author: Crew, J.

text:
    Mellinger et al. v. Mellinger.

      Election or non-election and its effect — Section 5964, Revised Statutes — Duties of probate court — Authority of deputy clerk to receive election of widow — Law of wills.

    1. The duties enjoined upon the probate court by section 5964,-Revised Statutes,,are judicial duties and cannot be performed by a deputy clerk of said court.
    2. A deputy clerk of the probate court is without right or authority to receive the election of the widow or widower to take under the will of a deceased consort; and an election made before such deputy clerk, and entered of record, may, on application of the. party making it to a court of equity, be vacated and set aside.
    (No. 9380
    Decided January 16, 1906.)
    Error to the Circuit Court of Columbiana county.
    The facts of this case are sufficiently stated in the opinion.

      Mr. C. 8. Speaker; Mr. K. L, Coburn and Mr. G. T. Farrell, for plaintiffs in error.
    1. The defendants below were entitled to judgment on the pleadings.
    It is alleged in the answer “that plaintiff’s rights, and what she would take under the law and under the will, were fully and clearly .stated and explained to her by an attorney from whom she took counsel. ’ ’ This allegation is not traversed by reply. It is alleged in the amended petition, “that plaintiff had no knowledge respecting her rights under the law; ’ ’ but this allegation is insufficient. Davis v. Davis, 11 Ohio St., 390.
    2. Plaintiff below' is estopped to deny her election. Woerner’s Law of Administration, 269; Wanzer v. Smith, 2 W. L. M., 426; Thompson v. Hoop, 6 Ohio St., 481; Nimmons v. Westfall, 33 Ohio St., 222; Stockton v. Wooley et al., 20 Ohio St., 184; Millikin v. Welliver, 37 Ohio St., 460.

      Mr. S. W. Ramsey, for defendant in error.
    The only questions, are:
    1. Has a deputy clerk of the prohate court authority to receive the election of a widow to take under the will of her deceased husband?
    2. When such election has been made before such deputy clerk, will the same be cancelled and vacated upon a suit in equity for that purpose?
    As to first: Respecting the appointment and duties of such deputy clerk, see section 533, Revised Statutes, and cases cited in the notes beneath.
    Section 5964 Revised Statutes makes it the duty of the probate court “to explain the provisions of the will, the rights under it, and by the law in the event of a refusal to take under the will.” The words of this section are so free from ambiguity and doubt and expresses so plainly, clearly and distinctly, the sense of the law making body that there is no occasion to interpret, “no room left for construction.” Slingluf v. Weaver, 66 Ohio St., 621; 26 Am. & Eng. Ency. Law (2 ed.), 598 and cases in notes 1 and 2; 15. 665 (5) and note 5.

      Where the provision of the statute is the very essence of the thing which it requires to be done it is imperative or mandatory. Ib. 688 (4) and note 5.
    The language of this section is no less imperative than that part of section 5190 (7) which provides “Any charge shall be reduced to writing by the court if either party * # * request it” which was held to be imperative. Household v. Granby, 40 Ohio St., 430.
    Such election, when made and recorded, can be vacated only on petition to the court of common pleas, or other court having general equity jurisdiction. Mellinger v. Mellinger, 26 O. C. C., 683.
    3. Is defendant in error estopped to deny her election?
    A public record is evidence of those matters which are properly incorporated therein, but not of matters which are merely, incidentally noted or do not properly belong to the record. 24 Am. & Eng. Ency. Law (2 ed.), 192.
    That “the judge explained the will,” etc., does not properly belong to the record. Davis v. Davis, 11 Ohio St., 386.
   Crew, J.

This action was commenced originally by the defendant in error, Anna Laura Mellinger, widow of Melchor Mellinger, deceased, in the. court of common pleas of Columbiana county. The object of the suit was to procure the cancellation and to have annulled, a certain entry of election theretofore made by her in the probate court of said county, wherein it was made to appear that she had duly elected to take the provision made for her under and' by the will of said Melchor Mellinger, her deceased husband. .. As her cause of action, and by way of statement of the facts upon which she predicated her right to the relief prayed for in her amended petition, she alleged that upon the admission to probate of the will of said Melchor Mellinger by the probate court of Columbiana county, — by the terms of which will a life estate in certain real property was conditionally devised to her, — that “the said probate court forthwith issued a citation to plaintiff to appear before said court and elect whether to take such provision or be endowed of the lands of said deceased, and in compliance with said citation this plaintiff, as widow of said deceased, on the thirtieth day of October, 1901, appeared in person in said court and then and there made application to take under said will and it thereupon became the duty of said court to explain to plaintiff the provisions of said will, her rights under it, and by law in the event of her refusal to take under said will, which duty was not at any time performed by said court, the judge thereof, or any person acting for him; and said court and the judge thereof, and all persons having authority in said court, wholly neglected and failed to explain to plaintiff the provisions of said will, or her rights under it, or her rights by law in the event of a refusal to take under said will, and such explanation was not at any time made to her or in her hearing by said court or anyone acting in authority thereof.

“And thereupon plaintiff, without explanation as aforesaid, elected to take under the provision of said will and said election was then entered upon the minutes of said court, but plaintiff avers that she had no knowledge respecting her rights by the law, in event of her refusal to take under said will, and said election so made without such knowledge was and still is prejudicial to her in these particulars, then unknown to her, to wit: (particulars stated) # * These several allegations were each and all of them denied by defendants in their answer, except only the allegations, that provision was made for said Anna Laura Mellinger in the will of her deceased husband, and that she had elected to take under said will the provision therein made for her. And defendants in their answer aver “that plaintiff’s rights, and what she would take under the law and under the will, were fully and clearly stated and explained to her by an attorney from whom she took counsel, upon a number of occasions before plaintiff made her said election to take under the will in probate court; that at the time of making said election she was fully advised in the premises by a competent party and fully and clearly understood her rights and what she would take under the law and under the will and elected to take under the will with full knowledge of the situation and of her rights and of what would be coming to her both under the law and under said will; that neither fraud nor imposition was practiced upon plaintiff in any way regarding the making of her said election or to bring the same about, nor was plaintiff acting under any mistake as to her rights when she made said election; that plaintiff had knowledge of the indebtedness of said estate when she made said election; that the plaintiff has lived for two years and three months in the homestead property without paying rent, by reason of said election and the estate can not well be put in .statu quo now should said election be rescinded.”

After trial and judgment in the court of common pleas said cause was appealed to the circuit court where it was again tried. Upon trial in the circuit court that court, as shown by the record, found and decreed as follows:

“This day this cause came on to be heard upon the pleadings and testimony and argument of the counsel, whereupon the court find that the averments of the amended petition are true; that on the thirtieth day of October, 1901, the plaintiff, Anna Laura Mellinger, as widow of Melchor Mellinger, elected to take under the provisions of her husband’s will, but the probate judge failed to explain to her the provisions of said will, her rights under it and by the law, in event of her refusal to take under said will, except as inquiry was made of her as to her knowledge and intentions by the deputy in the probate office, when she appeared therein, and that the deputy in the probate office was without authority to take such election. Her said election made in the probate court of this county is hereby set aside and held for naught and that part of the probate record concerning her election which reads as follows, to wit:“This day personally appeared in open court, Anna Laura Mellinger, widow of Melchor Mellinger, deceased, whereupon the court explained to her the provisions of her said deceased husband’s will and her rights under it, also her rights under the law, and she elected to take under the will, ’ is hereby cancelled and annulled; and it is ordered that the clerk of this court certify to the probate court of this county, the final judgment in this action; to all of which findings of facts, conclusions of law, and judgment, each of the defendants at the time excepted.”

The findings of fact made by the circuit court, that the averments of the plaintiff’s amended petition are true, and that at the time of the making of her election, the probate judge failed to explain to said Anna Laura Mellinger, the provisions of said will, her rights under it, and by the law in the event of her refusal to take under said will, except in so far as some explanation was made to her by a deputy clerk in said probate office, — must, in the absence of a bill of exceptions exhibiting the evidence introduced at the trial, be taken by this court as conclusive of the facts so found. The only question therefore, properly before us upon this record is: may the duties imposed upon the probate court by the provisions of section 5964, Revised Statutes, be discharged or performed by a deputy clerk? Section 5964 provides as follows: “The election of the widow or widower to take under the will shall be made in person, in the probate court of the proper county, except as hereinafter provided; and on the application by a widow or widower to take under the will, it shall be the duty of the court to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will.” * * * It will be observed that the language of the statute above quoted is imperative in character and that the duty thereby imposed is a judicial duty the performance of which, in express terms, is enjoined upon the court. Such duty may not therefore, in the absence of express statutory authorization, be discharged or performed by a deputy clerk charged only with the performance of duties merely clerical in their nature. In Ohio a deputy clerk of the probate court is legally empowered to perform such duties, and such only, as are authorized by section 533 of Revised Statutes, which section provides as follows: “Each probate judge may appoint a deputy clerk or clerks, each of whom shall, before entering upon the duties of his appointment, take an oath of office, and when so qualified, such deputy may perform any and all the duties' appertaining to the office of clerk of the court; and such deputy clerk is authorized to administer oaths in all cases in which it is necessary, in the discharge of his duties as such deputy clerk.” A deputy clerk appointed under this section does not, by virtue of such appointment become deputy probate judge, and acts performed by him after his .appointment are not therefore, within the rule, that ■the acts of the deputy are regarded in law as the acts of the principal. We are of the opinion therefore, that a deputy clerk of the probate court is without authority or right, under section 5964, Revised Statutes, to receive the election therein provided for, of a widow or widower to take under the will of a deceased consort, and an election so taken .and entered of record, may, on petition to the court of common pleas, when no new interests have intervened, and equity requires it, be cancelled and set aside, even after the expiration of one year, the time limited by statute within which election shall be made. Davis v. Davis, 11 Ohio St., 386. While there is no allegation in the amended petition of Anna Laura Mellinger in this case that she was intentionally deceived or misled, or that information as to her rights was purposely concealed or withheld from her, yet the fact remains, and is within the finding of the circuit court, that whatever election was made by said Anna Laura Mellinger in the probate court of Columbiana county, was made by her in ignorance of her rights in the estate of her deceased husband under the law, in the event she refused to take under the will. Before making her election she was entitled to fullest information as to the provisions of said will, — her rights under it, and under the law, in the event of her refusal to take under the will; and it was the imperative duty of the probate court to advise and inform her touching these matters. Election necessarily involves choice, and intelligent choice involves a knowledge both of the facts and the law applicable to the subject-matter, with reference to which a choice is to be made. And where, as in the present case, an election is made by the widow, without full knowledge of the condition of the estate, and of her rights, but in ignorance of both, it can not, as matter of fact, be asserted that she has made any choice or election; and this being true, by force of the statute, section 5964, she shall retain her dower, and such share of the personal estate of her deceased husband as she would be entitled to by law, in case her husband had died intestate leaving 'children. It is suggested by counsel for plaintiffs in error in their brief, that the defendant in error, Anna Laura Mel-linger, is now estopped to deny her election. As to this claim we think it sufficient to say, that the act apparently relied on, (her occupancy of the homestead) is not, under the circumstances, such act as shows an election in fact on her part, or in equity creates an estoppel against her in this ease. In Millikin v. Welliver, 37 Ohio St., 466, Johnson J., in the opinion says:

“In order that the acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with full knowledge of all the circumstances and of- her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of . the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be an election. .1 Lead. Eq. Cas., title ‘Election;’ Anderson’s Appeal, 36 Pa. St., 476, 496; Bradford v. Kent, 43 Pa. St., 474; English v. English, 5 Green Ch., 504; O’Driscoll v. Koger, 2 Desaus., 295; Wake v. Wake, 1 Vesey, Jr., 335; Reynard v. Spence, 4 Beav., 103; Tooke v. Hardeman, 7 Geo., 20; Dixon v. McCue, 14 Gratt., 540.
“It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and-of such long duration as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.”

The judgment of the circuit court in this ease was right and should not be disturbed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Dye, Auditor, v. The State ex rel. Davis.

      Proceeding by mandamus — Against county auditor — To compel transfer of property on tax list — Section 1025, Revised Statutes — Vendee of coal underlying land seeks transfer — Necessary facts must be plead and proven — Mandamus petition defective, when — Mandamus—Duties of county auditor.

    1. In a proceeding hy mandamus against a county auditor to compel him to perform the duties enjoined hy section 1025, Revised Statutes, the existence of all the material facts necessary to put him in default, must be plead and proven.
    2. Where the vendee of the coal underlying lands, desires to have that part of the premises transferred into his name on the fax list of the county, it is incumbent upon him, under the provisions of said section, to present to the county auditor proper evidence of his title and make satisfactory proof to him of the value of such coal as compared with the valuation of the whole lands as charged on the tax list; and la written agreement between the vendor and vendee of the coal as to a division of the valuation on the tax list ■ between them, is not binding upon the auditor. The evidence on which he is to act is prescribed by the statute, and he can be compelled to act on no other.
    3. A- petition for mandamus to compel the auditor to transfer a part of lands or town lots, under the provisions of said section, which fails to allege that competent evidence was offered to the auditor of the value of such part as compared with the value of the whole as charged on the tax list of the county, is fatally defective and states no ground for the writ of mandamus.
    (No. 9336
    Decided January 16, 1906.)
    Error to the Circuit Court of Morgan county.
    The defendant in error filed in the circuit court of Morgan county the following petition for mandamus:
    “Delator, for cause of action, says;. The defendant is the duly elected, qualified and acting auditor of the county of Morgan, in the state of Ohio.

      ‘ ‘ That since August 1, 1902, relator has purchased the coal underlying about 3,269.79 acres of land lying and being in sections numbered 22, 23, 24, 25, 26, 27, 34, 35 and 36, in township numbered 14 of range numbered 14, in York township, Morgan county, Ohio, from the persons theretofore owning the same in fee, and deeds have been made, executed and delivered to him by the various owners thereof, conveying to the relator the fee in said coal with the right and privilege of mining and removing the same.
    “That each and every part and parcel of land from under which relator purchased said coal was appraised for taxation at the decennial land appraisement for the year 1900, by the land assessor of said York township, and such appraisement, with the corrections made necessary by the action of the county and state boards of equalization, was entered upon the tax duplicates of said Morgan county, Ohio, by the auditor thereof, and taxes thereon charged against said several and various landholders.
    “That your relator purchased and received conveyances from the following named persons, for the coal underlying the following described lands situate in said York township, Morgan county, Ohio, which were and are charged with taxes (exclusive of buildings), in the following amounts, to-wit:” (Here follows a description of the various tracts of lands — the names of the owners thereof and the amount of tax valuation of each tract on the tax duplicate of the county.)
    The petition then proceeds:
    “That relator and each of the above named grantors entered into an agreement in writing, endorsed upon the deed and signed by the grantor in the words following, to-wit:

      ‘To the Auditor: You are hereby authorized to transfer the above granted property to the grantee, charging him with the one-third of the tax valuation of the same, after deducting valuations of buildings. ’
    “That relator purchased and received conveyances from the following named persons for the coal underlying the following described lands situate in said township, county and state, which were (and are) charged with taxes (exclusive of buildings), in the following amounts, to-wit: ’ ’ (And here follows a list of the various tracts of land — the names of the owners thereof and the tax valuation of each tract as it appears on the tax duplicate of the county.)
    The petition proceeds to aver:
    “That relator did not make any agreement with said landholders as to the division of the tax valuation of the said lands.
    “That on November 5, 1902, relator, by his counsel, presented his deeds for the first above described lands, together with the above described written request for transfer to the defendant, and demanded and requested of him as such auditor, to make transfer to him of the first above described lands upon the tax duplicates of the said county and charge him with the one-third of such tax valuation of each of said tracts, as agreed upon between relator and the above mentioned landowners, to-wit: George Ogg, F. Darringer, H. W. Weller, E. Nemberry, Emaline Deaver, A. R. Pickens, L. S. Gossman, B. R. House, M. L. Howard, Jesse George, M. V. B. Woods, C. E. Baker, J. A. Woods, C. O. Crider, Joseph 'Driggs and W. R. Milligan, and that said defendant then and there refused to transfer the said lands or any part thereof, as requested, and declined and refused to recognize the right of the relator and said landowners to make the said or any agreement of division of tax valuation, and threatened, if said deeds were given him for transfer, to place the same on the tax duplicates for taxation at a valuation of about eight dollars per acre, and as relator understands and alleges, without making any reduction of the valuation of said lands as charged against the said above named persons who sold the same to relator, but leaving the tax values to stand as before the sale of said coal to relator.
    “Relator says that at the time he presented to said defendant his deeds of conveyance last herein above described and demanded and requested of defendant that he transfer the same upon said tax duplicates, so that relator might be charged with such taxes upon his said coal as might be just and equitable, and so that the valuation of said coal be ratable with said first above described coal land, and that all of relator’s holding in said township be táxed at uniform values.
    “The defendant refused and declined to comply with said request, and refused and declined to transfer said lands, except at an arbitrary valuation of about eight dollars per acre, and without making any reduction of valuation to said persons who made said above described conveyances to relator.
    ‘ ‘ That it is the duty of said .defendant, as such auditor, under the law to make transfer of all deeds and conveyances of real estate situate in his county, when presented to him, and to apportion the tax valuation of the same between grantor and grantee as they may agree, and, in the absence of such agreement, in proportion of the value of the part sold, to the part retained.
    “That the coal sold and conveyed to relator, as hereinbefore alleged, was part of the real estate appraised, and upon the duplicate for taxation, and the value of the same was included within, and was a part of the valuations hereinbefore set forth and alleged, and relator, and each of his grantors, have a right and are entitled.to have the tax valuation of said lands apportioned between them, as they have agreed, or, where there is no agreement, in proportion of the value of the coal bought by relator, to the residue of said lands still owned by his grantors.
    “Wherefore relator prays that a writ of mandamus issue against the defendant, commanding him to recognize agreements for division of tax valuations made by and between relator and his several grantors, as hereinbefore set forth, to transfer the said lands and coal sold him at a tax valuation of one-third of the present valuation, exclusive of buildings, to transfer his said lands where he has made no agreement of division, at such proportionate part of the present tax valuation, as the value of the part purchased by relator, bears to the part retained unsold by his grantors, and for all proper relief in the premises.”
    On motion of the relator, the court allowed an alternative writ of mandamus to issue, returnable on the first day of the next term thereof to be held in said county. The auditor filed a general demurrer to the alternative writ, which the court overruled and the auditor excepted.

      He then answered to the petition, hut the answer was held had on general demurrer. An amended answer was filed, in which it is denied that he refused to transfer said lands to relator upon the tax duplicate ; that on the contrary he was ready and willing, and offered at the time set out in the petition to make said transfers, hut that he refused to recognize the right of the landowners and the relator to determine hy agreement between them in what manner or to what amounts the tax valuation on said lands should be divided upon the duplicate.
    In addition to other facts, not regarded as material in disposing of this controversy, the amended- answer alleges that the relator, at the time he presented his deeds, nor at any time, did not furnish or offer any proofs of the value which the coal so assigned by the respective deeds, bears to the value of the lands retained by the grantors, and that the valuations agreed upon by the relator and his grantors is not just or equitable. It is also alleged that at the preceding decennial appraisement of said lands, it was not known that there was coal therein and the appraisement was made regardless of coal.
    In the reply the relator admits, that the auditor was willing and offered to transfer the lands described in the deeds; and further admits that the relator offered no proof of the value of the part purchased by him, but assigns as an excuse that the auditor refused to recognize said contract of division and to make any division other than at ten dollars per acre.
    The court heard some evidence, which appears in a bill of exceptions, and excluded evidence offered by the auditor.

      A peremptory writ of mandamus was granted and error is prosecuted in this court to reverse that judgment.

      Mr. Charles E. Fouts, for plaintiff in error.

      Mr. J. M. McGillivray, for defendant in error.
   Price, J.

The duty of a county auditor in respect to the transfer of real estate on the tax list to the name of a purchaser, is defined by section 1025, Eevised Statutes. The section has not been materially changed since the relator commenced his action-for mandamus, and the rights and duties of the parties to this case are governed by it. It reads as follows:

“The auditor shall, on application and presentation of title, with such affidavits as are required by law, or the proper order of a court, transfer any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands, into the name of the owner, when rendered necessary by any conveyance, partition, devise, descent or otherwise; and if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the tax list, is to he transferred, the party or parties desiring the transfer, shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax list, before the transfer is made; and the auditor shall endorse on the deed, or other evidences of title presented to him, that the proper transfer of the real estate therein described has been made in his office, or that the same is not entered for taxation, and sign his name thereto.”

It may he seriously doubted whether this statute authorized the severance of the surface of lands from the coal or other mineral embedded beneath it, so as to transfer the latter to a purchaser, leaving the other parts of the lands to stand in the name of the vendor. But other and some later legislation found in .section 2792, and supplementary, section 2792a, Revised Statutes, seems to make the way clear to that result., and we need not linger on the above query. The auditor made no stand on that ground, and it has not been brought in question here. We express no opinion regarding it.

The section under consideration (1025), imposes certain duties on the county auditor, and the performance of these duties are made dependent upon certain acts to be performed by the party desiring a transfer of any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands, into the name of the new owner.

The latter part of the section relates to the transaction involved in the case at bar, and it provides: ‘ ‘ and if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the tax list, is to be transferred, the party or parties desiring the transfer, shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the tax list, before the transfer is made; and the auditor shall endorse on the deed or other evidence of title presented to him, that the proper transfer of the real estate therein described has been made in his office, * * * and sign his name thereto.”

In this case, it was a part only of the lands for which the relator desired a transfer, and when he presented his title for the purposes of a transfer, it was incumbent upon him to make satisfactory proof before tbe auditor, of tbe value of sueb part as compared with the valuation of the whole, and until he did so, the auditor was not in default.

On this subject what has the relator plead? As to the first description set out in his petition, he avers, in substance, that he presented to the auditor his deed or deeds, on which was endorsed an agreement in writing and signed by the grantor, in the words following, to-wit: “To the auditor; you are hereby authorized to transfer the above granted property to the grantee; charging him with the one-third of the'tax valuation of the same, after deducting valuations of buildings.”

No other form or character of proof is alleged in the petition, and if this contract is not the kind of proof contemplated by the statute, hone is plead, and as to the first class of lands, the petition fails to state a case for mandamus. It is not averred that the grantors were present when the deed was presented for transfer, or that any proof was made or offered as to the execution of the contract. But beyond that, it was a mere stipulation between the parties thereto, and in no sense binding upon the auditor. As an item of evidence in a controversy between the grantor and grantee, it might be competent, but surely not competent to bind one not a party thereto or a privy thereunder. The parties, as between themselves, might agree upon what portion of the entire taxes the grantee should pay, but such agreement is of no avail to compel the auditor to make that division on the tax list. He is entitled to satisfactory proof, and that is .the nature of the proof the relator was required to make. It is evident from the language of the petition, that the auditor was not satisfied with the'contract as the proof required by statute, and tbe relator offered no other.

As to tbe second class of lands described in tbe petition, no contract existed between the vendor and vendee — at least none is alleged, and the petition fails to state that any kind of proof whatever was offered. The amended answer avers that none was offered and the reply admits it. The same answer avers that the auditor was ready and willing to make the transfers and the reply admits that, but it attempts to-excuse the offering of proof on the ground that the auditor asserted that if he made the transfers, he would place a valuation of eight dollars per acre on the coal. The same excuse is made as to both the first and second descriptions contained in the petition.

Whatever may have been the fact as to the statement of the auditor on that subject, the relator was not relieved from offering to comply with the statute, — tender the required proofs, and thus put the officer clearly in the wrong. It is the law, that to entitle the relator to the mandamus prayed for, he must show that the auditor is in default in respect to the performance of an act which the law specially enjoins as a duty resulting from his office. The threat, or milder statement of the auditor, if such was made, should have put relator on guard to strictly comply with the statute, by offering proofs which should have been satisfactory, and then in case he could not be heard, a writ might be obtained-to compel the officer to perform his duty; — hear the evidence and determine the question.

Counsel for relator asks why he should be required to do an idle or foolish thing, — offer proofs in the face of a threat by the auditor that he would plaee the coal on the tax-list at eight dollars per acre? We answer, that it is never an idle or foolish thing to do as the law directs, and certainly so, when the doing of the act is a condition precedent to obtaining the right or favor demanded. The proper proofs are intended to enlighten and convince the officer and enable him to perform his duty.

These views are in accord with the holding of this court in Cincinnati College v. La Rue, Auditor, 22 Ohio St., 469. It is there held that “in a proceeding by mandamus to compel an officer to do an act which it is claimed the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must he shown.”

Again: “Where the transfer is to he of only a part of such property, satisfactory proof must also he made to the auditor of the value of such part as compared with the valuation of the whole as charged on the duplicate. The presentation by the party seeking the transfer, of a statement of facts concerning the title, with the request to the auditor to have the property valued and transferred, is not a compliance with the statute. The evidence on which the auditor is to act is prescribed by the statute, and he can he required to act on no other. ’ ’

The defective petition is not helped out by any evidence contained in the hill of exceptions. There is no evidence that any proof whatsoever was offered, and we have said that the written agreement between vendor and vendee was not competent evidence.

The prayer of the petition is, — not to order the auditor to hear evidence and decide as to the right of transfer, but that he he compelled to recognize the agreements between vendors and vendees and to transfer the land where no agreements had been made at the proper valuation; — and the lower court awarded a writ according to that prayer.

We hold that there is no cause of action for mandamus stated in the petition. And owing to the averments of the amended answer and the admissions made in the reply, the pleadings clearly show that the peremptory writ should not have been allowed.

The judgment of the circuit court is reversed and the petition dismissed.

Judgment reversed.

Shauck, Summers and Spear, JJ., concur.

Crew, J., not participating.


author: Shattck, J.

text:
    The City of Norwalk, Ohio, v. Tuttle.

      Petition to recover for injuries — Received on icy sidewalk of municipality — Alleging no structural defect in sidewalk — ' States no cause of action — Law of negligence of municipalities.

    1. A petition filed-for the purpose of recovering from a municipality on account of injuries sustained by the plaintiff from falling upon an icy sidewalk, the conditions being solely due to the action of the elements, but not alleging either a structural defect in the walk or any act of the municipality causing the formation of the ice, does not state a cause of action. (Chase v. The City of Cleveland, 44 Ohio St., 505, approved and followed.)
    2. One who voluntarily goes upon a sidewalk of a city which is obviously, and by. him known to be, in a dangerous condition, cannot recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. (Schaefier v. The City of Sandusky, 33 Ohio St., 246, and The Village of Conneaut v. Naef, 54 Ohio St., 529, approved and followed.)
    (No. 9387
    Decided January 16, 1906.)
    Error to the Circuit Court of Huron county.

      In the court of common pleas there was a recovery against the City of Norwalk as defendant upon what the plaintiff styled the second cause of action, the substance of which was that the city had permitted ice to accumulate and remain for forty-eight hours upon a prominent street of the city and that Tuttle while in the exercise of due care as a footman upon such street slipped upon said ice and fell sustaining injuries of a serious character.
    It was not alleged against the city either that there was a structural defect in the walk or that it had by any act contributed to the formation of the ice upon which Tuttle sustained his injury. A demurrer to this cause of action was overruled.
    In the answer of the city the allegations of negligence were denied and Tuttle’s own negligence was alleged to have been the cause of his injury. These affirmative averments were denied by a reply. On the trial there was no evidence to show any structural defect in the walk or any act of the city causing the formation of the ice. The evidence of Tuttle himself showed that the ice upon which he fell was plainly visible and that he actually saw it before going upon it. There was a verdict for the plaintiff, a motion for a new trial was overruled and judgment against the city followed the verdict. This judgment was affirmed by the circuit court.

      Mr. Edgar G. Martin, city solicitor, and Mr. G. Bay Craig, for plaintiff in error,
    cited and commented upon the following authorities:

      The Village of Conneaut v. Naef, 54 Ohio St., 529; Chase v. Cleveland, 44 Ohio. St., 505; Schaefler v. The City of Sandusky, 33 Ohio St., 246; Village of Leipsic v. Gerdeman, 68 Ohio St., 1.

      Mr. 8. M. Young, for defendant in error, filed no brief.
   Shattck, J.

Since the cause of action upon which the recovery was had in the court of common pleas did not allege either that there was a structural defect in the walk or that the city in any way caused or contributed to the accumulation of the ice upon which Tuttle received his injury, the demurrer raises substantially the same question which was determined in Chase v. The City of Cleveland, 44 Ohio St., 505, where a recovery was denied. It is quite apparent that upon the general subject of the right to recover against municipalities for injuries received upon icy streets the decisions of the courts of last resort are not all reconcilable. But the substantial considerations involved in the discussion seem to justify the conclusion reached in the case cited. All attempts to distinguish the cases because of the form of municipal government have failed, for at last the burden rests not upon an intangible municipal government but upon the taxpayers of the municipality. The ultimate question is to what extent should the power of taxation be exercised for the purpose of indemnifying persons who are thus injured. No one asserts that it may be exercised to the full extent that would be required to constitute the municipality an insurer against accidents. Upon the other hand, it is admitted that it should be exercised to the extent which may be necessary to enforce the liability of a city for default in duty with respect to the construction and maintenance of streets and walks. Accordingly all substantial structural defects which occasion injury to one who is exercising due care are recognized as constituting a ground of liability. But tbe city is not required to construct sidewalks. If it exercises tbe power by wbicb it is authorized to construct them it must in its exercise act with due care with regard to the safety of travelers. Not being required to construct walks it cannot reasonably be held liable on account of perils which are not due to their construction.

Recurrence to a very elementary proposition seems necessary. The proposition is that in cases of this character there is no liability where there has been no default in duty. No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, but where that condition is due solely to the action of the elements. In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. Ordinarily they disappear before correction would be practicable by any provision which the city might reasonably be expected to make. It is within common observation that without the presence of snow or rain, from the mere alternations of heat and cold operating upon the frozen earth beneath the walk, there result dangerous conditions of pavements which it would not be possible to prevent or correct. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable for a city to perform. These views were perhaps sufficiently expanded in the case cited. They derive support from the considerations presented in The Village of Leipsic v. Gerdeman, 68 Ohio St., 1. The demurrer to the petition should have been sustained.

The evidence offered by the plaintiff on the trial of the case made it entirely clear that the omission from the petition of allegations of structural defect in the walk or of any act of the city contributing to the accumulation of ice was not through inadvertence. It also showed without contradiction that the condition of the walk when the plaintiff went upon it was not only plainly visible, but further that he was fully aware of it. That these admitted facts would prevent a recovery even if negligence of the city had been shown is made sufficiently clear in Schaefler v. The City of Sandusky, 33 Ohio St., 246 and The Village of Conneaut v. Naef, 54 Ohio St., 529. The motion to direct a verdict in favor of the city should have been granted. The judgments of the circuit and common pleas courts will be reversed and there will be judgment in favor of the plaintiff in error:

Judgment reversed.

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


author: Davis, C. J.

text:
    North v. Smith.

      Jurisdiction of circuit court — To review order of common pleas — r ■On appeal from prodate court.

    The circuit court has jurisdiction to review on error an order of the court of common pleas, made on appeal from the probate court, removing a guardian for cause.
    (No. 9422
    Decided January 16, 1906.)
    Error to the Circuit Court of Darke county.
    The facts are stated in the opinion.

      Mr. A. A. North and Mr. W. Y. Stubbs, for plaintiff in error.

      Messrs. Robeson & Yount; Messrs. Anderson, Bowman & Anderson and Messrs. Meeker & Gaskill, for defendant in error,
    cited and commented upon the following authorities:

      Brigel v. Starbuck, 34 Ohio St., 287; Young v. Shallenberger, 53 Ohio St., 302; Kramer v. Railroad, 5 Ohio St., 147; Barto v. Abbe, 16 Ohio, 408; State ex rel. v. Wood, 22 Ohio St., 537; Baer, Harkeimer 6 Co. v. Otto, 34 Ohio St., 11; Williams v. State, 25 Ohio St., 628; Atwood v. Whipple, 48 Ohio St., 308; Branson v. Studebaker, 133 Ind., 147; Monger v. Jeffries, 62 Ohio St., 149; Ebersole v. Shiller, Admr., 50 Ohio St., 701; Still’s Estate, 15 Ohio St., 484; Act of May 6,1902 (95 O. L., 392, 406); Burke v. Taylor, 45 Ohio St., 444; Page v. McConville, 10 C. C. R.,. 321; State ex rel. v. Hawkins, 44 Ohio St., 98; Davis v. Coffman, 55 Ohio St., 556; Missionary Society v. Ely, 56 Ohio St., 405; North v. Smith, 5 C. C. R. (N. S.), 495; sec. 6709, Rev. Stat.
   Davis, C. J.

On an appeal from the probate court, the court of common pleas made an order removing the plaintiff in error from his trust as guardian of one Bertelle L. Smith and revoked all of his powers under such guardianship. The plaintiff in error instituted a proceeding in error in the circuit court to reverse ‘ the findings, orders and judgment” of the court of common pleas; and when the cause came on to be heard, the circuit court dismissed the petition in error for the reason, as stated in the journal entry, “that it is without jurisdiction to review the order and judgment of the court of common pleas removing the plaintiff in error as such guardian.”

Prior to the amendment of sections 6407 and 6708, Revised Statutes, (95 O. L., 391 and 406) it was held that an order by the probate court removing or refusing to remove an executor, administrator, guardian, etc., was not reviewable by appeal or by proceedings in error. There was then no legislation authorizing an appeal and because such an order was not a final order affecting a substantial right, it was held that it could not be the subject of review upon a petition in error. The conditions are entirely changed now. The right of appeal from such an order is now expressly provided for by the amended section 6407 and the power of the court of common pleas to review such an order in error is also expressly conferred by the amended section 6708. Therefore it is no longer a pertinent question whether such an order is a final order affecting substantial rights; for it is conceded that the right to prescribe in what cases there may be review by error or appeal is wholly within the legislative power and is not the subject of judicial discretion.

That such order is a final order is also conceded; and that it affects substantial rights, if that must be deemed of any importance, must be apparent from the very fact that, in the judgment of the legislature, the rights affected by such order are of sufficient importance to be protected by allowing a review either by appeal or in error. It has been held by this court that the term “substantial right” as used in section 6707, Revised Statutes, involves the idea of a legal right; and that such right is one which is enforced and protected by law. Armstrong v. Herancourt Brewing Co., 53 Ohio St., 467. The rights involved in this order seem to come easily within that definition.

Hence, whether the act of the court of common pleas be regarded as a judgment on appeal or merely as a final order, it can make no difference in the' result. Section 6709, Revised Statutes, confers upon the circuit court jurisdiction to review and reverse, vacate or modify any judgment or final order made by the court of common pleas. ' When sections 6407 and 6708 were amended it was not necessary to amend section 6709 in order to give jurisdiction to the circuit court to review the order made in this case; for the language of the latter section is all-inclusive; and, indeed, it would be necessary to amend that section in order to exclude the order and judgment in this case from the jurisdiction of the circuit court.

The judgment of the circuit court is therefore

Vacated and the cause remanded.

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


author: Spear, J.

text:
    Serhant and Pearce v. Haker.

      Right of set-off — Sections 5066 to 5077, Revised Statutes — Right cannot he defeated hy other exemption sections, when— Gross demands are to he deemed compensated, when — Law of exemptions.

    1. The right of set-off is controlled by the sections of the Revised Statutes relating to that subject, (sections 5066 to 5077), and the rights there given are not subject to be defeated by the provisions of other sections relating to exemptions.

      2. The provision of section 5073 that when cross-demands have existed between persons under such circumstances that if one had brought an action against the other a set-off could have been set up, and that the two demands must be deemed compensated so far as they equal each other, forbids the allowance to one of the demand against him on a claim of exemption even though such claimant may be entitled under the exemption statutes to hold exempt a sum equal to the demand against him.
    (No. 9400
    Decided February 2, 1906.)
    Error to the Circuit Court of Cuyahoga county.
    March 7,1903, Carl J. Haker commenced an action in the court of common pleas of Cuyahoga county for the purpose of having set off against a judgment which had been recovered against him, February 1, 1900, by the defendant John Serhant for $24.03, a ■certain judgment which, the plaintiff had recovered February 6, 1900, against Serhant for $30.40.
    February 18, 1900, Serhant assigned, sold and transferred to Berkeley Pearce the judgment rendered in favor of Serhant and against Haker, and the petition alleged that at the date of the commencement of the action in the court of common pleas Berkeley Pearce was the owner of the judgment.

      John Serhant had not at any time since the recovery of the judgment against him had any property subject to levy and sale on execution.
    March 19, 1904, Serhant and Pearce filed an amended, answer in the court of common pleas in which they averred that on the 20th of January, 1904, the defendant Pearce duly assigned all his right, title and interest in the judgment first described in the petition, and all rights thereunder, to the defendant Serhant, who thereupon became the absolute ■owner thereof; that on the 20th day of February, 1904, Serhant, still being the owner of the judgment, •duly selected and claimed the said judgment and all his rights, title and proceedings thereunder, as ■exempt from execution, attachment, levy and sale under Part 3, Title 1, Division 5 and Chapter 1 of the laws of Ohio, and thereupon and on said day he -duly assigned, sold, transferred and set over all his rights, title and interest in the said judgment and all rights and proceedings thereunder to the defendant Pearce, who thereupon and thereby became the absolute owner thereof.
    At the time of making said selection and transfer the defendant Serhant had a wife and family of which he was the head and support and he and his wife were living together, residents of Ohio, and did not own or have a family or other homestead, and that when the selection was made the defendant Serhant did not have as much property as he was ■entitled to hold exempt from levy and sale or levy ■or sale on execution or attachment or other process, by virtue of the statute in such cases made and provided, and that said judgment was a part of the personal property which he then had and owned.and which he was entitled to hold exempt as aforesaid.

      A general demurrer to this answer was sustained by the court of common pleas and judgment rendered for the plaintiff Haker. This judgment was affirmed by the circuit court. Serhant and Pearce bring error to this court.

      Mr. Berkeley Pearce, for plaintiffs in error.
    The plaintiffs in error, Serhant and Pearce, claim that property may be claimed as exempt at any time before it is disposed of by legal process or decree, and cite in support thereof the following. Exempt property may be selected at any time before sale by the sheriff. Close v. Sinclair, 38 Ohio St., 530; Frost v. Shaw, 3 Ohio St., 270; Hoover v. Haslage, 7 O. D., 98; 4 N. P., 90; Muse v. Darrah, 2 Dec. Re., 604; 4 W. L. M., 149; Donahue v. Steele, 1 Dec. Re., 130; 2 W. L. J., 402.
    It may be selected at any time before its application upon the creditor’s debt. Chilcote v. Conley, 36 Ohio St., 545.
    Plaintiffs in error therefore claim that as Serhant claimed his judgment against Haker as exempt property before final decree in the suit brought by Haker to obtain a set-off of the two original judgments, the selection, was made in time and must be recognized as effective and binding.
    Exempt property may be disposed of by the debtor and the purchaser takes a clear title. Genell v. Hirons, 70 Ohio St., 309; Tracy v. Cover, 28 Ohio St., 61. A debt selected as exempt may be assigned. Day v. Burnham, 82 Mo. App., 538. A judgment claimed as exempt can not be reached by set-off. Atkinson v. Pittman, 47 Ark., 464.
    The fraudulent placing of the title to the land in controversy in his wife, by the judgment debtor, did not, as against the judgment creditor, har the right of the debtor to demand a homestead or an exemption in lieu of a homestead. Roig v. Schultz, 42 Ohio St., 165; Sears v. Hanks, 14 Ohio St., 300. See many cases to same effect cited in notes to Cent. Annotated Ed., Ohio St. Rep.
    If the means of accomplishing the set-off are not in possession, an action must he brought, and the action is-a personal action, strictly. The set-off must he pleaded and requires a burden of proof to establish it. Some authorities hold that the assignee must be made a party. Gildersleeve v. Burrows, 24 Ohio St., 204.
    An assignee of a judgment usually takes subject to the judgment debtor’s right of set-off against the judgment creditor. 17 Am. & Eng. Ency. Law (2 ed.), 885.
    Claims against the assignor can not he technically counter-claimed against the assignee, because he is not liable thereon. 25 Am. & Eng. Ency. Law (2 ed.), 605.
    The set-off sections of the statutes do not apply where a judgment could he held as exempt property. Diehl v. Friester, 37 Ohio St., 476.
    The set-off sections of the statutes confer rights in action; the exemption sections, rights after judgment. Kepner v. Pierce, 3 Circ. Dec., 239; 5 C. C. R., 489; affirmed without opinion, in Pierce v. Kepner, 52 Ohio St., 615.
    The right of exemption defeats the right of set-off. Gieske v. Schrakamp, 8 Dec., 610; 6 N. P., 299.
    A court of equity will not decree a set-off of a judgment against a debt due from the judgment creditor to the judgment debtor, where at law the debtor would be entitled to claim tbe debt as exempt. Thall’s Appeal, 119 Pa., St., 425; sec. 5073, Rev.. Stat.

      Mr. J. F. Walsh, for defendant in error, filed no-brief.
   Spear, J.

It seems to be conceded that the position of plaintiffs in error is in no wise strengthened by tbe assignment of bis judgment by Serbant to Pearce, and,it is, therefore, not necessary to further comment upon that feature of tbe case. Tbe claim of error in tbe judgment of tbe circuit court is based upon tbe proposition that Serbant’s right to exemption, as Set forth in bis amended answer, is given by section 5441, Revised Statutes, and that tbe exemption may be claimed at any time before tbe property is disposed of by legal process or decree. That section provides that “husband and wife living together * * * resident of Ohio, not tbe owner of a homestead, may in lieu thereof bold exempt from levy and sale, real or personal property to be selected by such person * * * at any time before sale, not exceeding $500 in value, ’ ’ etc. It is claimed, also, that Serbant’s judgment against Haber was “property” within the meaning of tbe above recited section, and that bad it been sought to be reached by attachment on tbe part of another creditor, Serbant would have been entitled, on tbe authority of Chilcote v. Conley, 36 Ohio St., 545, to have held the amount exempt.

This claim may be admitted, but it falls far short of determining this case. We are in tbe field of set-off rather than that of exemption. Tbe subject is treated specially and fully by sections 5066 to 5077, Eevised Statutes, where set-off is defined as a cause of action existing in favor of a defendant and against the plaintiff, between whom a several judgment might be had in the action, etc.; providing further for the making of a new party where necessary to a full decision on the set-off if, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in dang’er of losing his claim unless permitted to use it as a set-off, and finally providing (5073) that “when cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counter-claim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, or by his death, but the two demands must be deemed compensated, so far as they equal each other.”

The language of this section is specific and affords a rule, as we think, which clearly governs all cases where cross-demands have existed between persons under such circumstances that if one had brought an action against the other a set-off could have been set up. That condition exists here without question. The imperative language which follows is that the two demands must be deemed compensated so far as they equal each other. This is the rule of the civil law which admitted a set-off in the name of compensation, the reciprocal acquittal of debts between two persons who are indebted the one to the other, or the extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another. In such situation compensation takes place, and the respective debts are immediately extinguished by operation of law to the extent of their concurrence. Waterman on Set-offs, secs. 12, 13. The philosophy of the rule is that the balance left after deducting the smaller from the greater is the real debt owing. The rule is logical and does not seem to be inequitable. At all events, it is the dictum of the statute, and we think it is not the duty of the courts to overthrow it by finespun distinctions, or by an effort to apply deductions from other sections of the statutes which in terms have no relation to it. It isn’t pretended that the language of any section relating to exemptions gives such right to exemption in a case like the present. Indeed the assumption that such a claim may be set off in the answer in a case pending finds no support in the sections relating to exemptions, the language being that the claimant may hold exempt from levy and sale to be selected any time before sale. This provision would seem to imply that the question of exemption is not to be determined in advance of judgment; that is, the demand is to follow judgment, not precede it.

Counsel for plaintiffs in error cite decisions in other jurisdictions which support his contention. But they are in states where the question was determined upon what is termed equitable principles, resting entirely upon the practice known in courts of equity from time immemorial and in the absence of statute, or upon statutes respecting set-offs unlike ours and construed by the practice in equity, and where the rule of the civil law is not recognized. Such decisions are, of course, not authority, nor does the reasoning of the judges, however high their standing, because of the distinctions above stated, afford light to us. It is to be noted that no special equity is set up. It is not even claimed that Haker was not the owner of the cause of action on which his judgment was based at the bringing of the suit by Serhant. A remark here and there in opinions by judges of this court notably in Diehl v. Friester, 37 Ohio St., 473, lends some color to the claim of counsel, but the question we have here was not the question before the court in any of the cases referred to.

No case to be found among the' reports of this court presents precisely the facts of this case. But we are unable to see any distinction in principle between the case at bar and Pierce v. Kepner, 52 Ohio St., 615, affirming the judgment of the circuit court of Darke county and reported in. 5 O. C. 0., 488. In that case Pierce brought suit against Kepner to recover a balance of $162.90 for work in repairing a house. The plaintiff alleged in his petition that he was entitled to an allowance in lieu of homestead and claimed the amount of his credit for work as exempt. The defendant pleaded as sét-off a promissory note for $73.27 made by plaintiff and purchased by defendant before the contract for house-repair was made. Plaintiff replied that defendant was not entitled to have the note set off because plaintiff was entitled to the full amount sued for as an allowance, to him as head of a family in lieu of a homestead. The common pleas refused the set-off and gave plaintiff judgment for the full amount of his claim. This judgment was reversed by the circuit court, that court' holding that though a plaintiff in an action for money may be entitled to hold exempt from levy and sale a sum equal to that for which he sues, yet that fact will not defeat the defendant’s right of set-off, and, as before stated, this judgment was affirmed by this court. On the authority of this case, as well as upon principle, we hold there was no error in the judgments below, and the same are

Affirmed.

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


author: Summers, J.

text:
    McBride, Admr. v. Vance.

      Personal property of deceased person — Does not vest in heirs — ■ But is in abeyance until administration is granted — Action on promissory note belonging to deceased — Law of administration.

    1. As a general rule administration is a prerequisite to the devolution of the personal estate of a decedent.
    2. The personal property of a deceased person does not vest in his heirs but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action on the note by proof of possession and that he is the sole heir of the decedent.
    (No. 9405
    Decided February 2, 1906.)
    Error to the Circuit Court of Richland county.
    • In October, 1902, Eleanor Vance, defendant in error, commenced this action in the court of common pleas of Richland county against the defendant in error, C. E. McBride, as administrator de bonis non of the estate of J. B. Daily, deceased, to recover on a promissory note.
    The plaintiff in her petition, after stating the appointment and qualification of the defendant, avers that he is. indebted to her upon a promissory note of which the following is a copy with all credits and endorsements:

      “Mansfield, 0., January 21, 1875.

    “One day after date I promise to pay to the order of T. J. Rohinson, four hundred and fifty dollars, at ten per cent interest.
    “John B. Daily.”
    “Received Jan. 21, 1876, forty-five dollars being interest to this date. $45.00.
    “Received April 13, 1887, three hundred and fifty dollars. Paid by P. W. Schaden, Admr., estate J. B. Daily.
    “Accepted as a valid claim against the estate of J. B. Daily. C. E. McBride, Admr. de bonis non of the estate of J. B. Daily. Jan. 29,1892.”
    She then avers that on the twenty-ninth day of January, 1892, she presented the claim to the defendant and that he endorsed thereon his allowance of the same, that eighteen months have elapsed, that no part of the claim has been paid and that there is due her therbon a sum stated which she claims with interest. The defendant for answer admits his appointment, that he allowed the claim but avers that he subsequently, in September, 1902, rejected it and denies every other allegation, and for a second defense avers that the claim is barred because more than five years elapsed after the pretended cause of action arose and before, the commencement of the suit.
    For a third defense he avers that the .claim is barred because more than four years elapsed before the commencement of the action and after he had qualified and had given notice of his appointment.
    And for a fourth defense he avers that more than two years elapsed after he was appointed and before the commencement of the action.

      A jury was waived and on the trial the plaintiff introduced evidence that she was the daughter , and only child of T. J. Robinson and also of her mother Sarah S. Robinson, who died in 1898, and that she found the note among her mother’s papers after her death and that it then bore the credits and endorsements above mentioned. Evidence was offered tending to prove the signature to the note and it was then received in evidence against the .objection of defendant.
    If appears from the note that it bears in addition to the credits and endorsements set out in the petition the following endorsement:
    “Pay to the order of Sarah S. Robinson. •
    “T. J. Robinson. ”

    The plaintiff testified that her mother • survived her father, that the note belonged to her mother, that she died testate and the note now belongs to the plaintiff. There was no proof of how or when the note came into the possession of the mother or that she disposed of it by her will.
    Judgment was entered for the plaintiff and the circuit court affirmed.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error,
    cited and commented upon the following authorities:

      United States v. Crow, 1 Bond (U. S.), 51; Insurance Co. v. Badger, 3 Wend. (N. Y.), 102; Pate v. People, 8 Ill., 644; Kline v. Prindle, Wright, 414; Roseboom v. Billington, 17 Johns. Rep., 182; Keel, Exr. v. Rudisell, 7 Cirzz Dec., 464; 13 C. C. R., 199; 18 Am. & Eng. Ency. Law, 202; Walker v. Wykoff, 14 Ala., 560; Marshall v. Daniels, 18 N. H., 364; Gil-

      Patrick v. Foster, 12 Ill., 355; Thomas v. Chamberlain, 39 Ohio St., 112; Kinkead’s Probate Law and Practice, sec. 480; Clark v. Boyd, 2 Ohio, 57; Greer et al. v. State, 2 Ohio St., 574; Gilbert v. Little, 2 Ohio St., 156; Marienthal et al. v. Mosler et al., 16 Ohio St., 566; Hance, Exr. v. Hair et al., 25 Ohio St., 351; sec. 6108, Rev. Stat.

      Mr. H. E. Bell and Mr. George Brinkerhoff, for defendant in error,
    cited and commented upon the following authorities:

      Kline v. Prindle, Wright, 415; Greenough et al. v. E. D. Taylor, 17 Ill., 602; Morris v. Morris, 5 Mich., 171; Long v. Kingdom, 25 Ill., 66; Henderson v. Reeves, 6 Blackf., 101; Brown v. Gordon, 16 Md., 444; 18 Am; & Eng. Ency. Law (1 ed.)., 202; Roseboom v. Billington, 17 Johns. Rep., 182; Keel v. Rudisell, 7 Circ. Dec., 464; 13 C. C. R., 203; Thomas v. Chamberlain, 39 Ohio St., 112; Taylor et al. v. Thorn, Admr., 29 Ohio St., 569; Marienthal v. Mosler, 16 Ohio St., 566; sec. 4992, Rev. Stat.
   Summers, J.

Considerable space in the briefs of counsel is given to a consideration of the questions whether the credit of the date 1887, in the absence of any evidence tending to prove when or by whom it was made, saved the action on the note from the bar of the fifteen year statute of limitation, and whether the endorsement of that credit on the note operated as an allowance of it as a claim against the estate of J. B. Daily by his administrator.

It is not necessary to determine either question. The 'first because it is not raised either by demurrer or answer, and the second because there is no evidence that Schaden was administrator of the estate of Daily or that he made this payment upon the note, and for the further reason that the case is disposed of on other grounds.

Nor is it necessary to consider whether- the stat-, utes of limitation pleaded by the answer are a bar, because it does not appear that the note ever was presented as a claim against the estate of Daily to the administrator de bonis non by any one to whom the administrator legally might have paid it.

In Williams on Executors (7 Am. ed., 775) it is said: “It may be stated, that, both at law and equity, the whole personal estate of the deceased vests in the executor or administrator.” And (765) that: “The interest which an executor or administrator has in the goods of the deceased is very different from the absolute, proper, and ordinary interest which every one has in his own proper goods: for an executor or administrator has his estate as such in auter droit merely, viz., as the minister or dispenser of the goods of the dead.”

In Woemer’s American Law of Administration (2 ed.), sec. 199, it is said that the.necessity of administration arises out of the common law doctrine that the personal property of the decedent descends to the executor or administrator and that this doctrine is recognized substantially in all the states except Louisiana; and further: “The direct consequence of this principle of the law is, that without due course of administration the claims of creditors cannot be lawfully satisfied, and neither heirs nor legatees can obtain a legal title to their legacies or distributive shares; and that neither devisees nor heirs can hold the real estate to which they succeed free from the claims of creditors of the deceased, against whom limitation does not, in some states, run after the debtor’s death, until there be lawful administration of his estate. Another consequence is, that the payment of debts to the deceased can be coerced by no one but the lawfully appointed executor or administrator, even in equity, because there is no privity between the debtors and any person other than the legal representative. -He stands as the representative of those interested in the devolution of the personalty of the deceased, including creditors of the estate as well as legatees and distributees.”

The statutes and decisions in this state both accord with the above statement of the law.

Section 5994, Revised Statutes, provides that upon the decease of any inhabitant of this state, letters testamentary, or letters of administration on the estate, shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death; and when any person shall die intestate in any other state or country, leaving any estate to be administered within this state, administration thereof shall be granted by the probate court of any county in which there is an estate to be administered. Section 6007 provides for the appointment of a special administrator to collect and preserve the effects of the deceased when from any cause there shall be a delay in granting letters testamentary or of administration. Section 6014 provides that administration shall not be originally granted as of right after the expiration of twenty years from the death of the testator or intestate, but provides that the probate judge shall, have power as well after as before the expiration of said period of twenty years to grant letters of original administration on good cause shown. And section 5997 provides that if the executor is residuary legatee the probate court may in a measure dispense with the general administration upon his giving bond to pay all the debts and legacies of the testator.

In Clark v. Boyd, 2 Ohio, 56, the facts are, that Boyd gave a promissory note to one Pierce. After the death of P, the note was found among his papers, endorsed by him to Clark. The executor supposing it to be the property of 0 did not inventory it as a part of the estate of P but delivered it to O. The court ruled, in substance, that the assignment without delivery, when no contract of sale was proved, was a mere nullity, that the title vested by the death of P in his executors and a delivery without assignment by them to C did not vest the title in C.

In Lewis v. Eutsler et at., 4 Ohio St., 354-360, the question was, whether the descent of the personal estate of a decedent was affected by a statute passed while the estate was in the course of settlement, and Ranney, J., in the opinion said: “When Perkey died, the legal title to all his personal property vested in his personal representative. ' He alone could sue for and recover it, and convert it into money. It vested in him, it is true, as a mere trust estate, for the benefit of creditors and distributees.” And this case is cited by him in support of his contention that such is the law in Davis et al. v. Corwine & McGuire, Exrs., 25 Ohio St., 668, where it is expressly ruled that: “The heirs of an estate cannot, even after settlement by the administrator, and where there are no outstanding debts, maintain an action in their own names to recover possession of assets belonging to the estate, or to compel the executors of a party who had a life interest in such assets, and has wrongfully disposed of them by will, to account for tbe same.”

In Chappelear v. Martin, 45 Ohio St., 126, the suit was brought by Martin as administrator of the estate of a Mrs. T to foreclose a mortgage made by C to secure certain notes given by him to her, and made payable to her or bearer. She was in ill health and did not expect to live long and by her direction the notes were made payable to her or bearer upon the assumption that in the event of her death they might be collected by her husband without the trouble and expense of administration. She died intestate shortly thereafter and C paid a large amount on the notes to the husband. The administrator was appointed about eight years after her decease, and it was decided that: “Where a note was taken by a wife payable to herself or bearer, with the design that, in case of her death, it might be collected by her husband without the expense of administration, the fact that after her death it was presented by him to the maker, who paid it, supposing that the husband, by reason of the intention of tbe wife at tbe time tbe note was executed, was entitled to receive payment, will not constitute a defense as against tbe administrator of the wife’s estate, ’ ’ on the ground that any agency she may have conferred on her husband in her lifetime to collect the notes was revoked by her death and that the title on her death passed to the administrator. In Sommers v. Boyd, Treas., 48 Ohio St., 648-658, Williams, C. J., quotes with approval the statement of Parker, C. J., in Jewett v. Smith, 12 Mass., 310, that “The property may be considered in abeyance until administration is granted, and is then vested in the administrator by relation from the time of the death. ’ ’ And based upon that, this court there held, that “When administration is granted upon the estate of a deceased ward, the assets vest immediately in the administrator, whose title, hy relation, dates back to the time of the decease. ’ ’

In Presbury v. Pickett, 1 Kan. Ct.. of App., 631, it is decided that: ‘ ‘ The right to maintain an action on a promissory note belonging to the estate of a deceased person is vested in the personal representative of the deceased, and not in his heir at law.”

And in a well considered case in Alabama, Costephens et al. v. Dean et al., 69 Ala., 385, it is decided that: “Distributees or legatees have no title to the personal assets of a decedent’s estate, and are not appointed by law to demand or receive them. All their interest is secondary, and is capable of conversion into unqualified ownership only through the process of administration.”

Woerner, section 201, refers to quite a number of states in which exceptions to the general rule are made in equity, holding administration unnecessary where there are no debts of the estate, and only distribution to be made to those entitled, but this is not an equitable action and there is no proof that there are no debts. so that it is unnecessary to consider whether there may be exception's in this state.

The plaintiff below having failed to prove title in herself to the note, the finding and judgment in her favor are not sustained by the evidence and the judgments of the circuit court and of the court of common pleas are reversed.

Judgments reversed.

Davis, C. J., Shattck, Price and Síear, JJ., concur.


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    Hart & Company v. Cole.

      Property exempt from levy — Section 5441, Revised Statutes— Judgment debtor may exempt from/ execution property to value of five hundred dollars, when — Rxemptor after former exemption allowance may again claim exemption, when— Law of exemptions.

    1. Every judgment debtor, entitled to the exemption allowed by section 5441, Revised Statutes, may, at all times, keep in possession and hold exempt from levy and sale, real or personal property, to be selected by such debtor, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.
    2. A judgment debtor who has once claimed her exemption under section 5441, Revised Statutes, and has had the same set off and allowed to her, may thereafter, notwithstanding such former allowance, again claim her exemption against the same judgment out of other property; subject however to the limitation that a judgment debtor may not at any one time hold exempt, in lieu of a homestead, property in excess of five hundred dollars in value, in addition to the chattel property otherwise by law exempted.
    (No. 9418
    Decided February 2, 1906.)
    Error to the Circuit Court of Auglaize county.
    Because of the incompleteness of the record in this case, a comprehensive statement of the facts, upon which rests the question we are herein asked to determine, is attended with some difficulty. However, the following is perhaps sufficient to indicate the real question presented, and to show the manner in which such question arises. On January 30, 1896, by the consideration of the court of common pleas of Auglaize county, Ohio, the plaintiff in error, Hart & Company, recovered a judgment against the defendant in error, Hattie Cole, for about the sum of five hundred and- sixty-five dollars. Sometime during that year, — 1896,—the exact date not being shown by the record, Hattie Cole made a voluntary assignment for the benefit of creditors. In the administration of said assignment in the probate court of Auglaize' county, and after judgment had been obtained against her by Hart & Company, she applied for and was allowed by said probate court, as against said judgment, an exemption of five hundred dollars in lieu of a homestead. The judgment of Hart & Company, without satisfaction thereof, in whole or in part, was permitted to become dormant. Thereafter, to-wit: on the twenty-fifth day of August, 1902, by proper proceedings in the court of common pleas of Auglaize county said dormant judgment was duly revived. December 2, 1902, execution was issued on said revived judgment in favor of Hart & Company, which execution for want of goods and chattels of the .defendant Hattie Cole, was on December 3,1902, levied upon her undivided one-seventh (1-7) interest in certain real estate which came to her by inheritance from the estate of her deceased brother Daniel Gill, whose estate at that time had not been fully settled. Subsequently John T. Schoonover, who had been duly appointed administrator of the estate of Daniel Gill deceased, as such administrator filed his petition in the probate court of Auglaize county, asking for an order to sell said real estate so levied upon, to pay the debts of his decedent. In this proceeding Hart & Company, by leave of court, became a party defendant and filed an answer and cross-petition setting up the lien acquired by it against the interest of Hattie Cole in said real estate, and praying that an account be taken of the amount due upon its judgment against said Hattie Cole, and that upon sale of said real estate, her interest in the proceeds arising therefrom be applied to the payment of its said judgment. To the cross-petition of Hart & Company, Hattie Cole filed her answer, and also made due demand for the allowance to her out of the proceeds of said sale, of the sum of five hundred dollars, by way of exemption in lieu of a homestead. Upon the hearing of her said application for exemption, it was, by the probate court: “ordered, adjudged and decreed that the ■said John T. Schoonover, as administrator of the estate of Dan Gill deceased, out of the moneys in his hands as such administrator, pay to the said Hattie Cole out of her distributive share, as an heir at law of the said Dan Gill deceased, the sum ofvfive hundred dollars ($500) if the amount in his hands is sufficient therefor, in lieu of such homestead.” To this judgment, order and decree of the probate court, Hart & Company excepted. The real estate was sold, and it was ascertained that the distributive share of said Hattie Cole in the proceeds arising from such sale, was $470.90. Hart & Company appealed to the court of common pleas; that court ordered and directed that said sum of four hundred and seventy dollars and ninety cents ($470.90) he paid to Hart & Company to he applied on its claim and lien against said Hattie Cole, which claim and lien the court found was “paramount and superior to the homestead and exemption rights of the said Hattie Cole. ’ ’ Hattie Cole prosecuted error to the circuit court. The circuit court reversed the court of common pleas, and thereupon rendered judgment as. follows: .
    “And the court further proceeding to render such judgment, as the said court of common pleas of Auglaize county, upon the undisputed facts ought to have rendered, find that the plaintiff in error, Hattie Cole, is a married woman and resident of Ohio and not the owner of a homestead, and is entitled to an exemption in lieu of a homestead, in the sum of five hundred dollars ($500), payable out of the fund, in the hands of the administrator of Dan Gill, deceased.
    “It is therefore considered and ordered by the court, as against the defendant in error, that the administrator pay to the plaintiff in error, said sum of five hundred dollars ($500), as her allowance' in lieu of a homestead, and that the plaintiff in error, Hattie Cole, recover costs against the defendant in error, Hart & Company, and judgment is hereby awarded for said costs, in the sum of--— dollars.
    “It is further ordered that a special mandate be sent to the court of common pleas of Auglaize county for execution of this judgment.
    “To which finding, order and judgment, the defendant in error, Hart & Company, by its counsel excepts.”
    To reverse this judgment of the circuit court Hart & Company prosecutes the present proceeding in error.

      Messrs. Gulliton & Smith, for plaintiff in error.

      Mr. John T. Schoonover, for defendant in error.
   Crew, J.

The fund in controversy in this case is less than five hundred dollars, and it is conceded that the defendant in error Hattie Cole, is entitled to the whole of said fund as and for her exemption in lieu of a homestead, unless she has by some positive act, precluded herself from so claiming it. It is the contention of counsel for plaintiff in error, that said Hattie Cole having heretofore, in 1896, claimed, and been allowed, an exemption of five hundred dollars in lieu of a homestead as against the judgment of Hart & Company, that therefore, she is now estopped from claiming another allowance, out of other property, against the same judgment. This claim we think is without merit, and cannot prevail. We are not concerned in this case about the question of whether the revived judgment, against which defendant in error now claims her exemption, is the same judgment against which she claimed and was allowed her exemption in 1896; for whether it is, or is not, we are of opinion that such former allowance is no bar to her right to have ■the exemption claimed by her in the present case. Section 5441, Revised Statutes, provides that: “Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female, having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead, may, in lieu thereof, hold exempt from levy- and sale, real or personal property to be .selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred ($500) dollars in value, in addition to the amount of chattel property otherwise by law exempted.” By this statute, the extent of the exemption allowed in lieu of a homestead, is fixed at five hundred dollars. Subject to the limitation thus imposed, the statute confers upon the several persons within it^ provisions, the absolute right, at all times, to hold exempt from levy and sale, real or personal property to be selected by such person, not exceeding in value said amount. Any judgment debtor, embraced within the provisions of this statute may invoke its protection, and may select and retain, free from seizure or sale upon legal process, property to the amount and value of five hundred dollars; and this he may do whenever, and so often, as attempt is made to subject such property to the payment of his debts. When exemption has been once claimed, and property to the value of five hundred dollars has been selected and set off to the judgment debtor, so long as such property is retained by him undiminished in value, he is, of course, without right to further exemption. But where the property so set off and allowed to him has been consumed, or used by the judgment debtor in the maintenance and support of himself and family, — which is but the rightful application of such exempt property to its intended use, — to deny to him the right of subsequent exemption, merely because of such former allowance, would require, we think, a construction of the statute that is contrary to its letter and spirit, and wholly subversive of its purpose and design. Freeman on Executions, sec. 212; Thompson on Homestead and Exemptions, sec. 857; Krauter’s Estate, 150 Pa. St., 47; Weis v. Levy, 69 Ala., 209; Chatten v. Snider, 126 Ind., 387; Frost v. Naylor, 68 N. C., 325.

In Freeman on Executions at section 212, page 1100, the author says: “If at different times, writs of execution are issued on the same judgment, the defendant is entitled as against each, to the benefit of the exemption laws existing at the date of the respective levies, and a levy under writ in disregard of a claim of exemption cannot be justified upon the ground that when a prior writ was issued on the same judgment, the defendant claimed, and had set apart to him, the full amount to which he was then entitled. If he has disposed of such property he cannot he required to account for it, and his claim for exemption must be treated as though he had never before had the benefit of his exemption privileges.”

In Krauter’s Estate, supra, it was held by the supreme court of Pennsylvania, under a statute of that state allowing an exemption of three hundred dollars, that a debtor to whom such exemption had been allowed and set apart, might again claim his exemption against the same judgment, out of other property, where the former exemption had been consumed. Justice Heydrick, in the opinion in that case, referring to the exemption statutes said: “In their spirit these humane laws secure to the unfortunate honest debtor at all times the use and enjoyment of three hundred dollars worth of property if he have so much. But to hold him confined for all time to the goods once selected and appraised, or to the money exempted, or to the property into which either may have been converted, might soon leave him without anything. If the goods or money should not be consumed in living, the former would in time undoubtedly depreciate in value, and the same improvidence that made or kept the debtor poor would ordinarily leave him little to represent that which he might attempt to barter or invest. ’ ’

In the present case, the defendant in error Hattie Cole, claimed and was allowed, in 1896, an exemption of five hundred dollars in lieu of a homestead. Of the amount then allowed to her she received at that time two hundred and twenty-five dollars, but whether she ever received more than that sum, the record does not disclose. In 1902, six years, later, on the death of her brother Daniel Grill, she inherited from his estate, property to the amount and value of four hundred and seventy dollars and ninety cents. She was at this time fifty-two years of age, was not then the owner of other property either real or personal, and she was, unless precluded by the former allowance six years earlier, clearly entitled to hold said property exempt from the claim and lien of Hart & Company who was seeking to subject it to the payment of its judgment. No authority is cited by counsel for plaintiff in error in support of the claim made by them in their brief: “that after property is once set off in lieu of a homestead, and by reason thereof exempt from levy and sale, the law contemplates that the applicant will maintain it, or in any event that the applicant will not be permitted after it is gone, to claim other property in lieu of a homestead, at another time.” The claim thus made would seem to be in such direct conflict with' all the authorities up op that proposition which we have been able to find, and is so inconsistent with the humane policy and purpose of our exemption laws, that it is, we think, utterly untenable. It is the well settled rule in Ohio, that the homestead and exemption laws of this state are to be liberally construed in favor of the claimant. Sears v. Hanks, 14 Ohio St., 298; McConville v. Lee, 31 Ohio St., 447. When we consider then, that the primary purpose of allowing an exemption in lieu of a homestead, is to provide the debtor with present means for the support of himself and family, and that ordinarily, only by the conversion or consumption of the property so exempt, can it be made to inure to the benefit of those for whose use it is intended; we must conclude, that we but advance the intention of the legislature, when, in the present case, we construe above section 5441, Revised Statutes, as requiring us to hold, that the exemption allowed the defendant in error, in 1896, is no bar to her present claim.

Judgment affirmed.

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