author: By the Court.

text:
    The State ex rel. Rickey, Sheriff, etc., v. Coffin, Warden, etc.

      Costs Jor transporting convict to and from a court — No compensation to guard for time.

    1. It is the duty of the warden of the penitentiary under Sec. 7336, R. S., to allow and certify a cost bill which contains only such items of costs as the court has certified as accruing during the trial, and such additional items as are the proper expenses of transporting the :convict to the penitentiary.
    2. Guards of the penitentiary while engaged in taking a convict before the court which has issued a subpoena for him and there detaining him subject to its order, are engaged in the service for which their monthly compensation is fixed by statute: and no deduction can be made from such compensation because of their absence from the penitentiary while engaged in such service, nor can compensation of the guards for such service be taxed as costs in the case in which, such subpoena is issued.
    (Decided April 2, 1897)
    In Mandamus.
    The relator, who is sheriff of Scioto county, prays for a peremptory writ of mandamus to compel the defendant, who is warden of the penitentiary, to certify a cost bill delivered to him by the relator, with a convict, the costs not having been made on execution against the convict. The warden refuses to certify the bill for the reason only that the common pleas court had not allowed and certified as costs the amount of the compensation of guards of the penitentiary while engaged in taking before the common pleas court, and there detaining-, subject to its order, a convict who had been subpoenaed to testify.

      Henry Hannon, for relator.

      F. S. Monnett, Attorney General, for defendant.
   By the Court.

When a sheriff delivers to the warden of the penitentiary a convict and a bill of the costs in the case in which he was convicted, such costs not having- been made on execution against the convict, it is the duty of the warden, under section 7336, Revised Statutes, to inspect suc’h bill, to determine that it contains only such items as were certified by the common pleas court, and such further items as are the proper expenses of transporting the convict to the penitentiary. But he is without authority to review the action of the court as to the items of costs accruing during the trial.

When a subpoena has been issued under section 7200, Revised Statutes, for a convict confined in the penitentiary it is the duty of the warden, under section 7291, Revised Statutes, to take such convict before the court, issuing' such subpoena and there to detain him until he is discharged by order of the court, or to cause him to be so taken and detained. Guards of the penitentiary wno take a convict before such court in obedience to a subpoena are, while so engaged, performing their appropriate duties for which their compensation is fixed by section 7388-14, Revised Statutes, and no deduction from the monthly compensation so fixed by the statute can be made on account of their absence from the penitentiary while engaged in such service, nor can compensation to them for such service be taxed as co'sts in the case.

Peremptory writ allowed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Paddock v. Adams and Holly, Executors.

      Deed of land in trust — Deed and instructions for its execution competent evidence, when — Action to enforce the trust — Section 5242 Revised Statutes.

    1. Where the father, being the owner of the quitabl© estate in land, directs the conveyance of the legal title to his son in trust for the father, and in the deed the grantee is designated as trustee, both the deed and instructions for its execution are competent evidence to prove the trust, in an action for its enforcement against the son who denies the trust, and claims the conveyance was a gift or advancement.
    2. An action to enforce such a trust is not an action involving' the validity of the deed, within the purview of the last clause of section 5242, of the Revised Statutes ; and where such action is prosecuted by the executor of the cestui que trust, the adverse party is incompetent to testify to matters occurring before the death of the cestui que trust.

    (Decided April 27, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The purpose of the action below, which was brought by the executors of Thomas S. Paddock, against his son Charles S. Paddock, was to enforce the execution of a trust by the latter, under which it was alleged he held the legal title to the property involved, consisting of certain lots in the city of Cleveland, and to subject the property to sale for the benefit of the estate. The consideration for the property, it is claimed, moved entirely from the testator, who caused it to be conveyed to his son upon the trust that he should hold and convey it as the father might direct. The petition describes the property, sets out the terms of the trust, and alleges that by the will the plaintiffs are directed to sell the property in order to provide a fund for the payment of legacies. The defendant, by his answer, controverts the existence and terms of the trust, and alleges that he is the owner in fee simple. In the court of common pleas the plaintiffs prevailed, and the judgment ■rendered in their favor was affirmed by the circuit court. It was admitted on the trial, that prior to the conveyance to the defendant, the plaintiff’s testator was the equitable owner of the property, the legal title to which was held for him, and to be conveyed at his request, by the Woodland Avenue Savings and Loan Company, of Cleveland; and it was not disputed that the deed under which the defendant claims was made by that company to him at his father’s request. The deed, which was properly, executed and acknowledged, contains a description of the property, the usual covenants of title, and against incumbrances, and in terms, “for the consideration of two thousand dollars received of Charles S. Paddock, trustee, the grantee” conveys the property “unto the said grantee, his heirs and assigns,” with a habendum clause to “the said grantee, his heirs and assigns forever.” The clauses quoted above are all that have any relevancy to the questions raised here. The deed was offered in evidence by the plaintiffs,' and the defendant objected to its admission on the ground that it did not tend to prove the issues; and its admission over that objection is one of the errors assigned here.
    It appears from the record, that the elder Paddock had been the owner of a tract of land of which the lots in question were a part, and that the tract had been conveyed by him to the Savings and Loan Company for allotment and sale for his benefit; and these lots were part or all of the tract that remained unsold; and further, that he was then married to his second wife. To prove the instructions which he had given with respect to the execution of the deed to the son, and as tending to prove the terms of the trust upon which the latter held the title, the plaintiffs introduced the testimony of one of the officers of the grantor who executed the deed in its behalf, which was to the effect that he had' several conversations with the father previous to the conveyance, the substance of which was, “that in order to get his wife to sign the deed (to the Savings Company, for allotment and sale), which she was reluctant to do, he gave her what he considered her dower interest, and therefore, when the deed of this property, which was a part of the money that was to come to him personally, he wanted the land instead of money. It was his old home and he had some sentiment about it, and he wanted to keep that land rather than the money, and therefore he hesitated about putting the deed in his own name, because it might be construed that she still had her dower interest. He wanted the deed put where, when he wanted to use it, he could, without any interference from her. He wanted to know if the deed could not be made in blank, to which wé objected, and he said, I will think about it. As I recollect, it was, perhaps a month, or two or three, that he was deciding. I called on him several times to find out in reference to it. He finally said he had decided to have it deeded to his son, Charles S. Paddock, as trustee. What I have stated is the result of a dozen conversations.” The defendant objected to this testimony, and moved to exclude it; and the refusal of the court to do so is assigned for error.

      The deed, when executed, was delivered to the father; and the defendant offered himself as a witness to prove that his father delivered the deed to him, with the following statement:
    “My son, I have had a deed made of these two lots to you, and here it is. And if I should need the property for use in my business during my lifetime I will expect you to reconvey it to me, but if not, the lots are yours. But I wish you would not have the deed recorded at the present time, because it might give rise to unpleasant circumstances; to which the'witness replied, “Father, the deed would not be worth the paper it is written upon, unless recorded.” Thereupon Mr. Paddock said to witness : ‘ ‘If that is so you may record the deed. I guess you can afford to pay for recording it, can’t you” ? To which the witness answered, “Yes.” .The witness did thereupon record the deed in the recorder’s office, and since that time, and up to the death of his father, paid the taxes on the land.
    The court excluded the testimony, on the ground that it related to an occurrence which took place before the death of the plaintiff’s testator; and its exclusion, it is contended, was error.

      Blandin c& Bice, for plaintiff in error.

      G. M. <& A. W. Barber, for defendants in error.
   Williams, J.

Was the evidence to which objection was made by the plaintiff in error, improperly admitted ? The general rule undoubtedly is, that where land is purchased and paid for by one person and the title is taken in the name of another, there is a resulting trust in favor of the former, unless a different intention appears from the deed or attending circumstances; but if the grantee is a child of the person furnishing the purchase price, the presumption is that the convejmnce was intended as a gift or advancement. This presumption is based upon the supposed intention of the father to make suitable provision for his children, either as a token of parental affection, or in discharge of his moral obligation to provide for them. If is but a presumption, however, and may be rebutted by proof of the father’s actual intention to create a trust, which maybe shown by his antecedent or contemporaneous acts and declarations; and when the actual intention in making the conveyance, or causing it to be made, is ascertained, it controls the determination of the question, whether it was in trust or by way of advancement. In Lewin on Tursts, Í75-6, it is said, “the father may prove a parol declaration of trust by himself either before or at the time of the purchase, not that it operates by way of a declaration of trust (for the statute of frauds would interfere to prevent it;) but as the trust would result to the father, were it not rebutted by the sonship, as a circumstance of evidence, the father may counteract that circumstance by evidence arising from his parol declarations. ' Of course the father cannot defeat the advancement by any subsequent declaration of intention. But his evidence is admissible for the purpose of proving what was the intention at the time. ” It is conceded that the entire consideration for the property here involved moved from the plaintiff’s testator, who was the owner of the complete equitable title when the deed was made to his son, the plaintiff in error; and that the conveyance was so made by the father’s direction. In the conveyance the grantee is designated as “trustee,” which, if not conclusive of itself against any claim of advancement, is so far ineonsistent with such a claim as to afford proof of a most satisfactory character that a trust was intended ; and when supplemented by proof of the father’s instructions to make the conveyance in trust, would seem sufficient to overcome any presumption that an advancementorgiftwas intended. At least, both the deed and instructions for its execution were competent evidence to establish the trust, and therefore relevant to the issues.

Was there error in the exclusion of the defendant’s testimony? The action was prosecuted by executors, and the testimony excluded was that of the adverse party relating entirely to what it was claimed had taken place between him and the plaintiff’s testator. It was therefore incompetent, under section 5242, of the Revised Statutes, unless it can be brought within one of the exceptions contained in the section, or is taken out of its operation ; and the contention is, that the action is one involving the validity of a deed, and to actions of that class the, section is rendered inapplicable by its last clause, which provides, “that nothing in this section contained shall apply to actions involving the validity of a deed, will or codicil.”

But we think this action is not of that nature. It is well known what are actions involving the validity of wills, and codicils ; and the association in the same class or category, of actions involving the validity of deeds, is of much significance, in determining the nature of the actions contemplated by this clause of the statute. This action is one to enforce a trust, by compelling a conveyance of the legal title held under the deed, in accordance with the terms of the trust; and the plaintiffs recognize and rely on the deed as a source or muniment of the title they seek to obtain; and all subsequent owners must rely upon it as a necessary link in the chain of their title. The object of the suit is not to invalidate the deed, but to ascertain the nature of the estate it conveyed, give it effect according to the intention of the parties, and enforce their rights as determined by the application of the law to it, in the light of the circumstances under which it was made. If the deed were invalidated, the title would revert to the grantor and his heirs, and thus defeat the trust, as well as extinguish all claims of the defendant under it. The establishment of a trust in lands by parol is not considered as varying* the terms of the deed, but as setting up a new right, arising* by implication of law, or upon a new and independent agreement, or express declaration of trust, consistent with the deed. Fleming v. Donahoe, 5 Ohio, 256; Harvey v. Gardner, 41 Ohio, St., 646. Beside, the deed under which the defendant holds, is not on its face an unqualified grant of the land in fee, but the conveyance is expressed to be in trust, without fully setting out what are claimed to be the terms of the trust; and those here sought to be established by the evidence are not inconsistent with the deed-, nor destructive of the estate it purports to convey, nor substantially different from those which would result by implication of law in the absence of the relationship of the grantee to the owner of the equitable estate.

We are therefore of opinion the evidence excluded was incompetent.

Judgment affi/nned.


text:
    Roberts v. Remy et al.

      Competency op testimony — Action concerning trust in land — Agent as party — Section 5242, Rev. Slat. — Purchase of land with undivided fund — Title and life estate in parent — Remainder to children — Presumption as to consideration — Burden of proof.

    1. In actions coming within the second exception contained in section 5242, of theRevised Statutes, when the agentthrough whom it is claimed a contract was made by a person since deceased is himself a party, his testimony is subject to the same tests of competency that are applicable to the testimony of other parties who sustain the same relation to the issues; and where, as a party, he is adverse in interest to one who claims or defends as devisee of such deceased person, he is not competent to testify as a witness against the devisee, either to his own agency, or to the alleged contract; nor, in such case, are other parties having a like adverse interest competent to testify to such matters, as against the devisee.
    2. While it will be presumed, in the absence of explanatory circumstances showing a different intention, that a conveyance of land to a child for a consideration furnished by the parent ' is a gift or advancement, there is no presumption that a gift is intended when the consideration is paid by the child and the conveyance made to the parent; on the contrary,' in the latter ease, the presumption is that the legal title was so placed in the parent, in trust for the benefit of the child, and the burden is on the holder of the legal title to overcome that presumption.
    3. Where land is purchased with an undivided fund in which the parent has a life estate and the children the remainder, and the conveyance is made to the former, the title will be held in trust for the latter subject to the life estate; and upon the termination of the life estate they will hold the equitable title as tenants in common in the proportion of their respective shares of the fund.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Richland county.
    The suit below was brought by Uretta.Remy, a daughter of Thomas J. Roberts, and one of the devisees under his will, against John W. Roberts and Henry C. Roberts, the only other children of Thomas J. Roberts, who were living at the time of his decease and that of his widow, for the partition of a lot in the city of Mansfield. The petition alleges that at the time of his death, Thomas J. Roberts was seized of certain real estate which was by his will devised to his widow, Susan Roberts, for life; and after her death, by the terms of her will, all of his property was directed to be sold and the proceeds divided equally among his children ; that after the probate of the will, the widow and children united in a sale and conveyance of the real estate of which the testator died seized, for a consideration of two thousand dollars, one-half of which was, by agreement between them immediately invested in the purchase of the lot sought to be partitioned, and constituted the entire purchase price of that lot; and that the legal title to the lot was taken in the name of the widow, in pursuance of the arrangement by which she was to have the use of it as a home, there being- a dwelling house upon it, during her life, and after her death it was to be divided among the children in the proportions provided in their father’s will. The widow, who died in March, 1893, left a will by which she devised the lot in question to the plaintiff in error, who was.made a party to the partition suit, and charged with holding the legal title in trust for the other parties; and the petition prays that if he claimed otherwise he be required to set up his claim, and that his interests in the property be determined* He answered, setting up the will of Susan Roberts? by which the lot was devised to him in fee, and claiming thereunder to be the absolute owner, inasmuch as she held the title at the time of her decease. The record shows, that on the trial in the circuit court, to which the action had been appealed, the plaintiff called as a witness, her brother John W. Roberts, who, against the objection of the plaintiff in error, was permitted to testify to the arrangement as alleged in the petition, under which the property in dispute was acquired, and by which the interest of each in the lot should be that held in the property sold; and, that the arrangement was brought about by the witness at tjie instance of his mother, in order to provide her a smaller home and enable her to use the balance of the money arising from the sale,for her support; and the plaintiff, and her brother Henry, were also permitted to testify on the same subject. The admission of this testimony constitutes the chief ground urged here for the reversal of the judgment below, which was adverse to the plaintiff in error. A further statement of facts appears in the opinion.

      Bell, Brinkerhoff ■ c& Mengert, for plaintiff in error.
    The first error assigned and relied on by the plaintiff in error, is, that the court erred in admitting evidence offered on behalf of plaintiff below.
    It will be remembered that William F. Roberts claims, as heir and legatee of Susan Roberts, deceased, and that his interest is adverse to the interest of plaintiff below, and as a proposition of law we maintain, all the parties in this action, having interests adverse to plaintiff in error, were incompetent as witnesses. Section 5242, Revised Statutes.
    This section has been construed by our Supreme Court a number of times, and is fully discussed by that'court in 38 Ohio St., 438, where the oft repeated rule is reiterated, that a party cannot testify where the adverse party claims or defends, as heir or legatee of a deceased person, unless the case comes within the meaning of the exceptions, and none of the exceptions as we view them, could furnish a rule for the admission of the testimony of these parties in this case.
    This same doctrine is announced by the court in Baker v. Jerome, 50 Ohio St., 682, and in Baker et al v. Kellog, in the 29 Ohio St., 663.
    The mere fact that the party stands upon the same side of the case as the heir, guardian, etc., but has interests adverse, does not change this rule. 50 Ohio St., 689; 22 Ohio St., 208; Stevens v. Hartley, 13 Ohio St., 525; Miller et al v. Stokey, 5 Ohio St., 195.
    Henry Roberts had no talk with his mother; she never made any declarations to him that he testifies to, as to the title of the property. Neither does Mrs. Remy testify to any talks with the mother, but simply what John told her ; and looking this testimony over carefully, we can see no proof establishing a trust, under the rule above given. The rule as to the establishment of a trust is followed in the 16 Ohio St., 169, in Stall'et al v. Cincinnati et al., 24 Ohio St., 624; Mathews et al v. Beaman et al., 24 Ohio St., 615; and citing 96 Cal. 58., 30 Pac. 1020; 120 N. Y. 656; 24 N. E. 942; 32 Pa. St. 250; 34 Pa. St., 385; 110 Pa. St., 421; 97 N. S. 624; 112 N. Y. 660; Jones on Mortgages See. 335.

      J. C. Baser, for defendants in error. ,
    It is admitted that the purchase money which was used for the payment of the property in question belonged to the defendants in error, subject to the life use of the mother, and that she purchased the premises in question and took the fee in herself.
    Does not this admission entitle the defendants in error to the relief prayed for in their petition, under the Law ?
    In Perry on Trusts, Sec. 144, it is laid down that where the nominal grantee stands in relation of mother to the real purchaser, no presumption of an advancement or settlement will arise; hut it will be presumed to be a trust.
    We also find the rule laid down in 1 Ohio St., 1, that no presumption of á gift or donation will arise unless the purchaser stands in loco parentis to the nominal grantee. Pomeroy’s Equity; Sec. 1038; Bishpam’s Equity, 119, Sec. 30; 5 Ohio St., 256; Wright’s Report, 509.
    Parole evidence is admissible to establish a trust. Perry on Trusts, Sec. 138; Pomeroy’s Equity, Sec. 1040; Bishpam’s Equity; 16 Ohio St., 174; 16 Ohio St., 444; 24 Ohio St., 615.
   Williams, J.

It is sought to sustain the admissibility of the testimony to which objection was made by the plaintiff in error, under the second exception contained in section 5242, of the Revised Statutes, which reads as follows: “When the action or proceeding relates to a contract made through an agent by a person since deceased, and the agent is competent to testify as a witness, a party may testify on the same subject.” The argument is, that inasmuch as John W. Roberts testified that he made the arrangement for the sale of the property which came from his father and for the investment of part of the proceeds in the property in question, at the request of his mother, he was acting as her agent in the transaction, and competent as a witness to prove the transaction, and the arrangement with his brother and sister under which it was completed; and the agent being a competent witness on that subject, the plaintiff, and her brother Henry, were also competent to testify on the same subject.

"We cannot adopt that view. The provision relied on has reference to the agent as a witness, and not as a party to the action. The language “a party,” including any party, “may testify on the same subject” to which the “agent is competent to testify as a witness, ’ ’ evidently refers to him as a witness in a controversy between other persons who are parties to the action; and when he is himself a party, his testimony is subject to the same tests of competency that are applicable to the testimony of other parties who sustain the same relation to the issues.

The plaintiff in error defended in the action below as the devisee of a deceased person, and the testimony complained of related to transactions which could not have occurred subsequent to the death of that person. John W. Roberts was entitled to a share of the property in controversy equal to that of the plaintiff, if her action should prove successful; and, though a. party defendant on the record, he was a party adverse in interest to the plaintiff in error, his codefendant; as much so as if he had been joined as a party plaintiff. His interest in the property sold, and its proceeds was his individual interest, with regard to which he could not deal with himself as the agent of his mother ; he could only deal with her in respect to it in his individual right. So in negotiating the arrangement with his brother and sister, he neeessarily acted in his own behalf,- and they negotiated with him in the same relation. If he had purchased the interest of his brother and sister in the property, and were the only party to the controversy with the plaintiff in error, it would scarcely be claimed that he would be a competent witness to prove the matters to which he testified. Without his testimony there was no proof of the agency; and being1 incompetent to prove the agency in his own behalf, his testimony could not be used to establish it in behalf of the other parties united in interest with him, for that would result in proving it for himself. We think, therefore, that his testimony was erroneously admitted, and as there was a lack of competent evidence of the agency, the foundation for the admission of that of the plaintiff and her brother Henry also fails.

Brit the judgment should not be reversed if there was sufficient evidence to which no objection was made, to establish the trust; and we think there was. It was clearly shown that the property sold belonged to Thomas J. Roberts at the time of his death, 'and that it passed under his will to his widow for life, with remainder to his children in fee, who, with the widow, united in its sale and conveyance for the sum of two thousand dollars. It was further shown that the widow had no other property beside her interest in the money at time the lot in dispute was purchased, and that it was purchased and paid for with one thousand dollars of the money; and, that with other portions of the money, repairs were made on the dwelling house and buildings situated on the lot, of all of which the widow had the entire use and enjoyment as long as she lived. The evidence introduced by the plaintiff in error proves nothing to the contrary, but is in support of the facts above stated; and in view of them, proof that the title was conveyed to the widow under an express trust agreement, was not necessary to the plaintiff’s case.

While it is a familiar rule that a conveyance to a child, of land 'purchased by the parent, is presumed to be a gift or advancement, there is no presumption that a gift is intended where a purchase is made with money belonging to a child and the legal title taken in the name of the parent. On the contrary, in the latter case, the presumption is that the title is so taken in trust, for the benefit of the child; and the burden is on the holder of the legal title to overcome that presumption. It is true, that where the consideration is furnished 'by two or more persons, the share advanced by each, must be a definitely ascertainable aliquot part in order to raise a trust pro tanto; but we perceive no difficulty in the application of that rule in this ease. The parties became the owners of the money, in the interests and proportions in which they held the property from the sale of which it was realized; and at the time of its reinvestment in the property here involved the money remained 1 unapportioned among its owners, who thus took the equitable estate in the new purchase as tenants in common, in the proportions by which they held the former estate. As said in Pomeroy’s Equity, sections 1037, 1038, “the resulting trust in favor of him who pays the purchase money, rests upon the equitable principle that the beneficial estate follows the consideration, and attaches to the party from whom it comes, and when furnished by two or more, the trust results in favor of each in respect to an undivided share of the property proportioned to his share of the price.”

Here, the life estate of the widow having terminated by her death, the plaintiff and her two brothers are the owners of the complete equitable estate as tenants in common, and entitled to have the same partitioned amongst them, and their title quieted as against the claim of the plaintiff in error. -

Judgment affirmed.


author: Minshall, J.

text:
    Goodall v. The Gerke Brewing Company.

      Lease of premises — To be used for sale of intoxicating liquors — Not invalid, when.

    A contract whereby premises are leased to be used as a place for the sale of intoxicating liquors, is not necessarily invalid; and rent, in accordance with its terms, may be recovered thereon where it does not appear that the lease was made for the purpose of, or with the understanding of the lessor that it is to be used for, the unlawful traffic in intoxicating liquors.
    (Decided April 27, 1897.)
    Error to the Superior Court of Cincinnati.
    William Goodall brought suit in the Superior Court of Cincinnati to recover of the defendant, The Gerke Brewing Company, the sum of $300.0.0, as rent reserved on a lease made by the plaintiff to the defendant, and charge the same as a lien on the demised premises. It appears from the petition that the premises were let for the purpose of' being used by the lessee as a place for the sale of intoxicating liquors. And for this reason, the defendant demurred to the petition on thé ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at a special term of the court and petition dismissed ; which judgment was affirmed on error by the general term. And the plaintiff now prosecutes error in this court for a reversal of the judgment of the general, as well as of the special term, on the ground that the-court erred in sustaining a demurrer to his petition, and dismissing his action.

      Outcalt, Granger ds Hunt, for plaintiff in error.

      Kramer db Kramer, for defendant in error.
   Minshall, J.

The question in the case is, whether a lease of premises to be used as a place for the sale of intoxicating liquors is void ; and no rent ca’n be recovered thereon, irrespective of the question whether illegal sales have been made. It is claimed for the defendant in error that such is the law, and in support of the claim counsel cite and rely on a clause in section 4364, Revised Statutes. The clause is as follows :

“All contracts, whereby any building or premises shall be rented, or leased, and the same shall be used or occupied in whole or in part for the sale of intoxicating liquors, shall be void; and the person or persons renting or leasing said building or premises, shall, on and after the selling or giving away of intoxicating liquors as aforesaid, be considered and held to be in possession of said building or premises.”

An impression derived from a cursory reading of this clause might seem to support the claim of the defendant; but when the context and all the language of the clause are taken and construed together, a different intention will, as we think, appear, and that is, that all contracts whereby any premises are leased, shall become void when the same are used for the sale of intoxicating liquors contn'ary to law; and it does not mean that such contracts shall be rendered void by the lawful sale of intoxicating liquors thereon. It will be observed from the language of the clause, that the lessor is to be deemed in possession only ‘ ‘ on and after the selling and giving- away of intoxicating liquors, as aforesaidNow, we think it plain that the contract was not intended to become void, until the right of re-entry accrues to the lessor ; in other words, the contract is to become void and the right of re-entry is to accrue from the occurrence of one and the same fact — the sale of intoxicating- liquors “as aforesaid.” The very lang-uage implies that there are some sales that will not have the effect of giving to the lessor a right of re-entry, and consequently not affect the validity of the lease. What, then, are the sales referred to by the word “aforesaid?” The provision of this clause was first introduced by what is known as the Adair law, adopted in 1870 (67 Laws, 102). The law was an amendment of sections 7 and 10 of the liquor law of 1854 (S. & C., 1431); the clause being placed in section 10 of that act as amended by the Adair law. Referring, then, to the law of 1854, as amended by the Adair law, it is plain to be seen that the sales of intoxicating liquors there referred to by the term “as aforesaid,” are sales made contrary to law. These were the kind of sales the legislature had just defined and prohibited. Selling or giving intoxicating liquors to be drank on the premises; selling or giving it to persons drunk or in the habit of getting drunk, or to minors, had just been prohibited in the previous sections of the act. So that when all the lang-uage of the clause is considered and taken in connection with the other provisions of the act of which it forms a part and to which it makes reference, its meaning is not doubtful. The general language is restrained to the sense in which it was used by the legislature in adopting the law. All sales of intoxicating liquors are not illegal, only such are so that are defined and prohibited ; and the sales to which reference is made in this clause, are such as have been defined and prohibited; and none but such sales affect in any way the validity of a contract of lease, or the right to recover rent thereon. To hold otherwise would impute to the legislature a great want of consistency. Neither a civil nor a criminal liability can with consistency be attached to the doing of a lawful act. If the liquor traffic be conducted in a lawful way — a way permitted by law— and such ways certainly exist, there can be no reason against the validity of contracts that have for their object simply the lawful conduct of the business. And so far as the petition in this case shows, no other than a lawful business was contemplated or carried on. To make no distinction between such contracts and such as have in view a violation of the law regulating the sale of intoxicating liquors would be wanting in wisdom. It would place a lawful and an unlawful business in the same category as to consequences ; and by not discriminating in favor of the one as against the other, make it a matter of indifference to parties whether they conform their contracts as well- as their conduct to the requirements of the law.

In Baker v. Beckwith, 29 Ohio St., 314, the question was presented, whether under section 7 of the act of 1854, as amended by the Adair law of 1870, a recovery of damages could be had for intoxication caused in whole or in part by sales of the defendant, where the sales were not unlawful. It was claimed that such recovery could be had on the generality of the language used in the amendment, the phrase “contrary to this act” being omitted therefrom. But it was held otherwise, Boynton, J., in delivering the opinion, said: “A careful consideration of the language of this section (section 7), in connection with other sections of the same act, and with the provisions of other acts passed subsequently to the original act of 1854, and having- a like purpose and object, to provide against the evils resulting from the sale of intoxicating liquors, will show that the omission of the words ‘contrary to this act,’ is in entire harmony with an intention still to require the sale or giving away to be unlawful. ” There is no more useful or generally applied rule of construction than the one here employed in arriving at the sense of a statute. Sutherland Stat. Const., section 246, et seq. It was by this mode of reasoning that the court in Webster v. State, 43 Ohio St., 696, arrived at the construction that the words “Supreme Court” in section 7343, Revised Statutes, mean' the Circuit Court.. In Burgett v. Burgett, 1 Ohio, pt. 2,469, the general language of our statute of frauds and perjuries, which declares all conveyances made to defraud creditors ‘ ‘utterly void and of no effect, ’ ’ was held void only as to creditors and subseque'nt purchasers, as expressing the real intention of the legislature, notwithstanding the generality of the language employed.

The construction given by the' court to the general language of section 7, in Baker v. Beckwith, applies with equal, if not greater, propriety to the language above quoted in section 10; and it should receive the same construction, because in evident accord with the legislative intention. Counsel, however, seem, to think that in Justice v. Lowe, this court held differently, and quote this language from the opinion of White, J. “The difference between the sections in respect to forfeiture is that under section 7 the use of the premises by the tenant for the unlawful sale of intoxicating liquors renders the lease void at the election of the lessor, but where the lease is made for the purpose of having the premises so used and the purpose is afterward accomplished by the tenant, the lease, under section 10, becomes void as to both parties.” But it must be observed that the words “soused” refer to the language in the quotation, “for the unlawful sale of intoxicating liquors,” and it is such a lease that he says becomes void as to both parties, when the purpose is afterwards accomplished by the tenant. But, as before stated, the petition in this case does not show that the premises were leased for the purpose of making unlawful sales, or that such sales were made. The leasing of premises for the sale of intoxicating liquors does not necessarily imply that they will be used for the making of unlawful sales. It did not so imply before, and does much less since the adoption of the Dow law; which now permits sales of liquor to be drank on the premises where sold. The prohibition of such sales became, in a measure, obsolete from the difficulty of enforcing it, and was abandoned for the more efficient method of regulation by taxation, and the prohibition of sales to persons who are drunk or in the habit of getting drunk, and to minors.

It is also claimed that the decision in Mullen v. Peck, 49 Ohio St., 447, is decisive of this case. We think not. The cases are quite different in character. This is a case for the recovery of rent on a lease for the lawful sale of intoxicating liquors, so far as the petition shows. The case referred to was a suit brought against the owner of property under the first clause in section 4364, Revised Statutes, to charge it with the damages that had been recovered against the lessee for unlawful sales made to the husband of the plaintiff. The owner knew of the use to which the property was put, but did not know of the unlawful sales, and had not leased it for such purpose. The lease in fact stipulated that it should not be used for such purpose. The court held that under the first clause of the section the action could be maintained on these facts. The holding being that the owner knowing that his property is being used for the sale of intoxicating liquors, whether leased for such purpose or not, he becomes liable for all damages that may be recovered for unlawful sales; the. construction being that one who permits his property to be used for the traffic in intoxicating liquors, must see to it that the traffic is lawfully conducted. This is the law of the case as expressed in the syllabus, and not questioned nor intended to be modified. The clause there in question was rightly construed to be as broad as its literal sense.

Judgment reversed and cause remanded for further proceedings.


author: Shauck, J.

text:
    Brown, Executor, Etc. v. Reed.

      Testamentary powers- — Bad faith of executor — Sale of land for less than value — Executor charged with true value— Wills.

    An executor who, in the exercise of a testamentary power to sell lands for the payment of debts, in bad faith sells them for a price that is manifestly less than their true value, should, on exeeption to his account in the probate court, be charged with the difference between such inadequate price and the true value of the lands.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Huron county.
    Robert Brown died testate and seized in fee of lOlf acres of land in Huron county. His will, which was duly admitted to probate in that county, contained the following’ :
    ‘ ‘ Item 3. I do hereby nominate and appoint my son, Henry L. Brown, executor of this iny last will and testament, hereby authorizing- and empowering- him to compromise, adjust, release and discharge, in such manner as he may deem proper, the debts and claims due me. I do also authorize and empower him, if it shall become necessary in order to pay my debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise, as he may think proper, all of my real estate and personal property, and deeds to purchasers to execute, acknowledge and deliver in fee simple, and .after the payment of my debts, funeral expenses and costs of administration, the residue to be equally divided among the legatees hereinbefore mentioned, according- to the provisions of this will.”
    Henry L. Brown qualified as executor. The tract of land was indivisible, and it became necessary to sell the whole of it for the payment of debts, though but a small portion of the proceeds was required for that purpose. Under this power the executor sold the land to three of the legatees for $1,200, and in his account charg’ed himself with that sum. on account thereof. The defendant in error, also a legatee, filed exceptions to the account upon the ground that said sale was not made in good faith, nor for the reasonable value of the land, nor for the highest price obtainable. In the probate court the exception was sustained and the executor was charged with the additional sum of $2,800.
    The executor appealed to the court of common pleas, where the exceptor offered evidence tending to show that the land at the time of the sale was worth $4;500.00, and further to show that the executor had refused to accept an offer of $4,000.00, made in good faith, for the land. The executor’s objection to the evidence was sustained, and the exception to the account overruled, upon the ground that the probate court, and the common pleas court on appeal, were without jurisdiction to • charge the executor’s account with the difference between the price for which the land was sold and that for which it might have been sold, or its value.
    The judgment of the common pleas court was reversed by the circuit court.

      O. P. and L. W. Wickham and Andreios Bros., for plaintiff in error.
    The contention of the plaintiff in error is that the land having been sold and all the proceeds actually derived from it, having been accounted for, neither the probate court nor the court of common pleas on appeal had. jurisdiction to surcharge his account with the claimed value, of the land above the amount received, on the ground that he had, with intent to defraud the plaintiff: in error, colluded with the purchasers and sold them the land for less than its value.
    Section 6179, Revised Statutes.
    The remedy of the defendant in error, assuming that the land was sold for less than its value, which the plaintiff in error denies, was by action on the bond of the executor, under the statute. Sections 6210, 6211 and 6212, R. S., prescribe izi what cases resort may be had to the bond, and their provisions are ample to meet every eznerg-ency, including the very one which the defendant in error claims has arisen in this case.
    This suit in cases when the breach of the bozid is alleged to consist of a failure to return an inventory or wastizig and converting assets, should be brought for the benefit of the estate. 25 Ohio St., 443; and probably in ease of every other breach provided for in the section.
    Now, here we have a provision for the very wrong alleged and complained of in this case. The language of this section, taken in connection with that of section 6179, R. S., we insist poizits out the remedy and the only remedy for a wrong such as is complained of. It provides for every case of failure of duty on the part of an executor, except the duty of paying creditors or legatees .or distributees. The Selectmen v. Boylston, 4 Mass., 318; Lawson Rights and Remedies, section 988.
    The amount, above $1,200, that the probate court found should be charged to the plaintiff in error in his account, never has eozne into his hands. It Is not claimed that it did; but only that it should have come into his hands. Touchstone, 496. Gray v. Siuain, 2 Hawks (N. C.), 15; De Valengin v. Duffy, 10 Peters (U. S.), 280; Williams on Executors (7th Eng. Ed.), 1667; Williams Exrs. (7th Eng*. Ed.), 1669; Buggies v. Sherman, 14 John (N. Y.), 446; 105 N. Y., 194.
    At most, only the land, the proceeds of which were required for the payment of debts, would be regarded as converted into personalty. There was required in this case of the proceeds of the sale only about one hundred dollars. The whole farm was sold because it could not well be sold divided, without injuring its value. So that all of the $1,200, derived from the sale, above the small sum required for payment of the debts, still retained the character of real estate. If this were so, with relation to money that came into the hands of the executor from the sale, a fortiori it was true of the imaginary proceeds that he never received. Sprague Mfg. Go. v. Hoyt, 29 Fed., Rep 421; Allen v. Witfvrow, 110 U. S., 119; Foster’s Appeal, 74 Pa. St., 391; In rt Codding, 9 Fed. Rep., 849; 6 A. & E. Enc., 671; Orrich v. Boehm, 49 Md., 72; Ohome v. Penbroke, 66 Md., 193; 6 A. & E. Enc., 671.

      S. A. Wildman, and G. Bay Craig, for defendant in error.
    Although an executor is named as such by the testator, he has no power to act, no control of the decedent’s estate, and can convey no title to either realty or personalty, until he has received from the probate court his letters testamentary, and has qualified, to the approval of that court, giving his bond, if required, conditioned for the faithful performance of his duties. Revised Statutes, 5995.
    In other words, the executor or administrator is an officer of the probate court, and that court (or the common pleas sitting on appeal as a court of probate) is clothed with exclusive jurisdiction to review his transactions with the estate represented by him, and to charge him, upon settlement of his accounts, not only with moneys actually received by him, but also with all losses to the estate, incurred through his mismanagement of the trust confided to him. A wasting- or destruction of any part of the estate, applicable to the payment of the testator’s debts or legacies, is such mismanagement of the trust.
    Such malfeasance of an executor, by which the estate suffers, is technically a “devastavit,” whether or not there is any actual wasting or destroying of assets which have come into the executor’s possession. 7 Encye. of Law, 346, et seq. Anderson’s Law Diet., 353; Williams on Executors, (7th Eng. Ed.,) 1796, and 7 Encyc. Law, 349.
    It is clear, then,/that whether any particular specie-s of property is to be'deemed “assets’"’ of the estate, or not, does not depend upon whether or not it is inventoried or appraised. It seems equally clear that any property, real or personal, of the deceased, chargeable with the payment of his debts, is to be treated as part of the assets of the estate, and liable to be wasted by the malfeasance of the representative of the estate. Sheldon v. Newton, 3 Ohio St., 495.
    If the executer was a trustee of the whole estate, how can it be argued that he is not chargeable in his account of his trust, for losses entailed by his bad management? Rorer, Judicial Sales, (2d. ed.) section 320; Giauque’s Settlements of Decedent’s Estates, 281; Favorite v. Booker's Aclmr., 17 Ohio St., 548.
    We know of no state where the power conferred on the probate court in directing the conduct of executors and administrators and settling their accounts, is broader than that given by the constitution and laws of Ohio, and the narrow limitation of the jurisdiction of that court held in this case by the court of common pleas, is not warranted either by any statute of our own state or the adjudications of any other. Shroker v. Richmond,, et al., 16 Ohio St., 445; Borntraeger v. Borntraeger, 3 W. L. B., 891; 3 Williams Executors, (1837) Footpaging etc.; Raab’s Estate case, 16 Ohio St., 273; Woerner’s American Law of Administration, 1179; Hall v. Qrovier, 25 Mich., 428; Loomis v. Armstrong, 49 Mich., 521. Lire Estate of Herteman (Cal., 1887), 15 Pac., 121.
    If such devastavit as that above mentioned be properly chargeable, why not any other by which the title to realty is lost to the devisees or creditors? 3 Field’s Briefs, p. 481, section 480. . Williams v. Benedict, 8 How. U. S., 107; Bank v. Horn, 17 How., 160; Yonzey v. Lavender, 21 Wall, U. S., 276; Hayne v. Besslein, 25 Ark., 499; Bason v. Hughart, 2 Texas, 479; and McMillier v. Butler, 22 Tex., 402; Corrington v. Comngton, Ills., 1888, 16 N. E. Rep.., 252; Haight v. Brisbin, 100 N. Y., 219; Dundas Appeal, 64 Pa. St., 325; Springer’s Estate Case, 51 Pa. St., 342; Feagan v. Kendall, 43 Ala., 628 ; Doan et al. v. Bately, 49 Ohio St., 594.
    There is certainly nothing in the nature of the power which we contend should be exercised by the probate court, inconsistent with the general powers conferred on that court, nor does there seem any sufficient reason for so splitting the matter of the account as to have one part of it passed on by that tribunal and another part by another court in another kind of an action or proceeding.
   Shauck, J.

It is said that the circuit court erred because the summary determination of a question of the character of this on exception to the executor’s account denies his constitutional right to the intervention of a jury. But the constitution preserves the right to trial by jury in those cases only where it existed previously to its adoption. Both before and since the adoption of the constitution it has been usual to call executors and other trustees to account in courts having-equity or probate jurisdiction, and without the intervention of a jury to determine any question affecting- the state of their accounts.

The eighth section of the fourth article of the constitution ordains that ‘ ‘the probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlements of the accounts of executors, administrators,” etc. It is expressly provided in section 6400 of the Revised Statutes that “all questions, except those arising- in criminal actions and proceeding’s, unless otherwise provided by law, shall be determined by the probate judge, unless, in his discretion, he shall order the same to be tried by a jury or referred. ”

The case concedes that the executor charged himself with the entire price which he actually received for the land; and his counsel concede that for such malfeasance as the exceptor offered to prove she, as legatee, would have a remedy. The precise question, therefore, is whether it is the legal duty of the executor, having and exercising such a power of sale, to account in the probate court for the land; or whether that duty is discharged by accounting for the price received, although its inadequacy and other circumstances show that in making the sale he acted in bad faith.

The general provisions of the statute upon the subject make it the duty of the executor to administer according to law and the will of the testator all the assets which may come into his hands. They require his account to show the results of the performance of that duty and to afford the basis for an adjudication that the estate has been fully administered according to law and the will. While it is true that usually administration is had of the chattels only of a deceased person, in view of the third item of this will the land was conditionally in the hands of the executor as assets upon his qualification. His power and duty to administer it became absolute when it was ascertained that the personal estate of the testator was not sufficient for the payment of his debts. When the executor, acting under an order of the court to sell real estate, or exercising for that purpose a testamentary power like this, sells in good faith and with due regard to the duty which he owes to creditors and legatees, his duty to account is performed by charging himself with the proceeds of the sale. He thus accounts for that portion of the assets in his hands for administration. But if such faith is not exercised, the price received does not represent the performance of his legal duty; and if that price only is charged there is, in that respect, a failure to account. While the probate court is of limited jurisdiction, the limitations chiefly relate to subject-matters. In view of the constitutional and statutory provisions referred to, its jurisdiction to correct the account of an executor in such a case as the rejected evidence tended to show is ample.. This conclusion is in harmony with the view generally taken of the subject, and with the unvarying tendency to enlarge the jurisdiction of the probate court with reference to the subjects which it embraces. Raab’s Estate, 16 Ohio St., 273; Doan et al. v. Biteley, 49 Ohio St., 588; Worener’s Law of Adm. section 534 ; Schouler’s Exr's., section 539; Haight v. Brisbin, 100 N. Y. 219; Corrington’s Estate, 124 Ill., 363; Hall v. Grovier, 25 Mich., 428.

All concede that in a case of this character the authority of the probate court originally, and that of the common pleas court on appeal, are identical.

Judgment affirmed.