien, mortgage or other lien, but it is completely 'effected as to all other persons and claims, precisely the same as if the owner had sold outright before his death, and had or had not received his pay, or had notes and mortgage for the purchase price. Brown v. Bailey, 1 Metc., 254; Leiper v. Irvine, 26 Pa. St., 54.
    A direction in a will, for the conversion of real estate into money, or money into land, is no necessary part of a will. It is not testamentary in its character. It does not give and bequeath anything to anyone. It is entirely uncertain whom such a provision may benefit. There may be no wife to be benefited, and such a provision could just as well be made, and be just as effective for all purposes by a contract, a marriage settlement, a deed with a direction in it, a trust deed or a lease containing an option that the lessee may buy. 41 Ark., 271; Daniel v. Thompson, 14 B. Mon., 549; Firestone v. Firestone, 2 Ohio St., 315; Collins v. Champ, 15 B. Mon., 118; Smith v. Loewenstein, 50 Ohio St., 346; 29 Ill., 323.
    Blending the proceeds of real and personal property, even when not made in as clear and decisive a manner as in our case, has been held to give a personal legacy priority over the residuary legatees of all the real estate in case of deficiency of assets, and because such a direction is “decisive of the intent of the testator.” Porter v. Kepler, 14 Ohio St., 135; 14 Eng. Ch. Rep., 695; 2 Vinney, 535; Harrington v. Pier, 82 N. W. Rep., 345; 50 L. R. A., 307; Given v. Hilton, 95 U. S., 591.

      ' There is a large consensus of authority in support of the doctrine that if the proceeds of real estate and personal property are given together, subject to. charges for debts and legacies, that both real and personal estate are liable to charges in proportion to their respective values. 15 Am. & Eng. Enc. Law, 125; Reynolds v. Reynolds, 16 N. Y., 257; 42 N. J. Eq., 43; 13 N. J. Eq., 138; 57 Miss., 775; 1 Ves. Jr., 436; 2 Ves. Jr., 267.
    Section 5964, Revised Statutes, provides that where the widow fails to take under the will, she shall retain her dower and such share of the personal estate as she would be entitled to by law, in case the deceased consort had died intestate having children. Wilson v. Hall, 3 Circ. Dec., 589; 6 C. C. R., 575; Black on the Interpretation of Laws, Sec. 26.
    There is not the slightest hint in any provision of the statutes, that the widow is to be excluded from participation in any hind of personal property, and the attempt to do so is quite remarkable in view of the language of our Supreme Court, which has been the law of the land for fifty years. We contend that land converted into personalty by such provisions as are in this will, makes the proceeds purely personal property as to ,all the world, including the widow. Doyle v. Doyle, 50 Ohio St., 331; Smith v. Smith, 57 Ohio St., 37.
    The making of a will in Ohio is a purely statutory matter, and is defined in Section 5914, Revised Statutes. The widow takes nothing under the will, or under any of its provisions. The husband has distinctly chosen to die possessed of only personal property, and the statute in existence at the time of his death gives her one-third of the personal property. She will take all she gets under the statute, aud not under the will. Such a provision in the will is in the nature of a personal trust which the executor cannot delegate to anyone else. This is decided in White v. Sayre, 2 Ohio, 121, and in Wills v. Cooper, 3 Ohio, 486. These cases have never been reversed, but were quoted approvingly in Yearly v. Long, 10 Ohio St., 32.
    Section 1188, Revised Statutes, provides that a widow shall have dower in any real estate of which her husband was seized of an estate at any time during coverture. Under this statute her dower in his-lands was a legal right which vested in her from the time of her marriage and her husband’s seizin. It was an incumbrance on his land at and before his death as much as if it was a judgment lien or a mortgage. It was not in his power in any way to extinguish that right. McArthur v. Franklin, 16 Ohio St., 193; Black v. Kuhlman, 30 Ohio St., 196; Rosenthal v. Mayhugh, 33 Ohio St., 155; Unger v. Deiter, 32 Ohio St., 210; Thompson v. Love, 42 Ohio St., 73.

      Mr. E. P. Wilmot and Messrs. Wilcox, Gollister, Eogan & Parmely, for defendant in error.
    Is the widow entitled to one-third of the proceeds arising from the sale of the real estate as personal property?
    We think not for the following reasons:
    1. Where no provision is made in the will for the widow, she takes only such rights as are provided in case of intestates and no others; which are: (a) Year’s allowance. Sections 6010-6011, Revised Statutes; (b) Distributive share of personal estate. Section 4176, Revised Statutes; (c) Dower in all real estate owned by intestate at any time during coverture. Section 4188, Revised Statutes; (d) Right to occupy the mansion house for one year. Section 4188, Revised Statutes.
    2. This plaintiff in error stands now, just as she would if the will had been made after her marriage, and no provision made for her therein, and her rights in the estate in such case are precisely what they are now. This question is fully gone into by this court in the case of Doyle v. Doyle, Jr., in 50 Ohio St., 330, and we claim decides the question here.
    3. The testator in this case directed in his will the sale of all his real estate for the purpose of distribution of his estate to the persons entitled thereto, and that this provision was made for that purpose only.
    4. We contend that the claim of the widow to dower in the real estate, and to a part of the proceeds arising from the sale of the real estate, sold by the executor, as directed by the will, are inconsistent with each other, and having elected to take the value of her dower therein. She is now barred from claiming any part of the proceeds thereof in distribution.
    The real property of the estate cannot be by her treated as real estate, so that she may have her dower therefrom, and when she has received 'her dower on a sale of the real estate, that it shall become personal property and she get a distributive share therein. The testator died intestate as to her, and sloe so understood it, and took in the real property as if an intestate estate. We venture to say that no case can be found in which it has been decided that a widow can have dower and distributive share in the same property. Ño case has been cited by counsel for plaintiff in error in support of this Dr. Jeykill and Mr. Hyde position. We can cite none against it, because so far as reported cases go no attorney ever before asked a court to so decide. Doyle v. Doyle, Jr., 50 Ohio St., 330; Tobias v. Ketchum, 32 N. Y., 319; Savage v. Burnham, 17 N. Y., 561; Vernon v. Vernon, 53 N. Y., 351; Brink v. Layton, 2d Red. Surr. Rep., 79.
   Davis, J.

There is no provision for the plaintiff in error in the will of her late husband. The will was made before her marriage to the testator and it was not changed after the marriage. All of the estate of the testator is disposed of to the exclusion of the wife, so that her interest in the estate is such, and only such, as is conferred by statutes. When the executor, pursuant to the requirement of the will, proceeded to sell the real estate, the land was incumbered with the statutory dower right of the widow. The land could not be sold free of her dower and she was therefore made a defendant to the proceeding and filed the usual answer setting up her dower interest in the land, waiving the assignment of the same by metes and bounds and electing to take the value of the same in money. Under the order of the probate court the value of her dower was paid to her out of the proceeds of the sale of the real estate. But she acquired nothing under the will by this procedure. Neither did she, in electing to take the value of her dower in money instead of assignment thereof by metes and bounds, elect ■ to take either under or against the will; for her dower right inhered in her relation to the testator, by virtue of the statute, and he could not deprive her of it. As he gave her nothing in the will in lieu of .her dower, her acceptance of her dower could not he an election between her statutory right and the will.

Having received the value of her dower in money, the widow demanded her distributive^ share in the proceeds of the real estate sold according to the will and from which the value of her dower had been paid, as well as in the personal property left by the testator; and here the principal controversy in this case arose. The executor denied the widow’s claim upon the ground that the requirement of the will that the real estate should be sold was for the purpose of distribution to the persons entitled under the will and for no other purpose; and further upon the ground that having elected to take the value of her dower in the real estate, the widow is now barred from claiming any part of the proceeds arising from the sale of the real estate, because, as it is argued, dower in the real estate and the distributive share in the proceeds of the real estate are inconsistent.

This argument takes no account of the fact that there can be no election between rights conferred by statute unless the statute provides' for it. The courts cannot, by means of any real or imagined equities, limit, qualify or annul rights granted by legislative enactment. In all cases the legislative intent as • gathered from the legislative expression must govern. Section 5964, Revised Statutes, provides that where a widow fails to take under the will (and in this case, as we have shown, she did not take under the will because there was nothing to be taken by her), she shall retain her dower and such share of the personal estate as she would be entitled to by law, in case the deceased'consort had died leaving children. This gives both dower and the distributive share of the personalty, unless Section 4176, Revised Statutes, which provides for a distributive share to the widow or widower in “the personal property subject to distribution,” must be so construed as not to apply where the deceased consort leaves a will disposing of all the property and without making any provision for the widow or widower. But this court, construing these sections together, in Doyle v. Doyle, Jr., et al., 50 Ohio St., 330, held that a widow is not deprived of a distributive share of the personal estate of her deceased husband, by his leaving a will in which he disposed of all of it ta others, without making any provision for her. As to. her in such case, he is regarded as dying intestate. There is, therefore, no such inconsistency between the right of dower and the distributive share in personalty, as to make the taking of one an exclusion of the other.

The distributive share in personalty, however, is defined by the statute as a share in “the personal property subject to distribution,” and this gives rise to another contention in this case, viz.: That the testator’s, direction to convert all of his real estate into money was solely for the purpose of paying his indebtedness, his legacies and charities, the balance going to the-residuary legatees designated in the will; and that inasmuch as the testator intended the conversion for this sole purpose, the proceeds of the sale of the realty could not be made subject to the distributive share of the widow as personalty,- but for that purpose must be regarded as realty.

The direction of the testator that his real property should be converted into money is very explicit. And so likewise is his direction that the proceeds, therefrom, with all from other sources due to him, should be used in paying his indebtedness, legacies-. and charities, and that the balance be divided between the residuary legatees named. It is of no consequence that he may not have intended that his wife should have anything out of his estate. He could not defeat her legal rights, and possibly he may not have intended to do so; but it is perfectly clear that he took especial care that all of his property should be reduced to personal property before distribution. By doing that he made all of his property subject to the widow’s distributive share as personal property, under the provisions of Section 4176, Revised Statutes. It is undoubtedly true that the doctrine of equitable conversion does not apply as we apply it here, unless it be clear from the will itself that it was the testator’s intention that the distribution of his entire estate should be made in money. And it is also true that in this case the testator did not' contemplate the wife in his scheme of distribution; but he does very clearly and definitely blend his whole property, real and personal, in one fund, and direct it all to be paid to the legatees named in the will and in the payment of debts. The character of this complete conversion is not changed because the interests of the legatees may be modified by the refusal or neglect of the testator to take cognizance of his wife’s statutory rights. The whole of his estate may be converted as he directs, but the distribution of it must be according to law. Having chosen to reduce his whole estate to money, he must take the consequences even though it may to some extent defeat his intention. In Ferguson v. Stuart, 14 Ohio, 140, approved and followed in Collier v. Collier, 3 Ohio St., 369, 374, it was held that land directed by a will to be sold and converted into money is treated as personal property, and as such is governed by the-statutes of distribution. In that case the doctrine of equitable conversion was invoked to change the course of distribution from that prescribed in the will to that prescribed in the statute of descents and distribution. That is, the will provided that the wife or the testator should receive one-third of the interest annually accruing on the fund arising from the sale of the land during her natural life, and that the money aforesaid should go to the testator’s heirs. Under the statute the wife was his only heir and the property was decreed to her as heir and not as legatee. The positive direction by the testator to sell all of his real estate and to blend the proceeds with his personal property in one fund for the distribution of his whole estate according to the scheme of the will, makes an absolute conversion for all purposes into personal property, which should be distributed as personal property, even if the special object intended by the testator should fail. Bispham on Equity, Secs. 318, 319; 3 Pomeroy on Equity, Secs. 1159, 1164, 1171, and note; Craig v. Leslie, 3 Wheat., 563; Given v. Hilton, 95 U. S., 591; Harrington v. Pier, 105 Wis., 485. The effects of the conversion extend to, and may be claimed, not .only by those who claim under or through the will, but also by those who are not entitled under the will, but are entitled directly from or under the testator. 3 Pomeroy on Equity, Sec. 1166. Our conclusion is that the plaintiff in error is entitled to her distributive share of the proceeds of the sale of the testator’s real estate made as directed in the will, notwithstanding that she has already received therefrom the value of her dower estate.

It is proper to call attention to the fact that essentially the same conclusion was reached, in Barber v. Hite, 39 Ohio St., 185, in which upon a sale of land the wife had received the full value of her dower by agreement with her husband, who soon after-wards died intestate and possessed of the remainder of the proceeds of the real estate. It was held “that the widow was not estopped from claiming her distributive share of any part of the personal estate of her deceased husband by reason of the fact that such estate was augmented by the conversion of such realty into personalty.”

The plaintiff in error contends that the circuit court erred in reversing the judgment of the court of common pleas allowing interest on her claim. She is not a legatee and does not come under the rule in Gray et al., Exrs., v. Case School of Applied Science, 62 Ohio St., 1. She would not be entitled to interest before her distributive share has been ascertained, and her distributive share is to be computed in “the personal property which is subject to distribution.” Section 4176, Revised Statutes.

As to the matter of interest the judgment of the circuit court is affirmed, and as to the right of the plaintiff in error to distributive share in the proceeds of the real estate sold, the judgments of the courts below are .

Reversed.

Btjrket, C, J., Price and Crew, JJ., concur.

Shauck, J.

I dissent from so much of the judgment as awards to the plaintiff in error proceeds of the sale of the lands in excess of the value of her dower estate. By the necessary admission that the testator might have accomplished his purpose by a devise in specie of the lands after the satisfaction of the claim of dower grave suspicion is cast upon the correctness of the conclusion which the majority has reached. The view seems to be that the testator was entrapped in the equitable doctrine of * conversion. But that doctrine was devised, and it should be applied, to effectuate intention, not to defeat it. It may, therefore, be invoked by one who claims under an instrument, not by one who claims against it.


author: Spear, J.

text:
    Miller v. Ewing, Admr.

      Solder of a note by deceased maker — Presents note to administratoi — Such presentation “exhibits” the claim, when— Section 6097, Revised Statutes — Later, administrator rejects the claim — Six months’ limitation then begins — Rejection may be by attorney — Administrator no power to waive limitation of statute, when.

    1. Where the holder of a note executed by a deceased person, upon inquiry by the administrator if he has a claim, presents the note to such administrator and requires a partial payment upon it, then or shortly, saying also that the administrator need not hurry, such presentation sufficiently “exhibits” the claim as defined in Section 6097, Revised Statutes. It is not necessary to such exhibiting of the claim that the claimant shall formally present it with a demand that the administrator indorse his allowance thereon.
    2. If, within a reasonable time after such exhibition of the note, the administrator informs the claimant, unequivocally, that the claim is rejected and that all that he will get on it will be at the end of a lawsuit, the six months’ statute of limitations will then begin to run, and if suit be not brought within six months no action can be maintained upon the note.
    3. Such rejection may be made by an attorney for the estate thereunto duly authorized, acting ostensibly and in fact for the administrator.
    4. If in such case suit be not brought within six months, the administrator has not power afterward, by estoppel or otherwise, to waive the statute and thus bind'the estate.
    (Decided March 31, 1903.)

      Error to the Circuit Court of Wayne county.
    The pláintiff in error, Joseph Miller, was plaintiff below, and the defendant in error, Charles L. Ewing, administrator of Samuel Ewing, deceased, was defendant below. Plaintiff’s action was founded on a promissory note dated December 5, 1884, due in one year, for $300, with interest at eight per cent, payable annually. No credits appeared on the note. Suit was commenced August 19, 1899, and the amount demanded was $300, with interest payable annually from date. The petition contained the further averment of a presentation May 12, 1899, of the claim duly verified, to the administrator and a demand for an indorsement of allowance, and that he then refused such indorsement and in writing disallowed and rejected the claim. In his answer defendant admitted that the note was, on May 12, 1899, presented for allowance which was refused, and then pleaded two defenses, viz.: That on October 8, 1898, the note was presented and his acceptance as a valid claim against the' estate demanded, which, on October 11, 1898, was refused and the claim disallowed and rejected, and that more than six months passed after the rejection and disallowance and before the commencement of the action; also that on February 1, 1899, a like presentation and rejection took place, and suit was not commenced within six months after that date. This new matter was denied by the reply, and it was also averred that at the time of the rejection, May 12, 1899, the administrator indorsed in writing his rejection on the note and then made no claim that he had at any prior time rejected it; that the plaintiff relied upon that indorsement, having no knowledge of any prior rejection, and so relying was induced to bring suit and subject himself to expense in counsel fees and other expenses; wherefore defendant “waived any prior claim of rejection and is estopped from denying that at any prior time he rejected said claim.”
    The jury returned a general verdict for defendant; also their answers to' special interrogatories as follows:
    “1. Was the claim sued' on rejected by the administrator, through his attorney, on October 11, 1898? Rejected.
    “2. Was the claim sued on rejected by the administrator in person on or about February 1, 1899? No.
    “3. Did Miller, either in October or February, present this note to the administrator for allowance or rejection, and did Miller understand and believe that on either occasion his note was rejected? Yes.”
    Judgment was rendered upon the verdict which was affirmed by the circuit court.

      Messrs. McClure & Smyser, for plaintiff in error,
    cited and commented upon the following authorities:

      Harter et al. v. Taggart’s Exrs., 14 Ohio St., 122; Keenan v. Saxton’s Admrs., 13 Ohio, 42; 5 Am. & Eng. Enc. Law, 219; 2 Woerner’s Am. Law Adm., 805; Sec. 6097, Rev. Stat.; Hardy v. Ames, 47 Barb., 413; Selover v. Coe, 63 N. Y., 438; 8 Am. & Eng. Enc. Law, 1095; Van Saun v. Farley, 4 Daily (N. Y.), 165; Pittsburg, C. & St. L. Ry. Co. v. Krouse, 30 Ohio St., 222; Insurance Co. v. Insurance Co., 5 Ohio St., 450; Baldwin v. Bank, 1 Ohio St., 141; Street Ry. Co. v. Stallman, 22 Ohio St., 1; Jones v. Bangs, 40 Ohio St., 139; Bain v. Wilson, 10 Ohio St., 14; Walker v. Stetson, 14 Ohio St., 9; Insurance Co. v. Purcell, 10 Circ. Dec., 528; 19 C. C. R., 135; Stambaugh v.
      Smith, 23 Ohio St., 594; Calanan v. McClure, 47 Barb., 206; National Bank v. Speight, 47 N. Y., 668; Hoyt v. Bonnett, 50 N. Y., 542; Kidd v. Chapman, 2 Barb. Ch., 414; Reynolds v. Collins, 3 Hill, 36; Elliot v. Cronk’s Admr., 13 Wend., 35; Barsalou v. Wright, 4 Bradf., 164.

      Mr. T. B. Keeler and Mr. Frank Taggart, for defendant in error,
    cited and commented upon the following authorities:

      Kyle v. Kyle, 15 Ohio St., 20; Harter v. Taggart’s Exrs., 14 Ohio St., 122; Thomas v. Chamberlain, 39 Ohio St., 112; Selover v. Coe, 63 N. Y., 438; Wintermeyer v. Sherwood, 77 Hun, 193; 1 Perry on Trusts, Sec. 409; Railroad Co. v. Schultz, 43 Ohio St., 270; Railway Co. v. Ford, 9 Circ. Dec., 786; 18 C. C. R., 239; Railway Co. v. Krouse, 30 Ohio St., 224; Sec. 6097, Rev. Stat.; 2 Woerner’s Law Adm., Sec. 402; Pollock v. Pollock, 1 Circ. Dec., 408; 2 C. C. R., 140; Dunlap v. Robinson, 12 Ohio St., 530; Westfall v. Dungan, 14 Ohio St., 276.
   Spear, J.

In form the exceptions of plaintiff are to the charge of the court to the jury, the refusals to charge, and the overruling of the motion for a new trial, but in substance the objections relate to the alleged error arising from a wrong conception of the statute applicable to the case, which error resulted in a judgment for defendant when judgment should, under the facts established, have been given for the plaintiff.

Upon the issue made by the answer and reply that the claim was presented October 8, 1898, and rejected October 11, 1898, the jury found, in addition to the general verdict for defendant, a special finding in Ms favor, so that the inquiry calls for an examination of the testimony bearing upon that issue. If there be found any ■ testimony which, within a proper construction of the statute, tends to sustain the special verdict, then that issue is settled in favor of the defendant, while if no such evidence is found, the whole defense fails, for the second special finding of the jury disposes adversely of defendant’s claim that there whs a presentation and rejection February 1, 1899.

From the testimony of Charles L. Ewing, the administrator, and Thomas B. Keeler, attorney, it appears that on Saturday, October 8, 1898, Ewing, at the request of Miller, went to Miller’s hotel to settle a book account which Miller had against his father’s estate; that the account was then and there settled, he paying Miller $125 in money and taking a receipt; that he asked Miller if he had any other claim, to which Miller replied, “Yes, that he had a little note against the estate.” He then went down stairs and came up with the note (the note in suit), and handed it to Ewing saying, “I am in no hurry about all of it, just pay a little in a few days;” * * * “part of it will do (he said), fifty or seventy-five dollars is all I care for now.” Ewing handed the note back, saying nothing. Before Ewing left, Miller said, “Charlie, you needn’t be in a hurry about this, just pay me a little on it; I just need a little in a few weeks.” The next Monday, October 10th, Ewing called upon Thomas B. Keeler, attorney for the estate, and gave him instructions directing him to go to Burbank (Miller’s residence) respecting this note.

Keeler, the attorney, testified in substance that he was, on and before October 10, 1898, attorney for the Ewing estate; that on that day the administrator came to his office in relation to the Miller note, giving him instructions in respect to it; that the next day respecting those instructions, he Avent to see Miller at Burbank in behalf of the administrator. He met Miller at his hotel and said to him that he understood he held a note against the estate of Ewing, and asked to see it. Miller! got the note. Keeler looked at it saying: “It is Samuel Ewing’s signature, but it seems strange that you should have a note against EAving for fourteen years drawing eight per cent, interest, and never presented the note during his lifetime.” Miller made no reply to that. Keeler said to Miller the heirs came to the conclusion there was something wrong about the note, and said: “You will have to sue this note to get anything on it. I came over for the purpose of rejecting the note.” Miller said: “I will make an affidavit that the note is all right.” Keeler said: “That will not do; the heirs think there is something wrong about the note, their father loaning money at six per cent, and to hold a note against him for eight; something wrong ábout it.” Miller took the note and went up stairs. On cross-examination the Avitness said: “I told him that the administrator and heirs employed me to come over and reject that claim, and I did so tell him that the claim was rejected, and that all he would get on that note would be at the end of a lawsuit. I think probably those are my very words.”

By cross-examination, and by contradictions by Miller on the stand, and otherwise, the plaintiff. sought to break the force of this testimony. That situation presented a question respecting the preponderance of the evidence, and was for the jury and the courts below, but does .not enter into the consideration of this court. A review of the conflicting evidence is, therefore, unnecessary.

Our statute applicable to the case is Section 6097, Revised Statutes. It provides: “If a claim against the estate of any deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due,'or within six mouths after some part shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon.”

The contention on the part of the plaintiff in error is that, giving to the statute its proper construction, there is no evidence tending to support the jury’s finding, because it does not appear that the creditor exhibited his claim for the purpose of having it allowed, nor that there was any attempt to reject it by the administrator himself; that the power to allow or reject a claim cannot be delegated, and hence such power could not be exercised by an attorney. In support of this proposition it is further urged that the statute is highly penal and must be strictly construed; hence there must be an absolute and full compliance with the letter of the statute in order to start the running of the six months’ limitation. A strict construction has been given to like statutes by some courts, notably the Court of Appeals of New York. The trend of our courts, however, has been to apply to' it the usual rule of a reasonable construction. Its manifest purpose is to aid in the early settlement of estates. The limitation relates only to the commencement of the suit, and affords abundant time for the vigilant creditor to determine whether or not he will invoke the action of the law. This limit is two months longer than is given to parties desiring to prosecute error from adverse rulings of courts, and is not an unreasonable limitation. Other persons are interested in the settlement and distribution of estates, and they should not be unreasonably delayed in the enjoyment of their rights by the dullness or indecision of one creditor. It'is insisted that in order to answer the' requirement of an exhibition of the claim to the administrator, it must be shown that the creditor presented it for the distinct purpose of an allowance. If this be so then it is not within the power of the administrator to reject until after the creditor has made such presentation. That is, the creditor may wait until the last day of the eighteen months after appointment, and then present his claim and have six months longer within which to begin his suit, and no vigilance by the administrator will avail to prevent such delay. The proposition is wholly untenable. There should be no technical construction given to the matter of exhibiting the claim. If the facts show that the parties understand that the claim is presented then it is “exhibited.” Ganesvoort v. Nelson, 6 Hill, 389. And where a creditor produces his claim in a shape to sufficiently apprise the administrator of the nature and asks pay upon it, in whole or in part, immediately or in a short time,' surely it must follow that he has presented it for allowance. An administrator may allow without paying, but, in the nature of things, he can not pay without allowing. So that; even if the proposition that there is not an exhibition of the claim unless it is presented for the distinct purpose of allowance be sound, yet it does not apply to this case, for the claimant distinctly asked pay upon his note. Nor is there force in the assumption that the presentation and rejection must be contemporaneous acts. The obvious spirit of the statute is that the administrator shall have ample time to consider. Hence there can be no objection to a rejection because not made at the time of the presentation.

Another contention is that the effect of the last clause of section 6097, viz.: “A claim shall be deemed disputed or rejected if an executor or administrator shall, on presentation' of vouchers thereof, refuse, on demand made for the purpose, to indorse thereon- his allowance of the same as a valid claim against the estate,” is to define the meaning of the words “disputed or rejected,” as used earlier in the section. This proposition is effectually disposed of by Harter v. Taggart, 14 Ohio St., 122, where it is held that the clause “is not restrictive but in aid of the first, and creates a constructive refusal, for. the benefit of the creditor, when the executor, upon such presentation, waives or evades definite action thereon.”

Without questioning the proposition that the execution of the trust reposed in the administrator to allow and reject claims cannot be delegated, it is manifest by this evidence that the attorney, in his interview with Miller, was speaking for the administrator, and it is not the law that a trustee cannot act through an agent. Where he gives to the attorney instructions how to act, it is not a delegation of the trust, but a performance of it by the trustee acting through another. Selover v. Coe, 63 N. Y., 438; 1 Perry on Trusts, Sec. 409; Wintermeyer v. Sherwood, 77 Hun, 193.

We think it clear that, within the meaning of the statute, giving it a reasonable construction and one in accordance with previous decisions of this court, there was evidence tending to support the finding of the jury, and with that conclusion reached our inquiry as to that branch of the case necessarily ends. See Harter v. Taggart, supra; Cheeseman, Admr., v. Kyle, 15 Ohio St., 15.

It is insisted that the conduct of the administrator subsequent to October, 1898, estops him from now pleading the limitation of the statute: Several answers to this claim are apparent. Estoppel is not sufficiently pleaded in the answer. But if it were, the finding of the jury effectually disposes of the claim. The contention rests mainly upon the neglect of the administrator to inform the attorney who presented the claim and asked an indorsement May 12, 1899, that it had been previously rejected. He was not required to so inform the attorney. As found by the verdict of the jury, Miller, the client, knew as well as the administrator knew it, that the note had been rejected the previous October; indeed, he kneAV it better because he Avas personally present and the administrator was not. The third question put to the jury was: “Did Miller, either in October or February, present this note to the administrator for allowance or rejection, and did Miller understand and believe that on either occasion his note was rejected?” To which the answer was “Yes.” Having already found that there was no such presentation in February, the effect of this third finding is to answer that Miller did understand and believe that the note was rejected in October. So that, if Miller understood that his claim had been rejected in October, 1898, no beneficial result could follow a declaration to that effect by Ewing in May, 1899. Besides, the six months after that rejection had expired, and it seems reasonable to conclude, as is held in Brown v. Anderson, 13 Mass., 201, that where an administrator makes a new promise to pay, after the bar. is complete, he does not bind the estate, and what he could not legally do directly and intentionally he could not do indirectly and by mere negligence. Whether or not he might bind himself personally we need not inquire. See, also, Pollock v. Pollock, 1 Circ. Dec., 408; 2 C. C. R., 140. We readily assent to the proposition that in order to avail in starting the six months’ clause to running, the rejection must be plain and'unequivocal. If it is simply argumentative and uncertain; or, as in Bank v. Speight, 47 N. Y., 668; there had been, concurrent with the alleged rejection, an agreement to refer; or if, as held in Hoyt v. Bonnett, 50 N. Y., 538, at the time of the alleged rejection, the administrator does or says anything from which the claimant may reasonably infer that the determination to dispute or reject the claim is not final, but that it will be further examined or considered, the administrator may not set up such a dispute as a rejection. This is the rule of a number of cases cited by counsel for plaintiff in error. They have no application to this case, because the facts are wholly dissimilar. It is to be borne in mind that the substantial dispute in those cases related not to the question whether or not the six months’ bar had been or could be waived, but whether or not there had been, in fact and in law, a rejection of the claim.

Complaint is made that the trial court refused to give special charges' asked which were proper, and that there is error in the charge as given. We have examined the record fully in these respects,' and are of opinion that the court committed no error to the prejudice of the plaintiff in its refusals or modifications, and that the charge as given is in some respects even more favorable to the plaintiff than he could rightfully ask.

Judgment affirmed.

Burket, C. J., Price and Crew, JJ., concur.


author: Burket, C. J.

text:
    Goodrich et ux. v. Case, Exr.

      Substitution of duplicate note by maker — For old worn out note — - In hands of payee’s executor — Merely for renewal of evidence —New note no acknowledgment of old — Statute of limitations — Section 499$, Revised Statutes.

    WTiere the payee of a promissory note has died, and the note has come into the hands -of his executor, and being old and much worn, the maker, at the request of the executor, makes and delivers a true copy of the note to ■ such executor and destroys the original note, the intention of the parties being merely to renew the evidence of the old note, and that the new paper should stand for and instead of the old note, such substituted new note is not a written acknowledgment of the old note nor a promise in writing to pay the same, so as to prevent the statute of limitations from .running against the original note under Section 4992, Revised Statutes.
    (Decided March 31, 1903.)
    Error to the Circuit Court of Licking county.
    On the sixth day of December, 1873, Moses Goodrich, one of the plaintiffs in error, made and delivered his promissory note of that date to Grove Case, then in full life, but now deceased, said Burton Case, defendant in error, being his executor. ■
    The following is a copy of said note:

      “$2,500. Two years after date I promise to pay Grove Case, or orde.r, the sum of twenty-five hundred dollars, with interest at eight per cent., the interest to be paid annually. Value received. Dated this sixth day of December, 1873.
    “Moses Goodrich.”
    Said Moses Goodrich and Helen Goodrich, his wife, at the same time execute^ and delivered to said Grove Case their certain mortgage deed signed by both of them, to secure the payment of said note, which mortgage was duly recorded.
    Some payments of interest were indorsed on the note, and a payment of $1,000 was indorsed thereon of the date of July 20, 1880, and no payment was made thereafter.
    Grove Case having died in the year 1885, his executor on the twenty-first day of January, 1899, commenced his action against said Moses Goodrich and Helen Goodrich on said note and mortgage as a single cause of action seeking to recover judgment against said defendants below, and for a sale of the real estate covered by said mortgage, the proceeds to be applied to the satisfaction of such judgment. For the purpose of avoiding the statute of limitations, the plaintiff below inserted the following in his petition :
    “And said plaintiff ‘further says: That in the year 1894, the exact time of year' the plaintiff cannot now state, the said plaintiff and defendant met together and by agreement between them, the said note, the paper of which was much torn and worn, was exactly copied in writing on another piece of paper, together with all the indorsements thereon the same as said original note, and by said agreement tbe said defendant took said original note and the same was delivered up to him at his request by the said plaintiff and in the place thereof said defendant then and there signed said copy, the same being in writing, and then and there delivered the same to the said plaintiff, as and for, and in the place of said original, and then and there and thereby the said defendant acknowledged in writing said original promissory note, and that the money mentioned therein was an existing debt and liability owing and payable to said plaintiff, and that said note was a valid and subsisting contract between them and payable by said defendant to said plaintiff, and which written ■ copy was then and there duly signed by said defendant, and by which writing the said defendant did then and there promise that he would pay the money mentioned in said note to said plaintiff. That said acknowledgment and promise was then and there signed and delivered by said defendant to said plaintiff with the intention of acknowledging and paying the amount mentioned therein to said plaintiff.”
    The defendants answered pleading the statute of limitations, fifteen years, and then added the following to their answer:
    “And defendants further say, that on or about the thirty-first day of January, 1887, and not in the year 1894, and while said note and mortgage were existing obligations against the defendant, the said Moses Goodrich, at the instance and request of the said executor and without consideration and for the expressed reason on his part that the paper of the original note was much worn, signed his name to a copy of said note and indorsements, whereupon the plaintiff took said substituted note and handed to the said Moses Goodrich the original note. And defendants deny that there was any delivery of said copied note, but say that the same was substituted merely for the former note. And they deny that in point of fact or law or at all, said Moses Goodrich thereby or by reason-of the premises acknowledged in writing said original note or acknowledged that the money therein mentioned was an existing debt and liability owing and payable to plaintiff, except as indicated by the original note, which was then an existing obligation. And defendants deny that, by said substituted note, the defendant, Moses Goodrich, promised that he would pay the money mentioned in said substituted note or promised anew at all. And defendants deny, that there was any promise or acknowledgment in writing in the premises, or that said substituted note was signed or delivered by him to plaintiff, or signed or delivered with the intention of acknowledging and paying the amount mentioned therein in any other sense than as the original and substituted note then indicated a then subsisting obligation. Wherefore defendants pray judgment.”
    By his reply the plaintiff denied each and every allegation of the answer.
    A jury was waived and the cause submitted to the court, which found the conclusions of fact and law separately as follows:
    “1. That on the sixth day of December, A. D. 1873, the defendant, having borrowed $2,500 from Grove Case, executed and delivered to said Grove Case, the testator, his promissory note of that date for the sum of $2,500, payable to said Grove Case, or order, two years after date, with interest from date at the rate of eight per cent, per annum, and at the same time secured the payment of said note by the mortgage upon the real, estate described in. the petition. Interest was paid and indorsed upon said note up to December 6, 1876, and on the twentieth day of July, 1880, $1,000 were paid and indorsed on the said note. No other payments were made upon it. That Grove Case died oh the- day of-, 1885.

      “2. That on the thirty-first day of January, 1887, the said executor and said Moses Goodrich met, the said executor having the said note in his possession, when said executor said to said Goodrich that the said note had become dilapidated and worn out, and suggested to said Goodrich that they should supply the place of the old note by making a copy of the old note and the indorsements, and have that instead of the original note. That thereupon a literal copy of the original note and of the indorsements thereon, was made upon the new paper, the new paper bearing original date, etc., being the instrument copied in the petition in this case, was made by said executor, and said Moses Goodrich signed it, took up and destroyed the old note and delivered the new paper to said executor.
    “That in that transaction it was the intention of the parties merely to renew the evidence of the old note —to put in fresher and at that time more lasting-evidence the old or original note, and that the new paper should stand for the old note, and there was no other intention in the mind of the parties at that time.
    “3. That thereafter nothing was done with the note until the petition in this case was filed.
    “And as conclusions of law arising upon the above conclusions of fact, the court finds that the bar of the statute had not fallen January 31, 1887; that the said transaction was and constituted a written acknowledgment signed by Moses Goodrich as of the date of July 31, 1887, of the indebtedness shown by The original note, which prevented the bar, and was a waiver of the statute of limitations of fifteen years and that the defense setting up the statute of limitations of fifteen years is not good and valid.”
    Then follows a finding of the amount due on the note, a judgment against Moses Goodrich therefor, a finding that the condition of the mortgage has been broken, that the plaintiff is entitled to have the mortgaged premises sold to pay the amount so found due, and an order of sale if not paid within ten days. Proper exceptions were taken by defendants throughout.
    The circuit court affirmed the judgment, and there- • upon a petition in error was filed here seeking to reverse the judgments below.

      Messrs. Kibler & Kiblen, for plaintiffs in error.
    The sole question is (fifteen years and more having elapsed since the payment in 1880 before the bringing of this action), “Was this act of 1he parties in substituting the one note f.or the other, such an act as under the statute removed or extended the bar of the statute? Or, in other words, shall the fifteen years begin from the date of the last payment in 1880 or from the date of the substitution in 1887?
    What is the proper construction in Section 4992, Revised Statutes, of the words “or a written acknowledgment thereof, or promise to pay the same, has been made and signed by the party to be charged.”

      Our contention is, that the required writing must show in itself an acknowledgment of, or promise to pay, a subsisting debt, and that parol proof cannot be resorted to at all.
    What then was presented to meet the requirement of the statute? Only the paper copied above, which showed on its face, that the bar was complete, which showed no new promise or acknowledgment — but was the original note in Jieac 'vert a.

    If the acknowledgment of the debt does not appear from the terms of the writing, and it is necessary to resort to parol or circumstantial evidence to show an acknowledgment, the acknowledgment is not in writing. Scott v. Hickox, 7 Ohio St., 88; Angell on Lim., 24.
    The present statute requiring the acknowledgment or promise to be in writing was enacted to avoid the evils, uncertainties and contradictions which arose and existed under the former statutes, and the construction we contend for, does avoid them.
    We can find no cases which hold that the writing can be helped out by parol evidence, or that the writing can be disputed by such evidence. Those decisions which permit a date to be supplied and the like, apply to cases where the writing acknowledges or promises to pay a subsisting debt. We venture to say that there is no case which permits the use of parol evidence, which would not merely vary but wholly dispute and change the writing.
    If it had been intended that the making of the new note should be an extension of the bar, that intention itself should have been in writing. That is what were the design and meaning of the statute.
    The construction to be put upon the statute should be analogous tó that applied to the statute of frauds, viz.:. That the agreement should he expressed with such clearness and certainty that the terms may be understood from the memorandum itself without the necessity to resort to parol proof. Kling v. Bordner, 65 Ohio St., 86.
    But if parol evidence is admissible, that offered did not show anything other or further than the substitution of a new note for the other. There was no new consideration. There was no reason for an acknowledgment or new promise, because the debt would not be barred until about eight years' thereafter. It could not be in the contemplation of the parties that there should be an acknowledgment. Nor does it appear that an acknowledgment was intended or any other thing done or intended, except to renew the paper, not the note or debt. The new paper did not satisfy the original debt, nor any part of it, for the reason that the parties did not intend the destruction of the old note to have that effect. Kilgore v. Emmitt, 33 Ohio St., 410.

      Mr. Samuel M. Hunter, for defendant in error.
    ' We contend that the bar of the statute of limitations was removed by the facts shown in the record, under the provisions of Section 4992, Revised Statutes.
    The demand in suit is founded on contract, and we contend is taken out. of the statute of limitations on at least two grounds mentioned in Section 4992, Revised Statutes:
    1. On January 31, 1887, Goodrich, the party, charged, by giving the new paper, and delivering the same to Case, acknowledged the demand in writing.

      2. That Goodrich then and there and thereby promised to pay said demand in writing, not only by implication, but expressly. .
    Goodrich over his own signature says in this paper, that he had executed said original note for $2,500, that he promised to pay the same demand with interest, and for value received, and that he still owed the same.
    There could be no more absolute acknowledgment of the demand, there could be no more unequivocal promise to pay. What could possibly be his object in signing said paper and delivering the same to Case, unless it was to acknowledge that he still owed the demand, and promising to pay the same.
    There can be no extraneous provisions engrafted on this statute by construction. The language is absolutely clear. Wilcox v. Nolze, 34 Ohio St., 520; Bissell v. Jaudon, 16 Ohio St., 499.
    Although the statute in force when the above case arose, did not require the acknowledgment to be in writing, yet an acknowledgment was required to take the case out of the statute, and a similar acknowledgment would do so now, but it must be in writing. It will be noticed in the above case, there was no question of intent, when the parties consented that the funds should be applied on the debt. No one claimed that it was for the purpose of tolling the statute of-limitations, but whatever the effect and intent was, it did not matter, the consent was an acknowledgment, and had all the force and effect of án acknowledgment, regardless of intent. Coffin v. Secor, 40 Ohio St., 637; Chidsey v. Powell, 4 S. W. Rep., 446; Russell v. Davis, 53 N. W. Rep., 766; Harms v. Freytag, 80 N. W. Rep., 1039; Elder v. Dyer, 26 Kan., 604; Kincaid v. Archibald, 73 N. Y., 189.

      The actual time of the signing of any paper may be shown by parol evidence. The date of a paper is no part of its provisions. Manchester v. Braedner, 107 N. Y., 346; Skeet v. Lindray, 2 Ex. D., 316; 46 L. J. Ex., 251; 2 Smith’s L. C., 904 (E & Co.’s ed.).
   Burket, C. J.

This cause was orally argued before a division of the court, and was afterward submitted to, and fully considered by, the whole court.

The original note and the mortgage securing the same were demands founded on a contract, and therefore Section 4992, Revised Statutes, is applicable. That section is as follows: “When payment has been made upon any demand founded on a contract, or a Written acknowledgment thereof, or promise to pay the same, has been made and signed by the party to be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment or promise.”

Grove Case was the payee in both the original and substituted notes, ,and the name of Burton Case is not found in either note. On January 31,1887, when the substituted note was handed to Burton Case, there was no written acknowledgment thereof made to him, and there was no promise made to him in writing to pay the note. Grove Case having died before that time, there could be no acknowledgment or promise to him, because an acknowledgment or promise must be to the living, and not to the dead. The talk was with Burton Case, but that talk was not reduced to writing, and was not signed by the party to be charged. The substituted note was signed by the maker, the party to be charged, gnd took the place of the old note, and had its force and legal effect and nothing more; and if from the signing of the substituted note a promise or acknowledgment is to be forced or forged, contrary to the intent and purpose of Mr. Goodrich and the executor, that result is avoided and averted by the fact that such acknowledgment and promise was not made to the living executor, but to his dead ancestor. And this defect cannot be helped out by parol, because the promise or acknowledgment is required by the statute to be in writing, and the writing must show on its face to whom the promise or acknowledgment was made. A promise or acknowledgment to the dead is void,'and to show by parol that while the written promise or acknowledgment was to the dead, it was in fact delivered to the living, would be to avoid the statute by substituting a parol promise or acknowledgment for the written one required by the statute.

In its conclusions of fact, the court finds the following : “That in that transaction it was the intention of the parties merely to renew the evidence of the old note — to put in fresher and at that time more lasting evidence the old or original note, and that the new paper should stand for the old note, and there was no other intention in the mind of the parties at the time.”

This 'conclusion of fact is fully supported by the evidence as to the whole transaction, including the .substituted note. The purpose and intention of the parties to a transaction should govern and determine its legal effect in the absence of a statute or positive rule of law requiring the contrary. Laying aside the question of the death of Grove Case, there is no direct acknowledgment or promise to pay this old note by the giving of the substituted one. It may be argued that the giving of the substituted note was a written acknowledgment at that time of the demand evidenced by the old note, and was also a promise in writing to pay the same. But this argument is not sound. Nothing is said in the substituted note about an acknowledgment of the old note, and there is no promise to pay the old note. The substituted note deals only Avith the original debt as of the date of the original note, and was given in its place and stead, and was not given- as a new promise or a new acknowledgment, but only to preserve in lasting form on good paper the old promise' and old note. In such cases the intent and purpose of the parties should control, and their intentions should not be thwarted by a strained construction.

To make a copy of a note is not an acknowledgment of such note, nor a promise to pay the same; and this is so whether the copy is made by the maker or a stranger. Suppose the holder of a note should desire a copy thereof for some purpose of his own, and the maker, at his request, should make and deliver to him such copy; it could not be reasonably claimed that an acknowledgment of the note, or a promise to pay the same, lurked in such copy. Suppose the maker to be a notary public taking depositions in which it would become necessary to insert a copy of his own note; the copy so made could not be reasonably construed to be an acknowledgment by him of the note, or a promise to pay the same. Or suppose the maker should be county recorder, and the note copied into the mortgage, as is sometimes done, and the mortgage brought in at a late date and recorded, it could not be reasonably claimed that the copy of the note in the record would amount to an acknowledgment of the note, or a promise to pay the same, because in all those cases the purpose and intent of the parties would not be to make an acknowledgment or promise; and in construing written instruments the controlling, rule is to give effect to the purpose and intention of the parties. The object of making written instruments is to show the purpose and intention of the parties.

The acknowledgment or promise which takes a note out of the statute of limitations, is an acknowledgment or promise outside of the note itself, or a mere copy thereof. The note is the object, and the acknowledgment or promise must be as to that object. VThe note must be acknowledged as existing and the promise must be to pay such existing note.

The making of a note or copy thereof cannot at the same time serve the double purpose of a making, and also of an acknowledgment or promise to pay. The proposition is absurd.

The court of common pleas erred in rendering judgment in favor of the plaintiff below, upon the facts found, and the circuit court erred in affirming the judgment. Both judgments will be reversed, and judgment entered in favor of plaintiffs in error. ■

Judgments reversed, and judgment for plaintiffs in error.

Davis, Shaitck and Price, JJ., concur.