author: Crew, J.

text:
    The State of Ohio v. Austin.

      'Trial for homicide — Defense of insanity — Burden of proof on defendant — Presumption of sanity — Effect of proof of insanity prior to crime — Does not shift burden, when — Laws of evidence — Criminal law.

    1. Where in a trial for homicide the insanity of the accused is set up as a defense, the burden of establishing such defense by a preponderance of the evidence rests upon the defendant.
    .2. The law presumes every person sane until the contrary is shown, and in a criminal case this presumption of sanity serves the state as the full equivalent of express proof until such time as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him.
    •S. On the trial of A, indicted for the crime of murder, it having been proved that prior to the commission of the alleged homicide he had twice been adjudged insane and committed to an asylum, but was discharged therefrom the last time nearly two years previous to the time of the homicide, counsel for defendant requested the court to give to the jury the following instruction: “Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued lunacy.5’ Held: Such instruction was properly refused.
    (No. 8947
    Decided January 17, 1905.)
    Ebbob to the Circuit Court of Scioto county.
    The facts of this case so far as they are pertinent to the question herein presented and determined are stated in the opinion.

      Mr. Harry W. Miller,, attorney for plaintiff in error, cited and commented upon the following authorities:

      State v. Scott, 36 L. R. A., 731; State v. Spencer, 21 N. J. Law, 196; Loeffner v. State, 10 Ohio St., 598; Bond v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111; Kelch v. State, 55 Ohio St., 146; Davis v. United States, 160 U. S., 469; 40 Law. Ed., 499; Wheeler v. State, 34 Ohio St., 394; Starkie on Evidence, 379 and 406; 2 Bishop on Criminal Procedure, sec. 674.; Wright v. Wright, 139 Mass., 177; Powers v. Russell, 13 Pick, 76; Crowninshield v. Crowninshield, 2 Gray, 529; Underhill on Criminal Evidence, sec. 156.

      Mr. Theo K. Funk and Mr. Cecil S. Miller, attorneys for defendant in error, cited and commented upon the following authorities:

      Clark v. State, 12 Ohio, 483; Bond v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111; Kelch v. State, 55 Ohio St., 146; State v. Bowsher, 7 Dec. Re., 442; 3 Law Bull., 190; 11 Greenleaf on Evidence, sec. 371; 1 Wharton’s American Criminal Law, sec. 56; 2 Best on Evidence, 688; Sprague v. Duel, 1 Clarke (N. Y.), 90; Saxon v. Whitaker, 30 Ala., 237; Breed v. Pratt, 18 Pick. (Mass.), 115; Titlow v. Titlow, 54 Pa., 216; Jackson v. Van Dusen, 4 Am. Dec., 336; Wright v. Wright, 139 Mass., 180; McNett v. Cooper, 13 Fed. Rep., 586; State v. Bartlett, 80 Am. Dec., 154; Davis v. United States, 160 U. S., 469; Commonwealth v. McKie, 1 Gray (Mass.), 61; Sackett’s Instructions to Juries, 597; Menkins v. Lightner, 18 Ill., 282; Blackburn v. State, 23 Ohio St., 146; Wheeler v. State, 34 Ohio St., 396; 1 Greenleaf on Evidence, sec. 42; Peasler v. Robbins, 3 Metc., 164 ; Redfield on Wills, 112; Malone’s Criminal Briefs, 148; Wade v. State, 37, 189; Buswell on Insurance, sec. 187; State v. Gardiner, Wright, 392; Cotell v. State, 5 Circ. Dec., 478.
   Crew, J.

At the September term, 1903, of the' court of common pleas of Scioto county, Ohio, the defendant in error, Levi. S. Austin, was indicted, tried and convicted of the crime of murder in the first degree for the killing of one Harry Hornung on the twenty-eighth day of August, 1903. A motion for a new trial was duly filed by the defendant,. Levi S. Austin, which motion was upon consideration thereof by the trial court overruled, and the-jury impaneled in said cause having included in its. verdict a recommendation of mercy the defendant was thereupon, on the overruling of said motion, sentenced by the court to imprisonment for life in the Ohio penitentiary. At the trial in the court of common pleas there was no conflict or controversy in the evidence as to the fact that the defendant, Austin, on the day named in the indictment, August 28, 1903, shot and killed said Harry Hornung. The killing was not disputed, hut under the plea of not guilty the defense was interposed that at the time of such killing the defendant was then insane. On petition in error to the circuit court the judgment of the court of common pleas was reversed and the ver-, diet of conviction was set aside for the reason and on the sole ground as stated in the entry of reversal, that said court of common pleas erred in refusing to give to the jury the following instruction- requested by the defendant, viz.: “Proof of prior insanity throws upon the state the burden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued insanity.” To reverse this judgment of reversal the state prosecutes this proceeding in error. Whether the instruction so asked by defendant is a proper instruction and correctly states the rule of law upon the propositions involved therein and should therefore have been given to the jury in the form requested, is the question presented here for our determination. It must now be taken as the well established rule of law in this state, because of the numerous and uniform decisions of this court upon that subject, that in a criminal ease when the insanity of the defendant is pleaded or relied upon as a defense that such defense is affirmative in character and the burden of maintaining or establishing the same by a preponderance of the evidence rests with the defendant. Loeffner v. The State, 10 Ohio St., 598; Bond v. The State, 23 Ohio St., 349; Bergin v. The State, 31 Ohio St., 111; Kelch v. The State, 55 Ohio St., 146.

The authorities would seem also to be in entire accord upon the proposition that where a person is indicted and prosecuted for the commission of a crime, in order to make the insanity of the accused available and effective to Mm as a defense such insanity must be shown to exist' at the very time of the commission of the act complained of. The law requires that the insanity proved, in order that it may be defensive, shall relate to the time of the commission of the alleged criminal act, and proof of the insanity of the defendant at a time prior thereto cannot of itself exempt him from punishment or acquit him of criminal responsibility. While it is entirely competent in a criminal case where the sanity of the accused is put in issue to show his mental condition both before and after the time of the commission of the alleged criminal act, yet from such evidence of his previous or subsequent mental condition no legal presumption arises that he was insane at the time he committed the criminal act, and such evidence is proper for the consideration of the jury only in so far as it reflects or throws light upon, or may aid the jury in determining, the question of whether in fact the insanity of defendant existed at the time of the alleged criminal act. It appears from the record in this case that the defendant in error, Levi S. Austin, was adjudged insane and on June 18, 1900, was committed to the Southwestern State Hospital for the insane at Marion, Va., and was discharged therefrom on September 1, 1900. He was afterwards readmitted to the same institution July 29, 1901, and discharged therefrom as restored on December 21, 1901, almost two years prior to the time of the alleged homicide. The nature of his disease or malady was, as testified by the physicians, that of ‘ ‘ recurrent insanity or recurrent mania with suicidal and homicidal tendencies.” While other evidence was introduced on the trial for the purpose of showing the conduct and actions of the defendant prior and up to the time of the homicide, yet it is upon the proof made of these prior adjudications of defendant’s insanity that counsel predicate the claim that the special instruction requested by them in this case was correct and should have been given to the jury in the form requested. It is their contention that such proof of prior insanity established for the accused a status which overthrew and defeated the legal presumption of his sanity and created a legal presumption of his continued insanity, thereby imposing upon the state the burden-of proving that the act charged was committed by him during a lucid interval. In support of such contention, and as sustaining the correctness of the instruction asked by them, they cite us to a charge found in a foot note appended to the opinion of the court in the case of Clark v. The State, 12 Ohio, 483. This charge, ascribed to Judge Birchard, has, in one particular at least, viz.: in so far as it defines or prescribes a rule as to the quantum of evidence requisite to establish the defense of insanity, been expressly disapproved and overruled by this court in Kelch v. The State, 55 Ohio St., 151, and we are now clearly of the opinion that said charge is equally objectionable and erroneous in the effect it ascribes to the proof of prior insanity in criminal cases. The doctrine announced and the rule prescribed by this charge upon that subject is so out of harmony with the clear weight of authorities upon that proposition that we cannot admit its correctness. The charge in the above case as to the burden of proof and the legal presumption arising from proof of prior insanity is, in language and form, identical with the instruction asked by defendant in this case and is, as hereinbefore stated as follows: “Proof of prior insanity throws upon the state the harden of proving the crime perpetrated during a lucid interval. It defeats the legal presumption of sanity and creates a legal presumption of continued lunacy.” The particular vice of this instruction is that it states the rule too broadly. It is doubtless true that insanity is often chronic and permanent, for instance from senile-dementia and congenital idiocy there can be as a rule no recovery, and where insanity in such form is once proven to exist its continuance may be inferred or presumed, such inference or presumption however being one of fact and not of law. There are perhaps but few other forms of insanity of which recovery may not be predicated, at least as a contingency, and as to these no presumption whatever is indulged or recognized that they are continuing in their nature. Underhill on Criminal Evidence, sec. 156.

Therefore, the burden being upon the defendant to show that he was insane 'at the time of the commission of the particular act charged, proof of mere temporary or recurrent insanity, such as is shown in this ease, at a time prior thereto, is clearly not sufficient to rebut or overcome the legal presumption of his sanity and to impose upon the state the burden of proving that at the time the act was committed the defendant was then sane. The burden of proof does not shift but all along it rests with the defendant, and if in any case he would overcome the legal presumption of his sanity and would exonerate himself from liability he must show by a preponderance . of the evidence that at the time of the commission of the alleged criminal act he was then so far mentally deranged or unsound as not to be answerable or accountable for his act. While proof of prior insanity is competent, whether a mental condition, shown to exist has continued down to the time of the commission of the alleged criminal act is solely a question of fact to be determined by the jury. And the defendant in a criminal case who sets up insanity as a defense does not relieve himself from showing his insanity at the very time of the commission of the criminal act, by proof merely that he was insane at an earlier time. In the case of Wheeler v. The State, 34 Ohio St., 395, A, being on trial for a crime, relied on insanity as a defense and as evidence tending to prove this defense offered a record from the probate court showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum, the court held that the evidence was admissible, but the learned judge who wrote the opinion in that case, speaking of the office and effect to be given to such evidence, at page 396 says: “Inquests of this character are analogous to proceedings in rem, affecting the general and public interest, and no one can strictly be regarded as a stranger to them. And such condition of things as the insanity of a party being shown, there is a ■ presumption of more or less force, according* to circumstances, that the same condition continued. Nor does the time which may have elapsed since the inquest was held affect the question of its admissibility (Sergeson v. Sealey, 2 Atkyns, 412), though of ■ course, it may have great force on the question of the weight of the evidence.

“Ordinarily such inquisitions are not conclusive, but only prima facie evidence of incapacity, as will be seen from the authorities cited; but, on a question like that in issue here, it is manifest they cannot he regarded as even prima facie evidence.”

In the present case the jury was correctly instructed by the trial court on the question of the burden of proof and on the matter of .insanity as a defense, and for the reasons we have herein stated we think there was no error in refusing to give the instruction asked by defendant in the form it was requested.

Finding no error in the record such as warranted the reversal of the judgment of conviction in this case, the judgment of the circuit court must be reversed and that of the common pleas affirmed.

Judgment accordingly.

Speak, C. J., Davis, Shauck, Pkice and Summers, " JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Davies v. The New Castle & Lowell Railway Co.

      Bill of exceptions — Must he filed within forty days, when — Section 5301, Revised Statutes — Substantial compliance therewith — Transmission of hill hy clerk to trial judge — Heed not he hy manual delivery — Court procedure.

    1. Under tbe provisions of section 5301, Revised Statutes, as passed October 22, 1902, it is incumbent upon tbe party taking a bill of exceptions,- to file tbe same in tbe cause with tbe clerk of tbe court within forty days, after tbe overruling of tbe motion for new trial, or tbe decision of .the court excepted to, where a motion for a new trial is not filed, and having done this be has performed all tbe duties imposed upon him by tbe statute.
    2. Where tbe record shows that tbe party excepting filed bis bill of exceptions with tbe clerk on tbe fifteenth day ,of August, 1903, that being within the time prescribed for that duty, and that on tbe tenth of September, 1903, the clerk transmitted the same to tbe “court,” and that tbe bill was re* ceived by tbe “court” as shown by his endorsement on the seventeenth day of September, 1903, signed “T. I. Gilmer, Judge of the Court of Common Pleas;” — and where the record further shows that on the eighteenth day of September, 1903, the bill was signed and returned to the clerk of the court, under the endorsement “T. I. Gilmer, Judge,” and that on the same day the bill was received and filed by the clerk — there has been a substantial compliance with the statute, and it is not error to overrule a motion to strike such bill from the files.
    3. The transmission of the bill by the clerk to the trial judge need not be by personal or manual delivery to him, but may be made in other manner equally safe and reliable, the intent of the law being that the bill reach the trial judge within the statutory period, without opportunity to any one to tamper with or change it.
    (No. 9110
    Decided January 11, 1905.)
    Error to the Circuit Court of Mahoning county.
    The action in the court of common pleas against tifie railway company was for the recovery of damages for personal injuries, sustained by the plaintiff in error, while in the employ of defendant in error, which it is alleged, were caused by the negligence of the railway company.
    On the issues joined between the parties, the jury returned a verdict for the plaintiff. The court overruled a motion for new trial, and rendered judgment ■on the verdict.
    The railway company excepted and took a bill of exceptions containing the evidence and other proceedings had at the trial, and filed the same in the circuit court, with a petition in error, praying for the reversal of the judgment rendered in the court of common pleas. The verdict was returned on the fifth day of June, 1903, and the motion for new trial was overruled on the twentieth day of July, 1903, and the judgment was entered upon the same day.

      The following docket entries and filemarks show the history of the bill of exceptions after it had been ■ prepared:
    “This bill filed with the clerk, August 15, 1903. J. Howard Edwards, Clerk.
    “Adverse party notified of the filing of this bill August 15, 1903. J. Howard Edwards, Clerk.
    “Objections filed by adverse party August 19, 1903. J. Howard Edwards, Clerk.
    “This bill transmitted to the court by the clerk, this tenth day of September, 1903. J. Howard Edwards, Clerk.
    “This bill received by the court September 17, 1903. T. I. Gilmer, Judge of the Court of Common Pleas.
    “On this eighteenth day of September, 1903, this bill returned to the clerk. T. I. Gilmer, Judge.
    “On the eighteenth day of September, A. D. 1903, this bill received by the clerk and filed. J. Howard Edwards, Clerk.”
    The plaintiff in error filed his motion in the circuit court, to strike the bill of exceptions from the files for the reason “that said bill of exceptions was not transmitted by the clerk to the trial judge within fifteen days after forty days from the overruling of the motion for a new trial, and that said bill of exceptions was not signed by the trial judge and transmitted to the clerk of the court of common pleas of Mahoning county, Ohio, within the time required by the provisions of the statutes of Ohio.”
    Before the motion was disposed of, the plaintiff in error asked leave to amend the motion as follows:
    “First: That said bill of exceptions is not authenticated in the manner and within the times as provided by sections 5301 and 5301a, Revised Statutes of Ohio.
    “Second: That said bill of exceptions was not transmitted by the clerk in the manner and within the times as provided by section 5301, Revised Statutes, of Ohio.
    ‘ ‘ Third: That said bill of exceptions was not received, signed and allowed by the trial judge and transmitted to the clerk of said court of common-pleas within the times and in the manner required by the provisions of section 5301a, Revised Statutes of Ohio.”
    The circuit court refused to allow the amended motion as a whole to be filed, “as it alleges matters for which the party obtaining said bill of exceptions is not responsible.” An exception to this ruling was taken. The original motion was overruled and that ruling was excepted to. The case was then heard on the assignments of error, and the court found .error apparent upon the récord, to-wit: “That the verdict of the jury and the judgment thereon are contrary to, and against the clear weight of the evidencé, and against the law of the casé, and that the court of common pleas erred in overruling the motion of plaintiff in error for a new trial. ’ ’
    The judgment of the court of common pleas was reversed and a new trial granted. The case was remanded to the court of common pleas for further proceedings according to law. Exception was taken to the judgment of reversal, and error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. Murray & Koonce, for plaintiff in error.

      Messrs. Arrel, McVey S Tayler, for defendant in error.
   Price, J.

An examination of the motion for new trial which was filed in the trial court, and also of the petition in error filed in the circuit court, will show that each and all of. the errors relied on for a reversal of the judgment in favor of the present plaintiff in error, were exhibited only by the bill of exceptions, and hence, if the motion to strike the bill of exceptions from the files had been sustained; or, if the circuit court for any reason assigned in the motion, had refused to consider the bill, an affirmance of the judgment of the trial court would necessarily have followed.

And if this eourt concludes that the circuit court erred in considering the bill of exceptions and passing on errors said to appear therein, a reversal of its judgment would be followed by an affirmance of the judgment of the trial court. •

The bill of exceptions, except perhaps the file marks and memoranda thereon required by statute, i's not a part of the record in this proceeding, and hence we have but the two questions:

1. Did the circuit court err in not permitting the present plaintiff in error to file the amended motion to strike the bill of exceptions from the files ?

2. Was it error to refuse to strike the bill from the files for the reasons contained in the original motion?

We think these questions may be considered together. The motions are not very different in their scope and meaning, and while both might be charged with lack of certainty and definiteness, we are disposed to give them a liberal construction. According to the record, it does not appear what the plaintiff in error expected to show on the hearing of the amended motion, had it been filed. The facts behind it may have been stated orally to the court but we do not find them in the record.

Looking into the brief of counsel we may learn what is absent from the record, but we are not justified in reversing judgments on facts asserted in the ' briefs of counsel. Nor do we find any record of evidence offered or introduced (if any was offered, or introduced) to sustain the original motion.

Therefore we are remitted to the file marks, journal and docket entries which are in the record as the only means whereby we can determine the questions presented in argument.

As shown in our statement of the case, the motion for new trial was overruled by the trial court on the twentieth day of July, 1903. It was incumbent on the excepting party to reduce his exceptions to writing and file the same within forty days after the overruling of the motion for new trial. The bill was prepared and it was filed on the fifteenth day of August, 1903. This was within the forty days, and the excepting party had performed the duty made incumbent upon him by the statute. On the nineteenth day of August objections to the bill were filed with the clerk.

On the tenth day of September thereafter the bill was transmitted by the clerk to the ‘£ Court, ’ ’ as disclosed by the docket entry. ' Another entry states it as a transmission to ££Hon. T. I. Gilmer,” and the entry on the bill indicates that it was received by ££T. I. Gilmer, Judge of the Court of Common Pleas,” on the seventeenth day of September, 1903. The bill was returned to the clerk on the eighteenth of September and was filed by the clerk on the same day.

It thus appears beyond doubt that the bill of exceptions, was filed by the excepting party in due time, and that it completed the circle, and was refiled in due time, after having been signed by the court or judge assuming authority to allow and sign it. Now, several faults were found with the bill in the circuit court, and they have been urged here with apparent confidence. It is said the record shows no explanation why seven days elapsed between the transmission by the clerk on September 10th — if the clerk in fact did transmit it on that day, — and the date it was received by the “Court,” and that plaintiff in error, could have shown something on the subject, had that court permitted the filing of the amended motion appearing in the statement. The brief of counsel states their complaint in this way:

■“That is one of the questions on which plaintiff in error bases his complaint that the circuit court erred to his prejudice in refusing to permit him to file his amended motion to strike from the files said bill of exceptions. Had leave been given to him so to do, a showing could then have been made by him of the manner and time of transmission of said bill by the clerk and facts could then have been measured by the requirements of the statute.”

As before stated, the plaintiff in error seemed content with the refusal to permit the filing of the amended motion, because no statement was made to the court of what would be disclosed under it, if once filed. It seems also, that no attempt was made to prove anything against the bill, under the original motion, and unless we are to presume error whenever it is merely asserted, there is nothing of merit in the proposition.

■Whát'could have been shown to defeat the bill? It is not contended .that the document filed with the clerk as a bill of exceptions on the fifteenth of August, lost its identity in any way, or, that it was tampered with by any one during the interim of seven days. The temporary absence of the trial judge might account for the bill coming into his hands on the seventeenth of September. Whatever it was that caused this lapse of time, it was not the fault of the party filing the bill. He.has done his part toward its perfection, and the remaining steps are to be taken by the clerk and trial judge or judges. While the statute commands the clerk to transmit the bill to the trial judge within a certain number of days, and as to the officer the duty is mandatory, yet his neglect to do so within the period prescribed, would not lose the bill, provided it reach the trial judge in time to enable him to allow, sign and return it within thé time prescribed for that duty, and it is so allowed, signed and returned. What would be the result if the trial judge should neglect to sign and return the bill within the time fixed by statute, is another and different question not raised in this record and we express no opinion concerning it.

There is another criticism of the bill. It is, that while the present statute requires the clerk of the court to transmit the bill to the “trial judge,” it appears that he transmitted it to the “Court,” and when the bill reached the “Court,” he endorsed its receipt “T. I. Gilmer, Judge of the Court of Common Pleas.” Also, that when he returned it to the clerk, he endorsed it — “On this eighteenth day of September, 1903, this bill returned to the clerk. T. I. Gilmer, Judge.”

We are urged to hold that these variances from the statutory requirements are fatal to the bill; that it was never sent to the “trial judge,” — never received by him, and never returned by him to the clerk. We answer, that counsel for plaintiff in error, concede that the bill of exceptions is headed (after giving the title of the case), “that at the trial of the above entitled cause before the Hon. T. I. Gilmer, P. J., and a jury at the. May term, A. D. 1903, of the court of common pleas in and for the county of Masoning, ’ ’ etc.

It is true the clerk recites that he transmitted the bill to the “Court,” and it is true the “Court” received it, and. signed his'name “T. I. Gilmer, Judge of the Court of Common Pleas,” thereto. But in judicial proceedings, it is difficult to have a trial court without a trial judge. The case was heard in the court of common pleas, and the judge who presided at the trial was as much the trial court, as he was the trial judge. The person is the same, and the functions and duties are much the same, and until some one is able to separate the “Court” from the “trial judge,” and make them different persons, we decline to endorse the contention made on that subject. It is the same bill; allowed and signed by the judge who tried the case, in which he acted both as a court and trial judge.

We are also asked to consider that it does not appear how the clerk transmitted the bill to the court or trial judge, and it is claimed that it . should have been transmitted by him personally; that is, the clerk, in such case, must make manual delivery to the trial judge, and that it does not appear that this was done in the case at bar. We cannot concur in this position. The word transmit has no such narrow meaning, and there are several modes of transmission, fully as safe and secure as a personal delivery. If a trial judge reside in another county, or some distance in the same county, from the office of the clerk, the latter may select some reliable means of delivering the bill aside from individually bearihg it to the trial judge, the purpose being that it may have safe passage and not be tampered with by any one.

All the objections made to the bill in the circuit court, as well as those presented to us by counsel for plaintiff in error, are purely technical, and under our present law, are not valid. Under our former statutes, several things were required of the excepting party in order to obtain a review of his case. Some of these were held in former decisions of this court to be mandatory and jurisdictional, and if not complied with the bill could not be considered.

We hope that day is now past. The former practice furnished a yawning sepulcher, wherein were swallowed up the honest efforts of litigants to have their controversies reviewed by a higher court. These lost rights made earnest protest to the general assembly, until it finally acted, and has adopted a more simple method of relief, and has attempted to utterly cast out some of the difficulties which formerly hedged the way to a reviewing court. The legislative intent is plain in the present statutes, and we are not now required to follow as precedents all decisions of the court made under the former legislation.

Lastly it is claimed that the bill is not a part of the record .of the case, because no entry was put on the journal making it a part of the record.

That this is no longer necessary, we have recently decided in Strauch v. Massillon Stoneware Co., 71 Ohio St., 295, and we need not consider the question.

Judgment affirmed.

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


author: Shauck, J.

text:
    Nichols v. The State of Ohio.

      Prosecuting attorney may waive issuance of summons — And enter appearance of state, when — Criminal law — Petition in error.

    A prosecuting attorney may effectively waive the issuance and service of summons in error and enter the appearance of the state by a proper endorsement for that purpose upon a petition in error filed for the reversal of a conviction for crime or misdemeanor.
    (No. 8687
    Decided January 17, 1905.)
    Error to the Circuit Court of Wyandot county.
    Nichols was tried, convictecl and sentenced for. a misdemeanor in the mayor’s court of the village of Nevada. He prosecuted error upon the record in the court of common pleas. No summons was issued, but by endorsement upon the petition in error signed by the prosecuting attorney in his official character, issuance and service of summons were waived and the appearance of the State as defendant in error was entered. In the court of common pleas the cause was heard without objection on account of the manner in which the appearance of the State as a party had been effected, and the judgment was affirmed.
    Nichols then prosecuted error to the circuit court. That court being of the opinion .that the prosecuting attorney was without authority to waive summons in error and to enter the appearance of the State, and that the court of common pleas was, therefore, without jurisdiction to render a judgment on the merits of the case, reversed the judgment which the court of common pleas had rendered and dismissed the petition in error which had been filed in that court.

      Messrs. Finley & Gallinger, attorneys for plaintiff in error.
    The object of a summons in error is to notify the prosecuting attorney for the state of Ohio, of the proceeding in error to the end that he may defend the State of Ohio, and if he waives service upon him, and enters his appearance for the State, and appears and defends the State, how can he be heard to say afterward, in another court, that the court below to which he submitted the case (without objection as to jurisdiction), had no jurisdiction because notice was not served on him, notwithstanding his written waiver of such notice?
    The prosecuting attorney has waived summons in error and entered his appearance in this court the same as he did in common pleas court. Can it be said that this court cannot review the judgment of the circuit court because of the want of service of a summons in error on the prosecuting attorney? This court has settled that question. King v. Penn, 43 Ohio St., 57; Railway Co. v. Marra, 26 Ohio St., 185; Bowen v. Bowen, 36 Ohio St., 315; secs. 6713 and 6714, Rev. Stat.
    Section 7304 provides for the taking-of a bill of exceptions, the same as in civil cases, and section 7306a gives authority to the circuit court to reverse a conviction, of any crime or misdemeanor, but makes no provision how the case is to get into the circuit court.
    Section 7356 provides that in any criminal case including a conviction for a violation of an ordinance, etc., may be reviewed on error by the common pleas court.
    Section 7357 provides for the furnishing of a transcript.
    Section 7358 provides for the filing of a petition in error, and section 7359 provides for the issue and service of a summons, to be served on the prosecuting attorney, so that it will appear that substantially, proceedings in error in criminal cases are the same as in civil cases.
    If the statute in proceedings in criminal cases differs from' that of civil cases, which we contend it does not, we claim nevertheless that the state of Ohio, if it is willing,, by its prosecuting attorney to enter its appearance as a party defendant in error, and save the useless formality of having the prosecutor served with a summons, it can do so, and that having done so and having furthermore appeared in common pleas court and argued and submitted the case, without objection to jurisdiction, and furthermore appeared in circuit court and argued and submitted the case, without objection to jurisdiction, that it is estopped to now raise the question that it was not served with a summons, and we maintain that we are supported in this contention by the following cases: Hammond v. Hammond, 21 Ohio St., 620; Fee v. Big Band Iron Co., 13 Ohio St., 563; Evans v. Iles, 7 Ohio St., 234; Railway v. Wick, 35 Ohio St., 252.

      In this connection note that the journal record in both courts shows that the defendant in error by its attorney appeared and argued the case and submitted it to the court without objecting to jurisdiction, especially it did so in common pleas court. We say that by appearing and submitting the case to the common pleas court it waived all question as to the jurisdiction of the common pleas court to hear and determine the case.
    We contend further that if the decision of the common pleas court was erroneous for want of jurisdiction, it was an absolute nullity and that error to the circuit court would in like manner be a nullity and would not confer jurisdiction upon the circuit court, and that therefore the circuit court, if that were true, was without jurisdiction in the premises, yet it took jurisdiction and decided that the common pleas court had no jurisdiction, and rendered judgment for costs against plaintiff in error.
    Defendant in error submitted no brief.
   Shauck, J.

By the judgment of the circuit court the summons appears to be unduly exalted and its function perverted. It is but a warning to the defendant to appear on the date named, the result of his failure to appear being that the court will proceed in the determination of his rights as though he were actually present. It is in no proper sense a writ to coerce his actual appearance. It is not an exercise of the jurisdiction of the court, but -a notification preliminary to its exercise. Although the issuance of the summons may be required by statute it is not necessary if it appears from the record that the purpose of notification, which the summons is ¡intended to accomplish, is effected otherwise. This appears in all the numerous cases in which it has been held that although no summons has been issued the court has jurisdiction of the persons of all who according to the record have appeared and contested the merits of the case. Since it appears from the record in the present case that the issuance and service of summons were waived by the officer who is expressly authorized to receive service of summons, every consideration of reason appears to be satisfied.

It is true that section 7359 of the Revised Statutes, which relates to proceedings in error in criminal cases, provides for the issuance of a summons in error upon the filing of the petition in error and a precipe. But the terms of the section show that, like the summons in an original action or the summons in error in a civil proceeding, it has no purpose beyond that which the endorsement of the prosecuting attorney shows to have been accomplished in the present case. The analogy between the provisions relating to the institution of proceedings in error and those relating to the institution of an original action are top familiar to the bar of the state to call for discussion. When the proper relations of means to ends are observed it seems quite clear that the court of common pleas had jurisdiction to affirm or reverse the judgment below. ' The circuit court having erroneously concluded that the court of common pleas was without jurisdiction, and having itself for that reason failed to consider the merits of the case, its judgment will be reversed and the case will be remanded to that court for further proceedings..

Spear, C. J., Davis, Price, Crew and Summers3 JJ., concur.


author: Davis, J.

text:
    Renner et al. v. Williams.

      Words of survivorship in mil — Prima facie refer to time of testator's death — Descent and distribution of property — Interpretation of terms in will.

    1. Words of a survivorship in a will prima facie refer to the time of the testator’s death, because that is the time at which the property to be divided usually comes into enjoyment; but if the time of payment or distribution of the bounty, or the time of vesting an estate, be postponed in the will to a time later than the death of the testator, the words of survivorship will relate to such later period.
    2. A testator declared as follows: “Item Third. I do give all the balance of my real and personal estate to my son S and my daughters H and M to be divided equally between them share and share alike. Item Fourth. In case of the death of either one or more of the children named in item three, namely, S, H and M, the survivor or survivors shall inherit the property bequeathed to them both in item one and item three; if more than one survivor, to be divided equally, share and share alike.” The words “survivor or survivors” in item fourth mean survivor or survivors at the time of the testator’s death; and the interest in the real estate devised by item third is an estate in fee simple which vested immediately on the death of the testator, so' that on the death of H and M, respectively, after the death of the testator, their interest in the real estate passed by descent to their respective heirs and not to their brother, S, as survivor.
    (No. 8513
    Decided January 17, 1905.)
    Error to the Circuit Court of Licking county.
    The facts sufficiently appear in the opinion.

      Mr. Geo. Arthur, attorney for plaintiffs in error.
    To what does the survivorship involved in item fourth relate? To what time does the testator refer when he speaks' of the death of one or more of his children? Does he refer to the contingency, if not probability, that one or more of them might die in his lifetime, and before his will eonld take effect? Or did he intend to provide for the happening of such an event after his own death, and after the three children named- in this item acquired their title to the property-given to them by the first and third items?
    Of course, the entire will must be considered in construing any item or provision in it. And the intention of the testator must govern in its construction. Every word in the will must be presumed to have some meaning; and the language used by the testator must be read and understood in its ordinary and popular sense, unless the context or nature of the subject clearly imports some other meaning. These principles of law are too well settled to admit of controversy. Townsend’s Exrs. v. Townsend, 25 Ohio St., 477.
    Is it not clear, from the language used in the will, that he intended to give the residue of his estate to those of his children who might be living at the time of his death; and that he intended the fourth item to qualify the first and third items only in case the three children living when the will was made should not all survive the testator? He does not say in these words that if any of his children die in his-lifetime the others shall take the residue of his estate in fee simple; but all of the facts in the case show that this was his intention. And this, we respectfully submit, is the legal effect and meaning of the language used by the testator in the fourth item of his will, according to all of the authorities on the subject. Lawrence v. McArter, 10 Ohio, 38; Sinton v. Boyd, 19 Ohio St., 30; Baker v. McGrew, 41 Ohio St., 113; Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 320; Taylor v. Foster’s Admr., 17 Ohio St., 166; Page on Wills, sec. 545, p. 628; Johnson v. Webber, 65 Conn., 501; Ruggles v. Randall, 70 Conn., 44; Kellet v. Shepard, 139 Ill., 438; Tucker’s Will, 63 Vt., 104; Howland v. Slade, 155 Mass., 415; DeWolf v. Middleton, 18 R. I., 810.
    Whenever there is an intervening estate, as a devise to one for life, and at his death to his heirs in fee, or to a class named in the will, the heirs, or the class, are to he determined at the date of the life tenant; because that is the time when distribution is made and the remaindermen get possession of the property — though the estate in remainder vested in them at the death of the testator.
    As already shown in Sinton v. Boyd, and by Red-field, above cited, the rule is the same in this country and in England as to the time to which words of survivorship in a will relate.
    “In seeking for a period to which the words of survivorship could be referred, the obvious rule where the gift took effect in possession immediately on the testator’s decease, was to treat these words as intended to provide against the death of the objects in the lifetime of the testator, the devise affording no other point of time to which they could be referred. Accordingly, we find this to be the established construction.” 3 Jarman on Wills (5 Am. from 4 London ed.), 572; citing numerous English, and the following American cases: Hempstead v. Dickson, 20 Ill., 193; Ross v. Drake, 37 Pa. St., 373; Buckley v. Reed, 15 Pa. St., 83; Martin v. Kirby, 11 Graft., 67; Passmore’s Appeal, 23 Pa. St., 381; Drayton v. Drayton, 1 Desaus., 324; Lawrence v. McArter, 10 Ohio, 38; Mowatt v. Carow, 7 Paige, 339; Young v. Robinson, 11 Gill & Johns., 328; Moore v.
      Lyons, 25 Wend., 119; Dominick v. Moore, 2 Bradf., 201; Morse v. Mason, 11 Allen, 36; Scott v. Guernsey, 48 N. Y., 106; Lord Bindon v. Earl of Suffolk, 1 P. W., 96; Smith v. Horlock, 7 Taunt., 129; 3 Jarman on Wills, 274-579; Brown v. Biggs, 7 Ves., 279, was the first case in which this variation from the old rule was allowed; Cripps v. Wolcott, 4 Mad., 11; Blewitt v. Roberts, 10 Sim., 491. This same rule was followed in Pope v. Whitcombe, 3 Russ., 124; Neathway v. Reed, 3 D. M. & G., 18; and Vorley v. Richardson, 8 DeGr. M. & G., 126. In all of these cases the words of survivorship were referred to the period of distribution; and in each case there was an intervening life estate between the death of the testator and the time appointed for the payment to the surviving legatees.
    But “if the tenant for life dies before the testator, the death of the latter, as the period of actual distribution, will be regarded as the period of survivor-ship.” Spurrell v. Spurrell, 11 Hare, 154; 3 Jarman on Wills, 588; and Watson v. England, 15 Sim., 1.
    So, where there was a gift for life, with remainder to three persons by name, and “in the event of the death of either in the lifetime of the tenant for life, his share was to be transferred to the survivors, and if only one should be living, then to him or her so surviving,” it was held that this was not a survivor-ship among the remaindermen, but had reference to the death of the tenant for life. Littlejohn v. Household, 21 Beav., 29; Page v. May, 24 Beav., 323.

      Neathway v. Reed, supra, is exactly in accordance with the decision in Sinton v. Boyd, 19 Ohio St., 35, where the same rule is stated by Judge Day, and shown to be the same in England and America.

      The result of all these decisions, at home and abroad, is that words of survivorship in a will, both as to real estate and personal property, must be understood as relating (1) to the time of the testator’s death; or (2) to the period appointed by the will for distributing the estate to the survivor or survivors; or (3) to such other date as may be expressly named or clearly and unmistakably implied in the will.
    Words exactly the same, or very nearly, and of the same import, as those used in the will in this case, are found in numerous eases, and in the text books, where their meaning has been defined and declared. In every instance it has been held that they refer to the testator’s death, or to the time of distribution; and that the devisees or legatees who survive the testator, or who are living when the time is reached for distributing the property, take the estate. Jar-man on Wills, chap. 48, p. 65, et seq.; Theobold on Wills, 336; Cambridge v. Roves, 8 Ves., 12; Crigan v. Banies, 7 Sim., 40; Taylor v. Stanton, 2 Jur. (N. S.), 634; Howard v. Howard, 21 B., 550; Arthur v. Hughes, 4 B., 506; Harvey v. McLaughlin, 1 Pr., 264; Johnson v. Antrobus, 31 B., 556; Boliths v. Hillyar, 34 B., 180; Theobold on Wills, 336; Hinckley v. Simons, 4 Ves., 160; Rodgers v. Rodgers, 7 W. R., 541; Crowley v. Knapp, 13 Vroom, 297; 3 Jarman on Wills, 611, et seq.; Peterson v. Beach, 5 Dec. Re., 553; 6 Rec., 513; and Bates’ Dig., 187.
    It is, therefore, settled by these and many other decisions to the same effect, that a devise “in case of the death” of any person named in the will involves a' contingency which must be referred (1) to the death of such person in the lifetime of the testator, or (2) before the time appointed by the will for distribution. Whenever the gift is immediate — to take effect as soon as the testator dies — these words, or any words of like import, mean death in the lifetime of the testator; for in such case there is no other time to which they can be referred. But when the gift is to take effect at the termination of a life estate, or upon the happening of some event after the death of the testator, then these words must be construed to mean death before distribution; but never at any time thereafter, unless imperatively required by the terms of the will, in order to carry out the intention of the testator. And before there can be any departure from the general rule above stated, a different intention must be manifested by the testator in clear and unmistakable language.
    In case of doubt, the law favors the vesting of estates ; and prefers the earliest date that is possible, without violating any of the terms of the will. This is especially true in Ohio, and when the devise or bequest is to a member or members of the testator’s family. Linton v. Laycock, 33 Ohio St., 128; Bolton v. Bank, 50 Ohio St., 293.
    Where, in the construction of any clause, there is doubt as to the point of time it was intended the estate should vest, the earliest will be taken. Miller v. Keegan, 14 Ind., 502; Guyther v. Taylor, 3 Ired. Eq., 323; Hilliard v. Kearney, 1 Busb. Eq., 221; Collins v. Collins, 40 Ohio St., 353; McArthur v. Scott, 113 U. S., 340.
    This is not, upon the facts found, an executory devise. The defendant is not, of course, entitled to the land as remainderman; because there is no preceding estate created by the will to support a remainder, either vested or eoíítingent; and the testator did not intend to give any of his children a life estate or a remainder in fee in any of Ms land. At least he used no apt words to indicate any such intent.
    Nor can the defendant take the estate in fee, at the death of both of his sisters, by way of an executory devise; because there is not the slightest intimation in any part of the will, that the testator intended or desired to give any of Ms cMldren a future estate in any of his land. Redfield on Wills, pt. 2, 643; Doe v. Provoost, 4 Johns., 61; Lessee of Thompson v. Hoop, 6 Ohio St., 481; Durfee v. MacNeil, 58 Ohio St., 238; Taylor v. Foster’s Admr., 17 Ohio St., 166; Jarman on Wills (ed. 1861), 819; Quincy v. Rogers, 9 Cush., 249.
    Death of one or more of his children in the lifetime of the testator is the only contingency possible in this case.
    The words of the fourth item, read alone or in connection with the other parts of the will, admit of no other interpretation. This is their natural and legal effect. Assuming that they imply a contingency, and refer to some event or events that might or might not happen, it would be absurd to suppose that they have reference to the death of one or more of the devisees unassociated with, any other fact, circumstance or condition. Because, as already stated, there is nothing uncertain or contingent about death.
    It follows, therefore, as well from these circumstances as from the numerous authorities above cited: (1) that the language of the will expresses a contingency in the death of one or more of the children who are named, as devisees; (2) that such contingency must happen, if at all,' in the lifetime of the testator; (3) that the words of survivorship in the fourth item necessarily relate to the■ death of the

      testator, which in this case is the time fixed for distribution — and not to any other time; and (4) that the language of the will will not bear any other construction.

      Messrs. Cunningham é Boggs, attorneys for plaintiffs in error.
    In support of our contention in this case we will submit the following propositions as supporting the construction placed upon said will by the plaintiffs, and as a complete solution of the questions raised on this record.
    1. Words of survivorship, where no other period is fixed by the express language of the will or by necessary implication from the words used, is the period of distribution. 1 Underhill on Wills, sec. 349, and cases there cited; Lawrence v. McArter, 10 Ohio, 37; Sinton v. Boyd, 19 Ohio St., 30; 2 Jarman on Wills. (4 Am. ed.), star page 632; 29 Ency. of Law and Evidence (1 ed.), 449, and cases there cited; 2 Redfield on Wills, sec. 4, star page 488; Presley v. Davis, 62 Am. Dec., 396.
    2. The period of distribution where no other is fixed by the express words of the will or by necessary implication from the words used, is the death of the testator. Baker v. McGrew, 41 Ohio St., 113; 2 Jarman on Wills (4 Am. ed.), star page 648; 1 Underhill on Wills, sec. 350.
    3. Unless clearly restricted by the express provisions or context of the instrument to some other period, the words, “in case of death,” or “in the event of death” or words of similar import must be construed as relating to the meaning:
    (a) The death of . the devisee or legatee in the lifetime of the testator. 1 Underhill on Wills, sec. 342; Vass v. Freeman, 69 Am. Dec., 734, and cases there cited.
    (b) The death of the devisee or legatee before the distribution of the gift or devise. 1 Underhill on Wills, sec. 345, and cases there cited.
    4. As favoring the above rules of construction the policy of the common law has always been and the policy of the law in this state is, in favor of the early vesting of estates, and in questions of doubt in the construction of a will that construction will be given which affects the early vesting of estates. Linton v. Laycock, 33 Ohio St., 128; McArthur v. Scott, 113 U. S. S. Ct., 340; 29 Ency. of Law and Evidence (1 ed.), 441, and cases there cited.
    5. It is a rule of construction in regard to shares which have once vested by survivorship that they shall not so vest again unless by force of express words to that effect. 2 Redfield on Wills, star page 373, and cases there cited.
    6. It has also become a cardinal rule of construction in the interpretation of wills, that a clear gift is not to be cut down or limited by any subsequent provision unless the latter is equally clear. Collins v. Collins, 40 Ohio St., 364; Den v. Baskerville, 11 How. (U. S.), 329.; Rhodes v. Rhodes, 137 Mass., 343; Wicker v. Ray, 118 Ill., 472; 29 American and English Ency. of Law (1 ed.), 369, and eases there cited.
    With but few exceptions (where the policy of the law has become a rule of property), the intention of the testator to be gathered from his will is the first rule of construction governing the construction of'wills, and if is only -where the-testator has failed to definitely express his intention in exact language in his will, that rules of construction become necessary in arriving at the intention of the testator.
    In the case at bar the testator has failed to indicate by the express language of his will the exact time to which the words of survivorship contained therein refer. And it is under these conditions and in cases of this character, that the rules of construction laid down by the courts in the early days of the common law, and which have been followed with but slight variations or deviations by all the courts in the various states in this country, become applicable and necessary in arriving at the intention of the testator.
    The early English cases held to the rule that where words of survivorship were used by the testator without referring them to any specific time, that then the law would fix the time as of the death of the testator, and that without reference to whether the devisee or legatee was to come into an immediate possession or enjoyment of the property devised or bequeathed upon the death of the testator.
    And later this same rule of construction was applied to devisees of real estate as well as to bequests of personal property.
    This later construction, that is the construction fixing the period to which the words of survivorship should be referred, where not expressly fixed by the terms of the will or by necessary implication from the words used, at the death of the-testator where that was the period fixed for the distribution of said estate, or to the termination of the particular estate when that time was fixed as the period of distribution, has become the rule of construction adopted by the courts of the different states of this country, and by tbe courts of the state of Ohio. Baker v. McGrew, 41 Ohio St., 113.
    These rules of construction have been adopted and followed by the courts of this state, in the case of Sinton v. Boyd, 19 Ohio St., 35, heretofore cited, and in the case of Taylor v. Foster, 17 Ohio St., 166.
    Tested by these rules the only event to which.the contingency of death contained in the fourth item of the will, can be referred is the death of the testatorf that being the period at which the beneficiaries came into the enjoyment of their respective interests in said estate. And at that time their interests became vested absolutely in fee simple, and were' no longer subject to the .provisions of said will. They could have said their respective interests and passed a good title to the purchaser, and, dying intestate, their interest would pass by descent under the statute.
    The construction contended for by the plaintiffs in this case is in keeping with the well established general rules laid down in the decisions of this state and by the text writers on the subject of wills, namely:
    1. That that construction is to be given in the interpretation of a will which is'most favorable to the heir at law.
    2. That an express and positive devise cannot be controlled or cut down by subsequent clauses of doubtful meaning.
    3. That shares which have vested once by survivorship shall not so vest again unless by force of express words to that effect.
    4. That it is a well established policy of the law that the early vesting of estates is to be favored, and where a clause of a will will admit of two construetions, one affecting an early vesting of the devise, and another favoring a determinable devise that construction is to be adopted which vests a devise at the earlier period.

      Messrs. Kibler & Kibler, attorneys for defendant in error.
    From this will and by item four the testator contemplated and provided that, so far as the $4,000.00 given his wife was concerned, the distribution might occur subsequent to his death. If that was his intention, as it certainly must have been, as to the personal estate or money given to his wife, it cannot be logically said, that the period of disposition of the real estate applied to the date of his death. He contemplated that his wife might survive him, and she did survive him about three years. The two kinds of property are inextricably connected in item four, and any just construction will require that if one kind is to be disposed of after his death, the other goes with it, as to the period of disposition. We humbly submit that this' construction settles the case, and it is unnecessary to pursue the learned argument of the counsel for plaintiffs in error. For it is that implications in the will shall override all artificial rules of construction.
    But if we are in error about this contention, we claim that it is not the law in Ohio to assume that the intention of the testator in the fourth item of the will and the whole will shall be construed to apply to death in his lifetime, but that each of these three had a determinable fee, and that when each died his or her whole interest passed to the others, and that the sole survivor took the whole title. Without reference to the antiquated learning claimed to establish a rule that where a survivorship is stated in the will, it relates to a survivorship occurring before the death of the testator, or at his death, we insist that the plain meaning of the words is, that the three did not take at his death a fee simple estate proper in ' the lands or an absolute estate in money, but a determinable fee in the lands depending upon the sur-, vivorship whenever it should happen. .There is nothing in the facts set forth in the bill of exceptions bearing upon the intention of the testator, as is claimed in the briefs for plaintiffs in error, that should affect the construction of the will and any subsequent facts could not change the intention expressed in or to be gathered from the will itself. But if these facts, or any of them, are, to be considered, it will be noted that at the date of the will Huldah was thirty-nine years old and Mary C. thirty-four years old, and unmarried, and that the two died unmarried and without issue, and the testator may have had in his mind that they were not likely to marry.
    Now the testator disposed by item three of any personal estate not given to the widow and his real estate to the three children. He limits in item four the disposition of the real estate mentioned in item three, and the $4,000.00 to the widow for life, mentioned in item one.
    So that the question is: '
    1. Did he postpone the final disposition of the real estate by that item as he did postpone the disposition of the $4,000.00. If not,
    2. Can it logically or justly be-inferred that item four related to the survivors at the date of his death?

      The testator does not say that if any of the three children die in Ms lifetime, the others shall take the interest of those who so die. If he had so intended he would have so said. To give these words that meaning, the words die in Ms lifetime must be inter.polated, if not interpolated in fact, they must be interpolated by construction or by some arbitrary rule. 'We say it is just as proper to insert after words “in case of the death” the words “at any'time” and we say more proper because the will looks to the future, speaks as of his death, and there is no looking either to the date of his will or to the daté of his death. The words “bequeathed to them” would naturally refer to the will which took effect or could take' effect only after the death of the testator — at least there is no plain restriction that the contingency should happen before his death. Pendleton v. Bowler, 11 Dec. Re., 551, 27 W. L. B., 313; Parish v. Ferris, 6 Ohio St., 563; Taylor v. Foster, 17 Ohio St., 166.
    The only difference in the Taylor case from the case here is, that the contingency there was dying without issue, and in the absence of those words the ease here is stronger. This case has been cited in Ratliff v. Warner, 32 Ohio St., 334, and in Lapham v. Martin, 33 Ohio St., 99, and has not been modified, explained or overruled. Niles v. Gray, 12 Ohio St., 320.
    ■ This case followed and approved, Parish v. Ferris, 6 Ohio St., 563; and of Niles v. Gray, it has been said in Piatt v. Sinton, 37 Ohio St., 355, that that decision “has become a rule of property in this state and we are not disposed to reconsider it. ’? It has frequently been cited and has not been overruled. Durfee v. MacNiel, 58 Ohio St., 238.

      If the contention for plaintiff in error is good law, there was error in each of these cases. Anderson v. Jackson, 16 Johns., 382; Page on Wills, section 542.
    We insist that it is to he inferred from the will itself, which makes no distinction or difference between the $4,000.00 given to the widow for life and the real estate, that the period of distribution was not the testator’s death. Mead v. Maben, 131 N. Y., 255; Lee v. Welch, 163 Mass., 312; Baker v. McGrew, 41 Ohio St., 113.
    We are unable to see the pertinency of the case of Sinton v. Boyd, 19 Ohio St., 35, cited by plaintiff in error. It decides only that words of survivorship should be referred to the period appointed by the will for payment or distribution, unless a contrary intention is evinced by the language of the will. Lawrence v. McArthur, 10 Ohio St., 38.
    In England, the rule formerly was to apply the survivorship to those living at the date of testator’s death. It went so far as to hold that it would not abply to a devise to two as tenants in common because there was no survivorship between such tenants. 2 Jarman, 721. But the rule has long been regarded as unsatisfactory. 2 Jarman on Wills, 736.
    In this connection we call attention to what is sáid by the court in Parish v. Ferris, 6 Ohio St., 563, and on, touching the English rule in the case then under consideration, that the English rule had never been recognized in the state of Ohio, and saying that the English rule is clearly to defeat what every person must acknowledge is the real and the lawful intention of testators, etc.
    We do not understand what is said in the brief of the plaintiffs in error touching the vesting of the estate in the lands or its application to the case here. Every determinable fee vests in the first taker to be divested, etc. Every base or qualified fee, which may be determined, vests in the first taker. The vesting is according to the title. It may be good forever or it may end.
    Neither is the doctrine that favors the heirs at law applicable. The plaintiffs, though heirs at law of the testator, claim as heirs at law of Huldah and Mary C., the devisees of the testator.
    In the ease of Davis v. Davis, 62 Ohio St., 411, the two daughters who were favored were the devisees as well as the heirs at law of the testator. In the case of Smith v. Bloch, 29 Ohio St., 488, which was the case of a deed, the survivors who took were those who survived the mother.
    Construing the whole will here, and giving to all the words the plain and ordinary meaning we find:
    1. That the two items one and three necessarily contemplate the future, certainly as to the $4,000.00 given to the wife for life and the disposition of the personal and real estate is not distinguished.
    2. That the survivors of the three, Sylvester, Huldah and Mary C., should inherit the property bequeathed to them, viz.: the real and personal property.
    It was bequeathed by the will which could take effect only from its probate, and of course, subsequent to the death of the testator.
    3. That to overcome the effect of these provisions of the will there must be found in the will other words or language to a contrary effect.
   Davis, J.

This is a petition in error to reverse the judgment of the circuit court on an appeal from the court of common pleas. The action is in partition, the plaintiffs claiming a share in certain real estate which was devised by their grandfather to the. defendant and his two unmarried sisters, Huldah and' Mary C., and to the survivor or survivors of them. Both sisters died intestate and without issue after the death of the testator and Ms widow. The defendant and his said sisters took under the will and occupied lands described in the petition until the death of the said sisters. The plaintiffs claim by descent from the said sisters, through their mother who died before the will was made. The provisions of the will are as follows:

Item First. I do first give to my wife, Mary M., the use of $4,000.00 during her natural life, and all the movable property she brought with her at the time of her marriage. At her death the said $4,-000.00 is to be divided between my son, Sylvester "W. and my daughters, Huldah and Mary C., share and share alike.

Item Second. I do give and bequeath to the heirs of my daughter Albina, now deceased, $800.00.

Item Third. I do give all the balance of my real and personal estate to my son, Sylvester W., and my daughters, Huldah and Mary C., to be divided equally between them, share and share alike.

Item Fourth. In case of the death of either one or more of the children named in item three, namely, Sylvester W., Huldah and Mary O., the survivor or survivors, shall inherit the property bequeathed to them, both in item one and item three, if more than one survivor, to be divided equally, share and share alike.

The question is: Does the survivorship mentioned' in the fourth itém of the will relate to the time of the death of the testator, or to the time of distribution, or to the time of the death of any of the devisees there named?

In England from an early period to the present time and quite generally in the. United States, a .prevailing rule of construction has been that when the word “survivor” occurs in a will, the survivorship is understood to relate to the time when the will shall take effect, that is, the time of the testator’s death, unless a contrary intent is shown in the will. This is not an arbitrary rule, as counsel for the defendant seem to think. It is based upon clear and satisfactory reasoning. Unless it fairly appears from the will that he does not do so, the testator must be presumed to be contemplating and provide ing for the devolution of his property at the time of his death. Therefore when a testator devises or bequeaths to two or more jointly,, it is understood that the devise or legacy takes effect immediately upon his death, when the estate vests in the devisee, or at the period of payment or distribution, as. the case may be. If the will clearly discloses a different intention as to the time when devises shall vest or legacies be payable, such intention will of course control in the interpretation of the will. It seems conclusively to follow that when a testator provides merely that in case of the death of one or more of the devisees or legatees, the survivor or survivors shall take the provision made in the will, he refers to a survivorship which shall exist at the time a devise of real estate may vest or when a legacy may be payable.

But if a testator provides, for a survivorship on the happening of a contingent event, as “in case of the death of A-without issue,” the survivorship may take effect at or after the testator’s death according to the time of the ■ happening of the contingency. And such a devise will vest a determinable fee in the first takers and on the happening of the contingent event will vest an absolute fee simple in the survivor or survivors, by way of executory devise. Without exception the cases relied upon by the counsel for the defendant are of this class, and are therefore clearly distinguishable from this case. Here' the will provides, in item fourth, that “in case of the death of either one or more of the children named in item three * * * the survivor or survivors shall inherit the property bequeathed to them both in items one and three.” It does not say “in case of the death,” etc., with a specified contingency, as, “without issue,” “without legitimate heirs,” “unmarried,” which would plainly refer the survivorship to the time of the death of the devisees or legatees; but it is merely provided that in case of the death of one or more pf the children named, the survivor or survivors shall take. “In case of death” is equivalent to “if death occurs.” Now there is no “if” or contingency in death. Nothing is more certain to happen; but when will it happen? No man can foretell the time. Hence the defendant insists that the language-of the will must be interpreted as if it read “at the death of,” whenever it may occur. This construction disregards the most obvious canons of criticism and interpretation. It forces and entirely changes the meaning of the language of the testator. His words are “in case of the death.” As the death was absolutely certain, he must have used the contingent form of expression in contemplation of the contingency of death at a certain period. He does not name that point of time; and therefore, for the reasons already stated, he must he presumed to refer to the time from which the will speaks, the time when his bounty takes effect, the time of his own death. It is only when the language of the will manifestly requires a different construction that this rule does not apply.

The construction which we give to this will is supported by a large number of authorities, many of which are cited for the plaintiffs, including Lawrence v. McArter, 10 Ohio, 37, and Sinton v. Boyd, 19 Ohio St., 30.

The interest in the real estate which the two sisters of defendant, Huldah and Mary C., took under the will was an estate in fee simple; and since they died seized thereof, intestate and without issue, it passed by descent to the plaintiffs and defendant as-their heirs and next of kin.

It follows that the judgment of the circuit court is erroneous and therefore it is reversed and judgment is rendered for the plaintiffs as prayed in their petition.

Judgment accordingly.

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


author: Spear, C. J.

text:
    Oliver v. Canan et al.

      Cross-demands■ between parties — Where if one had brought action, the defendant could claim set-off — Counter claims of judgment creditor and judgment debtor — Section S07S, Revised Statutes — Neither can be deprived of benefit by assignment, when — Effect of lapse of time before issue of execution — Assignment of judgment to third party — Equity.
    Section 5073, Revised Statutes, which provides that when cross-demands have existed between persons under circumstances that if one had brought action against the other a set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, but the two demands must be deemed compensated so far as they equal each other, applies to a case where a judgment creditor seeks by action against his debtor to set off a balance due from his debtor in the judgment against a balance due such debtor from the plaintiff upon another judgment, and the right to have such set-off is not affected by the' fact that five years elapsed after the rendition of the plaintiff’s judgment without the issue of execution, nor by the fact that the judgment debtor (defendant) who resists such set-off has, after the rendition of the plaintiff’s judgment, assigned his judgment, for value, to a third person who at the time was ignorant of the indebtedness of his assignor to the plaintiff.
    (No. 8673
    ■ Decided January 17, 1905.)
    Error to the Circuit Court of Holmes county.
    The action out of which the present error proceeding grows was one by the plaintiff in error, Paul Oliver, against the defendants in error, John B. Canan and Jacob Spreng, brought in the common pleas of Holmes, June 10,1898, to recover judgment against them in the sum of $3,267.86, and interest, upon an unsatisfied balance of a judgment rendered in favor of the plaintiff against the defendants by that court in the year 1885; also, by amended petition filed May 1,1902, for the further purpose of obtaining an injunction to prevent Canan from levy-mg execution against the property of plaintiff upon a certain judgment theretofore rendered in favor of said Canan and against Oliver and one W. A. McCool by the circuit court of Eiehland county; and a further judgment allowing the plaintiff to set off against the latter judgment the amount so due plaintiff on his unsatisfied judgment against Canan.
    Defendant Canan’s answer set up four defenses, viz.: Denial that the amount of the alleged judgment was truly stated, and averring that it was for a much less amount; also that the judgment actually rendered had been paid and satisfied; also that the amount of the judgment actually rendered was only $1,034.00, instead of $2,574.83, as alleged, and that Oliver, by fraudulent representations and practices caused the clerk to wrongfully enter in the journal in said cause a larger amount, to-wit: the sum of $2,068.68, with interest at seven per cent, and $506.15, with interest at six per cent; and finally denying that at the time of the filing of the suppleméntal petition herein, April 10, 1901, defendant was the owner of the judgment rendered in the circuit court of Eiehland county against Oliver and McCool, or had any interest in said judgment or any part of it. Also pleading want of jurisdiction in the court to grant the plaintiff any relief whatever.
    Eeply was interposed by plaintiff to the new matter, and trial had in the common pleas and an appeal to the circuit court. That court determined the issues against the plaintiff, -and he alleges error. Error was also attempted to he prosecuted to the common pleas judgment, hut that was superseded by the appeal. Further pertinent facts are stated in the opinion.

      Messrs. Jenner & Weldon and Mr. George W. Sharp, attorneys for plaintiff in error, cited and commented upon the following authorities:

      Beaumont et al. v. Herrick, 24 Ohio St., 446; Moore v. Ogden, 35 Ohio St., 430; Rankin v. Hannan, 37 Ohio St., 117; sec. 5077, Rev. Stat.; Holmes v. Robinson, 4 Ohio, 90; Allen v. Medill et al., 14 Ohio, 446; Miller & Co. v. Florer, 15 Ohio St., 148; Wagner v. Stocking et al., 22 Ohio St., 297; Needham v. Pratt, 40 Ohio St., 186; Fisher v. Cassidy et al., 49 Ohio St., 421; Barbour v. Bank, 50 Ohio St., 90; 12 Am. & Eng. Ency. Law, 149 (o); Hughes v. Trahern, Admx., et al., 64 Ill., 48; McJilton v. Love, 13 Ill., 487; Northam v. Gordon, 23 Cal., 255; Hobbs et al. v. Duff et al., 23 Cal., 596.

      Mr..John Huston and Messrs. Laser & Huston, attorneys for defendants in error, cited and commented upon the following authorities:

      Kinsella v. DeCamp, 8 Circ. Dec., 352; 15 C. C. R., 494; Ackerman v. Ackerman, 84 N. W. Rep., 598; Darst v. Phillips, 41 Ohio St., 514; Woodward v. Curtis, 10 Dec. Re., 400; 19 C. C. R., 15; Herman on Estoppel, 453; Baker v. Lamkin, 5 Dec. Re., 54; 11 C. C. R., 103; Elliott v. Plattor, 43 Ohio St., 198; Diehl v. Friester, 37 Ohio St., 473; Freeman on Judgments, par. 427; 87 Ill., 268; Hovey v. Morrill, 61 N. H., 9; 60 Am. Rep., 315; 197 Mass., 397; Zogbaum v. Parker, 55 N. Y., 120; Ely v. Cooke, 28 N. Y., 365; Gallaher v. Pendleton, 55 Ia., 142; Bell v. Perry, 43 Ia., 368; Waterman on Set-off, sec. 352; Ames v. Bates, 119 Mass., 399; Goodwin v. Richardson, 44 N. H., 125; 60 Am. Rep., 316; Mackey v. Mackey, 43 Barbour, 58.
   Spear, C. J.

At request of plaintiff the circuit court made a finding of facts separate from its conclusions of law. A bill of exceptions was also taken by plaintiff. From this finding it appears, among other things, that on the decree rendered in the court of common pleas of Holmes county in the case of Oliver v. Canan et al., May 19, 1885, there is due Oliver from Canan the sum of $3,508.00, and interest.

The suit of Canan against McCool and Oliver in the court of common pleas of Richland county was commenced about the time of the commencement of Oliver’s suit against Canan in Holmes county to recover judgment on the alleged balance due on his former judgment — the present case. Judgment was rendered by the common pleas of Richland in favor of Canan September 26, 1900, for $7,881.43, hut this judgment, was reduced by the circuit court on review to $5,300.00, and interest and costs, at the January term, 1901.

March 28, 1902, execution was issued and the personal property of Oliver levied upon and advertised for sale. April 18,1902, the circuit court granted an order restraining Canan from selling the property, but upon the condition that Oliver pay one-half of the amount of the judgment to J. C. Laser and A. A. Douglas, attorneys fob Canan, for services in recovering the judgment (they having a contract with Canan for that amount as compensation, and an assignment of the judgment), and upon the further condition that Oliver execute a bond in $4,000.00 to secure the payment of the other half of the judgment in the event that Canan should prevail in the final trial, and, both of which conditions, being complied with, the execution was returned.

The Richland county judgment was against. McCool as principal and Oliver as surety or guarantor. McCool is a non-resident of the state and has no property within the state subject to execution. Canan is insolvent.

There were several trials of the suit of Canan v. McCool and Oliver and several verdicts and judgments, all save the last one hereinbefore recited having been set aside. After each verdict and judgment an assignment of the same by Canan was made to Laser.. They were based upon a valuable consideration, were in due form and were filed with the clerk and entered upon the judgment docket. Aside from the consideration arising from Laser’s interest as attorney of record in the case, and from the contract he and his colleague (Douglas) had with Canan for- fees; the assignment of the -Richland county judgment to Laser rested upon the sale and transfer of certain land in Ashland county, at the time owned by Laser, the deed, however, being made sometime after the date of the assignment, to the wife of John D. Canan, and the only consideration for .that deed was the assignment of the Richland county judgment.

The judgment in favor of Oliver against Canan became and was dormant at the time of the assignment by Canan to Laser of the judgment of Canan v. McCool and Oliver because no execution had issued upon it within five years.

Upon its- findings- of fact the circuit court held as conclusion of law that “the dormant judgment in favor of Paul Oliver against John D. Canan could not be set off against the living judgment of John D. Canan against said Paul Oliver. A dormant judgment would not be entitled so long as it remained dormant to be set off against a living judgment, and that is the situation that existed at the time Laser obtained this assignment of Ganan’s interest in the judgment and cause of action and so continued and existed until the judgment was rendered in this action in the common pleas court on the original judgment. Therefore we hold that.there were no equities existing in favor of'"Paul Oliver to have this judgment set off against the judgment of John D. Canan at the time J. O. Laser became the owneir of the Richland county judgment. And the revivor of that judgment afterwards, or rendition of the new judgment upon it, would give no rights antedating the date of the revivor or the rendition of the new judgment. The injunction is dissolved and the petition dismissed at plaintiff’s costs.”

The contention of plaintiff in error is that the findings of fact do not support the judgment rendered but require a judgment for plaintiff upon two grounds: 1, that the dormancy of Oliver’s judgment, if it was in law dormant, did not deprive the party of the right of set-off; and, 2, that the judgment was in legal effect a decree in chancery and therefore the fact that no execution had issued within the time the statute requires execution in order to keep a judgment at law alive, could not have the effect of rendering the decree dormant.1

Counsel for defendant in error, however, present and insist upon an essentially different phase of the case, and it may be well to consider the adverse claims before giving special attention to those of the plaintiff. In short counsel maintain that while the action of the circuit court in deciding for the, defendant is right it can rest' upon other and better grounds than the grofind stated. One proposition is that the Holmes comity court had no jurisdiction to consider the demand of set-off because that'matter should have been set up in the Eichland county case. We do not so understand the law. The proposition seems to confuse set-off with counterclaim. There is an essential difference. A counterclaim is a cross-action arising out of the contract or transaction set forth as the foundation of the adversary’s claim, and as to such demand the right to set it up may well be limited to the case in which it arises; but a set-off is a distinct cause of action existing in favor of a defendant, and on which he might maintain his action irrespective of any suit against him, and as to such a claim the right to assert it is not limited to the suit brought by the opposite party.

Again it is urged that the court was without jurisdiction to adjudicate the rights of Mr. Laser, the assignee of the judgment, because he was not made a party. Whatever. force there might be in this proposition had it been urged to the' trial court originally, we think it should have none here as an objection to the jurisdiction. That gentleman was attorney for Canan not only in the Eichland county litigation, but in the second case in Holmes county, and was a witness against the plaintiff in the trial in the circuit court, and his several assignments of the Eichland county judgment to him were given in evidence, and his rights necessarily considered. The claim seems to lack substance from the viewpoint of a reviewing court. And this conclusion is reached with full appreciation of the fact that, in his testimony, Mr. Laser makes it clear that at the time he took the first assignment from Canan, the one given just after the first trial of the case in Eichland county, March, 1898, he did not know of the indebtedness of Canan to Oliver, although he did know of such indebtedness at the time he took the last assignment, that given upon the rendition of final judgment, September 26, 1900, and knew it long before the land was in fact conveyed to Mrs. Canan; and of the further fact that Canan in his testimony disclaims any interest in the judgment.

It is further insisted that the record will show that the true amount of the judgment of Oliver against Canan was very much less than (about half), of that claimed and set up by Oliver, and that a careful inspection will show that the true amount has been paid. We have endeavored to make a careful inspection of the record to determine this proposition. In this examination we have not lost sight of the first defense of the answer where the averment of the petition as to the amount of the judgment of Oliver v. Canan is denied, and, had the answer rested there it might be that the finding of the circuit court as to the amount of that judgment would not be supported by the evidence. But the allegations of the third defense are to be considered in connection with those of the first defense, and the inference to be drawn from those allegations clearly is that the judgment actually entered was exactly the amount set up by Oliver in his petition. With that admission in the answer the burden of showing that this amount was wrongfully and fraudulently entered, as was also the burden of proving payment as set up in the second defense, was upon the defendant. Now counsel should understand that this court is reviewing the action of the circuit court wholly and only upon the record of the circuit court made upon the trial there, for the cause was tried de novo in that court. Most distinctly we are not reviewing it upon the record of the common pleas court to which counsel make such frequent reference in their brief, or any part of it (the appeal.and the trial in pursuance of it having effectually disposed of the judgment of the common pleas and of the attempt to maintain error to that judgment), and it is but the cold truth to say that neither in the finding of facts nor in the bill of exceptions taken in the'circuit court is there a syllable to indicate any fraud, or attempt at fraud, in making up the record in the original case, nor to support any claim' of payment not admitted by the plaintiff. Hence the circuit court’s finding as to the amount due stands unassailed.

We come, therefore, after' a somewhat lengthy journey in what seems to be a field of the inconsequential, to the real question in the case. Did the circuit court err in its conclusion of law as stated by the court, and in its judgment? We think that court did err in both respects, and will briefly indicate some reasons in support of our conclusion. ' At the time of the transaction shown by the record Oliver had an unsatisfied' balance of judgment against Canan upon which he could maintain a separate actioh, especially if, as held by the circuit court, the judgment had become dormant, and for that reason required to be revived in order to warrant execution. That is, Oliver had an existing cause of action. Now oúr statute with respect to set-off, section 5071, Revised Statutes, defines a set-off as a cause of action arising on contract or ascertained by the decision of a court. Oliver’s claim had both characteristics. It was founded on contract and had been'ascertained, that is, put in the form of a judgment, by the decision of the court. The claim, therefore, answered every possible requirement, giving effect to the statute. What had the dormancy of the judgment to do with the efficacy of the claim as a cause of action one way or the other? We can discover none. True, an execution might not issue on it, but an execution cannot issue on a promissory note, or on an open book account, and yet no lawyer would for a moment doubt that a note or account held by a defendant against a plaintiff could be set up as a defense, entire or partial, to a demand made by a plaintiff in an action founded on contract, which was.the nature of Canan’s claim upon which judgment was rendered in the Richland county courts. Nor could the fact that that claim had passed into judgment change the rights of the parties. The setting off of one judgment ■ against another is so familiar in courts of equity as to render discussion of the matter wholly needless. And dej cisions of courts and declarations of text-writers in support of this general conclusion are abundant. Our conclusion is that the learned circuit court was clearly in error in holding that the dormancy' of Oliver’s judgment prevented its. allowance as a set-off.

But how stands the case in view of the assignment of the Richland county judgment to Laser? The record shows that, at the time of the commencement of the action of Canan v. McCool and Oliver the latter had a cross-demand against Canan; that Oliver, in the contract sued on, was surety for McCool, and that therefore whatever judgment might be rendered in the case would be a several judgment as in fact the judgment was. Any claim based on contract or decision of a court which either McCool or Oliver had against Canan might therefore be interposed by such debtor as a set-off, and Oliver’s judgmerit■.against Canan was such a claim. Manifestly-the situation was one to which the statute would apply. Section 5073, Revised Statutes, provides that:- ‘£ When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, * * * but the two demands must be deemed compensated so far as they equal each other.” Applying this statute to the facts it is manifest that the assignee of Canan’s judgment could stand in no better position than could Canan himself unless his ignorance of Oliver’s claim at the time he took the assignment alters the situation. We think it does not. The statute is plain. Its language is imperative. “Neither can be deprived of the benefit thereof by assignment,” and “the demands must be deemed compensated so far as they equal each other.” It follows,' therefore, that a party who takes an assignment under such circumstances takes it in the face of this statute with all the risks incident to the situation. Decisions of courts of other states are cited which hold to the contrary of this proposition, but this case is ruled absolutely by our statute, and those decisions can have no application. Perhaps the justice and wisdom of the statute could not be better illustrated than in this case. Canan was pursuing Oliver on a claim on which Oliver was surety. Oliver was compelled to pay, by order of the circuit court (properly, we think), one-half of the judgment (some $3,208.67) to Canan’s attorneys in order to obtain a stay of the other half of the judgment. Then Canan (at the time as now in-' solvent) undertakes to assign the remainder of the judgment and puts the consideration received, the title to the land, first in the name of his son and then (the deed being returned) in the name of his wife in order, as must be apparent, to prevent Oliver subjecting it to his judgment. Comment would seem wholly unnecessary.

We do not stop to consider the contention of counsel for plaintiff in error that the judgment of Oliver v. Canan was a decree in chancery, and hence it was immaterial whether five years had elapsed without execution being issued. The record of the circuit court is shadowy on that point and the case, as we think, may be based confidently upon the grounds hereinbefore stated.

Our conclusion upon the whole case is that the right to set off the balance of the judgment in favor of Oliver against the balance of Canan’s Eichland county judgment against Oliver is not impaired either by the fact that five years had elapsed after rendition of Oliver’s judgment without execution, or the .fact that the judgment of Canan v. Oliver had been assigned for value to one who at the time was ignorant of the indebtedness of Canan to Oliver. The judgment of the circuit court will be reversed and the cause remanded to that court with direction to allow the set-off claimed and for judgment in accordance with this opinion.

Davis, Shauck, Price, Crew and Summers,' JJ., concur.