author: Day, J.

text:
    The Pittsburg, Cincinnati and St. Louis Railway Co. v. Martha Porter, Adm’x of Andrew J. Porter.
    1. Where no exception is taken at the trial to the charge of the court to the jury, a judgment will not be reversed, on error, upon the mere ground of error in the charge, without reference to the merits of the whole case.
    2. Where, however, the whole evidence is made part of the record, and it appears that the verdict is contrary to law, the overruling of a motion for a new trial on that ground, may be reviewed, on error, though no exception was taken to the ruling of the court.
    3. The mere fact that a juror in a civil case drank intoxicating liquor during an adjournment of the court while the trial was in progress, is not a sufficient reason for granting a new trial, unless there be reason to suspect it may have had some influence on the final result of the case.
    4 Any attempt on the part of the prevailing party or his attorney in the case, to corrupt a juror, though it be not shown to be successful, is a good ground for a new trial.
    5. Where it appears that during the progress of a trial, the prevailing party or his attorney has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it is clearly shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror.
    Error to the District Court of Jefferson county.
    J. Dunbar, for plaintiff in error,
    claimed that the court erred in not granting a new trial for -the misconduct of the juror, Maxwell, and of counsel for plaintiff below, and cited Weis v. The State, 22 Ohio St. 488; People v. Douglass, 4 Cow. 26; Brant v. Bowler, 7 Cow. 562; State v. Bullard, 16 N. H. 139; Commonwealth v. Roby, 12 Pick. 517; State v. Baldy, 17 Iowa 41; 27 Iowa, 494.

      Trainer & Cook, J. McClave, and W. P. Hays, for defendant in error, said
    there was no error in refusing a new trial

      on the ground of misconduct of juror and counsel. Verdicts are not set aside or new trials granted for trivial cause of this character. In the language of Hilliard on New Trials, “A new trial will not be granted on account of the misconduct of a juror which has been no injury to either party.” Hilliard on New Trials, p. 40, ch. 3, § 4; same p., 165, ch. 10, § 8. Also, Newel v. Ayers, 32 Maine, 334White v. Wood, 8 Cush. 413; Smith v. Powers, 15 N. H. 546; Aiken v. Morris, 4 Zabr. 538; McCarty v. McCarty, 4 Rich. 594; Johnson v. Porter, 2 Harring, 325; Vonn v. Dotson, 2 Swan, 348; Helton v. Southwick, 5 Shep. 303; Luster v. State, 11 Humph. 169; Hoe v. State, 11 Humph. 491; Wright v. Burchfield, 3 Ohio, 55.
   Day, J.

The original action, being authorized by statute, was brought in the Court of Common Pleas of Jefferson county, by the administratrix of the estate of Andrew J. Porter, deceased, against the railway company, to recover damages sustained by the death of decedent, occasioned by the alleged negligence of the servants of the company in running one of its trains.

Judgment was rendered against the company, and the district court, on error, affirmed the judgment. This petition in error is prosecuted to reverse these judgments.

A reversal is sought chiefly for error in overruling a motion for a new trial. Eour grounds are relied upon in argument : 1. That the court, on the trial, admitted improper evideuce. 2. That the verdict was against the law, and was not sustained by the evidence. 3. That the court erred in the charge given to the jury. 4. For misconduct of a juror, and of one of the counsel for the prevailing party.

1. The evidence excepted to related to the speed of the train shortly before it reached the place of the injury complained of. It was given in connection with what the conductor of the train said about it, and was not clearly inadmissible. At most, it was only immaterial; and the court, in its final charge, so instructed the jury. It is, moreover, manifest from the whole record that the company could not have been prejudiced by the ruling of the court in admitting the evidence. The judgment can not, then, be reversed on this ground. Thayer v. Luce, 22 Ohio St. 62.

2. Upon the overruling of the motion for a new trial, a bill of exceptions was taken which embodied all the evidence. Looking to the whole evidence, we do not regard the verdict as being so manifestly against the law and evidence as to warrant a reviewing court to reverse the judgment on that ground.

We do not deem it important to state more fully the grounds of our conclusion; for in addition to a review of a mass of testimony, it would involve merely a reconsideration of questions which have been discussed and settled in numerous reported cases upon the same subject.

3. No exception wras taken at the trial to the charge of the court; nor was any alleged error therein made a ground of the motion for a new trial. There is, then, no foundation for claiming a reversal of the judgment solely upon the ground that the court erred in the charge to the jury, without reference to the whole merits of the case. Where, however, the whole evidence is made part of the record, and it appears that the verdict is contrary to law, the overruling of a motion for a new trial may be reviewed', on error, for that reason, though no exception was taken to the ruling of the court. There is, then, nothing' for review in relation to the charge of the court other than what was considered under the general objection, that the verdict was against the law. Kline v. Wynne, 10 Ohio St. 223; Mowry v. Kirk, 19 Ohio St. 375.

4. As to the alleged misconduct of a juror and the counsel of the prevailing party, the evidence relied upon in support of the motion for a new trial shows, that, after an adjournment, about ten o’clock at night, during the progress of the trial and before the case was finally submitted to the jury, one of the jurors and one of the counsel for the plaintiff below, on the way to their respective lodgings, casually met, and, while passing a saloon, the attorney remarked that he was tired, and thought he would take a glass of ale, and asked the juror if he drank ale; on receiving an affirmative reply, he invited him to go in and join him in taking a glass of ale, which they did, remaining there about five minutes, drinking but a single glass each, during which time, nor at any time while they were together, was any allusion made to the case. The evidence further tended to show that neither the drinking nor conversation between them had any influence in the case, and that the whole transaction was merely casual and without any evil intent on the part of either the juror or the attorney.

The rigor-of the ancient rule in regard to jurors eating and drinking, the reason for it having ceased, has passed away. Still, inasmuch as intoxicating drinks may so easily disqualify them for an intelligent discharge of their duties, courts are, in all cases, jealous of their use by jurors; and some of high authority,refusing to draw aline short of total abstinence, have held that the drinking of spirituous liquors by a juror, during the progress of atrial, is a sufficient ground for setting a verdict aside. But more generally, the stringency of this rule has been so far relaxed, that the mere fact of drinking spirituous liquors by a juror in a civil case during an adjournment of the trial, though censurable, is hot regarded a sufficient reason for overturning a verdict, unless there be some reason to suspect it may have had some influence on the final result of the case; for otherwise an innocent party would be punished for the censurable conduct of another person, which has occasioned no injury to either party. Wilson v. Abrahams, 1 Hill, 207; Hilliard on New Trials, 204, ch. 10, § 8.

But the present case involves the further element, that intoxicating drink was taken by a juror upon the invitation and at the expense of the attorney for the prevailing party.

Here, again, authorities are not wanting to sustain the ancient rule, that if jurors eat or drink at the cost of the party for whom they afterwards find, it disannuls their verdict. Wilson v. Abrahams, supra; Walker v. Hunter, 17 Geo. 414. More especially the least attempt on the part of the prevailing party or his attorney, to influence or corrupt a juror, though it be not successful, is held to have the effect to vitiate a verdict rendered in his favor, as a just punishment for his misconduct. The rule is founded in public policy, the better to preserve the purity of trial by jury. Hilliard on New Trials, 202, ch. 10, § 6. “But if the act done was a mere accident or inadvertence, without any improper design; and if it can be safely assumed that it had no improper influence on the mind of the jurors, in such case there can be no just or reasonable ground to disturb the verdict.” Vaughn v. Dotson, 2 Swan, 348.* Accordingly, it has been held, that the casual treating of a juror by the prevailing party or one in his employ, without any design to bias or influence him, where there is no cause to believe that the juror was influenced by the occurrence, is not a ground for a new trial. Hilliard on New Trials, 204, ch. 10, § 8.

It has, therefore, been maintained that the' sufficiency of such ground for a new trial must, in each particular ease, be left to the discretion of the court to which the motion for a new trial is made. Nor is this view, in a limited sense, opposed to the provisions of the code of civil procedure. Section 297 declares that a verdict “ shall be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party.” “ Misconduct of the jury or prevailing party” is one of the causes enumerated. But whether the misconduct affects “ materially the substantial rights of the party,” must be determined by the court upon the facts of each particular case. While such determination must of necessity rest largely in the discretion of the court; it must still be a judicial discretion, controlled by the law affecting the substantial rights of the party. Since, then, the determination in each case must depend upou the view taken of the facts adduced in support of the motion, where the decision does not clearly conflict with the law as applied to the plain facts of the case, the ruling of the court upon well-settled principles can not be reversed.

That the right of the parties in a jury trial, to have an impartial and unbiased jury, is a substantial right, can not be questioned ; and it is equally clear, that any tampering with jurors, during the adjournments of a trial, forthepurpose of influencing their decision, where it has that effect, materially affects that right. Moreover, any attempt of a party to corrupt the jurors is an invasion of the other party’s right; for he ought not to be subjected to the hazard of having them biased against him; nor to the task of proving that he has been prejudiced thereby, for, from the nature of the case, it might be impossible to be shown otherwise than by the jurors themselves, who, for reasons of public policy, are in general only competent as witnesses to sustain, and not to invalidate their verdict. Weis v. The State, 22 Ohio St. 486.

The mere fact of treating jurors by a party during the progress of a trial, as we have seen, so far evinces a purpose to influence them, that, unexplained, it is held to be a ground for vacating a verdict rendered in his favor.

Where, therefore, a party or his attorney is guilty of such misconduct, the case comes within the provisions of the statute, requiring a verdict in his favor to be vacated on the application of the party aggrieved.

The rule to be adduced, then, from these considerations, is, that where it appears that during the progress of a trial, the prevailing party, or his counsel in the case, has furnished intoxicating liquors to a juror, it is a good ground for a new trial, unless it is shown that it was not intended to influence his action in the case, and that it had no influence on his mind as a juror.

Applying this rule to the case made on the motion for a new trial in the present case, we can not say that the court erred in overruling the motion. It is quite apparent that the treating of the juror was casual and not intended to bias his action, and that it had no improper influence on his mind as a juror.

Judgment affirmed.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    Ratliff v. Warner.
    The residuary clause of a will was in these words; “ I bequeath to my daughters, Mary Ann and Eliza, and their heirs, all the residue of my estate, real, personal, and mixed, in equal shares; and in case the said Eliza shall decease without lawful heirs of her body, her share to pass to the said Mary Ann Hunter and her heirs.” The estate was settled up, leaving a residuum in money, which, in pursuance of the will was equally divided between the two daughters who were then living. Mary Ann died, leaving, as heirs, two children. Afterward Eliza died without heirs of her body. Held,

    1. In the absence of anything in the will to the contrary, it was the duty of the executor, upon the settlement of the estate, to make distribution as therein expressly directed, and such distribution was a proper and complete administration of his trust in relation to such bequest.
    2. Whether the bequest over, on the death of Eliza without heirs of her body, is void, because inconsistent with the bequest to her and her heirs, or was valid. Quaere.

    3. But if valid, they, and not the personal representatives of the testator, are the proper plaintiffs, to assert their rights, after final distribution of such bequest as directed by the will.
    Error to the District Court of Trumbull county.
    The facts necessary to be stated are found in the opinion.

      H. H. Moses, for plaintiff in error.
    It is evident that Preston Thayer 'did not intend to bequeath to Eliza Thayer, absolutely and unconditionally, one-half of all the residue of his estate. On the contrary, it was his intention that she.should have the property absolutely, only upon the contingency that she “ had lawful heirs of her body” at the time of her death. If she should die without “ lawful heirs of her body,” it was clearly the intention of the testator that she should take but a life estate. This being the case, we may say that the limitation over amounted to an executory devise of the share of Eliza to Mary Ann Hunter and her heirs. Whatever may have been the rule in an early day, there can be no doubt that at the present time there may be a bequest of personal property, including money, for life, which is good as an executory devise. 2 Kent’s Com. 352; Redfield on Wills, 1st part, 679; German v. German, 27 Penn. St. 116; Marston v. Carter, 12 N. H. 159; Field v. Hitchcock, 17 Pick. 182; Homer v. Shelton, 2 Met. 194; Smith v. Bell, 6 Pet. 68; Redfield on Wills, 2nd part, 653, 654; Wescott et al. v. Cady et al., 5 Johns. Chron. 334; Rathburn v. Dyckman et al., 3 Paige, 9; Baxter, Adm’r v. Bowyer et al., 19 Ohio St. 490; Huston v. Craighead et al., 23 Ohio St. 198.
    It may be claimed that the words “ shall decease without lawful heirs of her body,” contained in this will, are of the same import as “ die without issue,” or “ die without heirs of her body,” and if so, that then the bequest to Eliza gave her the entire property, and that, therefore, the limitation over is void by wTay of an executory devise, being founded on an indefinite failure of issue, and therefore too i'emote. While we admit that the rule in England has been, and now is, in the absence of any statute upon the subject, that words of like import with the last aforesaid are construed in reference to real estate as meaning a failure of issue 'whenever it shall happen, and not a failure of issue at the death of the first taker, and the limitation over void for remoteness; yet we say that that rule has never been adopted in this state, but, on the contrary, has boon distinctly repudiated. Parish Heirs v. Ferris et al., 6 Ohio St. 563.
    The rule at common law has always been, that if the limitation over is to “ issue,” or heirs living at the death of the first taker, the limitation over is not too remote, but good as an executory devise. 4 Kent’s Com. 276; 2 Redfield on Wills, 657, 658; 54 Penn. St. 97; 13 N. Y. 273; Tyson v. Blake, 22 N. Y. 558.
    It is also claimed that the terms of the bequest to Eliza, and the nature of it is such that it invests her with the absolute ownership of the money, with full right and authority to dispose of the whole, and use it as she should see fit; and that, therefore, the subsequent clause of limitation over to Mary Ann Hunter and her heirs, is void, being inconsistent with the former estate granted. This, however, is giving a construction to the will not warranted by the rules of law. It would be construing the will by a single clause, without regard to any other portion of the will; whereas, the correct rule is to construe the will so as to give effect to each and every part of the will, and to carry out the intent of the testator, and to ascertain that intent. The whole will should be considered together, and as a whole. Baxter v. Bower, 19 Ohio St. 491; Smith v. Buell, 6 Pet. 68.
    In the light of these authorities, we think there can be no doubt but that Eliza Thayer took only a life estate in the money she obtained from the estate of Preston Thayer, and that the limitation over to Mary Ann Hunter and her heirs is good.
    The second question presented is as to who is entitled to sue for and recover this bequest to Mary Ann Hunter and her heirs. If it is a bequest of Preston Thayer of a portion of his estate, it seems pretty clear that it is as much the right and duty of his executor, or other representative, to execute the bequest and distribute this part, as any other part of the testator’s estate, or any other bequest made by him. The right of legatees to ultimately possess and enjoy an estate, and the right to execute the will of the testator, and make distribution, are distinct rights, and neither results from the other. If this be true, then we say that the right to ultimately possess and enjoy, and the right to distribute, both issue from the same paramount authority —the will of Preston Thayer. But if the true construction of section seven of his will is that Eliza Thayer took only a life estate, and life use, and that Mary Ann Hunter and her heirs took a contingent estate in expectancy, the latter estate should be guarded and preserved, and we insist that the only possible way to preserve it with certainty, is to make the executor, or other personal representative of the testator, liable for its safe keeping; otherwise, it would be in the power of the executor or admistrator with the will annexed, to defeat the will which he has undertaken to execute, simply by paying the principal of thebequest to the taker of the life estate, who would easily put it beyond the reach of residuary legatees.
    In addition to this argument, based upon necessity, we urge the further consideration that the liability of the representative of the testator is consistent with the estate created, and the justice of the case.

      George M. Tuttle, for defendant in error.
    I. No case is made in the original petition in favor of any one.
    1. No title to the fund iu question, in any person save Eliza Thayer and her representatives, is shown. It is shown that the title depends on the will of Preston Thayer, and it is not shown what the will of Preston Thayer is, nor that it in any manner qualifies the title of Eliza Thayer, after her reception of the fund. Hawkins on Wills, 256, 257; Smith on Executory Interests, 338, §§ 356-358; Ib. 347, §§ 662, 663.
    2. The cause of action has no other foundation shown than the dealings of Eliza Thayer and her representatives with the fund in question, and it is not shown, that she or her representatives have dealt with the fund in any manner contrary to right, nor if her representatives have done any such wrong, that they so did it as to charge her estate.
    II. If any cause of action arose, it was not in favor of plaintiff in error. Weidner v. Rankin, 26 Ohio St. 522. If the plaintiff was not entitled to recover, his administration bond would furnish no security for the money. 14 Ohio St. 183.
    The question is whether any title to these moneys, or to recover on account of them, either remained iu the plaintiff below after distribution, or accrued to him. on the death of Eliza Thayer.
    Considering these moneys as the proceeds of real estate, the statute (1 S. & C. 596, § 155), furnishes the rule on the subject. For the English rule, see Smith on Ex. Int. 381, § 548, and see the Ohio cases. Taylor v. Foster, 17 Ohio St. 166; Foster v. Fitch, 17 Ohio, 350.
    III. There was error in the proceedings against Austin Thayer; that the judgment against the administrator of Eliza Thayer was a judgment against him. See section 45 of the act of April 7, 1856 (S. & S. 435); section 14, clause 5 of the act of April 13, 1858 (S. & S. 382; 74 Ohio L. 55, 56); sections 32 and 100 of the code of civil procedure.
   Johnson, Chief Judge.

Prior to 1860, Preston Thayer died, leaving a will, the residuary clause of which was in these words : I bequeath to my daughters, Mary Ann and Eliza, and their heirs, all the residue of my estate, real, personal, and mixed, in equal shades ; and, in case the saidFliza shall decease, without lawful heirs of her body, her share to pass to the said Mary Ann Hunter and her heirs.”

The estate was settled up by the executor, and the residue, which was in money, was equally divided between said daughters, then both living, “ in pursuance of said will,” as the petition alleges. The final payment to Eliza was made November 7, 1865, making in all $3,684.01, which she received. Subsequently, Mary Ann died, leaving George P. and L. F. Hunter her heirs to whatever would accrue to her under said will. After this, and in the year 1870, Eliza died without issue of her body, but leaving a will, by which she bequeathed her estate to her brother, Austin Thayer.

The controversy now is : Did Eliza take an absolute estate in the residue in money bequeathed to her, or was the limitation over valid, so as to vest the estate which she had received in the heirs of Mary Ann, on the death of Eliza, without heirs of her body ?

The real parties to the controversy are the heirs of Mary Ann, the claimants under the will of Preston Thayer, and Austin Thayer, legatee under the will of(Eliza, who claims that, by the will of Preston Thayer, Eliza took an absolute property in said moneys.

The actual parties to the record are the plaintiff's, as administrator de bonis non, with the will annexed, of Preston Thayer, and as defendants, the personal representative of Eliza and her sole legatee, Austin Thayer.

The object sought is to recover back the amount so distributed, in order to redistribute the same to the heirs of Mary Ann Hunter.

Two questions are made:

1. Did Eliza take an absolute estate in this residue in money, or was the limitation over to the- heirs of Mary Ann valid, and did it operate to vest the estate of Eliza, which she received under her father’s will, in them, on her death without issue of her body?

2. If the latter is the proper construction of the will, is the personal representative of Preston Thayer the proper plaintiff to assert the claims of the heirs of Mary Ann ?

The record does not disclose a full copy of the will, but only the clause quoted, hence the danger of undertaking to give it a construction.

For the purposes of this case, we assume that Eliza did not take an absolute estate in said moneys, and could not,,, therefore, devise them to her brother. On this assumption, it follows that the amount she received from her father’s estate belonged to the heirs of Mary Ann at her death. This brings us to the second inquiry — that is: Who is the proper plaintiff to recover back the money for the benefit of George P. and L. F. Hunter ?

The general rule is that the real party in interest must sue. Code, § 25.

In cases of trust, the exception to that rule is, an executor or administratqr, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, may bring an action, without joining his cestui que trust. Code, § 27.

It is not averred in this petition, nor does it appear by the part of the will submitted to us, that any express trust was imposed upon the executor to take care of this residue, bequeathed to Eliza, or to preserve the estate until the several events should happen which would determine whether an estate vested in the heirs of Mary Ann. On the contrary, it is expressly averred that the executor settled up this estate, paid the debts and costs of administration, and made- final distribution, “ in pursuance of the will” By this we understand that whatever duties were imposed on the executor, either by the will or under-the statute, had been fully performed, and the trust completely executed. If this be so, no trust or duty remained to be executed by the present plaintiffs, and the general rule of code pleading must apply.

It is insisted, however, that this will created in Mary Ann Hunter and her heirs what is termed “ a contingent estate in expectancy,” and that Eliza “ took only a life estate and life use,” and that it was the duty of the executor to guard and preserve the estate so devised, and that he was responsible for its safe-keeping until the divesting contingency should be determined.

The rule undoubtedly is as stated in cases of a bequest of personalty for life, with remainder in the principal sum to another at death or any other certain event, because' the remainder-man has a present interest in the thing devised.

So, also, it may be when the will expressly provides that the executor shall hold the bequest in trust until the event is determined.

In the case before us, however, the will imposes no such duty on the executor, nor is there any present certain interest in the money bequeathed. Neither does it give to Mary Ann Hunter or her heirs any vested or contingent remainder in said residue in money. The words of the will are : “I bequeath to my daughters, Mary Ann and Eliza, and their heirs, . . . and in case the said Eliza shall decease without lawful heirs of her body, her share shall pass to the said Mary Ann Hunter anddier heirs.” This is a bequest generally to Eliza and her heirs, a bequest in. fee, with a limitation over, .on the happening of a subsequent uncertain event, if any limitation exists in the case. Assuming that this limitation over is valid, the most that can possibly be claimed is that Mary Ann Hunter and her heirs take an executory estate, by what is known as an ex-ecutory devise, and not an estate in remainder. Bouv. L. Dict.; 4 Blackstone’s Com.; 4 Kent Com. 257, 285; Homer v. Sheldon, 2 Metc. 199; Niles v. Gray, 12 Ohio St. 320; Taylor v. Foster, 17 Ohio St. 166.

In such case, what is the duty of the executor in regard to personalty so devised, in the absence of an express trust or duty created by the will ?

In Fawkes v. Gray, 18 Vesey, 131, it was held that a legacy to be void in case the legatee should succeed.to another estate on the death of another without issue of her body, was payable to the legatee, without security, and without waiting to see if the future event would happen which should divest it.

To the same effect are Isaac v. Gomberts, 1 Vesey, Jr. 44, and Griffith v Smith, 1 Vesey, Jr. 98.

The English chancery practice is followed in numerous cases in Massachusetts. Thus, in Fish’s Adm’r v. Cobb, 6 Gray, 144, which was a bequest to one and her heirs, with a bequest over if she died without issue, it was said the doctrine was well settled, that it was to be paid to the first taker, and that security would be required only where there is danger of loss of the estate.

In Griffith v. Smith, Lord Thurlow said : Suppose there is a contingency of an ulterior claim, still the plaintiff must have his money, for I can not keep it in court all that time to awrait the event. I must now give these legacies to plaintiff, non constat, now that the contingency upon which any legatee over would possibly have a claim will ever arise; if it should, then the question may be made.”

In a similar case, McCarthy v. Cosgrove, 101 Mass, 124, the same order was made, and also in Taggard v. Piper, 118 Mass. 315.

In Ex’rs of Roe v. White, 1 C. E. Green, 411, the court points out the difference between bequests of personalty for life with remainder over, and a bequest generally with a limitation over on the happening of a subsequent event. In the former class of cases, the interest only is enjoyed by the tenant for life, and the principal must be preserved for the remainder-man, while, in the latter, an estate generally is vested in the first taker, with a divesting contingency over, but this will not defeat the right of the first taker to possession.

The reason for this distinction is aptly explained in Slanning v. Style, 8 P. W. 334, where it is said: “ Where the testator sees fit to repose a trust, in such case, until some breach of.that trust be shown, or at least a tendency thereto, the court will continue to intrust the same hand without calling for any other than what the testator required.”

In this case, if we treat the limitation over as valid, the testator reposed a trust in Eliza, by giving her this estate absolutely, subject only to be divested by a subsequent contingent event, and imposed no duty on his executor in relation thereto beyond its payment to her. Whatever the ultimate rights of Mary Ann Hunter and her heirs were at the time of final distribution, when Eliza received this money, her then present right to receive it was clear. Consequently, in the absence of any danger to the fund, it was the duty of the executor to pay it to hey, although her estate in it was subject to be divested by the subsequent contingent event. It follows that the executor performed his duty, as the petition in substance alleges, in paying the bequest to her. If so, no action lies in his name to recover back the money by reason of any trust then in him to preserve this contingent estate, for no such trust existed. If not, does the death of Eliza, without issue, years afterward, and after the estate is fully settled and finally distributed, impose a >new duty on the executor, or on the administrator de bonis non, to recover back the money and again distribute it ? We think not. We have cited the foregoing authorities simply to show that the distribution by the executor was in discharge of a duty imposed by the will. He was not bound to wait an event that might never happen.

"Whether a court might not, in a proper case, require security in case such limitation over was valid, and there was danger that the bequest would be lost, we need not inquire at this time. It is enough to say that in the absence of any risk to the principal estate, or of any order of court or provision of the will, the executor fulfilled his trust by such distribution. If the divesting contingency has happened, or if while it is yet undetermined, there is danger that the possible future estate may be lost to the heirs of Mary Ann Hunter, they, and not the personal representatives of the testator, are the proper parties plaintiff in an action to protect their rights. If the will provided otherwise* and the distribution made was improperly made, or if this was a bequest to Eliza for life only, with a vested or contingent remainder in the principal sum in Mary Ann and her heirs, the rule might be otherwise.

Tyson’s Ex. v. Blake, 22 N. Y. 558, is relied on and is doubtless an authority in support of the validity of the limitation over, though at variance with many other cases of equal authority. That it is not in point on the question we are considering will be seen, when it is stated that in that case the executor exacted of the guardian of the first taker a bond to him to repay; and the action was upon that bond against the guardian and thesureties on the bond.

One of the reasons given by 0. J. Comstock for the decision, is that the bond was voluntarily given, “ and the action was well brought to enforce it.” Such an action came within the express terms of both the New York and Ohio codes. It was an action in the name of one, “ in whose name a contract was made for the benefit of another.” Code, § 27. In such case, such person may properly be a plaintiff.

Tyson v. Blake does, however, recognize the doctrine that there is a duty in the executor to guard the future contingent estate, by requiring such bond to be given, and in this it is clearly at variance with the chancery practice in England and in most of the states.

The most that can possibly be claimed from this will is that the residue bequeathed to Eliza vested in her the money, and that the limitation over diverted this title to this bequest, in favor of the heirs of Mary Ann, on the death of Eliza without issue. Conceding this to be so, then these heirs, being the real parties in interest, are the proper plaintiffs.

In Pinbury v. Elkin, 2 Vernon, 758 (in the year 1718), which was much like the present, the action was in the name of the legatee over, and not of the executor.

So where there was a bequest of a residuum of personal estate to the wife for life, and at her decease to their children, and if no children be living at her death, then to his two brothers and to the survivor of them; the bill was filed by the personal representative of the last surviving brothei’, against the widow and others claiming an interest, to preserve and secure the bequest over. The executor was not even a party to the suit, and no question was made but that the proper plaintiff! was before the court. Barnes v. Allen, 1 Brown C. C. 181.

Whether in this case the limitation over to Mary Ann Hunter and her heirs is valid, or void, as inconsistent with the devise to Eliza and her heirs, is a question we find it unnecessary to consider, as we are clearly of opinion that if valid, the proper parties to assert the right are the heirs themselves, and not the personal representatives of the testator after distribution of the bequest in pursuance of the will. Judgment affirmed.


author: Ashburn, J.

text:
    Railway Co. v. Valleley.
    1. It is not .only the right of a conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers by his acts the lives of people, it is the duty of such conductor to remove such passenger in order to protect others from violence and danger.
    2. But this right must be reasonably exercised, and not so as to inflict wanton or unnecessary injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril.
    3. If having exercised reasonable prudence, considering the time, place, and circumstances, as also the condition of the drunken man himself, the conductor expels such passenger, who is afterward run over and killed by another train not in fault, the expulsion itself is not such proximate cause of the death as will make the company liable.
    Error to the District Court of Stark county.

      J. T. Brooks, for plaintiff in error:
    A drunken-, boisterous, and disorderly passenger lias no right to continue' in a public conveyance. He has lost the benefit of his contract for transportation, and is a trespasser. The passengers or' the employes of the carrier may expel him exactly as if he were found committing the same violence in their homes, offices, or shops, and they need not consult his liability to danger by reason of passing conveyances, exposure to weather, or any other agency which may work injury to him, but with 'which they have nothing to do.
    The right oF a carrier of passengers thus to rid itself at once, but without unnecessary force, of a disorderly, drunken man, is doubly enforced by its duty to protect other passengers, and this duty is sanctioned by every consideration of justice as well as humanity. Railroad v. Hinds, 53 Penn. St. 512; Flint v. Railroad, 34 Coun. 554; Vinton v. Railroad, 11 Allen, 304; Railroad v. Miller, 19 Mich. 313; Brown v. Markham, 8 N. H. 328; Story on Bailments, § 476; Commonwealth v. Powers, 7 Met. 601; Haley v. Railroad, 21 Iowa, 15; Willets v. Railroad, 14 Barb. 585.

      S. Meyer & Son, for defendant in error:
    Now, without at all attempting to controvert the right of the companies to put oft’ the deceased from their train, under the circumstances stated — that is to say, because he was on the train in an intoxicated condition, and was boisterous and very disorderly; all which was conceded on the trial, and hence did not enter into the controversy; and admitting that ordinarily, for such cause, the right does exist to put oft' a passenger from a railroad train, we contend, however, that when, in such case, the right to expel is exercised by a railroad company, it must be done in a reasonable maimer, at a proper and safe place, without unnecessarily imperiling the life of the passenger, or exposing him to receive serious bodily harm; and this particularly where, by reason of any infirmity, mental or physical, no matter whether permanent or but temporary, the expelled person is incapable to avoid, or to protect himself against, the threatened dangers, or is unconscious of the dangers and unable to appreciate them.
    The right which may be justly claimed in such eases differs in nothing, from the right of self-defense, which may be exercised in the defense of one’s person, when wrongfully assaulted, or in the defense of the persons of those occupying certain relations to one, or in the defense of one’s property. In exercising this right of self-defense, “ the law justifies no more or greater force in defense of one’s person, relative, or property than is necessary, in the exercise of a reasonable and proper judgment, to prevent the consummation of the injury.” 1 Hilliard on Torts, 188, § 14; Scribner v. Beach, 4 Denio, 448; Bartlett v. Churchill, 34 Vt. 218; Dole v. Erskine, 35 N. H. 503; Philbrick v. Foster, 4 Ind. 442; Gaither v. Blowers, 11 Md. 536; Gallagher v. State, 3 Minn. 270; Mill v. Rogers, 2 Clarke (Ia.), 67; Bishop on Crim. Law, § 842; Isbell v. Railroad, 27 Conn. 393; 2 Redfield Railway Cases, 474; Kerwhacker v. Railroad, 3 Ohio St. 173; 1 Hilliard on Torts, 110; Van Pelt v. McGraw, 4 Comst. 110; 5 Barb. 79; Meyer v. Railroad, 40 Mo. 151; 5 Cal. 460; Liddy v. St. Louis Railroad

      Co., 40 Mo. 511. See also O’Keefe v. The Chicago, etc., Railroad Co., 32 Iowa, 468; Sweeney v. Old Colony, etc., R. R. Co., 10 Allen, 369; Davis v. Mann, 10 M. & W. 546 (Lord Campbell’s decision); Sills v. Brown, 9 Car. & P. 601; Rigby v. Hewitt, 5 Exch. 239. See also, Field on Damages, § 178. See 2 Redfield Railway Law, 192, § 177, and note 2; 2 Redfield Railway Cases, 500-502; Willets v. Buffalo, etc., R. Co., 14 Barb. 585; C., C. & C. R. Co. v. Terry, 8 Ohio St. 570; Robinson v. Cone, 22 Vt. 213; Philadelphia, etc., v. Speeren, 47 Penn. St. 300; Lygo v. Newbold, 9 Exch. 302; Waite v. North, etc., El., Bl. & El. 719; Daly v. Norwich, etc., 26 Conn. 591; Rauch v. Lloyd, 31 Penn. St. 358; Holly v. Boston, etc., 8 Gray, 123; Lehman v. Brooklyn, 29 Barb. 236; 2 Redfield Railway Cases, 501, and note to the case; also 15 Wall. U. S. Sup. Court Rep. 401; 17 Wall. 657; Redfield on Common Carriers, §§ 257-359, 365.
   Ashburn, J.

We reverse the judgment of the court below, on the ground that the verdict was not sustained by the evidence, and should have been set aside upon the motion for a new trial.

Defendant in error, Mary Valleley administratrix, brought suit against the railroad company, to recover for the death of her brother, John Valleley, killed by the cars, as is supposed. Deceased -was unmarried, and left a mother and sisters, for whose benefit this suit was brought. On the 6th September, 1870, John Valleley took passage in cars of the defendant, at Alliance, to go to Canton. He was a young man, less than twenty-one years of age. Before he took the train, and during the afternoon, he had been drinking considerably. He went into a saloon at Alliance, and called for a drink. The saloon-keeper refused to give him any, saying that he had drunk enough. In the saloon, William Reynolds and Dr. Smith were sitting, and deceased insisted on having a fight with one or both of them; not for any assignable cause or provocation, save that quarrelsome disposition which liquor sometimes infuses.

Dr. Smith was a stranger, but Valleley wanted to whip him, and the doctor describes the man as being “ not very drunk, but ugly, fighting drunk.”

At Alliance, he hired a horse and buggy, and took a drive. Upon coming back to the livery stable the owner claimed that the horse had been driven too hard, and that the consequences might be serious. Upon this Yalleley, in his slang phrase, wanted to “lick him.”

He took the cars about dusk. On the train he created serious disturbance. A witness describes him as on the platform between the cars, and swinging himsélf off, holding on to the iron railing, and out beyond the line of the train, in such a position that striking any object would probably have killed him. A brakeman interfered, and tried to pull him back to a place of safety. This occurred more than once, and there was a violent struggle between the brakeman and deceased, in the course of which they got inside the car. They struggled together over the seats. There was a scene of great confusion. Ladies endeavored to get away by climbing over the backs of the seats. The passengers interfered, and separated the combatants, and told the brakeman to go outside the car, as deceased appeared to have a violent antipathy against him. The brakeman complied, but coming back to get his hat, deceased jumped at him again. They clinched and went down upon a seat, where were a lady and child, and, as a passenger states it, “I thought they would mash the child.” Deceased was said to have been brandishing a knife, which he dropped upon the floor, and was hunting about to find. Passengers again interfered, and got the brakeman out upon the platform once more, shut and locked the door. Deceased tried to open it, and failing, began an assault upon one of the passengers.

The conductor came along about this time, and the passengers were clamoi-ous to have the rowdy put off". The conductor stepped up to him, and deceased threatened to shoot him. The train, however, was stopped, and the man expelled. No barm was done him in this. No violence was used, and only force enough to accomplish the end.

Deceased was put off about eight or nine o’clock in the evening. The next morning he was found, about one-third of a mile from where he was put off, nearly dead, and in fact lived but a few moments after he was picked up. Though there is no direct testimony as to how he was killed, yet, as he was found near the track, badly bruised and mangled, it is assumed that he was run over and killed by another of the company’s trains ; and, for the purposes of this decision, that assumption may be regarded as the correct one.

Upon the first trial, the claim was that deceased was but slightly intoxicated, and so slightly that the company had no right to put him off. Upon this, the jury found for defendant. Whereupon, the petition was amended, and the case tried upon the theory that deceased was so much intoxicated that the company had no right to expel him ; that he was so very drunk as to be stupid, helpless,- and unable to take care of himself; and putting him off near the track, where he was likely to be run over, and was run over, the company was responsible, aud upon this a verdict of $600 was recovered.

It might, perhaps, as far as this case is concerned, be conceded that if a man were so intoxicated as to be without reason, sense, or intelligence, it would be unlawful, as it would be inhuman, to expel him from cars at night, where he would be just as likely as not to lie down upon the rails and go to sleep. We may concede further, that to put off a drunken man, during a bitterly cold night, in the woods, far from any house, when the probabilities were that he would freeze to death before help could reach him, would be as indefensibie in law as it would be wicked and cruel in fact. And, further, to put a man off, in a dark night, upon a high railroad bridge, or upon the brink of a precipice, where the first step would be destruction — this could find no justification in law. All this might possibly be. We suppose that the principles governing cases of this kind are not different from those which control the ordinary affairs of mankind. Rights and powers must be reasonably exercised, under all circumstances of tbe ease. The conductor of a railroad train must use his best judgment and discretion. If he acts, not wantonly, not abusively, but with that prudence which the case demands, his employer can not be made responsible.

It is claimed that this man was so drunk as to be bereft of all intelligence, and that tbe conductor ought to have known that putting him off was equivalent to putting him to death ; that such was his condition, that expelling him, as was done, nothing was more likely than that he would wander along the track, and be killed, as he was, and therefore the death was the natural and proximate result of the expulsion. The flaw in this claim is, that it is not true that deceased was so drunk as to be bereft of intelligence. He was ugly, “ fighting drunk,” vicious, and illustrating the qualities of a reckless desperado, but he had quite sense enough to take care of himself. That there was no paralysis of his physical faculties is evident from the manner in which he handled the brakeman ; and although all the witnesses recognized the fact of his intoxication, not one of them supposed that he was unable to take care of himself. Those who speak of it all say the reverse.

The man, therefore, was- not helpless, nor stupid, and the conductor had no reason to think so. That it was not only his right, but his duty, under these circumstances, to 'put off a man furiously drunk, who, in a crowded car, with women and children, is fighting, flourishing a knife, and threatening to shoot, is evident upon the plainest principles of self-defense, if nothing else.

But, if the propriety of the expulsion were doubtful, either because deceased’s conduct did not justify it, or because his condition rendered it unsafe and dangex’ous in its consequences, still we must find that the death was the natural and proximate cause of the expulsion befox’e defendants can be made liable. How can this be said in the present case ? Admit that the vicinity of a railroad track is dangerous to passers by; admit that putting him off, as was done, was placing him in eii’cumstances of danger: they were no more dangerous to him than they were to every man whose business or pleasure takes him in the neighborhood of railroads. There was no unusual or extraordinary circumstance of danger in the whole transaction, if the man was able to take care of himself, and this he wTas. The mere putting him off, therefore, was in no way connected with his death, except as he himself connected it, by reason of his intoxication, and for this he alone is responsible. The expulsion is not in any way the occasion of the catastrophe, either as a proximate or other cause, unless it is in some way attached to or linked with the drunkenness. If this is the state of the case, he must have been so drunk at the time be was struck as to be unable to avoid the accident, which shows the intoxication to have been the proximate cause; and whether it be the proximate cause, or a cause for which alone he is responsible, in either case, the responsibility can not be fastened upon the defendant.

At what particular hour of the night or following morning he was run over, the evidence leaves in doubt. It has been said, and it is clearly shown by the record, that when he was so expelled he was not so drunk as to be in any sense incapable. What occurred between this time and when he was picked up in a dying condition can not be known. If, during this period, he lapsed into insensibility or incapacity for self-protection, it must be from some reason not apparent in the testimony. Whether he obtained more liquor, or whether a drunken stupor came upon him, such as arises in the last stages of inebriety, no one can tell. It is sufficient to say that, in our opinion, he was not in that condition that relieved the conductor from the imperative necessity of doing as he did, and this we can not consider as in any way being the cause of the death. O'Keefe, Adm’x, v. C., R. I. & P. R. R., 32 Iowa, 457; Haley, Adm’r v. C. & N. W. R. R., 21 Iowa, 15; Vinton v. Middlesex R. R., 11 Allen, 304.

Judgment reversed.

Scott, J., being absent, did not sit in the ease.


author: Wright, J.

text:
    Koch v. State of Ohio.
    A defendant in a criminal case is entitled to two peremptory challenges. Having thus challenged one of a special venire and passed his second challenge, the special venire was exhausted and a new juryman called. Defendant then claimed the right to a second peremptory challenge, which was refused. This was error.
    Error to the Court of Common Pleas of Clermont county.
    A jury being called into the box by special venire, and there being, no challenge for cause, the court inquired of the parties whether they wished to exercise any peremptory challenges, and thereupon defendant challenged one of the panel. Another person was called into the box, and there being no challenge for cause, the state challenged one of the number peremptorily. The panel was again filled by the sheriff calling a talesman, and there being no challenge for cause, the defendant at that time declined to exercise a further peremptory challenge. The prosecuting attorney, on behalf of the state, then exercised a second peremptory challenge. And thereupon, the sheriff' called into the box one Geo. W. Nice, a regular juryman, to fill the panel, the special venire being exhausted, and neither party asking for a special venire for talesmen. Thereupon, the defendant claimed the right to> challenge one of said panel, he having up to that time exercised but one peremptory challenge. The court denied the right at that stage of the case. To which ruling of the court the defendant then excepted and tendered his bill of exceptions, showing the foregoing facts, which was made part of the record.

      Nichols § Davis, and A. T. Cowen, for plaintiff in error.

      T. A. Griffith, for defendant in error.
   Wright, J.

By section 133 of the code of criminal procedure it is provided, “ (he prosecuting attorney and every defendant may peremptorily challenge two of the panel.” When the juror Rice was called into the panel, it was a new jury, and-the defendant, having up to that time exercised but one peremptory challenge, had the legal right to peremptorily challenge any one of the jurors. The denial of this right was error. ..

Reversed and remanded for further proceedings.


text:
    Koch v. The State of Ohio.
    1. That a person has subscribed funds for the purpose of legitimately suppressing crime, does not disqualify him from sitting on the grand jury; nor is it ground of disqualification that he has evinced a desire and purpose to enforce the laws.
    2. The fact that township trustees caused one of their number to be returned as grand juror, does not disqualify him from serving as such.
    3. In an indictment for selling intoxicating liquors in violation of law, the time of the alleged offense is immaterial, and proof of a number of sales about the time alleged in the indictment and prior to the finding thereof, is sufficient to warrant conviction.
    Error to the Court of Common Pleas of Clermont county.
    At the May term, 1874, defendant was indicted for selling intoxicating liquors to Charles Morgan, on the 20th of May, 1873, to be drank upon the premises and in the building where sold.
    To this indictment defendant put in a plea in abatement, assigning four causes why the indictment was not valid.
    1. That Samuel MeKown and John D. Perin, two of the grand jurors -who participated in finding the indictment, were not competent jurors and did not possess the required qualifications to sit as grand jurors, because they had each agreed to pay fifty dollars toward defraying the expenses of witnesses attending upon the grand jury, and to fee attorneys to assist in the prosecution of alleged violations of the Ohio liquor law, etc.
    2. That John Idlet was a member of the grand jury that found the bill of indictment against defendant, and was disqualified for two reasons: 1. Recause he said to a person not a grand juror, “ that they, said grand jury, had already found a great number of bills against the liquor sellers of this county, and that before they (the grand jury) got through they would find enough bills to break every liquor seller in Clermont county up.” 2. That in 1873 and 1874, Idlet was a trustee of Monroe township, in Clermont county, and as such trustee charged with the duty of selecting and returning persons for jurors, and he caused himself to be returned as one of the persons to the clerk, from whom jurors would be drawn.
    3. That Otis Dudly and Q-eorge McNutt were grand jurors who acted in finding the indictment against defendant; that they were, in 1873, trustees of Williamsburg township, in Clermont county, and as such charged with the duty of selecting and returning to the clerk of the court proper persons to be drawn and serve as jurors ; that they caused themselves to be returned as jurors, and being public officers were disqualified from serving as grand jurors.
    4. That he is not indicted by his true name. That his name is not John Cook, as he is indicted, but that his true name is John Koch. Having disclosed his true name it was accepted by the state and all subsequent proceedings conducted in his true name.
    The prosecuting attorney demurred to the second and third assignments, as causes for plea in abatement, because the said plea in these respects does not state facts sufficient in substance to constitute a plea in abatement. The demurrer was sustained, and defendant excepted. An issue was made on the plea in abatement as it stood after the demurrer was sustained. A jury was sworn to try the issue, and returned a verdict against the defendant. A motion was made for a new trial, and the motion being overruled, defendant took a bill of exceptions embodying all the testimony given on the trial of the plea in abatement.
    The plea in abatement having been disposed of, the cause proceeded to trial upon the plea of not guilty. The indictment contains a single count, charging the liquor to have been sold to be drank upon the premises where sold. The evidence did not identify a special sale, but showed a number of them, about the time alleged in the indictment, and prior to the finding of the bill. The indictment charged a sale to Chas. Morgan on the 20th May, 1873, and the court charged as follows:
    “ If you are satisfied by the proofs, beyond a reasonable doubt, that the defendant, in the month of May, 1873, sold intoxicating liquors to Chas. Morgan to be drank on the premises where sold (made a series of sales to him in that month of intoxicating liquors to be drank on the premises ■where sold), that will be sufficiently certain as to time and identity of the sale charged in this indictment, to warrant you in the question to find against the defendant.”
    And again, “ As to the question of time, I charge you that time is not an essential ingredient of the crime charged in this indictment.”
    And again, “ That the defendant sold the intoxicating liquor to Chas. Morgan to be drank upon the premises and in the building where sold, at a time prior to the finding of this indictment by the grand jury.”
    These charges are alleged to be erroneous.
    The defendant was convicted.

      Nichols & Davis, and A. T. Gowen, for plaintiff in error.

      T. A. Griffith, for defendant in error.
   Wright, J.

The demurrer to the plea in abatement was properly sustained. There is nothing in the statute forbidding trustees of townships from returning their own names to the clerk of the court in the list of jurors. The board is required annually.,to select good judicious persons having the qualifications of an elector, and not exempt by law, from serving as jurors. 70 Ohio L. 168, § 3. The reason why they should select persons not exempt by law, is that the persons drawn from the box shall be without excuse from serving, not that the persons exempt are disqualified. The board of trustees is composed of three persons, and two of the trustees may return their fellow on the list of selected persons, and the one selected be ignorant of what has been done. Rut whatever may have been the circumstances, the fact that he is a public officer does not disqualify. In Glossenger v. The State, 24 Ohio St. 206, if was hold: “ The provisions of the act relating to jurors (70 Ohio L. 173, § 21), exempting public officers and others from service on juries does not have the effect to disqualify the persons so exempted, but. merely extends to such persons a privilege, which may be waived by them.”

See also The State v. Easter, 30 Ohio St. 542, and cases cited therein.

In the second clause or assignment of the plea in abatement, it is alleged that one of the grand jurors had said “that they (said grand jury) had already found a great number of bills against the liquor sellers of this county, and that before they (the grand jury) got through, they would find enough bills to break every liquor seller in Clermont county up.”

"We can not herein see anything which would disqualify the party from serving on the grand jury, for notwithstanding having made such a statement, he may have been a “good and judicious” person. If liquor selling was an offense against the laws, a determination to put an end to it, does not show the party to have been incompetent to find indictments.

The same remarks will apply to the ground of objection that the grand jurors were incompetent, because they had subscribed $50 to pay the expenses,of prosecuting offenders. Zeal displayed in a purpose to put down a certain kind of offense, often repeated, is not a bias against any particular individual. A desire to enforce the laws is commendable rather than the reverse. It is to do this that the grand jury is organized, in order that they may discover and present these persons who have been guilty of crime.

They do not try and convict the offender. That is left for another body, with regard to whom, and against any feeling they may entertain, the accused is sufficiently protected.

But even if a supposed interest on the part of a grand juror were a disqualification, it has already been held by this court that the objection can not be taken by plea in abatement. The State v. Easter, 30 Ohio St. 542. If ground of challenge at all, it must be made before indictment found, or before the jury is sworn.

As to the charge of the court with reference to proving a specific sale and the time thereof. We understand the law to be as recognized in Stockwell v. The State, 27 Ohio St. 563, where it is said: “As the precise time laid in the indictment is immaterial, the plaintiff in error might well have been convicted, on proof that he committed the offense charged, at any of the times in regard to which evidence was offered by the state.”

In the ease before us, there was evidence tending to show sales “ about the time mentioned in the indictment.”

The time mentioned was the 20th May, aud there was evidence of sales in March, April, and May, all prior to the finding of the indictment. This was sufficient.

In Stockwelhs case, the defendant asked the court to require the state to elect and inform the defendant which specific sale, which it had given evidence tending to prove, the state relied on, to sustain the indictment. This was refused, and for this the judgment was reversed. The prosecutor should have made his election when asked. In the case before us, no such election was demanded.

Judgment affirmed.


text:
    Elstner v. Fife.
    1. It is not error to overrule a general objection to all the testimony of a witness, where part of it is admissible.
    2. Where a testator makes no disposition of his real estate, other than by directing that it shall be sold by his executors, and the proceeds paid to a trustee, named in the will, for the benefit of certain legatees, the legal title to his real estate descends to his lieirs, subject to the execution of the power conferred on the executors ; but the right of possession passes with the will to the executors, to enable them to effect the objects of the testator.
    3. Where such executors, after accepting the trust, resign their office as executors, their authority to execute the power of sale conferred by the will upon them as executors, expires with their office.
    4. Under the provisions of section 59 of the wills act of March 23, 1840, as amended March 8, 1845, where a will directs land to bo sold by the executors, and they resign without having executed the power, the sale or conveyance, or both, may be made by an administrator with the will annexed.
    5. Where an administrator with the will annexed, in the execution of such power, sells land and gives the purchaser a title bond and possession of the premises, the purchaser acquires thereby an equitable right, on payment of the purchase price, to a conveyance of the land; but such purchaser has no right to demand a conveyance until the purchase-money is paid.
    C. Where such administrator resigns his office, and wholly abandons the administration of the estate, his authority under the statute to execute such power conferred by the will ceases; and a deed, made by him afterward, of land sold to him while in office, and before the purchaser is entitled to a deed, conveys no title to the land.
    7. Where neither party has the legal title, the rule which protects a bona fide purchaser without notice does not apply ; and where, in such case, the equities are equal, the oldest equity must prevail. Nor is the rule available against one who unites in himself both the legal and equitable title.
    8. Where a testator directed his land to be sold by his executors, and the proceeds to be paid, at a specified time, to certain legatees to whom he bequeathed his whole estate; and, in execution of the power of sale, the land was sold, and possession with a title bond was given to the purchaser, but the purchase-money had not been paid nor the conveyance of the land made when the time arrived'for the payment of the money to the legatees: Held, that the legacies were an equitable charge upon the land, and that the legatees had the right in equity to subject the land to the payment of the purchase-money.
    Error to the District Court of Clinton county.
    On the 4th clay of March, 1870, John C. Elstner and Eliza J., his wife, and Thomas B. M. Jeffrey and Mary E., his wife, brought their action in the Court of Common Pleas of Clinton county, against Matthew Fife, James Killen, surviving executor of Joseph Reed, deceased, Oliver F. Mitchell and wife, and Chauncey F. Truesclale, heirs of Beebe Truesclale, deceased, and Levi Gtustin, administrator de bonis non of Joseph Reed, deceased.
    They allege in their petition that Eliza J. and Mary E. are legatees of Joseph Reed, a resident of Clinton county, who died in 1848, the owner of part of lot No. 69, in Wilmington, in said county, and that Beebe Truesdale and James Killen wrere, by the will of Joseph Reed, made executors of the will. Killen and the'heirs of Truesdale are made parties.
    They aver that the executors proceeded to settle the estate, and collected assets to the amount of $364.39, and paid debts, including allowances to themselves, amounting to $269.80, leaving in their hands, April 3, 1849, $94.78, when they resigned, and that the personal property was more than sufficient to pay all the debts of the estate, which is not denied in the answer.
    They aver that the will of Joseph Reecl directed his executors to sell his real estate, and pay over the proceeds thereof, to be invested for the benefit of said Eliza J. and Mary E., daughters of the testator ; but that the executors neglected to make such sale, and, on the 3d clay of April, 1849, resigned, when Levi Gustin was appointed administrator de bonis non of the estate, who accepted the trust and gave bond as required by law.
    They aver that the proceeds of real and personal property of the estate was to be, by the terms of the will, divided between the said legatees at the beginning of the year 1870, and they make a copy of the will a part of the petition.
    They allege that Matthew" Eife is in possession of lot No. 69, claiming title thereto ; but they say he has' no title as they believe; or if any he has, they hold it in trust for said legatees.
    They pray that the surviving executor, and the heirs of the deceased executor, may be ordered to convey said lot to said legatees, or that they execute the trust; that Eife .may disclose any title he may have; that he may be held as a trustee for the benefit of the legatees ; that an account may be taken of rents, and for any relief they may be justly entitled to.
    The will is as follows :
    “1. It is my desire that all my just debts and funeral expenses be fully paid.
    “ 2. Believing that the laws of the state make ample provision for the -widows of persons dying intestate, I give and bequeath to my beloved wife, Lucy Reed, formerly Lucy Peebles, all the property which she wmuld hold under the law as my widow, precisely the same as if I had died intestate.
    “ 3. I give and bequeath to my negro woman, Snid, now residing in Barren county, Kentucky, her full and perfect freedom, hereby manumitting her free.
    “ 4. ■ On condition that she shall voluntarily remove to and reside in the State of Ohio, I give and bequeath to her, the said Snid, in addition to her liberty, a comfortable support, to be furnished her out of my estate by the trustees hereinafter named, or appointed as hereinafter provided, when, from sickness or old age, she is unable to support herself out of the proceeds of her own labor. If, however, she is unwilling to remove to Ohio, and my bequest of manumitting can not by reason of legal impediments, be carried info execution in the State of Kentucky, then I desire that she shall be held by said trustees as a servant in Kentucky, who shall hire her to such person or persons as she may desire to live with there, and appropriate all the avails (whether earned heretofore or hereafter) of her labor, to her sole benefit and use, seeing to it that the same are not foolishly and imprudently squandered, but economically applied to her own support when she shall stand in real need of the same, and in no event shall the proceeds of her labor, or any part thereof, be applied to any purpose except for her own use, unless she shall, in her last illness, desire some other or different appropriation of any residue of the same, after her decease, and then such residue shall be appropriated by said trustees as she may desire.
    “ 5. I desire, and hereby direct my executors, or the survivor of them, to sell and convert into money as soon as the same can be done on good terms and without sacrifice, all my property, both real and personal, hereby expressly authorizing them or the survivor of them to sell either at public or private sale, and on such reasonable terms as will be most conducive to the interest of my estate, and to pay the money thus acquired into the hands of the trustee hereinafter named, and to take his receipt therefor, which shall be a full and complete voucher to them for the same.
    . “ 6. I desire, and hereby direct my trustees,'hereinafter named, or appointed as hereinafter directed, to invest the moneys received as aforesaid from my executors as soon thereafter as the same can be prudently done to the best advantage for my estate, in the stock of some safe and solvent bank, and as dividends shall accrue thereon he shall, from time to time, make a like investment of them, until the year of our Lord one thousand eight hundred and seventy, and that said trustee shall have, for his care and trouble about this -business, whatever the court of cqmmon pleas within and for Clinton county may allow to him as a reasonable compensation for the same.
    “ 7. I give and bequeath to my two daughters, Eliza Jane Roed and Mary Elizabeth Reed, and to the issue of their bodies, or in the event that either of them shall die without issue, then to the survivor and her heirs forever, to be paid over to them in equal moities, that is to say, to the said Eliza Jane and Mary Elizabeth in the year a. d. 1870, and not before, by my trustees, hereinafter named or appointed as hereinafter directed, if they shall then be living. If either of them shall have died previously to that time leaving children upon her body begotten, then I desire that those children shall take her portion; but if either of them shall have died at that time without issue, then I desire that the survivor of them and her heirs shall take the whole of my property which has been required to be given, as set forth above, to the trustees hereinafter appointed as hereinafter directed.
    “ 8. I do hereby name and appoint David Linton a trustee, to receive and hold all moneys and property hereinbefore directed to be placed in the hands of a trustee or bequeathed to a trustee for, and dui’ing the time therein specified, and to execute all trusts herein created, that he shall render unto the court of common pleas within and for the county of Clinton, Ohio, a true and faithful account of all his proceedings as such trustee at least once in five years, and oftener if thereunto required by said court; but previous to his receiving any part of my estate, I do require him to enter into a bond, payable to the legatees named in the seventh item of this will, conditioned for the faithful execution of the trusts imposed by this will, in such an amount and with such freehold securities as said court may approve, that in the event of the said Linton or his failure to comply within a reasonable time with the requisitions aforesaid, then I direct my executors to make application to said court to appoint some good and respectable man to take such bequest.and execute such trusts as are conferred upon said Linton, requiring him to enter into the same kind of a bond that I have of said Linton.

      “ 9. And finally I do constitute and appoint Deebe Trues-dale and James Bullen executor- of this, my last will and testament, hereby revoking all former wills by me made.”
    The defendant, Eife, answered that Levi Gustin, as administrator de bonis non with the will annexed, of Joseph Reed, sold said lot No. 69 to Isaac Strickle and George D. Haworth, who took possession thereof; that Gustin soon after conveyed the same to said Haworth or some of his assigns; that the deed has been lost; but that he holds title under said Gustin, so made by him. The other defendants did not answer.
    The plaintiffs replied to the answer, denying that Gustin sold and conveyed the lot in question, and that he had any authority so to do; and they say that if there was an attempted sale it was never consummated; that no consideration was paid; and that no title to said lot ever passed from said Gustin to any pretended purchaser thereof.
    The common pleas dismissed the petition, and the case was appealed to the district court. That court found the equity of the case for the defendant, Fife, and dismissed the petition. A motion for a new trial was made by the plaintiffs, on the ground that the finding and judgment of the court were against the law and the evidence. The court overruled the motion, to which the plaintiffs excepted and took a bill of exceptions, embodying all the evidence.
    The errors upon which a reversal of these judgments is sought, together with the facts of the case, are sufficiently stated in the opinion.

      T. Q. Hildebrant, of Hildebrant, Stone & Walker, for plaintiffs in error:
    Taking the whole will together, it is manifestly the intention of the testator to give his executors a power with an interest, because he intrusts to them a discretion. He treats them as his confidential agents. The legatees have nothing whatever to do with the property, nor the proceeds, until the year 1870. The trustees to be appointed had nothing to do with the property, only to - secure the proceeds. Dobney v. Manning, 8 Ohio, 321; Williams v. Beach, 17 Ohio, 171; Boyd, v. Talbert, 12 Ohio, 212.
    All the discretion given by the will over the property is given to the executors.
    He gives them power to sell, which includes power to convey and give acquittance for the purchase-money. Perry on Trusts, § 806; 4 Ves. 97.
    See also Perry on Trusts, § 250; 5 Ves. 503-505; 8 Ves. 574.
    Trusts are sometimes implied from powers. Perry, §§ 248, 249-258.
    It has always been the law of Ohio, that advice to executors to sell was a personal trust. Henry v. Doctor, 9 Ohio, 49. And on the resignation of the executors the trust still remained in them, and on their death descended to their heirs. 2 Ohio, 126; DePeyster v. Clendening, 8 Paige’s R. 295.
    But it is claimed by the defendants, that the act of March 8, 1845 (2 S. & C. 1629), amendatory to the 59th section of the wills act, gave authority to Gustin to sell under the will. This we deny.
    By the decisions in New York, from whose statute ours was literally copied, a contrary doctrine is clearly established.
    If this will gives a power to the executors, coupled with a trust, then the enactment does not authorize a sale, for it does not apply to personal trusts and confidences, but only to the general functions of executors in settling up estates. Conklin v. Edgerton, 21 Wend. 430; Conklin v. Hdgerton, 25 Wend. 224; Room v. Phillips, 27 N. Y. 357, and cases cited; 4 Sand. (S. C.) 374-378, page 295; Ambler, 98; Perry on Trust. § 500.
    If rve are correct, the purchaser took nothing by the sale of July, 1849, not even an equity.
    But admitting, for the sake of the argument, that Gustin had authority to sell, he did not exercise the power so as to force the title of the purchaser from the incumbrance of the trust, because this is a specific trust. Clyde v. Simpson, 4 Ohio St. 445-464; Bank of Muskingum v. Carpenter, 7 Ohio (pt. 1), 21; 2 Ohio, 126.
    Iu this case only a small part of the purchase-money was

      There can be no title without payment of the purchase-money. Perry, §§ 739, 793; 2 Story Eq. 1219.
    The purchaser knew there was a breach of the trust, that the purchase-money had not been paid. Their title was traceable through the will of Joseph Reed; they were bound to take notice of its provisions, and were put on inquiry as to every fact connected with the settlement of the estate; and once put upon inquiry, they were bound to take notice. Perry, § 800, and cases cited; 11 Simmons, 152; 7 Ohio (pt. 1), 21, above; 12 Simmons, 528, cited; 4 Ohio St. 445; 15 Peters, 93.
    The same when a person deals with, the trustee long after the trust should have been executed.
    We claim that there is no distinction between estates devised in trust, and those only charged with the payment of debts and legacies. The character of the executors is the same. They are trustees. 2 Sugden on Vendors, 38, note 2; 2 Story Eq., § 1127.
    The evidence shows a clear breach of the trust on part of Gustin, and also on part of the executors. They accepted the trust, then failed to convert the property into money as directed. All this was known to the purchasers. For that reason, also, they hold the property subject to the trust created by the will, and are bound to see that the purchase-money is paid and properly applied. 2 Sugden, 89; Watkins v. Chick, 2 Sim. & Str. 199; Gardner v. Gardner, 3 Mason, 178; 4 Ohio St. 445.

      Harrison, Olds & Marsh, and W. B. Telfair, for defendant in error:
    Counsel for the plaintiffs claim in argument that Fife had constructive notice of want of title in his grantor, or of some lien for purchase-money, from the fact that a complete chain of title did not appear on record. We submit that this is not so. The proof is that Fife had no notice, actual or constructive, of any infirmity in the title, and that he was an innocent purchaser.
    But if there was a right of action to recover unpaid purchase-money, or to enforce a vendor’s lien, such right of action was not in the plaintiffs. Davis et al. v. Corwin, 25 Ohio St. 668.
    If this court should be of opinion that the district court should have found that Eife had color or made claim of a title or interest adverse to the plaintiffs, and invalid as against them, still the plaintiffs would not- have showh themselves entitled to any equitable relief. They were not in possession, and therefore could not maintain an action to quiet title. The defendant held possession adversely to all the world, and held such possession either rightfully or as a mere trespasser.
    Moreover, the plaintiffs did not, in their pleadings, set up any facts entitling them to recover unpaid purchase-money, or to enforce a vendor’s lien, or to quiet their title, or pray for such relief.
    There was no testimony offered tending to show that said Eife took possession of or held any title to said premises in any trust, express or implied, for the plaintiffs.
    If Gustin had not power under the will to sell and convey the land, or did not sell or convey it, then the title thereto was in the plaintiffs, and they could in a proper action, and in the proper court, recover a judgment for the possession of the land; but they were not entitled to any equitable relief against Eife.
    If Gustin had power to sell, and did sell the land, but did not convey it, then the plaintiffs were not entitled to any equitable relief. In such case, if the land had been sold and paid for, the equity was wholly with the purchaser or his assigns. If sold and not paid for, then, before conveyance, an administrator might enforce a vendor’s lien, but after conveyance, even he could not enforce it against a subsequent innocent purchaser. If, after a sale aud before full payment or conveyance, the plaintiffs have any rights against Eife, it was, after the requisite demand and tender, to rescind the contract of sale, and then to recover in ejectment.
    If Gustin, as administrator with the will annexed, had power to sell the land, then, not only have the plaintiffs no equity as against him, but the title of Eife was perfect in law and equity.
    If the executors named in the will, or the survivors of them, had sold, there would, we submit, be no room for controversy as to their power. The power given to them is not discretionary, but the direction to sell is peremptory. The plain intent is that at the time and upon the terms mentioned, the administrators of his estate shall sell said property, real and personal.
    The statute of March*,8, 1845, was in force when the will was made and when it became operative, and when the land was sold.
    This act of 1845, was not repealed until January 15, 1869 (66 Ohio L. 4), and said 57th section of this act of March 23, 1840, was not rejoealed until May 3, 1852. They were the law of the land, and, therefore, a part of the will of the testator, when the will was executed and when it took effect, and also when this power of sale was executed.
    Reed and Fife were bona fide purchasers. A bona fide purchaser for value, without notice, is a good defense, not only against all prior equities, but against all adverse proceedings in equity. 2 Leading Cases in. Eq., part 1, p. 50; Vorneck v. Briggs, 6 Paige, 323, 328, 329; Jackson v. Green et al., 8 Johns. 137, 139; Jackson v. McChesney, 7 Cowan, 329.
    What had these purchasers to take notice of? The sale to them was made under a power to sell and convert into money.
    Payment to Gustin, administrator de bonis non, is sufficient. Wormly v. Wormly, 8 Wheaton, 443; Coonrod v. Coonrod, 6 Ohio, 55.
    When a trust is' defined, payment to the trustee is sufficient, whenever the money is not merely to be paid over to third persons, but is to apply upon trusts, which require time and discretion, as where the trust is to lay oui? money in the purchase of an estate. Coonrod v. Coonrod, 6 Ohio, 57; Sug. Ven. 333; 2 Sug. Ven. 32; 2 Story Eq. § 1129; Clyde v. Simpson, 4 Ohio St. 445, 463.
   Day, J.

It is claimed in behalf of the defendant that the case is one in which the plaintiffs had no right of appeal to the district court, and that, therefore, the judgment of the common pleas in favor of the defendant must stand, though that of the district court should be reversed.

No motion was made to dismiss the appeal, nor has any objection to the jurisdiction of the district court been taken in any form oilier than that now taken in argument; nor would such objection have been of any avail to the defendant, if it had been interposed of record at an earlier stage of the case; for the case made in the pleadings was not merely for the recovery of money, nor specific, real or personal property, but was for specific equitable relief; and was, therefore, a case to be tried to the court and not to a jury. Such cases are made appealable by the statute. The judgment of the common pleas was, then, vacated by the appeal, and that of the district court is properly reviewable on error; we must, therefore, consider whether error intervened in the rulings and judgment of that court.

The plaintiff claims that the court erred in admitting secondary evidence to be given of the contents of a deed, through which the defendant claims, without sufficient preliminary proof of the loss of the deed. It is a sufficient answer to this objection to say that no exception was taken to the evidence, other than a general exception to all the evidence given by each witness who testified upon that and other points of the case, some parts of which testimony were clearly admissible. It is not error to overrule a general objection to a mass of testimony, where part of it is admissible. Morris v. Faurot, 21 Ohio St. 155.

It is claimed by the plaintiff that the court erred in overruling the motion for a new trial, and thereby the ease, upon the facts clearly proved, is brought in review on its merits.

The theory upon which the plaintiffs framed their case involves the inquiry as to what became of the legal title to the land in controversy after the death of the testator, from whom both parties claim title.

The will makes no disposition of his real estate, other than that it shall be sold by his executors, and that the proceeds shall be paid over by them to a trustee, for the future benefit of his two daughters, who are made legatees of his entire estate. The executors were merely endued with power to sell the real estate and pay the money arising from the sale to the trustee, who was intrusted with the management, and, to some extent, disposition of the fund. But the executors acquired no personal interest or special trust in the property, further than that connected with its sale and payment of the proceeds to the trustee named in the will. Subject to this power, the testator, so far as the executors were concerned, left the title as it stood at law, to pass to his heirs, cumbered with thg equity created in behalf of his legatees.

The case of Dabney v. Manning, 3 Ohio, 321, is directly applicable and decisive of the point. In that case power was given to the executors by the will to sell the land, when, in their opinion, the sale could be made to good advantage, and to pay the proceeds to his children when they became of age. The court said : “ The title certainly descended to the heir, while the trust remained unexecuted, subject to be divested by the execution of the power. But the right of possession did not descend with the title; that passed with the will for the better enabling the executors to effect the objects of the testator.” So, in this ease, it is equally clear that the title descended to the heirs at law of the testator, subject to the execution of the power conferred by his will. The executors had no title further than what was connected with the power conferred on them as executors, and, when they ceased to be executors, the power terminated with their office, and any title they had dependent on the power ended with it.

This case is unlike the cases of Boyd v. Talbert, 12 Ohio, 212, and Williams v. Beach, 17 Ohio, 171. In those cases the powers invested in the executors were, like those in this case, intrusted, not to the executors, but to a special trustee.

The defendant claims that the power conferred by the will was executed in such a manner as to give him the title to the land in dispute. This brings us 'to the next question to be considered.

The executors named in the will never attempted to execute the) power. They resigned their trust, leaving the land unsold. Thereupon the administrator with the will annexed was duly appointed and qualified to complete the administration of the testator’s estate. Accordingly, on the 24th day of July, 1849, the administrator sold the land at public sale, and the defendant claims title under the purchaser at that sale. The administrator gave the purchaser a title bond, and put him in possession of the premises.

But a small part of the purchase-money was then paid to the-administrator, and the balance, for which he took the purchaser’s note, still remains unpaid.

Five or six years after the sale the administrator moved out of the state, but, before he went, he resigned the administration, and, as he says: “I -then surrendered the books, vouchers, papers, and notes to the judge of the probate court, Judge McKay, and took his receipt for the same.” Thus the matter stood until August, 1860, when a party interested in the purchase of the -land, sent by mail a deed to the late administrator, to be executed and returned by him, which was done' by the administrator; but the deed was not recorded, and is said to be lost. Its contents are not definitely shown, but it is probable that it was a conveyance of the'lot in question to a persou under whom the defendant claims title by a warranty deed.

It is claimed by the plaintiffs, that the administrátor with the will annexed had no power to make either the sale or the conveyance. Unaided by the statute this would be true. But the statutes in force, when the sale and deed were made, clearly conferred the power. The fifty-ninth section of the wills act provided, that where a will contains a power to sell real estate, apd the executor named in the will refuses to accept the trust, or dies before the power is executed, “ the sale or conveyance, or both, shall be made by the administrator with the will annexed.” 38 Ohio L. 120, same as § 65, S. & C. 1629. By an amendatory act, passed March 8, 1845, the provisions of that section -were extended to cases where executors resign without executing the power, and administrators with the will annexed are expressly authorized, in such cases, to execute such power. 43 Ohio L. 66, and S. & C. 1629, note.

The case of Conklin v. Egerton, 21 Wend. 430, and 25 Wend. 224, relied on in argument, for the limitation of the power to sell personal property only, is of questionable authority in the state where the ease was decided. Room v. Phillips, 27 N. Y. 357. But our statute, unlike that of New'York, gives express authority to sell “lands, tenements, and hereditaments.”

How far the power to sell might be limited by being coupled with personal trusts, conferred by the will, need not now be determined. But where, as in this case, the will merely directs a sale of real estate and payment of the proceeds to another, the case'clearly falls within the provisions of the statute, authorizing the administrator with the will annexed to execute the power.

The purchaser of the administrator, therefore, acquired by the sale and title bond, of the administrator, the right to the possession of the land, and the equitable right, on payment of the purchase price, to a conveyance by deed.

It is claimed by the defendant that he has obtained a full title to the land through a deed made by the administrator. This necessitates a consideration of the rights acquired by that instrument. It was made to the purchaser, or his assignee, without payment of the purchase-money, and, therefore, without a legal or equitable right, on their part, to demand a deed. Under the circumstances disclosed by the record, the good faith of the parties to the deed may well be questioned. To say the least, the case discloses an indifference to the rights of the legatees named in the will, if not a purpose to defraud them out of their legacies. But was anything gained by the deed ?

It appears, that more than eleven years after the sale, and five or six years after the administrator had resigned, abandoned his office and moved out of the state, he executed the deed in question. Clearly he had, at that time, no power to perform any official act as administrator of the estate. He was not, at that time, the administrator with the will annexed of the testator, and, therefore, was not authorized by the statute to convey the land under the power conferred by the will. The deed, therefore, was void for want of power to make it.

But the defendant claims, that although the title of his grantor, derived under the deed of the late administrator, may be defective, he is a purchaser for a valuable consideration without notice of any defects in the title, and must, therefore, be protected.

It is, perhaps, a sufficient answer to this claim to say that the defendant makes no such case in his answer. He merely sets up the deed of the administrator, and solely relies on that as his source of title. The general rule is that the defense of a bona fide purchaser must be pleaded in some form. Larrowe v. Beam, 10 Ohio, 504.

The point is made, upon the mere statement of the defendant in his testimony, that he was told, when he paid for the land and took a deed for it, that the title was good, and that he did not know the purchase-money at the administrator’s sale was not paid; yet the records of the county showed that the title must be derived under the will of Joseph Reed, and failed to show that the power to pass the title had ever been executed. Ordinarily this would have been sufficient to put a purchaser upon inquiry as to how the title had been transmitted, and led to the discovery of the defects therein.

But, waiving this point, does the defendant stand in a position to make the defense of a bona fide purchaser available in his behalf?

In Woods v. Dille, 11 Ohio, 455, it was held that where neither party has the legal title, the question of what protection will be extended to a bona fide purchaser, without notice, does not arise, and that the oldest equity must prevail ; and in Anketel v. Converse, 17 Ohio St. 11, it was said that the rule which protects a bona fide purchaser, without notice, “ is applicable to only such as have acquired the legal title,” and that “ where neither party has the legal title, and the equities are equal, the well-known maxim prevails that “he who is first in time is first in right.”

Row, if'neither party had the legal title, or if the defendant be regarded as not having the legal title, in either case this defense must fail. Both parties claim under the same will, and under the will neither party has the legal title. Both parties under the will have a mere equity, and that of the plaintiffs is the' oldest, and, therefore, the best.

But if it be said that the defendant had the apparent legal title under the administrator’s deed, he encounters a further difficulty; for, however the authorities may conflict elsewhere, in Larrowe v. Beam, 10 Ohio St. 498, it was settled in this state that the defense of a bona fide purchaser, without notice, is not available against one who combines both the legal and equitable title in his own right. Now, we have seen that the legal title of Joseph Reed, the common source of title, descended to his heirs. The legatees under his will are his daughters, and, therefore, his heirs. As such they took the estate, subject to the trusts created by the will. As legatees, when the time at which they could first assert their rights under the will arrived, in 1870, if the power conferred in the will remained wholly unexecuted, they had the equitable right of election to have-the land sold for their benefit, or to waive the sale and take the land. Holt v. Lamb, 17 Ohio St. 874. Since, then, both the legal and an equitable title were united in the plaintiffs, the defendant can not be protected against their just rights, on the gi’ound that he is a purchaser without notice.

It would seem, then, that the defendant can avail himself only of whatever right was acquired by the purchaser of the land under his contract with the administrator, and that the plaintiffs have the right, in equity, if the purchaser or his assignees fail to perform the contract, to have it foreclosed, or the land sold to pay the purchase price and interest.

Whether the purchaser is entitled to be credited for any money paid on the purchase, not paid to the trustee named in the will, need not now be determined. The question may not arise. It only appears that a small amount was paid to the administrator; but whether that was paid to the trustee does not appear. It does, however, appear that most of the purchase-money was never paid. To that extent, at least, the plaintiffs have an equitable charge upon the land, and the court erred in refusing to grant them any relief. Judgment reversed.