author: Shauck, J.

text:
    Parsons et al. v. Parsons et al.

      Partition of lands of intestate — Children of deceased son charged with advancement — Law of inheritance.

    In the partition of the lands of an intestate among his children and the children of a deceased son, the portion which the latter inherit should be charged with an advancement made to their father by such intestate.
    ( Decided March 26, 1895.)
    Error to the Circuit Court of Trumbull county.
    This ease was tried on appeal in the circuit court of Trumbull county. On appropriate issues joined in a suit to partition the lands of George Parsons, who had died intestate, and upon a request that its conclusions of fact be stated separately from its conclusions of law, that court found that the principal plaintiffs in error, were the children and heirs at law of William B. Parsons, who was the son of said George Parsons; that on May 20,1873, George made a conveyance of real estate, of the value of $4,046.00, to William, that to the extent of $2,846.00, there was no valuable consideration therefor; that to that extent the conveyance was made to William and received by him as a part of his expected share of his father’s property, at the death of said George; that William sold and conveyed said lands and died insolvent, prior to the death of his father; that the principal defendants in error are the-children of said George, and, with the grandchildren aforesaid, are his heirs at law.
    As conclusions of law, the court found that to the extent of $2,846.00, said conveyance from George to William should be treated as an advancement made to the latter, and that in a division of the estate of George among his surviving children and his said grandchildren, it should be taken as a part of his estate, and charged against the share of his grandchildren therein.

      George M. Tuttle and Charles Fillius, for plaintiffs in error.
    It is conceded that if the son had survived his father and died, his children would, in regard to the legal estate left by their grandfather,, have stood in all respects in their father’s shoes. They would have inherited from him. But the real estate in question they inherit from their grandfather and in no wise from their father. In the proper legal sense they are the heirs of their father only in respect of estate of'which he died seized and intestate. They are not his heirs as the inheritors of the estate in question. Their father never had in it any interest of any sort and the laws of this state do not provide for descents from ancestors, save from those only who have some interest to descend. The estate which their grandfather had, is that which descended to. them, and the descent was immediate. Are the obligations of the grandchildren the same, nevertheless, as if their father had first inherited these lands and the grandchildren had inherited from him ?
    The subjects of descent in Ohio, we affirm to be completely and exhaustively regulated by statute law.
    The statute of March 14, 1853, 51 Ohio Laws, 499, was several times amended, but in no manner affecting’ the particular subject in question and its provisions are, with very close verbal conformity, adopted into the Revised Statutes, section 4158, and sequel. Penn v. Cox, 16 Ohio, 30; Drake v. Rogers, 13 Ohio St., 21; Brower v. Hunt, 18 Ohio St., 311; Patterson v. Lampson, 45 Ohio St., 77; Putnam v. Putnam, 18 Ohio, 347.
    The proposition we here make relates not to the meaning of the statute but to its comprehensiveness as a container of the law on the subject. Is the whole law on this subject to be found in this statute, or must part be looked for in some other code or source ?

      First — That the benefit conferred upon William B. Parsons, in the transaction in question, was in every part of it burdened with the obligation for the payment of money and was not a gift of real estate by way of advancement within the meaning of the statute, so as to distinguish the case from that of any burdensome obligation of the son to the estate of his intestate father.- ' First we have the transactions which are provided for in. the statute of descents and distribution. These provisions are contained in four sections of the statute. Sections 10 and 13, inclusive, of the act of March 14, 1853 (S. & C., 501), 51 O. L., 499-; Revised Statutes, sections 4169, 4172.
    Three things are apparent:
    1. One is that these provisions apply only when the intestate has disposed of a portion of his estate to a child or children or to his.heir or her descendants by gift. The equitable ground of the collation between the heirs is the gift by the parent as an advancement to the child or • grandchild.
    2. When these provisions do apply in the case of a gift, .the real estate which has been given, shall still be considered as a part of the estate of the intestate so far as it regards the division thereof among his lineal heirs, and it shall be taken by any child who is to be charged with the gift as a part of his or her share of the estate. When .partition has been made of the whole according to the principles given in these four sections, the legal title will be vested in severalty in the respective persons to whom the lands have been divided in the respective portions received by each. This legal estate maybe set aside only upon those principles by which executed title may be annulled.
    3. The statute provides how the amount of the advancement and of the charge upon the party advanced, shall be fixed, section 13.
    (1.) If the value of the estate shall be expressed in the deed of conveyance or in the charge thereof made by the intestate, or in the receipt in writing given by the person receiving such advancement, it shall be considered and taken to be of that value in the division of the estate. (2.) Otherwise the property shall be estimated at its value when advanced.
    We now come to another species of transactions between parent and child' or grandchild, where the alleged advancement stands only as the consideration, among other things, of a promissory obligation only, of the issue to account to the other heirs after their ancestor’s death for the property received. Such obligations appear to be referred to by learned judges delivering the opinions of the court in Needles v. Needles, 7 Ohio St., 432, 446; Rosenthal v. Mayhugh, 33 Ohio St., 155, 158.
    The rights attendant upon such a transaction, are to be determined by the laws which govern the enforcement of executory contracts.' They bind nobody which the party making the promise could not bind by his promise to be performed after the intestate’s death.
    The term gift is used in this statute. It is applied equally to personal as to real estate, and when it is used in that manner, it has signification which is as well settled, and is as clear as that of any term in the law. It is a transfer of title without consideration — a transaction which, by reason of its want of consideration, can never result in a change of property without the delivery of the thing which is given or some other act which is equivalent to such delivery. Hamor v. Moore's Adm'r, 8 Ohio St., 239; Flanders v. Blandy, 45 Ohio St., 108; Creed v. Lancaster Bank, 1 Ohio St., 1; Mitchell v. Ryan, 3 Ohio St., 377; Freeman v. Freeman, 43 N. Y., 34; Allison v. Burns, 107 Pa. St., 50; 8 Am. & Eng. Ency. of Law, title Gift, 1309, note 3, and cases cited.
    The case must not be confounded with that of a. gratuitous transfer of an equity of redemption with no assumption of the debt by the ■ transferee, Such was the transfer to a wife in Oliver v. Moore. 23 Ohio St., 473. In Hatch v. Straight, 3 Conn., 31, there appears to me an implied holding in regard to the principle here involved. Scott v. Scott, 1 Mass., 526; Myers v. Warner, 18 Ohio, 519.

      Second — An advancement to a child who dies before the parent, leaving children, does not independent of any testamentary provision or of some trust, rest upon the grandchildren as an obligation to account for the advancement, when they come to the estate of their grandfather, as his heir. "When grandchildren come into the succession of an intestate estate, it is as legal representatives o’f children. If grandchildren, coming into the succession, are under any circumstances to be charged with the obligations which would have rested upon predeceased parents, the subjection to this charge enters into their representative character and is a a part of it. But we are not allowed to say — we must not make the mistake of saying — that grandchildren are charged with those obligations by reason that they are representatives, nor ‘by reason that when they come into the succession the statute calls them such, nor that they can be so charged, unless the statute by an apt expression of legislative will, commands this burden to devolve on them. Destrehan v. Destrehan's Ex’rs, 4 Martin’s Rep. N. S., 557; Mackeldy’s Roman Law, by Dropsié, section 671, note 1; Toullier Treatise upon the Civil Law, title 1, chapter of Successions, section II, pi. 180; Moreau & Carleton’s Partidas, title 13, law 3; title 15, law 4.
    The fundamental distinction between represenation in the civil and in the common law, is compendiously pointed out by Kaimes’ Historical Law Tracts, No. 13. Holmes’ Common Law, section X, 3; Erskine’s Institutes, 792, pi. 11; 1 Chase, 516, section 17; Dutoit v. Doyle, 16 Ohio St., 406; Clayton v. Drake, 17 Ohio St., 367.
    The inquiry is thus brought in two portions of the statutes; sections 5-8, and sections 10-13, respectively, inclusive. The first portion relates to the proportions in which under the different conditions of relationship, the legal estate is conceived to descend, irrespective of advancements. The second relates to the effect of advancements. Both these portions relate affirmatively or negatively to the representation which characterizes grandchildren, as well as more remote issue, under our statute. The first has a very express and direct reference to this subject affirmatively. The second will, we believe, on examination, appear to have the effect of making issue, more remote than children, liable only. for advancements to themselves, and of excluding from representation by such issue all liability for advancements to predeceased parents. No other parts of the statute have any bearing on the subject.
    Under the principles of the common law no man is to be charged by the mere covenant or ag’reement of his ancestor in regard to any particular subject of real estate, unless the covenant were supported by some adverse interest in the subject then vested or then created in another. Pollock v. Spiedel, 17 Ohio St., 439.
    Under the statute of 1853, as originally enacted, there might, in order come into the succession, lineal descendants of children of the intestate; of his brothers and sisters of the whole blood ; of the half blood; of the children of the ancestor, in ease of an ancestral estate, from whom the estate came; of the brothers and sisters of such ancestor; and by virtue of an amendment of March 4,1865, 62 O. L., 32, all persons, who if living, would be entitled as next of kin of the intestate. All these persons come into the succession by statutory gift under the designation of legal representatives, and as sustaining the complete character of legal representatives, in the only sense of the term known to the statute. And unless descendants of children of the intestate are an exception, their character as legal representatives is that fixed on them by sections 5-8 of the statute. Now by these provisions these legal representatives take sometimes per stirpes and sometimes per capita. Evers
      v. Follein, 9 Ohio St., 327; Dutoit v. Doyle, 16 Ohio St., 400.
    On the other hand, by civil law an important' feature was that whenever persons came into the succession in virtue of what was afterwards called representation, they took per stirpes and not per capita. The principle was fully adopted in the construction of the statute of Charles and in the American statutes, except those of Connecticut, framed to carry out that statute. Walsh v. Walsh, Precedents in Chancery, 54; Bowen v. Littlewood, 1 P. Wms., 594; Lloyd v. Tench, 2 Vesey Sr., 215; Earnest v. Earnest, 5 Rawle, 213; McConkey v. McConkey, 9 Watts., 352; Persons Appeal, 74 Pa. St., 123; 2 Am. Law of Admrs., 1216; Reeve on Descents, Introduction, XXXIII.
    It is therefore apparent that the definition of legal representative, which is derived from the statute of Charles, must be one which will exclude taking per capita and include only taking per stirpes; that which is derived from its use in the Ohio statute, must be that which will include both.
    As to the two portions of the statute in which, if anywhere, the provision must be found by which grandchildren are to be charged with advancements to a predeceased parent—
    First, are the provisions of sections 5 and 7. Section 7, it is said, gives to grandchildren who come into the succession with surviving children of the intestate, only the share to which their predeceased parent would have been entitled, if still living. And this is cited in support of the division in the court below. The answer is brief and is founded upon the direct provision of the statute.

      It is .impossible to suppose that the legislature of Massachusetts designed that either of the four sections adopted from their statute into the Ohio legislation should express what very clearly is expressed by section 11 of the Massachusetts statute. They did not design it to be expressed by section 6, the equivalent of section 10 of the Ohio statute.
    But here we have another consideration of particular importance in limiting the four sections of the Massachusetts statute and, by consequence, that of Ohio. By section 11 of that statute, the charge against the descendants is expressly limited to representatives of the heir so advanced. But in that statute representation is expressly defined ; and that by definition they only are representatives who takeper stirpes. Sections 13 and 1. If the language of the four sections imparted a charge of the child’s advancement to the descendants of a child, it would be to all descendants; contrary to the limitation in section 11.
    The principles of construction here insisted upon, have had very frequent recognition by this court. As to the value here of the construction given in Massachusetts, Favorite v. Booher, 18 Ohio St., 553; Paine v. Mason, 7 Ohio St., 198.
    The principle applied in Howk v. Minniok, 19 Ohio St., 462, 467, in regard to the amendment of a statute, applies with equal force here. The omission was an important change of language which, it must have been designed, should be accompanied by a corresponding change of meaning. Bloom v. Richards, 2 Ohio St., 287.

      Washington Hyde, for defendants in error.

      We are quite inclined to agree with counsel for plaintiff in error, that the descent, distribution and inheritance of estates, real and personal, in this state, are matters of statutory regulation. We did not suppose that this was an open question. Three Leading Cases on American Law of Real Property, page 407; Drake v. Rogers, 13 Ohio St., 28; Penn v. Cox, 16 Ohio, 32.
    It is said there was no gift of any real estate from George Parsons to William B. Parsons, in the conveyance to him of the 119 acres of land, because the benefit in the transaction was in every part of it burdened with the obligation for the payment of money and was not a gift of real es-state by way of advancement within the meaning of the statute. An advancement is defined in 8 Ohio, 355, quoting from Bouvier Law Die., 61, to be part of the estate advanced' by ancestor to heir in anticipation of what he would inherit. The true notion of an advancement is a giving by anticipation, the whole or a part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement. Osgood v. Breed, 17 Mass., 358.
    Upon the question whether there was gift of anything from George Parsons to his son, William B. Parsons, in the transaction of deeding him the 119 acres of land, we invite the attention of the court in the first instance to the statute itself. By sections 10-13, of the act of 1853, and sections 4169, 4172, Revised Statutes, any estate, whether of real or personal property may be made the subject of an advancement. The form of executing the advancement, or the manner of proving it when made, are neither prescribed nor limited by the statute. In this respect our statute differs most materially from the statute of Massachusetts. All that is required is a consummated transfer of some estate of real or personal property, as advancement. In interpreting this statute the court must have a due regard to the subject matter to which it applies. Moore v. Given, 39 Ohio St., 661.
    We think the construction insisted on by counsel would produce just such results as this court in the above case has said should be avoided.
    Counsel for plaintiff in error have argued the case as though the deed must be such a one as the law denominates a voluntary conveyance. In this he has fallen into a great error, for it is not essential under our statutes that the deed be of such character, but the substantial nature of the trans-' action may always be inquired into. This seems' to have been the point involved in the decision of the case of Scott v. Scott, 1 Mass., 526. The question was whether this deed could be considered a deed made in consideration of love and affection only. Nevertheless, a deed may be made on such consideration. Seward v. Jackson, 8 Cowen, 406; Whitman v. Whitman, 10 Mass., 437; Bullard v. Bullard, 5 Pick., 527; Swihart v. Shaum, 24 Ohio St., 432; 2 Ohio St., 415; Stump v. Stump, 26 Ohio St., 169.
    Every advancement is a completed gift, pure and simple. The requirement that the donee be charged with the value of the gift when he comes to the inheritance, is a duty charged on him by reason of,‘and arising out of the nature of the gift, made so by the statute for the benefit of the other children of the intestate or their descendants who have received no advancement, or a lesser one than the others. This duty growing out of - the acceptance of the gift, ‘must not, and will not, be confounded with the contractional obligation founded on a valuable consideration and the agreement of the parties.
    Are the children of "William B. Parsons chargeable with the advancement made by his father to him as he would have been had he been living? Drake v. Rogers, 13 Ohio St., 37.
    It will be observed that the language of section 10, of the act of 1805, as of all subsequent acts, including the act of 1853, is, that the issue of a deceased child of the -intestate. take the share of their parents. It is stated by the editors of Leading Cases in American Law of Real Property, volume 3, page 412, that the fourth canon of descent of the common law is in force in all the United States. That canon is as follows: “The lineal descendants ad infinitum of any person deceased shall represent their ancestors, that is, shall stand in the same place as their ancestor himself. would have done, had he been living.” The ordinance of 1787, provided for inheritance per stirpes among children and their descendants.
    Our statutory rules of descent and distribution, are based on natural love and affection and have respect to nearness of kin.- Such is the language of this court, in Drake v. Rogers, 13 Ohio St., 36; Garland v. Harrison, 8 Leigh., 368.
    The common law of descents and distributions has been universally rejected in the United States. Each state has enacted a law for itself. The statutes of the various states have been formed more after the civil than the common law. Am. and Eng. Ency. of Law, volume 24, page 348.
    The statutes of Ohio regulating descent and distribution are no exception. Ewers v. Follin, 9 Ohio St., 327; Drake v. Rogers, 13 Ohio St., 35.

      We insist that section 7 of the act of 1853, must he read and construed in connection with all that precedes and follows it in that act. Wilbur v. Paine, 1 Ohio 255; Pancoost v. Ruffin, 1 Ohio 385; Hirn v. State, 1 Ohio St., 20; Jones v. Carr, 16 Ohio St., 428; State ex rel. v. County, 20 Ohio St., 424.
    It is obvious, that advancements are limited to such gifts as may be made as such by an intestate to his own children, or their descendants. Gifts to collateral kindred, though they may afterwards inherit, are not advancements under the statute. The authorities are substantially all one way, viz: in support of the construction of the statute as claimed by us. . The statute of Pennsylvania provides that issue of a deceased child or grandchild shall take by representation of their parents. Act of 1833, Brightly and Purdon’s Digest, pages 929, 930, section 14.
    Section 35, providing for advancements, is similar to section 10 of the act of 1853. There is no special provision in the Pennsylvania act charging issue with advancements to their parents. Yet it has been often held in that state that they are so chargeable, on the death of their parents before the intestate, under the statute of that state referred to. And more than that, that they are chargeable with debts due from their parents to the intestate. McConkey v. McConkey, 9 Watts., 352; Earnest v. Earnest, 5 Rawle, 213; Pearson's Appeal, 74 Pa. St., 121; Hughe's Appeal, 57 Pa. St., 179; Girard v. Wilson, 57 Pa. St., 182.
    Many, perhaps most of the states, make a difference between debts and advancements. It is enough for our present purpose, that the statutes of this state make advancements part of the intestate’s estate for the purpose of the division and distribution thereof. ' Destrahan v. Destrahan, 16 Martin (4 N. L.), 557; Calhoun v. Cosgrove, 33 Le. An., 1001; Succession of the Misses Morgan, 23 Le. An., 290.
    In Illinois, under the act of July 1, 1872, grandchildren were held chargeable with-an advancement to their father. But the reasoning of the court would have led to the same conclusion without the express provision of the act. Simpson v. Simpson, 114 Ill., 603; Am. & Eng. Ency. of Law, volume 1, pages 221, 222, cases cited in note page 222. Also' volume 24, Title Succession, pages 378, 379; Leading Cases in Am. Law of Real Property, volume 3, page 418, and eases cited; 3 Redfield on Wills, 428; Smith v. Smith, 59 Me., 214; Williams on Executors, page 1347; Brown v. Brown, 62 Ind., 295; Beebe v. Estabrook, 79 N. Y., 246; Proud v. Turner, 2 P. Wms., 560.
    We believe this last is the earliest reported ease under the English statute of distribution commonly known as 22 and 23 Car. II, case 10. It has been a recognized authority ever since its announcement, and is cited with approval by text writers such as Williams on Executors and Red-field on Wills.
    [The statute of descent and distribution of this state have from the beginning followed the civil law, rather than the common law. In one important particular, it has been expressly so held by a decision of this court. Clayton v. Drake, 17 Ohio St., 368.
   Shauck, J.

There is no inconsistency in the finding’ of the circuit court, that the conveyance from George Parsons to his son, was in part for a valuable consideration, and in part a gift by way of advancement. Firestone v. Firestone, 2 Ohio St., 415; Swihart et al. v. Shaum et al, 24 Ohio St., 432; The difference between the consideration paid and the value of the land conveyed, suggested that the transaction involved a gift. Of its probative effect, it is sufficient to say that this difference, in connection with other evidence offered, satisfied the circuit court that there was a gift by way of advancement.

In a learned and exhaustive argument, counsel for the plaintiffs in error contend that the circuit court erred in charging their share of the estate of their grandfather with a gift of this character made to their father. The cases cited well sustain the proposition that according to the long settled and consistent policy of this state, the course of descents is prescribed exclusively' by statute. But this is a rule of inheritance and not a rule of construction. It does not mean that in the application of the provisions of the statute, courts should be unmindful of the equality of inheritance which appears to be a leading object; nor that regard should not be had to all statutory provisions which relate to the subject matter.

The descent of the estate of George Parsons, in-view of his intestacy and the survivorship of some of his own children, and the children of his son William, who had died before him, is determined by the provisions of section 4166, Revised Statutes. This section is a re-enactment, without substantial change, of section seven, of the act of March 14, 1853, to regulate descents. It provides that the estates shall so descend, “that the legal .representatives of the deceased child’*' * * of the intestate, shall inherit equal parts of that portion of the estate to which such deceased child * * * would be entitled if such deceased child * * * were living.” Manifestly, this section introduces the principle of representation, for the benefit of those who stand in the position of the plaintiffs in error and who would otherwise be wholly excluded from the inheritance. The section was under consideration in Dutoit v. Doyle et al., 16 Ohio St. 400, where the principle of representation was recognized, and made the basis of the conclusion, that in eases of this character, grandchildren take per stirpes, and not per capita. To the representative character with which they are thus clearly invested, representative rights are appropriate; and full effect should be given to the provision which defines their inheritance, and limits it to ‘‘that portion of the estate to which such deceased child would be entitled if such deceased child were living.” The authorities cited by counsel for defendants in error, seem to sustain the conclusion for which he contends, and which is well stated in "Woerner’s Law of Administration, § 554: “A sound rule seems to be, that in all eases where grandchildren take per stirpes, or in right of their parents, they take subject to advancements to their parents, but not so when they take per capita, or in their own right. ” The general course of decisions is in accord with Dutoit v. Doyle et al., that inheritance by representation must be per stirpes, so that the rights of representatives may equal, but not exceed, those of their principal.

The provisions quoted from the statute of descents, are in pari materia with those of section 4169, etseq., relating to advancements. It is contended, upon the one hand, that the latter provisions support the conclusion drawn from the statute of descents, and, upon the other, that their terms forbid the charging of an advancement to the representatives of him to whom it was made. The provisions directly applicable are those of section 4169:

“If any estate, real or personal, has been given by any intestate in his lifetime as an advancement to any child or children of such intestate, or their descendants, it shall be considered and held to be a part of the estate of the intestate so far as it regards the division and distribution thereof, among his or her children, or their descendants, and shall be taken by such child or children, or their descendants, towards his or her share of the estate of the intestate. ’ ’

Against the soundness of the conclusion of the circuit court, it is urged that our statute of 1853 is dérived from that of Massachusetts, passed in 1835; that section 11, of the'statute of that state,which clearly provides that the representatives of an advanced heir shall be charged as though the advancement had been made directly to them, was omitted from our statute, and that this omission indicates the intention that a different rule should obtain here. But sections 6 and 11 of that statute, relate to the same subject matter, that is, a description of the persons against whom an advancement shall be charged. The section of our statute above quoted, is manifestly more comprehensive than either section of the Massachusetts statute, and its provisions clearly show an intention to combine in one section all the provisions relating to the precise subject. It may be that perspicuity has not followed condensation; but an analysis of the section shows that the advancement to which effect is • given, is an advancement to any child or children of the intestate, or their descendants; the effect is that it shall be charged against such child or children, or their descendants, when there is a division or distribution of the estate of the intestate, whether among his children or their descendants. The comprehensive terms of the section show that the legislature had in view the equality of inheritance which is made prominent in the general scope of the statutes, and that it intended, for the purpose of attaining it in cases of this character, that the “portion” of a deceased child should be charged with an advancement made to him, though the portion should be inherited by his representatives.

The judgment of the circuit court accords with this vieto, and it will be afirmed.

Spear, J., not sitting.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    The Cleveland Leader Printing Company v. Green.

      Ntmc pro tunc entry — Correction of court record — Cannot show act , as done, not actually performed.

    1. The province of a nunc pro tunc entry is to correct the record of the court in a cause so as to make it set forth an act of the court, which though actually done at a former term thereof, was not entered upon the journal; and it cannot lawfully he employed to amend the record so as to make it show that some act was done at a former term, which might or should have been, but was not, then performed.
    2: Where the journal of the circuit court does not show that the court had acquired jurisdiction of the person of a defendant in error, and the plaintiff in error neglected at the hearing of the cause to require the court to inquire into and pass upon the question of jurisdiction, that court has no jurisdiction at a term thereafter to make the inquiry, and by a nune pro tunc order cause the record to state that inquiry was made at a former term.
    (Decided March 26, 1895.)

      Error to the Circuit Court of Cuyahoga County.
    This action was brought in the court of common pleas of Cuyahoga county, by the defendant in error, Green, against the plaintiff in error, The Cleveland Leader Printing Company, and at the January term, A. D. 1891, a judgment was rendered for the defendant in error; thereupon the plaintiff in error instituted proceedings in the circuit court of said county to secure its reversal. The circuit court affirmed the judgment of the court of common pleas, and proceedings were then brought in this court to reverse both judgments. In October, Á. D. 1894, upon motion of the defendant in error, this court dismissed the petition in error herein on the ground that the circuit court had no jurisdiction of the defendant in error, Green; the record of that court failing to show the issuing of a summons in error, a waiver thereof or an appearance by Mr. Green. After the cause wafe dismissed the plaintiff in error obtained its reinstatement upon the claim that it could obtain from the circuit court a nunc pro tuno order to the effect that Green waived service of process in error from the circuit court, or appeared in the cause at the hearing in that court.
    Plaintiff in error, at the October term, 1894, of the circuit court applied for, and over the objection of the defendant in error, obtained an order nunc pro tunc, which on January 15, 1895, was filed in the cause in this court, the sufficiency of which order nunc pro tunc and the regularity of the proceedings by which it was secured, are questioned by the defendant in error.

      Prentice & Vorce and Squire, Sanders & Dempsey, for plaintiff in error.

      W. S. Kerruish and E. J. Blandin, for defendant in error.
   Bradbury, J.

This court, in October, 1894, held that the record of the circuit court did not show that that court had obtained jurisdiction of the defendant in error. That being true the plaintiff in error had no standing in the court, for it could not, in the method it pursued, bring the defendant in error into this court except through the circuit court and it had wholly failed to bring him into that court. Upon a representation by the plaintiff in error that it was entitled to a nunc pro tunc order of the circuit court, curing this omission, the dismissal was set aside to enable it to procure such order.

Thereupon the plaintiff in error applied to the circuit court for an order nunc pro tunc, which application was in the following terms: “And now comes the said The Cleveland Leader Printing Company, and says that said defendant, Arnold Green, appeared in this case in this court in the hearing of the same in person and by his attorney at the January term of this court, to wit, on the 19th day of June, 1891, but that the record in this case fails to sufficiently show such appearance, and the plaintiff asks that such deficiency may be supplied and the record corrected accordingly by the proper order of this court, ” * * * etc.

The defendant in error moved the circuit court to require the application to be made definite and certain, 1. By setting forth the acts of defendant in error which were claimed to constitute an appearance by him in the circuit court. 2. By stating whether some finding, not before made by the court, was wanted, or whether the court was to ascertain some fact before found- by it, but not recorded.

This motion was overruled, to which ruling the defendant in error excepted.

Good practice doubtless requires that in such proceedings the party against whom relief is prayed, should be apprised clearly of the character of the relief sought, as well as the facts and circumstances upon which the applicant rests his claim to such relief. This application, when tried by that test, is faulty; for it affords no notice to the defendant in error of any specific act or acts done, either by himself or by his counsel, 'that in law constitute an appearance in the circuit court, nor did it state, with reasonable precision the relief sought. However, as the record discloses that no evidence was adduced when the motion was heard upon the. facts, but that the court rested its findings thereon solely upon the recollection of two of its members, the defendant was not prejudiced by its refusal to make the motion definite and certain. The action of the court, resting as it did, upon the recollection of its members, must have been the same whether the motion had been sustained or overruled.

The circuit court found- that the journal entry, at the February term, 1891,‘ ‘fails to show that the defendant in error appeared in person or by his attorney at the hearing of said cause, and it further appearing to the court by the personal knowledge of the court which hqard said cause, that said defendant in error-did personally and by his attorney appear in said cause, and was present at the hearing of the same, it is therefore adjudged and ordered that the journal entry be, and the same is, hereby corrected and amended, ” etc.

This finding of the court, as well as in the motion asking - the court to make the finding, it will be observed, does not show that at the original hearing, in 1891, the attention of the circuit court was called to the question, or that it was then required to find the manner by, or the method in, which jurisdiction over the person of the defendant in error- had been acquired. And if we may believe the sworn statements made by the defendant in error and his counsel, the fact is that no such finding was then requested by plaintiff in error, or made by the circuit court.

If the defendant in error had been served with legal process, if he had formally entered his appearance in the proceedings, or if in person or by counsel he was present and participated in the hearing, jurisdiction over his person would have been thereby acquired. In order to establish jurisdiction the record should disclose at least some one of such acts. This it could not truthfully do unless the court had first found that such action was had. This action, though usually formal, is absolutely necessary and must be made at the time the hearing is had. The fact of jurisdiction over the person of the defendant, and consequently the validity of a judgment for. or against him, should not depend, as it did in the case under consideration, for over three years, upon the personal recollection of a judge or judges, unless there exists some strong necessity therefor.

Rights established by the judgments of judicial tribunals are generally regarded as resting upon the firmest foundations, and this, mainly, because of the confidence reposed in their inviolability. The power to affect their operation or change their import by nunc pro tunc orders, should be'exercised with caution and circumspection. Hyde v. Curling et al., 10 Mo., 363.

In some states the power is denied to the courts unless their action is supported by written memorandum. Hyde v. Curling et al., 10 Mo., 359; Limerick, petitioners, 18 Me., 183; Belkin v. Rhodes, 76 Mo., 643.

This view of the question was taken by this court in an early case. The heirs of Ludlow v. Johnson, 3 Ohio, 553, on page 578, Judge Hitchcock uses the following language in this connection : “But to introduce parol testimony to prove the proceedings of a court of record, and then substitute this testimony for the record itself, would be a novel proceeding. It would be equally absurd as to sustain an action of debt upon bond, upon proof that the defendant promised to make such an instrument, * * * although the fact

should be admitted that the instrument was never executed.” In the cases, since 3 Ohio, 553, was decided, wherein this court has had occasion to consider questions concerning nunc pro tunc entries, such entries have been supported to some extent-by written memorandums. Bothe v. Railroad Co., 37 Ohio St., 147; Moore v. Brown, 10 Ohio, 197; Markward et al. v. Doriat, 21 Ohio St., 637; Mitchell v. Thompson, 40 Ohio St., 110; Benedict v. The State, 44 Ohio St., 679.

Notwithstanding the rule which requires that the power to make a nunc pro tunc entries should be used with circumspection, this court has been liberal in sustaining such orders where the power to make them exists. Dial v. Holter, 6 Ohio St., 228.

Whether a case might not arise in which this court would recede from the doctrine, before alluded to, announced by Judge Hitchcock, in 3 Ohio 553, by declaring the necessity of some written memorandum to support a finding nunc pro tunc, we need not determine; nor are we required to reaffirm the doctrine of that case, because we rest the decision of this causé upon the- ground that the circuit court had no jurisdiction to make the order in question.

The office of a nunc pro tunc entry, of the class under consideration, is to record some act of the court done at a former term, which was not then carried into the record, but it should not be employed to secure at a subsequent term, a performance by the court, of some act which the applicant failed to have the court do at the term* in which a final judgment had been rendered and entered. Doubtless a court retains jurisdiction of its records, and may correct them so as to make them set forth whatever act the court performed in a cause, at a prior term; but in the absence of some statutory provision its jurisdiction of the cause terminates with the term at which a final judgment is entered.’ Were the rule otherwise, the stability of judgments would be destroyed; they would be found, not alone in the records of the court, but in those records and the memory of the judge combined.

The authorities which support this view of the office of a nunc pro tunc order, of the class under consideration, are numerous. “After the close of the-term, it is holden, that the court can enter no order nunc pro tunc, unless one was actually made, and omitted to be entered.” Lorbet v. Coffin, 6 Ohio, 33; Long v. Long, 85 N. C., 417; Limerick, pe titioners, 18 Me., 183; Nabers, Admr. v. Meredith, et al., 67 Ala., 333; Smith v. Hood & Co., 25 Pa. St., 218; Howell et al. v. Morlan, 78 Ill., 162-165; Perkins v. Dunlavy et al., 61 Tex., 241; Whitwell et al v. Emory, 3 Mich., 84; Gibson v. Chouteau's Heirs, 45 Mo., 171.

. We have seen that the order under consideration does not purport to find that the court did some act at a former term which was not recorded. Instead it is an attempt to have the court, at a term in 1894, find a fact which it might have found at a term held three years before, if then required to consider it. No judicial action upon the question was then invoked, and when it was afterwards invoked, the cause had passed into final judgment, and beyond the jurisdiction of the court, and its action was without authority.

Petition in error dismissed.

Spear, J., not sitting.


author: Spear, J.

text:
    Pratchett v. Marsh et al.

      Appeal — Assignee of judgment the holder of legal title — Interest of assignor and assignee not joint — Appeal by assignee does not . take ^t,p case as to assignor.

    A judgment was transferred by absolute assignment by a debtor to her creditor as collateral security. The creditor thereupon commenced an action against the judgment debtor, making her assignor also a party. The latter answered denying that any debt was due from her to her assignee, and sought to enforce r the judgment in her own right, relying upon her denial of the debt to plaintiff as giving her an equitable ownership of the judgment. The judgment debtor attacked the judgment for fraud. On trial the common pleas found in favor of the judgment debtor and decreed that the petition of plaintiff and the cross-petition of the assignor be dismissed. The plaintiff appealed to the circuit court. The assignor, relying upon the appeal of the plaintiff as taking up the whole case, did not appeal. . The circuit court refused to entertain the claim of the assignor, and ordered the trial to proceed as between the plaintiff and the judgment debtor alone.

      Held: 1. By the assignment the assignee became the legal holder of the judgment, clothed with the legal title. 2. The interest of the plaintiff and that of her assignor (if any she had) were separate, and not joint. Hence the appeal of the plaintiff did not take up the issue tendered by her assignor.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Licking county.
    Mrs. Diantha M. Brooks brought action against Mrs. Eliza Marsh and Mrs. Jennett Pratchett, praying for the taking of an account of the amount due upon a certain judgment rendered in favor of Mrs. Pratchett and against Mrs. Marsh, which had been assigned to Mrs. Brooks as security for the payment of a $400 note held by Mrs. Brooks, against Mrs. Pratchett, on which judgment execution had issued and levy had been made on the lands of Mrs. Marsh, and for an account of the amount due on the note. Also praying judgment and decree that unless Mrs. Marsh, or some one for her, pay the amount so found due, the real estate described in the petition be sold and proceeds applied in satisfaction of plaintiff’s lien, and for such other relief as the facts and equity may require.
    Mrs. Marsh answered, denying the validity of the judgment, and averring that the judgment, and the note on which it was based, were obtained by fraud, setting up the ground thereof. Also Setting up, as a bar, a judgment obtained in her favor in a suit between herself and Mrs. Pratchett in which an injunction had been allowed restraining the latter from enforcing the judgment.

      Mrs. Marsh’s prayer was that the judgment declared upon in the petition be adjudged fraudulent and the pretended lien of no effect, and that the plaintiff and Mrs. Pratchett be prevented from enforcing the judgment or its lien against her property; that the action be dismissed, and for all proper relief.
    Mrs. Pratchett answered denying all indebtedness on the $400 note, and alleging facts which, if true, would show that the note had been paid.
    Also setting up by way of counterclaim, the execution by her of a chattel mortgage on certain specified chattels of the value of $339, as security for the payment of $300 claimed to be due Mrs. Brooks on the $400 note, and averring that Mrs. Brooks took said chattels and converted them to her own use. And asking judgment against Mrs. Brooks for the value of the chattels taken and for other proper relief.
    As to Mrs. Marsh’s claim, the defendant, Pratchett denied the conclusions, and alleged facts to sustain the denial. She also prayed a dismissal of defendant Marsh’s cross-petition, and that she have such affirmative relief as she might be entitled to protect her interest under the judgment.
    Reports were filed taking issue on the new matter pleaded in the cross-petitions of Mrs. Marsh and Mrs. Pratchett, as well as by those defendants against each other .as by the plaintiff against each.
    The common pleas on trial found the issues for Mrs. Marsh, and decreed that the petition be dismissed, and the answer of Mrs. Pratchett, so far as it demands affirmative relief, be dismissed; and that Mrs. Pratchett and the plaintiff be perpetually enjoined from attempting to enforce the judgment, and that the lien upon the real estate be canceled. Also adjudging costs made by plaintiff against her, and the residue of the costs against Mrs. Pratchett.
    Notice of appeal was given by both the plaintiff and Mrs. Pratchett, and the court fixed the bond for appeal for each at $100.
    Mrs. Brooks filed her bond and perfected her appeal.
    Mrs. Pratchett filed no bond and took no further step to appeal.
    The circuit court ordered the trial to proceed in that court on the issue between Mrs. Brooks and Mrs. Marsh, but refused to entertain the appeal as to Mrs. Pratchett, and the latter seeks to reverse that holding.

      J. A. Flory and B. G. Smythe, for plaintiff in error.

      Kibler & Kibler and J. R. Davies, for defendant in error.
   Spear, J.

The question is: Did the appeal by Mrs. Brooks take to the circuit court the case as to Mrs. Pratchett?

Two propositions are advanced by counsel for plaintiff in error in support of his contention that Mrs. Brooks’ appeal took up the whole case.

1. That Mrs. Pratchett was a necessary party in the common pleas in order to a determination of the issues bétween the plaintiff below and Mrs. Marsh, and hence was a necessary party in the circuit court.

2. That the claims of Mrs. Brooks and Mrs. Pratchett, as regards the judgment against Mrs. Marsh, were joint, and hence the appeal by one as to her ease necessarily involved the case of the other.

Unless both of these propositions can be maintained the contention of plaintiff in error must fail.

It is, we suppose, well settled that the assignor of a chose in action assigned as collateral security is not, in the first instance, a necessary party to a suit upon the claim, unless it appears by the petition that such assignor has, or claims, some interest in the subject matter adverse to the plaintiff. Allen v. Miller, 11 Ohio St., 374. No averment indicating such adverse interest appears in the petition. Hence, at the outset, the presence of . Mrs. Pratchett was not necessary to a determination of the rights of the plaintiff as against the judg-ment debtor. What, then, was the effect of Mrs. Pratchett’s answer ? If it be conceded that the averments disputing the alleged debt to plaintiff were equivalent to a claim that Mrs. Pratchett was in equity the owner of the judgment, still the pleading falls short of asserting a .claim that she and plaintiff were joint owners of the judgment. Indeed, the conclusion sugg-ested is wholly inconsistent with the idea oí joint ownership. Either the plaintiff owned it by virtue of his legal title, or Mrs. Pratchett owned it by virtue of her equitable claim. Hence, there were two parties striving to recover of the real defendant the same thing, but by wholly different and inconsistent claims as to title. The common pleas held that neither owned the judgment because it had not legal validity, and hence could not be the subject of ownership. This defeated both the plaintiff and Mrs. Pratchett it is true, but it defeated them as separate and not joint claimants. And this result is in no way affected by the fact that the judgment rendered is in form joint. In substance, it is a judgment against each of the parties demanding relief of the judgment debtor.

So, too, is the issue tendered by the affirmative claim of Mrs Pratchett, against the plaintiff, set up in the answer, wholly separate from the other issue in the case. If dissatisfied with the disposition of either branch of her contention, Mrs. Pratchett should have improved her opportunity to appeal. The separate appeal of the plaintiff as to her case cannot avail.

We are of opinion that the appeal of Mrs. Brooks did not carry to the circuit court any claim of Mrs. Pratchett, and. hence, that court did not err in ordering that the trial proceed alone on the issue between the plaintiff below and Mrs. Marsh.

Judgment affirmed.


author: Burket, J.

text:
    Jelke v. Goldsmith, Adm'r.

      Administrator de bonis non — Right to recover assets of estate — Decree in equity does not execute tself as to personalty — Administrator may sell without order of court — Purchaser in good faith acquires title — Act of February 18, 1891 (88 Ohio Laws, 41)— Section 6162, Revised Statutes.

    1. An administrator de bonis non has the right and power to sue for and recover the assets of the estate wherever found.
    2. A decree in equity, other than for a conveyance, release or acquittance of title to realty, acts only in personam, and does not execute itself so as to transfer personalty.
    3. At common law an executor or administrator has power to sell the assets of the estate, including notes and mortgages, without an order of court; and a purchaser who huys in good faith for full value, without notice of any bad faith or wrongful intention on part of the executor or administrator, acquires a good title, and is not required to see to the application of the purchase money.
    4. Until the amendment of section 6162, Revised Statutes, February 18,1891, the common law was in force in this state, as to the sale of notes and mortgages taken by an executor or administrator payable to himself in his representative capacity, for lands of the estate sold by him.
    5. In the month of June, 1884, K., administrator of R., sold land to F. by order of court, and received one-third of the purchase price in cash, and notes secured by mortgage at one and two years for the balance. In the month of March, 1887, after both notes were due, he indorsed, sold and delivered the notes and assigned and delivered the mortgage to J., and received therefor the full face and interest of the notes in money, which he afterward converted to his own use; but J. had no notice of any bad faith or intended wrongful conversion of the proceeds of the notes, and the transaction was not such as to charge him with such notice. In an action by G., administrator de bonis non of the same estate, against J. for the recovery of the notes and mortgage, Held: "That the sale of the notes and mortgage by K. to J. was valid and passed title to him.
    (Decided March 26, 1895.)
    Error to the general term of Superior Court of Cincinnati.
    James Robb died the owner of certain lands in Green township, in Hamilton county, the title to which was in such an entangled condition as to induce his administrator, Charles A. Kebler, to file his petition for the sale of the lands in the court of common pleas of Hamilton county for the payment of debts, making all the heirs of James Robb defendants, the heirs being also the only creditors.
    An order of sale was granted by the court of common pleas, and the lands were subdivided and sold by the administrator to different purchasers, one tract being sold and conveyed to one Thomas L. Flanagan, who paid one-third of. the purchase price, and made and delivered to said administrator his two notes, secured by mortgage on the lands purchased, each for the sum of $1,066.66, dated June 20, 1884, at one and two years, with interest payable annually, and both made payable to the order of “Charles A. Kebler, administrator of the estate of James Robb, deceased.” The mortgage was conditioned for the payment of the two notes, and was promptly recorded.
    On the 11th day of March, 1887, said notes being’ long past due, and said Flanagan being unable to pay them, the administrator indorsed, sold and delivered the notes, and assigned and delivered the mortgage to plaintiff in error, and received therefor the full amount of the principal and interest of the notes in money, which he converted to his own use, and .died in November, 1887, without having’ applied any of the money so received for said two notes and mortgage to the benefit of the estate.
    In the action for the sale of the lands in the court of common pleas, all the heirs and creditors being parties, an agreement was entered into for the disposition of the assets of the estate, including these two notes, and this agreement was in effect carried into the final decree in that case, which was entered on February 6, 1885.
    Charles A. Kebler having died, A. W. Goldsmith was appointed administrator, de bonis non, of the estate of James Robb, deceased, and on March 26, 1888, he began an action in the superior court of Cincinnati, against John F. Jelke, to compel him to deliver up to plaintiff below, the said two promissory notes and mortgage. The petition of plaintiff below, after stating the sale of the lands and the execution of the notes and mortgage, avers “that the said Charles A. Kebler, without authority so to do, and for his own purpose solely, and in fraud of the rights of the creditors and distributees of the estate of James Robb, sold and delivered the said mortgage and said notes secured thereby, to the defendant on the 11th day of March, 1887, and that said Charles A. Kebler, as administrator aforesaid, hath not accounted for the said notes or their proceeds, or any portion thereof, to the said estate or any person entitled thereto, nor hath he paid over any portion of said notes or of the proceeds thereof as by law required.”
    The amended answer of defendant below, denied that the sale of the notes and mortgage was a sale by Charles A. Kebler, as such administrator. He avers that he is the bona fide owner and holder of said notes and mortgage, and paid full value therefor; that at the time he purchased the same the estate of James Robb, deceased, had no interest in the notes and mortgage, and that Charles A. Kebler did not own or hold the same as administrator of James Robb, deceased, and that plaintiff below has no interest in, or right or title to, the said notes, or either of them.
    He further avers that said notes and proceeds thereof, were by said Charles A. Kebler, administrator, fully accounted for by him to the creditors and representatives of the estate of said James Robb, deceased, who fully released and discharged him, and received and accepted the balance found to be due each from said estate in the hands of said administrator.
    The reply is substantially a general denial.
    Upon the trial of the case the court made the following findings of fact and law -
    “That the said Charles A. Kebler, as administrator, for the purpose of selling real estate for the payment of debts of the said James Robb, deceased, brought suit in the common pleas court of this county, numbered in said court 68,462, and that in said suit it was ordered that the property described in the petition be sold and the same was accordingly sold as in the petition set out to Thomas L. Flanagan, and the notes and mortgage in the petition described were by said Thomas L. Flanagan made and delivered to said Charles A. Kebler, as administrator aforesaid.
    “And the court doth further find as follows, that in said cause in said court, numbered 68,462, and wherein Charles A. Kebler, as administrator of the -estate of James Robb, deceased, was plaintiff, and Charlotte M.. Pancoast and William H. Pancoast, her husband, Mary R. Miltenberger and Joseph O. Miltenberger, her husband, Isabella San Roman and Eduardo San Roman, her husband, James Hampden Robb and Cornelia T. Robb, his wife, John Kebler, guardian of Isabella San Roman, Ellen M. Robb and Mary Robb were defendants, a decree was made by said court and entered upon the minutes thereof upon the 6th day of February, 1885, in which decree it was recited among other things, as follows: That is to say, ‘that out of
    said remaining funds the purchase money notes of said farm sold, amounting to $3,747.77, with interest from June 20, 1884, be'set apart, taken and held in trust by the defendants, James Hampden Robb and Charles E. Strong and the survivor, who are hereby appointed trustees thereof for the purpose of providing for and paying the yearly ' sums due or hereafter to become due to the defendant, Mary R. Miltenberger, on the judgment and contingent annuity, for the education and maintenance of her son, James Robb Miltenberger, as provided in said indenture, and any surplus thereof, after discharging- the same, be accounted for and paid over by the said trustees as hereinafter provided and ordered. ’
    “And in said decree it was further recited as follows: ‘And thereupon the written acceptances by said trustees of their acceptance being shown to. the court are approved. ’ And the court doth further find that the notes in the petition mentioned and described, are a portion of the same notes referred to in said clause of said order of said court of common pleas hereinbefore set out.
    “And the court doth further find that said order was made in pursuance of and by virtue of a contract for the settlement of the estate of said James Robb, entered into between the parties in said action, who were all the creditors of the said estate and including the children and heirs of said James Robb.
    “And the court doth further find that said Charles A. Kebler, after said notes in the petition mentioned, had become due and subsequent to the maturity thereof, to-wit: On March 11, 1887, sold and delivered the said notes to John F. Jelke, the defendant herein, and that the said Charles A. Kebler indorsed the same ‘ Charles A. Kebler, administrator of the estate of James Robb, deceased,’ and that after said indorsement that said Charles A. Kebler assigned and delivered the mortgage securing said notes to the said John F. Jelke, defendant, and that the said John F. Jelke purchased the same, paying to the said Charles A. Kebler the full value thereof, being the principal and interest due thereon at said time.
    “Wherefore, the court doth find as a matter of law, that by virtue of said decree, the title to said notes and mortgage passed to and vested in James Hampden Robb and Charles E. Strong, as trustees, and therefore that the said plaintiff: herein hath no right of action herein.”
    From the whole record, it clearly appears that Charles A. Kebler did not, in any manner, deliver the notes and mortgage to the trustees, James Hampden Robb and Charles E. Strong, nor did he in any manner account for the proceeds of the notes, but converted the same to his own use.
    A motion was made for a new trial, and also a motion to make Mary R. Miltenberger, James Hampden Robb, Charles E. Strong and William J. Coppock, as administrators of Charles A. Kebler, deceased, parties to the action. Both motions were overruled, and exceptions noted.
    Thereupon Mary R. Miltenberger filed a motion in her own behalf, asking to be made a party plaintiff, with leave to file a petition or cross-petition, which motion was also overruled, and exceptions noted. Two bills of exceptions were allowed and filed.
    A petition in error was filed in the general term to reverse the judgment of the special term. On hearing the judgment of the special term was reversed by the general term.
    On motion, leave was granted to file a petition in error in this court to reverse the judgment of the general term.
    One petition in error was filed against the administrator, and one against Mary R. Miltenberger, but the same record is for review in each case, and both are treated together in the opinion.
    Paxton, Warrington & Boutet, for plaintiff in error.

      We claim that the agreement entered into by and between the heirs of James Robb and Charles A. Kebler, administrator of said estate, and the decree entered in pursuance of said agreement and based thereon, operated to transfer the title to the notes in question to James Hampden Robb and Charles E. Strong, as trustees for Mary R. Miltenb'erger, and that A. W. Goldsmith, administrator de bonis non, of James Robb, deceased, not being the real party in interest, cannot maintain this action. The statute is imperative. Section 4993, Revised Statutes.
    That Robb and Strong, trustees, permitted these notes, after the entry of the -decree of the court of common pleas, to remain in the hands of Charles Á. Kebler is of no importance. Their acceptance of the trust gave them the right to demand and receive these notes from the hands of Charles A. Kebler, administrator. The neglect of the trustees to discharge their duty in respect to this trust cannot operate to defeat the title that was conferred upon them by the agreement and decree referred to. Did the court err in refusing to permit the parties mentioned in the motion of A. W. Goldsmith, administrator, to be made parties to this suit, either as plaintiffs or defendants, with leave to file a petition,, or answer and cross-petition, praying relief. Sections 5005, 5006, Revised Statutes.
    Neither of the parties mentioned in said motion were entitled to be made parties plaintiff, for the reason that they and each of them had no interest in the subject of the action. The only issue joined between the original parties to the action involve the right of the plaintiff to make collection of the notes sued on. The right of the plaintiff to recover upon said notes could be determined without the addition of any new parties. If A. W. Goldsmith, administrator, etc., had a right to maintain, this action, it was not necessary that any new parties should have been made to entitle him to recover. Clark v. Clark, 20 Ohio St., 128; Hillier v. Stewart et al., 26 Ohio St., 652.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
    The points to be decided are the following:

      First — Did the general term err in holding that an administrator, de bonis non, has the right to sue on a promissory note, made payable to his predecessor in the trust?

      Second — Did the general term err in holding that the decree in case No. 68,462 did not,proprio vigore, or otherwise, operate to transfer title of the notes in question from Kebler, administrator, to Robb and Strong, there being no manual tradition of said notes, nor any indorsement of same by the administrator, Kebler, nor any assumption whatever of control of the notes by Robb and Strong, nor any assorting or setting apart of the same ?

      Third — Whether the general term erred in holding that Mary R. Miltenberger had the right to be made party plaintiff, the plaintiff in the case consenting thereto?
    The notes in question were taken by Kebler for the deferred payments of land which by law he was required to sell on deferred payments, not exceeding’ two years’ time. Sections 6136, 6147, Revised Statutes. It cannot be claimed here, as was held in McCoy v. Gilmore, that in selling the land and taking the notes Kebler became a debtor to the estate of James Robb for the price of the land, and an owner of the notes taken in payment of that price. In other words, the mere sale of the land did not amount to an administration of that asset. A complete administration of the land could be accomplished only in the mode prescribed by law. Section 6162, Revised Statutes.
    According’ to the common law, an administrator, de bonis non, took title or rather succeeded to, only such assets of the decedent as his predecessor had not administered. The succeeding administrator had no right to call to account his predecessor or his representatives for any mal-administration or failure. What the first administration or executor graciously left, his successor gladly seized, and no questions were asked. Coleman v. McMurdo, 5 Randolph, 51; Am. Law of Admis., volume 2, section 351; 1 Williams on Executors, page 783.
    If Kebler had died in possession of the promissory notes, no one would claim that they passed to his representatives as part of his estate. The fact that before his death he had illegally disposed of the notes could not, under our system, constitute an administration of the notes. The notes continued to form, a part of the estate of James Robb.
    This court has said, “under our statute the assets-of an estate are not regarded as administered until they have been collected and applied as required by law or the will of the testator.” Slagle v. Entrekin, 44 Ohio St., 639. An administrator is a mere trustee. He can acquire no interest or benefit of his own in the property of the estate. He is required to administer the estate, not for himself nor for the clergy, but for creditors, legatees and distributees. Bizzard v. Filler, 20 Ohio St., 479; O’Conner v. The State, 18 Ohio St., 225; Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392; Douglas, Adm'r v. Day, Adm'r, 28 Ohio St., 175. Since the foregoing decisions were made, the provisions' of the statutes of Ohio have been enlarged and now include cases not embraced in former legislation. Section 6214, Revised Statutes, 2 Ohio St., 442; Slagle v. Entrekin, 44 Ohio St., 639.
    Kebler did not administer these promissory notes before his death. He certainly did not collect them, and he certainly did not apply them as required by' law. 2 Am. Law of Adms., section 352; Forniquet v. Forstal, 34 Miss., 87; Whittaker v. Whittaker, 80 Tenn., 393. There was no reason-why these notes could not have been collected by Kebler, as he never turned them over to Mrs. Miltenberger nor to Robb and Strong. Foster, Adm’x, v. Wise, Adm'x, 46 Ohio St., 20.
    A decree directing or authorizing an administrator or trustee having custody of, and being under accountability for, property, to deliver or transfer such property to persons -named, will not without delivery of the property, operate to transfer the title. 1 Spence’s Eq. Jur., 391-2; 2 Dah. Ch. Pr., 1032; Sheperd v. Comm'rs Ross Co., 7 Ohio St., 271; 1 Eq. Cases, Abridged, 130.
    We claim that the decree unaccompanied by delivery of the notes or change of possession, did not operate to transfer the title of the same from Kebler to Robb and Strong. Strong v. Strauss, 40 Ohio St., 87; Prosser v. Leatherman, 4 How. (Miss.), 237; Miller v. Helm, 2 Sm. & M., 687; Colt v. Lasnier, 9 Cowen, 334; Duncan v. Jaudon, 15 Wall., 165; Shaw v. Spencer, 100 Mass., 389.
   Burket, J.

Plaintiff below, defendant in error here, complains in his motion for a new trial, because the court failed to state in its findings of fact, that Charles A. Kebler, administrator, did not in any manner deliver or indorse the notes in question to the two trustees, and further, because the court failed to state that said administrator had not accounted for the proceeds of said notes.

The bill of exceptions contains all the testimony, which is mostly documentary, and taking the testimony together, there is no conflict, and nothing to require any weighing of testimony. :

In view of all the testimony the admissions in the pleadings and the facts so far as found by the court, it clearly appears that Mr. Kebler held these notes as administrator until he sold them to the plaintiff in error in March, 1887, and that he failed to account for the proceeds of the notes and mortgage. So that in the disposition of the ease these two facts will be regarded as established, as claimed by the defendant in error.

As to the claim of the plaintiff in error, that an administrator can not maintain an action for the recovery of assets of the estate which have illegally passed into the-hands of third persons from the former administrator, it is enough to say that the statutes have been materially changed since the case of McCoy v. Gilmore, 7 Ohio Rep., 268, and that now an administrator de bonis non has the right to maintain an action for the recovery of the assets of the estate, wherever the same may be found. Sections 6020 and 6214, Revised Statutes. Curtis v. Lynch, 19 Ohio St., 392; Tracy v. Card, 2 Ohio St., 431.

It is claimed by plaintiff in error, that by virtue of the decree in the court of common pleas, referred to in the findings of fact in this case, that the title to the notes passed from the administrator, Kebler, and became vested in the two trustees named in said decree. It is further claimed by plaintiff in error, that the sale of the notes by the administrator to Mr. Jelke was valid, and vested title in him. Both of these claims may be false, but both cannot be true; because if title vested in the trustees by virtue of the decree, no title remained in the administrator to be by him transmitted to Mr. Jelke.

No indorsement of the notes was made by the administrator to the trustees, and no delivery was made to them, either actual or constructive. Mr. Kebler held the notes and mortgage until March, 1887, and then indorsed the notes and assigned the mortgage, as administrator of the estate of James Robb, and sold and delivered them to Mr. Jelke, thus showing that he treated the notes and mortgage as being held by him in his capacity of administrator.

The whole record is consistent with this construction put upon the transaction by Mr. Kebler at the time of its occurrence, and there is nothing against it, unless it be a strained construction of the effect of the decree in the common pleas.

If it be true as found by the court, that on the 11th day of March, 1887, the administrator indorsed, sold and delivered the notes to Mr. Jelke, it must be also true, that at that date the title and possession of the notes still remained in him, as he could not sell and deliver that which he had not. If he then had the title and possession the same could not have been transferred to the trustees by virtue of the decree of February, 1885, unless they had in the meantime been retransferred to thp administrator by the trustees, which is not claimed, and of which there is no evidence whatever in the record.

The irresistible conclusion is, that the title and possession remained in the administrator, until March 11, 1887.

That the title did so remain in the administrator, appears from this further consideration. At common law a decree acts in personam, and creates a right which may be enforced against the person by attachment and sequestration, but the decree does not execute itself. By statute in this state at an early day, it was provided the same as is now contained in section 5318, Revised Statutes, which reads as follows: “When the party against whom a judgment for a conveyance, release, or acquittance is rendered, does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available as if the conveyance, release, or acquittance had been executed conformably to such judgment. ”

It is by virtue of this statute that the decree of a court of equity is made, by its own vigor and operation, to transfer title to real estate from one party to another. In the absence of such statute, .this court held in Shepherd v. Commissioners of Ross County, 7 Ohio, 271, that a decree did not operate to transfer title to real estate.

It will be noticed that this statute applies only to decrees as to title to real estate, but decrees as to personalty are left as at common law, aided, however, by our remedial statutes, and section 5490, which provides as follows: “When the judgment .is not for the recovery of money or real property, it may be enforced by attachment, by the court which rendered the same, upon motion made, or by a rule of court upon the defendant; but in either case notice of the motion, or ■ a service of a copy of the rule, shall be made on the defendant a reasonable time before the order of attachment is made. ’ ’

Under this section, the most that can be claimed in this case is, that the trustees could have, compelled the administrator, by attachment, to deliver the notes and mortgage in question; but until such delivery, the title to the notes and mortgage remained in the administrator.

That a decree in chancery, unaided by statute, is in personam only, and does not execute itself so as to transfer personalty, is also shown by the following citations: Mitchell v. Bunch, 2 Paige, 606; Mead v. Merritt, 2 Paige, 402; Great Falls Mfg. Co. v. Worster, 23 Foster, 462; Wood v. Warner, 15 N. J. Eq., 81; 2 Daniels Chancery Pleadings & Practice, 1032; 1 Spence’s Equitable Jurisdiction, 391; 1 Equity Cases, Abridged, 130.

Let us next examine the claim of plaintiff in error, that the sale of the notes and mortgage by the administrator to Mr. Jelke, is valid and vested title in him.

The common law, as to powers of executors and administrators is in force in this state, except as modified by statute. O'Connor v. State, 18 Ohio, 225; Tracy v. Card, 2 Ohio St., 431; Curtis v. Lynch, 19 Ohio St., 392.

At common law an executor or administrator, has full power and authority to sell, and dispose of all the assets of the estate, including notes, accounts, bonds, mortgages and leases, without an order of court, when the sale is in good faith, and for purposes of the estate; and in such case the purchaser is not required to see to the proper application of the purchase money. Even though the-sale on part of the executor or administrator is in bad faith, and with the intent and for the purpose of converting the proceeds of the sale to his own use, the purchaser will be protected in his purchase in case he acts in good faith and without notice of the bad faith and wrongful intention of the executor or administrator. A sale by an executor or administrator in payment of, or as security for, his own debt, is sufficient notice to the purchaser, that the transaction is not for the benefit of the estate, but for the executor or administrator individually, and such a transaction is always held collusive and fraudulent. 7 Am. & Eng. Enc. of Law, 288 to 299, and notes. 2 Williams on Executors, 7th Am. Ed. 132, notes; Carter v. Mfg. Bank, 71 Me. 448; Duncan v. Jaudon, 15 Wallace, U. S., 165; Field v. Schieffelin, 7 Johns, Ch. 150; Smith v. Ayer, 101 U. S., 320.

In this last case, which involved the right of the executor to pledge notes which came into his possession as executor, the court, on pag’es 326 and 327, say: ‘‘There is no doubt that, unless- restrained by statute, an executor can dispose of the personal assets of his testator by sale or pledge for all purposes connected with the discharge of his duties under the will. And even where the sale or pledge is made for other purposes, of which the purchaser or pledgee has no knowledge or notice, but takes the property in good faith, the transaction will be sustained; for the purchaser or pledgee is not bound to see to the disposition of the proceeds received. But the case is otherwise where the purchaser or pledgee has knowledge of the perversion of the property to other purposes than those of the estate, or the intended perversion of the proceeds.”

The case of Duncan v. Jaudon, 15 Wallace, 165, cited above was a ease involving’ the rig’ht of a trustee to pledge stock (held by him in trust) as collateral security for a loan to himself for his own purposes. The right was denied. The court on page 175 say: “The party taking such stock on pledge deals with it at his peril, for there is no presumption of a right to sell it, as there is in the ease of an executor. In the former case the property is held for custody, in the latter for administration.”

In the case of Field v. Schieffelin, 7 Johns. Ch. 150, which was a ease involving the right of a guardian of a minor to sell a note and mortgage which came into his possession as guardian, and payable to him as such, the syllabus is as follows: “A guardian, having the legal power to sell or dispose of the personal estate of his ward, in any manner he may think most conducive to the purposes of his trust, a purchaser who deals fairly, has a right to presume that he acts for the benefit of his ward, and is not bound to inquire into the state of the trust; nor is he responsible for the faithful application of the money, unless he knew, or had sufficient information at the time, that the guardian contemplated a breach of trust, and intended to misapply the money; or was, in fact, by the very transaction, applying it to his own private purpose. ’ ’

The chancellor, after reviewing the then cases on the subject, on page 160, says: “I have thus looked pretty fully into the decisions in the analogous case of a purchase from an executor of the testator ’ s assets; and they al 1 agree in this, that the purchaser is safe, if he is no party to any fraud in the executor, and has no knowledge or proof that the executor intended to misapply the proceeds, or was in fact by the very transaction applying them to the extinguishing of his own private debt. ’ ’

The case of Strong v. Strauss, 40 Ohio St., 87, is cited and relied upon by defendant in error. In that case a guardian sold notes made payable to himself as such guardian. The syllabus is as follows: “One who buys such notes bearing on their face the marks of a trust fund, is put upon inquiry; and if he buys them from the guardian, under circumstances fairly indicating that they were sold against the interests of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale. ’ ’

It appears in the opinion of the court and facts of the case, that the notes were sold long before maturity, for less than their face value, and under a statute of this state authorizing a sale only, “when for the interest of the ward.” The guardian acted in bad faith and sold the notes for purposes of his own, and not for the benefit of the wards. The court finds that the defendant at the time he bought the notes had sufficient warning to put him upon- inquiry. The case therefore falls within the class of eases in which both seller and purchaser acted in bad faith, and in such cases the sale is always held invalid and collusive. In addition 'the power of' a g-uardian was limited by statute to sales, “when for the interest of the ward.” Of - this statute the purchaser was bound to take notice, and see to the proper application of the money paid for 'the notes. The case is therefore not in conflict with' the cases which hold that, at common law, such sales may be made when the purchaser acts in good faith without notice, but falls within the class of cases where there is bad faith, or a limitation of the power of sale by statute. Even in that case it is conceded that a sale in all respects fair would be valid, but that the purchaser would be bound to exercise a high degree of caution in purchasing notes representing trust funds.

Therefore, and in view of the unbroken line of authorities, the power and right of an executor or administrator, at common law, to sell the securities of the estate, cannot be questioned.

How stood the law on this subject, in this state, at the time of the sale of the notes in question ?

Under our statutes, an executor or administrator may sell the personal property of the estate at public sale without an order of court. Section 6076, Revised Statutes.

By section 6074, the power of an executor or administrator to sell promissory notes, claims, demands, rights of action, bonds and stocks belonging to the decedent at his death, is taken away, except as to sale of desperate claims, and bonds and stocks necessary to be sold to pay debts, as provided in sections 6077, and 6080, Revised Statutes.

Until the amendment of section 6162, February 18,1891, 88 Ohio Laws, 41, and which was further amended, 89 Ohio Laws, 148, regulating and restricting the sale of notes taken by an executor or administrator for real estate sold by him, there was no statute in this state in any manner abridging the power of an executor or administrator to sell notes taken by him in the course of his administration of the estate, and payable to himself in his representative capacity; and therefore his powers of sale, as- to such notes, were as ample as at common law, until February 18, 1891, when section 6162 was amended as above stated.

There was, therefore, no want of power in the administrator, Kebler, on March 11, 1887, to sell the notes in question in good faith for the purpose of the estate, or in bad faith for purposes of his own, provided the purchaser acted in good faith and without notice or knowledge of the bad faith and wrongful purposes of the administrator.

The petition avers that the' sale of the notes by the administrator, was in fraud of the rights of creditors and distributees, and for purposes of his own; but there is no averment that Mr. Jelke had notice or knowledge thereof, or in any way acted in bad faith. Neither do the facts found by the court, in any way implicate Mr. Jelke in the wrongs charged against the administrator, and there is no testimony in the bill of exceptions, from which notice or knowledge could be inferred. On the contrary, the utmost good faith on part of Mr/ Jelke is conceded. He paid the full face of the notes, and interest after their maturity, before there were any suspicions against the administrator ; and at that time, the transaction seemed to be to the advantage of the estate, as it served to realize the full amount of the notes, without the trouble and expense of a foreclosure of the mortgage, or collection of the notes. Mr. Jelke, therefore, by his purchase, acquired a good and indefensable title to the notes and mortgage in question. The transaction as to the purchaser of the notes, should be viewed as it appeared at its date, and not as it may appear years thereafter, when others, whose sins cannot be charged against him, have gone wrong.

To compel Mr. Jelke to surrender the notes and mortgage to the same estate from which he purchased them in g-ood faith, and for full value, without returning to him his purchase money, would certainly be unconscionable, if not absolutely dishonest.

Inasmuch as the petition fails to charge bad faith on part of the purchaser, or notice to him of bad faith on the part of the administrator in the sale of the notes and mortgage, it fails to state a cause of action against the purchaser; and a judgment founded upon such petition should be reversed, and a general demurrer to the petition should have been filed and sustained.

The conclusion is, that the judgment at special term in favor of defendant below, is right, not on the ground that the title to the notes and mortgage had vested in the trustees, but on the ground that the title had vested in Mr. Jelke.

With these views, it follows that the motions to make new parties were properly overruled, and that the judgment of the general term, reversing the judgment of the special term, should be reversed, and the judgment of the special term affirmed.

Judgment accordingly.


author: Williams, J.

text:
    Dew et al. v. Reid et al.

      Contest of will — Remedy by civil action — Issue prescribed by statute — Competent evidence admissible, though not relating to ground alleged in petition.

    1. While the appropriate remedy for the contest of a will is now by civil action, the rules of pleading and procedure under the code, when inconsistent with special statutory provisions relating to such contests, are inapplicable, and the action must be conducted in conformity with such special provisions.

      2. The issue to be made up and tried in such actions, having been prescribed by statute, cannot be varied or restricted by averments in the pleadings, but must be the same, whether made up by the pleadings, or by an order on the journal of the court, viz.: “whether the writing produced is the last will or codicil of the testator, or not.”
    S. Upon the trial of that issue, any competent evidence tending- to prove that, for any reason, the instrument in contest is not the valid will of the testator, is admissible, and should receive proper consideration by the jury, although the specific ground of contest to which the evidence relates is not alleged in the petition. 4. It is error to permit counsel, in argument to the jury, to read from a deposition taken in the case, but not put in evidence.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Fairfield county.
    The original action was brought by the plaintiffs in error to contest the validity of the will of Uriah Reid. The petition alleges that: “On the 15th day of May, 1889, Uriah Reid died unmarried and without issue, and the said plaintiffs and the seven first named defendants are his only heirs at law.
    ' “ On the 23d day of May, 1889, a certain paper writing purporting to be the last will of the said Uriah Reid, bearing date of the 6th day of April, 1889, was presented to the probate court of said Fairfield county, and admitted to probate by the probate court of that county, on the 10th day of June, A. D. 1889, and is recorded in vol. XI, page 224, of the Record of Wills, in said court, and letters testamentary thereon were issued by said court to the defendant, Aaron Binckley, as sole executor thereof, who thereupon qualified. By the terms of said paper writing, all of the defendants except James R. Reid and the defendant, Binckley, are named as the several legatees and devisees of said Uriah Reid, and the plaintiff, Walter B. Wilson, is also named in said paper writing as a legatee of said Uriah Reid. Said paper writing is not the last will of said Uriah Reid, hut that said Uriah Reid at the date of said paper writing was not of sound mind and memory, but by reason of extreme age and protracted pain and sickness, was mentally incapacitated from making a will or a proper distribution of his propertjq and was coerced into the signing of said paper by the undue influence of his brother, Joseph H. Reid, and the defendants, Melvina Reid and Thomas Reid, children of the said Joseph Reid, by continuously, for about two years, persuading, harrassing and annoying the said Uriah Reid to make his will in favor of the children of the said Joseph H. Reid, and by other undue influences brought to bear on the said Uriah by the said Joseph H. Reid, Thomas Reid and Melvina Reid, the said Uriah Reed was induced to execute said pretended will.
    “Plaintiffs, therefore, pray that an issue be made up as to whether said paper writing is the last will of the said Uriah Reid, and that the same may be set aside, and for such other relief as is proper. ”
    No answer was filed, but after the service of process, and appearance of the parties, the court made and entered its order, “that a jury be empanelled to try the issues whether the paper writing produced, purporting to be the last will and testament of Uriah Reid, deceased, is or is not the valid last will and testament of the said deceased. ”
    At the trial of the cause, the contestants of the will gave evidence tending to prove, that when it was signed, the testator was of unsound mind, and under undue influence, and that it was not signed and attested as required by the statute; and the record shows that: “Before the close of the testimony in the trial of said action, the court held and adjudged against the objection of the plaintiffs, that under the issue as made up in their action, the distinct question is not for the consideration of the jury, as to the due signing of the said paper writing by the said Uriah Reid, as his last will, because the petition does not allege as a ground of contest, that the paper writing executed was not duly executed, nor as to whether or not the same was duly attested and subscribed in the presence of the said Uriah Reid, by two or more competent witnesses, who saw the said Uriah Reid subscribe, or heard him acknowledge the same to be his last will, for the same reason; but further held and adjudged, that all the evidence touching the execution of the will was admissible, as reflecting upon the grounds of contest alleged in the petition, and the court so charged the jury, to which holding and judgment of the court the plaintiffs then and there duly excepted.”
    It further appears, from the bill of exceptions, that C. E. Linville, one of the subscribing witnesses to the will, was examined on the trial as a witness for the contestants, and that his deposition had been previously taken and filed in the case. His testimony on the trial was more favorable to the contestants than that given in his deposition, but. the deposition was not’ put in evidence to affect his credit, or for any purpose; and yet, as shown by the record, the court, against the contestant’s objection, permitted counsel for the defendants, in the closing argument to the jury, to read an important part of the deposition which was more favorable to the defendants than the testimony of the witness at the trial; the court holding, that it could not prevent the counsel from reading from the deposition, or claiming to the jury that what he read was not different from the testimony given by the witness at the trial.
    The contestants duly excepted to this action of the court. A verdict was returned sustaining fthe will, and judgment entered on the verdict, which judgment was affirmed by the circuit court. To reverse those judgments error is prosecuted here.

      Thos. H. Dolson and Chas. A. Beard, for plaintiffs in error.

      John S. Brasee and A. I. Vorys, for defendants in error.
   Williams, J.

Prior to the civil code the mode of procedure for contesting the validity of a will was by suit in chancery; and the wills act provided that in such suit an issue should be made up, “whether the writing produced be the last will and testament of the testator, or not, which shall be tried by a jury.” The effect of that statutory provision was declared in Green v. Green, 5 Ohio, 279, where it was held, that “the statute itself having prescribed the issue, it must be followed, and the issue be so made up as to conform to that prescribed by statute.” No answer was necessary, because it could not raise an issue different from that which the statute required to be made up and tried by the jury, nor affect the manner of determining the litigation after bill filed. The act of March 14, 1853, relating to the jurisdiction of the probate court, authorized the validity of wills to be contested by petition filed in the court of common pleas; but that statute, it was heid, in Raudebaugh v. Shelley, 6 Ohio St., 307, did not abrogate, or affect the provision of the wills act prescribing the nature and scope of the issue to be made up and tried in such cases. And in the subsequent case of Brown v. Griffiths, 11 Ohio St., 329, this court held, that a proceeding to contest the validity of a will might be prosecuted “either according to the forms of a suit in chancery, or by petition under the code of civil procedure.” But, in either case, an issue in some form must be made up, “whether the writing produced be the last will of the testator or not. ’ ’ The provision of the statute prescribing the issue in such cases, and requiring that it be made up and tried in conformity with the statute, was declared, in Walker v. Walker, 14 Ohio St., 157, to be imperative in its terms, and deliberately made so, “with a view to prevent a disposition of cases for the contest of wills upon the mere con sent or acquiescence of parties, in any form;” and it was accordingly held to . be error to render judgment upon demurrer to the answer, although the will thereby propounded, which purported to be a joint will, was without any validity, either as a joint or separate will of the parties who executed it. In Runyan v. Price, 15 Ohio St., 1, it is said, that the statute prescribes the mode of contesting a will, as well as the issue to be made up, and e‘ there are no pleadings to which the evidence must be confined, or with the allegations of which it must correspond;” but, “in all eases, the will may be assailed upon any and all grounds that would expose its invalidity.” This rule was followed in Haynes v. Haynes, 33 Ohio St., 598, where, as shown by the statement of the ease, “the issue joined by the pleadings was upon the allegations contesting the will on the ground that the testator was not of sound mind and memory, and that the will was induced by fraud and undue influence, but these were abandoned on the trial except as to the charge of fraud in inducing the testator to sign the paper under a belief that it contained other provisions not expressed in it.” The contestants, on the trial, to prove the want of due execution of the will produced, gave evidence tending to show that it had been materially-altered after it was signed by the testator. The court instructed the jury they had nothing to do with the alteration, and should give it no attention or consideration ; and, for that erroneous instruction the judgment sustaining the will was reversed, the court observing-, that the jury must ascertain whether the writing produced was the valid will of the testator or not, and in ascertaining that, “they were called on to determine, not only the capacity of the testator to make a will, and its due execution, but also, the equally important fact of identifying the paper and its provisions as such will.”

In the codification of the statutes which has been made since the cases we have referred to were decided, it is provided in the chapter relating to the contest of wills, that any person interested in a will or codicil admitted to probate, “may contest the validity thereof in a civil action in the court of common pleas of the county in which such probate- was had. ’ ’ Section 5858, Revised Statutes. And section 5861, contains the provision that, “an issue shall be made up, either in the pleadings or by an order on the journal, whether the writing produced is the last will or codicil of the testator, or not, which shall be tried by a jury.” These statutory provisions were in force when the action below was brought; and it will be observed that the issue which section 5861 requires to be made up and tried, is identical with that prescribed by former statutes, and defined by precisely the same language, which, therefore, must receive the same construction, and be given the same operation and effect, as had been accorded to it by previous adjudications. And though actions of this nature are now dominated civil actions, yet, in so far as they are governed by special statutory regulations inconsistent with the rules of pleading and procedure under the code, the latter are inapplicable; so that, the issue which shall be made up and tried in such eases, having been specifically prescribed by statute, cannot be varied or restricted by averments in the pleadings whether controverted or not. And while that issue may be made up either by the pleadings, or by an order entered on the journal of the court, it must, whichever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will, of the alleged testator; and, as the proof may be commensurate with the issue, any competent evidence tending to prove that, for any reason, it is not his valid will, is admissible, and should receive proper consideration by the jury. Besides, it is well settled, that while a proceeding for the contest of a will is conducted by original action, the court exercises the probate jurisdiction of finally establishing or rejecting the will, and the proceeding is in the nature of an appeal from the order of the próbate. Mears v. Mears, 15 Ohio St., 90; Converse v. Starr, 23 Ohio St., 498; Haynes v. Haynes, supra. The scope of the inquiry on the contest may therefore be as comprehensive as that for the admission of the will to record, and upon the latter inquiry, before admitting the will to probate, it must be made to appear that it “was duly attested and executed, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint.” Revised Statutes, section 5929.

We therefore think, in any proper view of this case, the trial court erred in excluding from the consideration of the jury, the evidence given by the contestants to prove the want of due execution of the will in contest. It hardly need be said that this conclusion is in no way in conflict with Wagner v. Ziegler, 44 Ohio St., 59, cited by counsel for the defendants.

The trial court also erred in permitting the defendant’s counsel, while making his argument to the jury, to read from a deposition which had been taken in the case but not put in evidence. We do not deem it necessary or important to enter upon any discussion of this error. The court seems to have misapprehended its power, as well as its duty.

For both of the errors mentioned, the judgment of the circuit court and that of the court of common pleas are reversed, and the cause will be remanded for a new trial.

Judgment accordingly.