author: Hitchcock, J.

text:
    Lessee of Phillis Williams and others vs. James Veach and others.
    Where, in a will, the testator confers power upon his executors, in form following: “giving them full and complete power, as I myself possess, after my decease, to dispose of all my estate, real, personal, and mixed, in the way and manner which they may think best calculated to carry into effect all the purposes specified, in this my last will and testament, except that no part of my estate shall be sold at public sale,” it is a power coupled with interest, and will be so construed, if the other parts Of the will seem to require it, in order to carry out the intention of the testator.
    This js a Writ of Error, directed to the Supreme Court of Hamilton County.
    The original action was brought to recover the possession of Lot number 155, in the city of Cincinnati.

      The lessors of the plaintiff, claimed title as the heirs of John Kidd. The defendants entered into the common consent rule, pleaded not guilty, upon which issue was joined.'
    At the May term of the Supreme Court of Hamilton county, 1847, the case was submitted to a jury, and a verdict was returned in .favor of the defendants, upon which judgment was entered.
    A bill of exceptions was then tendered by the plaintiff, and allowed by the Court, which is as follows:
    “ Be it remembered that on the trial of this cause, the plaintiff having offered testimony to show that John Kidd, in his life time, was the legal owner of the premises described in the plaintiff’s declaration, and that the Lessors of the plaintiff were his heirs at law, arid had always resided out of the State of Ohio, except Phillis Williams, who was a married woman until 1831, when her husband died: defendants offered in evidence the certified copy of the last will and testament of said John Kidd, dec’d, marked (A) and the deeds No. 8 and No. 6, from the the Executors of said John Kidd, dec’d, to Lewis Williams and to Elijah Pearson, and also the Record, under which the deed No. 6 was made, and also proved that the defendants were in possession, claiming under Lewis Williams and Elijah Pearson, all of which deeds, papers and depositions, are made parts of this bill. And thereupon, the counsel for the plaintiffs asked the Court to instruct the jury, that by the language of said will of John Kidd, the fee simple did not become vested in the Executors of said John Kidd, dec’d, and that said fee descended and vested in the heirs at law of John Kidd, dec’d, at the death of John Kidd, dec’d. That the said will did not confer any authority on the said Executors of John Kidd, to sell or convey said premises. That the said deed made by the Executors of John Kidd, to Lewis Williams, No. 8, was not authorized by the will of said John Kidd, if the said Lewis was not otherwise related to said John Kidd than from the fact of his having married Phillis Williams, who was proved to be one of the heirs of said John Kidd, and one of his heirs at law. All, and each of which instructions, the Court refused to give, to which refusal the plaintiff, by his counsel, excepts, and prays his bill may be signed and sealed, which is done. And the Court charged the jury, at the request of the defendants, that the said last will and testament of John Kidd, dec’d, did vest the fee simple in said land, in the declaration mentioned, in the said Joshua L. Wilson and Oliver M. Spencer, Executors of said John Kidd, dec’d; to which decision and charge the plaintiff, by his counsel, excepts, and prays this his exceptions may be signed and sealed, which is done and ordered to be made part of the record.”
    The will of John Kidd, which is referred to in the bill of exceptions, is as follows:
    “ I, John Kidd, of the town of Cincinnati, Hamilton county, and State of Ohio, knowing that it is appointed unto all men once to die, arid considering thp uncertainty of the time when death may happen, being sound in rirind, memory and judgment, do make, ordain and declare this instrument of writing to be my last will and testament, hereby revoking all other wills and testaments by me heretofore executed, and declaring this to be my last will in manner and form following, that is to say —
    It is my will that all my just debts and funeral expenses be paid out of the first moneys belonging to my estate, which may come into the hands of the executors, after my decease. It is my will that my executors shall apply and expend for the education of poor children and youth in the town of Cincinnati, Hamilton county, and State of Ohio, all the rents and proceeds arising from a Lease on Lot number four hundred and one, commencing on the front and main streets of said town, which Lease was executed to John Smith and David Loring, on the eighteenth day of August, in the year of our Lord eighteen hundred and eighteen, for ninety-nine years and renewable forever, for the annual rent of one thousand dollars. As it is my will that the annual rent of the aforesaid Lot, arising from the Lease aferesaid, shall be expended for the education of poor children and youth as aforesaid forever, I do hereby authorize my executors and give them full power to convey, by will or otherwise, to any corporation formed for literary purposes, the full power 1 of executing my will with respect to the education of poor children and youth, forever. The place for the school, the kind of building to be procured or erected, the qualifications of Instructors to be employed, and the description of poor children and youth to be admitted, I leave to the wisdom and prudence of my executors and their successors. And should my executors fail to execute the trust reposed in them as aforesaid, the same may be conveyed by their administrators,* &c., or should those to whom they may transfer the trust aforesaid, fail or neglect to execute the trust aforesaid, in behalf of poor children and youth aforesaid, then it is my will that the attorney for the commonwealth, for the time being, be and he is fully authorized to bring suit against the delinquents and compel them to execute the trust.
    I give and bequeath two thousand dollars to Mary Ann Lyle, daughter of John and Phillis Lyle, and my executors may spend so much of said bequest as they may think necessary for completing the education of said Mary Ann.
    I give and' bequeath two thousand dollars to Mary Esdell, daughter of Robert Esdell, dec’d, and Nancy Esdell his widow.
    I give and bequeath to Thomas, William and Robert, sons of Thomas Esdell, dec’d, and Nancy his widow, one thousand dollars each, making three thousand dollars in this bequest.
    I give and bequeath four thousand dollars to my neice Polly Yarnon, wife of Thomas Yarnon, and daughter of my brother Thomas Kidd; two thousand dollars of said bequest to be laid out in the purchase of lands for the benefit of said Polly and her legal heirs and representatives, and two thousand dollars to be paid them to aid them in improving said lands at their discretion.
    I give and bequeath two thousand dollars to Elizabeth Barnes, my neice, and widow of Joseph Barnes, deceased, and daughter of my brother Thomas Kidd.
    I give and bequeath two thousand dollars to my neice Catharine Wellfonton, widow of Robert Wellfonton, deceased, and daughter of my brother Thomas Kidd..

      I give and bequeath one thousand dollars to Nancy Esdell, widow of Robert Esdell, deceased, late of Butler county, and State of Ohio.
    I give and bequeath one thousand dollars to Phillis Williams, wife of Lewis Williams, and to the children of said Lewis Williams and Phillis his wife, I give and bequeath the following sums, namely: To John, two thousand dollars, to Lewis one thousand dollars, 'and to Sally one thousand dollars.
    It is my will that all the above legatees who are are of age, or who may be of age at the time, or shortly after my decease, receive their legacies from my Executors as soon as convenient, after a sufficient sum of money shall háve come into the hands of said Executors for that purpose; and with regard to such legatees as may be under age for several, years after my decease, my will is that their legacies be laid out in the purchase of land, which shall be tranferred to them when they shall come to legal years of discretion. And in order to carry this part of my will into effect, my Executors are authorized to employ a suitable agent for selecting, purchasing and feecuring lands for said legatees, and they are hereby empowered to transfer said lands to said legatees when they come of age.
    If my estate should be less than the amount of the above bequests, my will is that the legatees receive a dividend of the whole, in proportion to their respective legacies, provided that the sum appropriated for the education of poor children and youth be undiminished forever. ,
    If my estate should be more than the amount of the above bequests, my will is that my Executors distribute the overplus among my surviving relatives whom they may judge to be the most needy, and they are to use their discretion, as to its distribution, either making it in money, or other necessaries and comforts of life.
    I hereby constitute my friends the Rev. Joshua L. Wilson, and Rev. Oliver M. Spencer, of the town of Cincinnati, Hamilton county, and State of Ohio, the Executors of my last will and testament, giving them full and complete power, as I myself possess, after my decease, to dispose of all my estate, real, persona^ an<l mixed, in the way and manner which they may see calculated to carry into effect all the purposes specified in this my last will and testament, except that no part of my estate shall be sold at public sale.”
    The deed number 6, referred to in the bill of exceptions, is a deed from the Executors of John Kidd to Elijah Pearson, purporting to be made in pursuance of an order of the Court of Common Pleas of Hamilton county, for the purpose of fulfilling a contract, between the said Kidd and Pearson, by which Kidd agreed to sell and convey to said Pearson, one third of said lot number 155. A copy of the records of the proceedings of the Court of Common Pleas which resulted in this order, are referred to and made part of the bill of exceptions. The order itself is recited in the deed.
    Deed number 8, made part of the bill of exceptions, is a deed from the Executors of Kidd to Lewis Williams, dated 7th September, 1820, conveying to said Williams two thirds of said lot number 155. It is as follows:
    “ Whereas John Kidd, late of the county of Hamilton, deceased, by his last will and testament, appointed Oliver M. Spencer and Joshua L. Wilson, both of the same county, to be executors of his last will and testament, and thereby gave them, the said Spencer and Wilson, full power and authority to perform all necessary and proper acts in the premises: Know all men that we, the said Oliver M. Spencer and Joshua L. Wilson, executors of the said last will and testament, by virtue of the power vested in us, thereby to convey to such of the poor and needy relatives of the said John Kidd, as in our discretion we should deem best entitled to the same, such part or parcel of land belonging to the estate of said John Kidd, not particularly devised by him, or specified by his last will as designed to be appropriated to the use of any particular person, or for any particular object, and we the said Oliver M. Spencer and Joshua L. Wilson, executors as aforesaid, willing to carry the same into effect, in our said capacity, have, upon examination, found that Lewis Williams is properly entitled as one of the poor relatives of said John Kidd, to the benefit of such bequest. And whereas ... . said John Kidd, deceased, did in his last sickness, after completion of his said last will and testament, expressly authorize and direct his said executors to convey to the said Lewis Williams two third parts of lot numbered on the plan of the town of Cincinnati and county of Hamilton aforesaid, one hundred and fifty-five, situated at the corner of Columbia and Walnut streets, as an equivalent for the sum of one thousand dollars, which he the said John Kidd had previously devised by his said last will, and to one of the children of the said Lewis Williams, to wit: Lewis Williams, which intended legacy became lapsed in consequence of the death of said legatee previous to the death of the said John Kidd, then and there intended, and unequivocally expressed his desire and disposition to be should be reserved to the said Lewis Williams, the parent of the said legatee, in the donation to him of said two third parts of said premises described as aforesaid. And the said executors in their capacity as such, to wit: the said Oliver M. Spencer and Joshua L. Wilson, do hereby relinquish, release, quit claim, convey and forever transfer, in consideration of the causes and considerations aforesaid, to the said Lewis Williams, his heirs and assigns, so far as they the said executors have power and authority so to do, all the right, title, interest and claim of the said John Kidd, which was vested in him at the time of his decease, to the said two third parts of the said lot numbered one hundred and fifty-five, with the appurtenances to the same belonging, To have and to hold to him the said Lewis Williams, his heirs and assigns,” &c.
    There was also testimony referred to and made part of the bill of exception, which it is unnecessary to recapitulate for the proper understanding of the points decided.
    To reverse the aforesaid judgment of the Supreme Court of Hamilton county, this writ of error is prosecuted, and it is assigned for error,

      1. “ The Court erred in charging the jury that the will of John Kidd vested the fee simple title to the land therein described, in the executors therein named, and also in deciding that by the terms of said will, the heirs at law of said John Kidd are divested of the fee simple title to said estate.
    2. “ The Court admitted the will of said John Kidd, and the deeds number 6 and 8, and the record in evidence.
    3. “ The said Court refused to charge that the said will did not authorize the executors to make the deed to Lewis Williams.”

      Fox and Lincoln, for Plaintiffs in Error.

      Walker and Kebler, for Defendants.
   Hitchcock, J.

The record in this case shows that after the lessors of the plaintiff had exhibited testimony to show that John Kidd died seized of the premises in controversy, and that they were his heirs, the defendants to prove title out of the lessors of the plaintiff, and if possible in themselves, offered in evidence the will of John Kidd, a deed from his executors to Lewis Williams for a part of the premises, and also a deed to Elijah Pearson, from the same executors, for the residue of the premises in controversy. This ■ latter deed was accompanied by an abstract or copy of proceedings in the Court of Common Pleas, which resulted in an order to make the deed. These were all objected to, but the objection was overruled and the documents admitted. This is assigned as one of the errors of the Court. This assignment is not relied upon in argument, and I suppose it is abandoned. If it were not, there is certainly no good ground upon which this testimony could be objected to. The deeds were executed according to the forms of law, and the copy or transcript of the proceedings of the Court duly certified. The testimony was competent; as to its effect, that is a different question.

The record further shows that John Kidd made his will on the 22d of September, 1818, and that the will was approved in the proper Court on the 16th day of February, 1819. The deeds to Williams and Pearson were executed in 1820. It further appears that.Lewis Williams was the husband of Phillis Williams,, one of the lessors of the plaintiffs, that he came into the State at the request of John Kidd, and resided upon lot number 155, which was afterwards conveyed to him, until and at the time of the death of Kidd. That at' the time of the conveyance to Williams, the estate of Kidd was supposed ■ to be free from incumbrance, abundantly able to pay all the legacies, and that an amount of six or seven thousand dollars would be left for distribution among poor relatives. These facts are not embodied in the bill of exceptions, but they are derived from depositions .therein referred to, and made part thereof.. From the same source the fact is derived that upon his death bed the testator directed his executors to convey this identical land to Williams. It is objected to by the counsel for plaintiff, that this latter fact cannot be taken into consideration in determining the case, and undoubtedly it cannot. It would have been rejected on the trial had it been objected to. But although it can have no influence in the determination of the case, it shows that the executors supposed they-were carrying out the wishes and intentions of their testator.

After the testimony was closed, the plaintiff requested the Court to instruct the jury, that by the language of' said will of John Kidd, the fee simple did not become vested in the executors of the said John Kidd; and that said fee descended to, and became vested in his heirs at law, on the death of John Kidd. This instruction the Court refused, but did instruct the jury that by the will, the executors were vested with the fee, and that the same did not descend to the heirs. In this, it is claimed that the Court erred; and this assignment presents the principal question in the case, and it is a question that must be determined by a proper construction of the will.

In the instructions given by the Court to the jury, it was held that under the will of Kidd, his executors were vested with power to sell and convey his real estate. This ruling was ex-t0j but no*: assigned for error; and it seems to me that one could for a moment doubt that this power, at least, was conferred. But whether the power thus conferred is coupled with an interest, so as to vest the executors with a title to, or fee in the land, is a different question, and the one which is to be settled by the will. ■

In construing a will, the great object is to ascertain the intention of the testator, and this is to be gathered from the phraseology of the will itself; and in order to arrive at this intention, it is necessary to look into the whole instrument. It will not do to seize upon an isolated passage, and give it a controlling effect. Rules of construction, as recognized in the books, should be adhered to, and resort may be had to decided cases. But these cannot be conclusive, as it is not to be expected that any two wills will be exactly alike. After all, the sound judgment of the Court, in any given case, must be relied upon, to ascertain the meaning of the testator, from the language which he has employed.

The particular clause in the will of Kidd, which, as is claimed by the counsel for defendants, gives to the executors a power to sell his real estate, coupled with an interest in that estate, is the following: “ I hereby constitute and appoint my friends, the Rev. Joshua L. Wilson, and the Rev. Oliver M. Spencer, the executors of this my last will and testament, giving them full and complete power as I myself possess, after my decease, to dispose of all my estate, real, personal, and mixed, in the way and manner which they may think best calculated to carry into effect all the purposes specified in this my last will and testament ; except that no part of my estate shall be sold at public sale.” This, certainly, is strong language. The same power is given to the executors, after the decease of the testator, to dispose of his estate, which he himself had during his life time. This is the evident meaning; and they. are authorized to dispose of it, “ in the way and manner which they may think best calculated to carry into effect all the purposes specified,” &c. — an unlimited discretion to dispose of the property. Under this, may they not sell and convey ? may they not lease ? It is their duty to effect the objects specified in the will, but manner in which it is to be done, is left with them to determine. There is no restriction upon the disposition of the property, except that no part of it “ shall be sold at public sale.”

The counsel for plaintiff in error, contend that the word “ dispose,” used in this connection, does not mean to. sell, but that some other meaning must be attached to it. But the testator understood the word to mean this, at least, else why did he use the limitation at the close of the paragraph, except that no part of my estate shall be sold at public sale” ? If not to be sold at all, certainly nothing would have been said about public sale. In the ordinary-, and according to the common understanding of the wofd, the power to dispose of property, must be considered as a power to sell it; and when this entire paragraph is considered, it seems to me that an interest in the property itself is conferred, as well as a power to sel land convey it; that the intention of the testator was to vest the property in the executors, as it was vested in himself, it being their duty, however, so to manage, so to dispose of it, as to carry into > effect the purposes specified in the will. This intention is as clear as it would have been had the realty been devised to the executors to be sold; in which case, I suppose, there could have been no doubt.

The opinion that this is the true construction of this clause of the will, is strengthened by an examination of the entire instrument. In the first part of the instrument, the testator appropriates the rents of lot number 401, amounting to one thousand dollars yearly, to the education of poor children, and the executors are clothed'with ample discretionary power to carry out this bequest. The lot was leased for ninety-nine years, renewable forever. The reversionary interest remained in the testator, but by the operation of the, will, it was transferred to the executors; and they were authorized “ to convey the same by will or otherwise, to any corporation formed for literary purposes,” &c. There is, I believe, no controversy, but that the of lot number 401, or rather the reversionary interest, be-vested in the executors.

After making this disposition of this particular lot, and the rents issuing therefrom, the testator goes on to give legacies to a number of collateral relations to the amount of twenty thousand dollars or more. Some of these legacies are to be paid in money, in others, the amount is to be vested in land, and where the legatees are not of full age, the money is directed to be invested in land, but the land is not to vest in the legatee until of full age. Until such time, it must, as I suppose, vest in the executors, as it is to be purchased by them, or under their direction.

Money was to be raised for the payment of these legacies, in what manner the testator does not inform us. After having given his directions as to lot number 401, nothing is said about the disposition of any property until we arrive at the clause first commented upon. As the testator riiade no other provision for the payment of these legacies, it is but reasonable to suppose that when he gave the same power to his executors to dispose of his estate after his decease, that he himself had while in life, he intended that the same should be sold or otherwise disposed of, as might be best calculated to carry into effect all the purposes specified in the will, as well the payment of these legacies as other matters .specified. ’ Having made these bequests, the testator next directs, that if the estate should not be sufficient to satisfy them in full, they should be paid in proportion to the real value or amount of the estate. Then follows the following clause, “ If my estate should be more than the amount of the above bequests, my request is that my executors distribute the surplus among my surviving relatives, whom they may judge to be the most needy, and they are to use their discretion as to this distribution, either making it in money, or the necessaries and comforts of life.” ■

This paragraph furnishes additional evidence of the intention of the testator, that his entire property was to be at the control of his executors, to be by them, if in their discretion they deemed necessary, converted into money, and in a certain contingency a part of the money to be appropriated to the necessaries and comforts of life, for such of his needy relatives as they might deem proper.

It seems to the Court, that taking the whole will together, it furnishes a strong case, of a power conferred by will upon executors to sell real estate, and that this power is coupled with an interest. A much stronger case in fact, than the case of Dabney v. Manning, 3 Ohio R. 321; and upon careful examination we are brought to the conclusion that the Court did not err in instructing the jury, that by force of the will of John Kidd the premises in controversy were vested in fee simple in his executors, and did not descend to his heirs. If this be so, it follows that the lessors of the plaintiff had no title to the premises, and of course could not recover.

There is, however, another error assigned, which is that “ the Court refused to charge the jury that the said will did not authorize the executors to make the deed to Lewis Williams.”

It seems to us that there was no impropriety in refusing this charge. It was, in fact, for the purposes of this case, immaterial, whether or not that deed was made in conformity with the will. The fee being vested in the executors, if they made an improper disposition of it, it would not, in consequence of such improper disposition, vest in the heirs. The grantee might take the estate subject to all the trusts which attached to it in the hands of the executors, and a Court of equity might reach it, in his hands, for the purpose of appropriating it in accordance with those trusts. But all this has nothing to do with this case. The question here is, whethei; the fee simple interest in these premises descended to the heirs of John Kidd, or whether it passed by his will to his executors. We are of opinion that the latter is the case.

The Judgment of the Supreme Court is Affirmed.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    Ohio on the relation of Albert V. Stebbins vs. The Treasurer of Wood County.
    Under the provisions of the act of February 27th, 1846, entitled (< an act to authorize the County Commissioners of this State to lay out and establish State Roads/' the Commissioners of one county, through which a Free Turnpike road passes, have no authority to change that part of the Free Turnpike into a State road.
    This was an Alternative Mandamus, brought to the Court in Bank, from the County of Wood;
    The relation shows that the relator holds three several orders on the Treasurer of Wood county, bearing date.December 14th, 1847, February 12th, 1848, and March 22d, 1848, amounting in all to $479 62 — said orders having been given him by the Commissioners of the Toledo and Woodville Free Turnpike Company, for work and labor performed by him in the construction of a road for said company ; that he presented said orders to the defendant for payment, which was refused, and that the said defendant had funds in his hands, collected by tax under the provisions of the charter of said company, for the purpose of constructing said road, to an amount sufficient to pay said orders, at the time he so presented them and demanded payment thereof as aforesaid.
    The relation further shows that the Toledo and Woodville Free Turnpike Co. was incorporated by an act of the General Assembly of the State of Ohio, passed March 18, 1845, and that the same was amended by a subsequent act, passed January 27, 1846 — that by the provisions of said act and amendment, the commissioners named therein had power to lay out and establish a Free Turnpike road, beginning at Toledo, in Lucas county, and terminating at Woodville, in the county of Sandusky ; and for the purpose of aiding in the construction of said road, a special tax was to be levied and collected on the lands designated, and in the manner provided by said act and amendment — that a portion of said road was located and established, by the Commissioners aforesaid, in Wood county, Ohio —- that the tax, to be for that purpose collected Wood county, was regularly assessed and levied upon the lands chargeable therewith, in said county, and collected by the defendant as Treasurer of said county, and that by the 4th section of said amendatory act, the county treasurers with whom any funds may be placed, by said act, appropriated to the construction and repair of said road, shall not pay out any part of the same, except on the order of the Board of Commissioners, signed by the President — and further that O. H. Knapp, whose name appears upon said orders as President of said board, was President at the time of giving said orders, and that said orders were given by order of said board as the same purport.
    The relation further shows that the work performed by the relator, in the construction of said road, in the county of Wood, amounted to more than the amount of said orders.
    The defendant, by his answer, as a justification for not paying said orders, relies upon an order of the County Commissioners of Wood county, made at the regular June session in the year 1847, in the following words : “Ordered that that portion of the Free Turnpike road from Toledo in Lucas county, to Woodville in Sandusky county, which is located in Wood county, be changed into a State road,” and claims that this order did so change that part of said road into a State road, and relieved him from any obligation to pay out any funds on the order of the Commissioners of said Free Turnpike road.

      Fitch fy McBain, for the Relator.

      Wm. II. Hopkins, Contra.
   Birchard, C. J.

The sufficiency of the return to the mandamus depends upon the validity of the order of the Commissioners of Wood county, purporting to change that part of the Free Turnpike lying in Wood county, into a State road.

They claimed authority for the order purporting to effect this chanSe> under the 5th section of the act of February 27, 1846, “an act to authorize County Commissioners of this State to lay out and establish State Roads.” (44. vol. stat. p. 73.) That part of the 5th section which is relied on, reads thus: “The County Commssioners shall have power to change any Free Turnpike road, in their respective counties, into a State road, which shall thereafter be constructed and repaired as other State roads are by law constructed and repaired, any thing in the acts laying out and establishing said Free Turnpike roads to the contrary notwithstanding.” The Commissioners of Wood county have read and acted upon this section of the statute without reference to any other enactment. They have treated it as an independent piece of legislation, entirely complete in and of itself. They have accordingly exercised the power, in a summary way, by resolving that the part of the road lying in the county of Wood, should be a State road. This manner of executing the law will not do. We have only to read the whole act, and reflect a moment upon its subject matter, to detect the error in assuming that such a proceeding was ever contemplated by the legislature. A State road is a road running into two or more counties, and is distinguished by this from a county road, which lies wholly within one county. The first were formerly established by acts of special legislation. The latter by County Commissioners, under general laws.

The act of 27th February, 1846, by its iirst section, confers authority upon the County Commissioners of the several counties to lay out and establish State roads, in the manner provided in the 2d, 3d and 4th sections of the act. Then follows the fifth section, above referred to. From the whole act taken together we find that before the Commissioners can move in establishing a State road, an application must be made to them by petition, signed by at least forty free holders of each of the counties through which it is proposed to establish the road. On receipt of such petition, the board of County Commissioners of each of said counties must appoint one disinterested freeholder of their respective counties, as Commissioners to view and survey said road. On the coming in of a report from the Commission, thus created, recommending ' the establishing the State road, the County .Commissioners have the same power to declare whether the same shall or shall not be declared a State road, within their respective counties, that is by law conferred on them in relation to State roads. The fifth section, following the above provisions, refers to them and indicates the course to be pursued in effecting the change of a free turnpike into a State road. Whether or not the change can be effected by pursuing these steps irrespective of ■ the rights vested in the turnpike companies, by their acts of incorporation, is a question not necessary now to be determined. This case is disposed of by a determination of the point already decided. The order of the County Commissioners of Wood, made at their June session, was a mere nullity. It was entered without any sufficient authority, and is void. A peremptory mandamus may issue.- Judgment for costs.


author: Avery, J.

text:
    Francis Henry and another vs. The Vermillion and Ashland Rail Road Company and others, Stockholders in said Company.
    A bill m Chancery in the form of a creditor’s bill will lie against the stockholders o. an incorporated company to subject unpaid subscriptions of stock.
    The stockholders may be proceeded against in this way, though they omitted to pay at the time of subscription the five per cent, required by the charter..
    An agreement attempting to secure any stockholder the privilege of paying up sab* scriptions in store goods or otherwise, except in money, will be treated as a fraud upon other stockholders, and payment in money enforced.
    This, is a Bill in Chancery reserved in Huron County. There is also a case reserved- in the county of Erie between the same parties, except that some other Stockholders are made defendants, and involving the same principles as the case reserved in Huron county. The two are reported together.

      The bills are in the form of creditor’s Bills, charging that the complainants have unsatisfied judgments against the Ver- and Ashland Rail Road Company, on which executions have been issued and returned nulla bona, that the company is insolvent and has ceased to keep up its organization, and that the other defendants are stockholders in said company, and indebted to the company upon their stock subscriptions, and praying that such indebtedness may be subjected to the payment of complainants’ judgments.
    Most of the defendants have answered. Some have answered by a simple denial of their indebtedness. Others, in addition to a denial of indebtedness, claim that they are not liable because they did not at the time when they subscribed the stock, pay the five per cent, required by the charter of the company to be paid at the time of subscribing. Others aver that by an arrangement made at the time of taking stock, it was agreed that they might pay one half of the subscription in store goods. ' While other of the defendants charge upon the directors and managers of the company, including the complainants, fraud in the management of the affairs of the company, by means of which it became insolvent, that but for their mismanagement and fraud the means in their hands would have been ample to pay all the indebtedness of the company, and that after the company became insolvent it ceased to keep up its organization, and abandoned the work which was the object of its creation.

      John R. Osborn and E. Lane, for Complainants,
    cited the following authorities:

      Miers et al. v. the Zanesville and Maysville Turnpike Company et al., 11 Ohio Rep. 273, and 13 Ohio Rep. 197 : Gilmore v. Bank of Cincinnati, 8 Ohio Rep. 62; Vose v. Grant, 15 Mass. Rep. 505 ; Spear v. Grant, 16 Mass. Rep. 9; Merrill v. Lake et al., 16 Ohio Rep. 406; Story’s Eq. PI. 123, 135; 2 Sim. Rep. 369; Angel & Ames on Corp. 662, 664, 665; 19 Johns.'Rep. 456 ; 8 Ohio Rep. 38, and 9 Ohio Rep. i

      T. W. Bartley, John Sherman, Bpalt fy Worcester, and Smith &f Clark, appeared for the different Defendants,
    and cited the following authorities :

      Wood v. Bummer, 3 Mason’s C. C. Rep. 308; Carson v. African Co., 1 Vernon, 121; Briggs v. Penman, 8 Cow. Rep. 387; Taunton Turnpike y. Whiting, 10 Mass. Rep. 327; Franklin Glass Co. v. Alexander, 2 New H. Rep. 380; Fssex Bridge Co. v.. Tuttle, 2 Verm. Rep. 393 ; Story’s Eq. .PI. 94, 119; Met. & Perk. Dig. 584, 586; Highland Turnpike Co. v. McKean, 11 Johns. Rep. 100; Goshen Turnp. Co. v. Hunter, 9 Johns. Rep. 218; Hibernia Turnp. Co. v. Henderson, 4 Serg. & Rawle Rep. 219; Union Turnp. Co. v. Jenkins, 1 Caines’ Rep. 381; Leighty v. Susquehanna Comp., 14 S. & R. Rep. 434 ; 2 Bibb’s Rep. 577 ; Minott’s Dig. 173; Central Turnp. Co. v. Valentine] 10 Pick. Rep. 142 ; Ang. & Ames on Corp. 416-17, 419-20, 422-3, 429, 474-5.
   Avery, J.

These bills are filed tinder the act directing the mode of proceeding in chancery; Swan’s Statutes, 704, Sec. 16. They set forth judgments at law recovered against the company, further that after efforts made, they could not be collected by execution, and that the individual defendants are indebted to the company as stockholders upon their stock subscriptions. The principle has already been recognized by this Court, that a creditor’s bill will lie against a stockholder of an incorporated company, to compel him to pay over, to a judgment creditor, the amount of his subscription, which had not Before been paid to the company, (11 Ohio Rep. 273; 13,197;) and the authority of these cases we find no reason to deny. The creditor, in ordinary casés, may well treat the unpaid balance of stock, as a debt due to the company and proceed to subject it under the statute, as he would any other debt. The company could compel payment at law,, of the stockholder’s contract, according to the charter, when the necessities or the interest of the company should require this to be done. And if the company does not, by such means, or some other, provide funds' for payment, there seems no good reason why the judgment creditor should not have the remedy here sought. There may be cases, indeed, where the stockholder would be absolved in equity, from paying up his stock to the company, where he might enjoin them from proceeding against him, and. where, by a fraudulent combination between them and the judgment creditor, he might resist or enjoin the creditor. But if the company become embarrassed or insolvent, and unable any'further to pursue the object for which they united, either by fraud in the men chosen as managers, or by the occurrence of events which could not be controlled, no reason is thereby furnished to justify a violation of that contract, by which they.agreed to pay for services rendered in the prosecution of their work. And the company, after discovering that there was no longer any hope of succeeding in their enterprise, and that all they had expended must be lost, would have been still justified in collecting all their means for the discharge of debts already contracted. There was a moral obligation both upon the officers and. the stockholders to use the property and claims of the company, as far as they would reach, for the payment of the demands of creditors. And when the company cease to keep up their organization and abandon all action under the charter, a proceeding at the instance of the creditor becomes indispensible. In looking over the testimony in these cases, we do not discover any facts that should absolve the stockholders from paying the amount due on their subscriptions, for the benefit of the creditors, nor any fraud or conspiracy on the part of Complainants, which should deprive them of their rights as creditors.

An objection is urged against the judgments, upon which the proceedings are founded. But the objection cannot be allowed to prevail, in a case like the present; even if there were irregularities in these judgments, and fraud in giving them., or mistake, by accident or otherwise, in the amount, it would constitute no defence, either in whole or in part, in cases. The judgments cannot be impeached, collaterally. tween the parties who had a legal right to fix the amount, it has already been done-; and nothing is left as against the debtors of the company, but to determine the amount due from them. But here, service has been made upon the company, and they are before the Court -as defendants.' And further, they have answered, and admitted the correctness of these judgments. Then, .supposing the liability of the defendants established, what principle shall guide the master in the reference to be made to him ?

When a company, as in this case, becoming insolvent, abandon all action under their charter, the original mode of making calls upon the stockholders, cannot be pursued. The debt, therefore, from that time, must be treated as due, without further demand.

Stockholders who have attempted to secure, by agreement, a privilege of paying up their stock subscriptions, in goods or otherwise, except in money, as contemplatd by the charter, will not be allowed the benefit of such stipulations: Such an agreement will be considered as a fraud upon other'stockholders, a'nd the amount due must be collected in money.

Although the stockholders were required to pay, at the time of subscription, five dollars on each share subscribed, still, in the opinion of the Court, the omission to pay that sum does not release them from the liability to pay up the subscription.

These are supposed to be all the’ points, necessary to be settled at the present time ; and the cases are remanded for further proceedings, to the Court in the county from whence they were brought.