author: Spear, J.

text:
    Du Brul v. The State.

      Criminal charge must be precise — Apprising accused what he must meet — Court record must be deñnite — Indictment under Section 7075, Revised Statutes — Fraudulent claims against county commissioners — Charge not averring wherein claim is false• — Bad on dc mrrer — Court procedure — Criminal law.

    1'. A criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and be required to answer,, and so that the court and jury may know what they are to try and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy.
    2. An indictment brought under Section 7075, Revised Statutes, charging the presentation to the county commissioners of a false and fraudulent claim and obtaining payment of the same by the county treasurer which in describing the claim avers it to have been “a certain false and fraudulent claim,” but in no way avers wherein it was false and fraudulent, and states no facts showing that it was false or fraudulent, is bad on demurrer, and will not support a conviction.
    (No. 11014
    Decided March 9, 1909.)
    Error to the. Circuit Court of Brown county.
    At the April term, 1906, of the common pleas of Clermont an indictment was presented against the plaintiff in error, O. N. Du Brul, charging him, in the second count, with having presented, October 7, 1904, to the board of commissioners of that county a false and fraudulent claim to the amount of $525.45, and procuring an order on the treasury for that sum; and in the third count with having received from the county treasurer payment of said claim. The material parts of the second count are a.s follows:
    “Second Count: And the jurors of the grand jury aforesaid, at the time and place aforesaid on their said oaths, in the name and by the authority of the state of Ohio, do find and present that said O. N. Du Brul, late of said Clermont county aforesaid, on the 7th day of October, in the year of.our Lord one thousand nine hundred and four, at the county of Clermont, state of Ohio, aforesaid, unlawfully, willfully and falsely pretending that the county of Clermont, state of Ohio, was indebted to one N. Du Brul in the sum of five hundred and twenty-five dollars and forty-five cents ($525.45) for sheep and lambs killed and injured by dogs, unlawfully and with intent to defraud the said county of Clermont, Ohio, out of said sum of five hundred and twenty-five dollars and forty-five cents ($525.45) did present to the board of county commissioners of said Clermont county, Ohio, a certain false and fraudulent claim for said sum of five hundred and twenty-five dollars and forty-five cents ($525.45), which false and fraudulent claim was in the words and figures following, to-wit:” [Here follows a copy of the sheep claim, and the indictment concludes:] “for the purpose of procuring the allowance of said false and fraudulent claim by the said board of county commissioners of Clermont county, Ohio, and thereby procuring an order for the payment of said false and' fraudulent claim of $525.45 out of the treasury of said county of Clermont, state of Ohio, he the said O. N. Du Brul then and there well knowing said claim to be false and fraudulent, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”
    The material parts of the third count are as follows:
    “Third Count: And the jurors of the grand jury aforesaid, at the time and place aforesaid, on their said oaths, in the name and by the authority of the state of Ohio, do find and present that said O. N. Du Brul, late of said Clermont county, aforesaid, on the 12th day of June, in the year of our Lord one thousand nine hundred and five, at the county of Clermont, state of Ohio, aforesaid, did unlawfully, willfully and with intent to defraud, receive from G. H. Eveland, he, the said G. H. Eveland, then and there being the treasurer of said Clermont county, Ohio, five hundred and twenty-five dollars and forty-five cents ($525.45), in payment of a certain false and fraudulent claim for five hundred and twenty-five dollars and forty-five cents ($525.45) for sheep and lambs killed and injured by dogs, theretofore, to-wit: on the 7 day of October, 1904, unlawfully and with intent to defraud, presented to the board of commissioners of said Clermont county, Ohio, for allowance and on the 7th day of June, 1905, allowed by said board of county commissioners of Clermont county, Ohio, which said false and fraudulent claim was in the words and figures following, to-wit:”
    [Here follows the sheep claim, exactly as set out in the second count.]
    “Lie, the said O. N. Du Brul, then and there well knowing that said claim, in payment of which he received said five hundred and twenty-five dollars and forty-five cents ($525.45) as aforesaid was false and fraudulent, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    A motion to quash as to each count was interposed on the ground among others that the indictment does not sufficiently charge an offense under the laws of Ohio, and is so vague, indefinite, -and uncertain as not to fairly advise the accused with what he is charged and does not sufficiently advise him as to the facts so as to enable him to prepare a defense thereto. This motion having been overruled a demurrer was presented on the ground among others that the indictment does not state facts sufficient to establish a crime under the laws of Ohio. This demurrer was also overruled. The cause having been removed to the county of Brown was brought to trial at the January term, 1907, of the common pleas of that county. The defendant was convicted and a motion in arrest of judgment having been overruled, he was sentenced to the penitentiary. The judgment having been affirmed by the circuit court this action is instituted to reverse the judgment of both courts.

      Mr. Lawrence Maxwell, Jr., and Mr. Anthony B. Dunlap, for plaintiff in error.
    The indictment is fatally defective. It does not aver in what 'respect the so-called “claim” was false or fraudulent, or allege any facts to show that it was false or fraudulent, or even charge in direct terms that it was false or fraudulent.
    The indictment does not comply with the fundamental rule that the indictment must aver all the material facts which it is necessary to prove to produce a conviction, and with such reasonable certainty as to advise the accused what he may expect to meet on the trial. Dillingham v. State, 5 Ohio St, 280.
    There is no allegation of any of the foregoing acts in the indictment, in terms sufficient to raise an issue, even in a civil proceeding; and no suggestion of a charge that the document was false in that it was fraudulently altered or forged after execution by the township trustees. Brooks 6 Hardy v. O’Hara Bros., 8 Fed. Rep., 529; Whiting v. State, 48 Ohio St., 220; Redmond v. State, 35 Ohio St., 81; State v. Trisler, 49 Ohio St., 583; Lamberton v. State, 11 Ohio, 282; Hagar v. State, 35 Ohio St.,-268; Mann v. State, 47 Ohio St., 556; United States v. Hess, 124 U. S., 483; United States v. Carll, 105 U. S.., 611; United States v.. Cruikshank, 92 U. S., 542; Wharton on Criminal Pleading, Section 154; United States v. Britton, 107 U. S., 655; State v. Farmer, 104 N. Car., 887; United States v. Corbin, 11 Fed. Rep., 238.
    An indictment for presenting a sheep claim to county commissioners, which shows that the claim had been allowed by the township trustees, and makes no further averment except to refer to it as a “false and fraudulent claim,” states no offense,
    The defendant was tried for forging a public record in violation of Section 7091, and for making a false claim to township trustees in violation of Section 7075, Revised Statutes, without ■having been indicted for either offense by a grand jury. Evans v. United States, 153 U. S., 584; State v. Doran, 99 Me., 329; Pettibone v. United States, 148 U. S., 197.,

      Mr. C. C. Kearns and Mr. Louis Hicks, for defendant in error.
    Is the indictment defective if it does not aver the respects in which the “claim” was false and fraudulent ?
    This particular question was presented to the circuit court of Cuyahoga county in Davis v. The State of Ohio, 20 C. C., 430, 10 C. D., 738, in which it was held that it was not necessary to state in the indictment the respects in which the claim was false and fraudulent. The plaintiff took this case to the supreme court and it is decided by this court in 63 Ohio St., 173. The court in delivering its opinion in this case holds that a request to charge the jury that each' juror must be convinced beyond a reasonable doubt of the guilt of the defendant before uniting in a verdict of guilty as the one assignment of error “that needs to be noticed” by the court, thereby affirming the decision of the circuit court below upon the other questions presented to the court in this case.
   Spear, J.

A number of errors alleged to have occurred in the common pleas are presented, but the one most insisted upon relates to the sufficiency of the indictment. That instrument is founded on section 7075, Revised Statutes, pertinent provisions of which are:

“Whoever, knowing the same to be false or fraudulent, makes out or presents to * * * the auditor or commissioners, or other officers of any county * * * any claim * * * or other evidence of indebtedness, false or fraudulent in whole or in part, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said * * * county; and whoever, knowing the same to be false and fraudulent, receives payment of any such claim * * * from the treasurer * * * of any county, * * * shall, if such evidence df indebtedness so made out and presented * * * or of which payment is received, is false or fraudulent to the amount of thirty-five dollars or more, be imprisoned in the penitentiary,” etc.

Do the counts of the indictment hereinbefore recited sufficiently apprise the party charged of the offense charged and allege facts sufficient to fairly advise him wherein the claim was false or fraudulent in order to enable him to prepare a defense ?

It is to be noted that the indictment charges indirectly, though not directly, that the claim was false and fraudulent. Waiving this defect it is to be further noted that the indictment does not either in terms or in any way undertake to point out wherein the claim was false or fraudulent, or aver any facts from which the necessary inference would follow that it was false or fraudulent. Nor does the claim itself afford any ground for the conclusion that it is false or fraudulent. Abbreviated, that paper contained an itemized statement of account giving' the number of sheep and lambs killed, their kind, grade, quality and value, the amount of injury, the amount' deducted for carcasses or pelts sold or used, and stating a balance. Also an affidavit showing ownership of the sheep; that they were killed by dogs; that the number and description is true and correct; that the damages claimed occurred on the premises as stated on the date stated; that the damage claimed is just and reasonable; that the injury was not caused by dogs kept or harbored by the owner or any employe or tenant, and that claimant did not know whose dog or dogs committed the injury. Also depositions of two witnesses; a certificate of allowance signed by the township trustees, and a like certificate by the county commissioners. Thus it appears that it would be possible that the statement of the claimant as to value of the sheep, their grade, or their quality might be false; or the claim might be false because the claimant was "in fact the owner of the dog which killed them; or that the number killed was overstated; or that the certificate of the township trustees had been obtained by fraud; or that the claim, after it had passed the trustees, had been altered before being presented to the commissioners; or that fraud had entered into the procurement of witnesses or of false testimony. Other grounds of possible falsity will easily occur.

In such a situation would a simple averment in the indictment although it should describe the claim directly as false and fraudulent answer the requirements of the rules of criminal procedure? We are of opinion that it would not, involving as it does a legal conclusion. Nor would such defective averment be aided by the further allegation that the claimant had knowledge that the claim was false and fraudulent, and that it had been presented with a purpose to defraud. This language avers intent with which the act was done; it does not describe the act itself. Bj the constitution the accused is given the right to demand the nature and cause of the accusation. This has been held again and again in this state to require a statement in the indictment of the material facts which it is necessary to prove to warrant conviction; that conclusions of law are not sufficient. Thus in Lamberton v. The State, 11 Ohio, 282, where the indictment charged that one Bryte “then and there being sheriff of the county and being then and there in the execution of his said office, the defendant unlawfully did resist, contrary to the form,” etc., it was held, opinion by Birchard, J., as based upon sound principles, that every indictment should contain a clear description of the offense charged so that the accused may have notice of what he is to meet, and that the court, applying the law to the facts charged may see that a crime has been committed. The indictment was held bad. So in Dillingham v. The State, 5 Ohio St., 280, information for obtaining goods by false pretenses, it was held that “the indictment or information must aver all the material facts which it is necessary to prove to produce a conviction and with such reasonable certainty as to advise the accused what he may expect tó meet on the trial;” and in the opinion by Ranney, C. J., it is observed that “the nature and cause of the accusation are not sufficiently stated to enable the accused to know what he might expect to meet upon the trial; and it is neither consistent with general principles nor constitutional safeguards, to allow a man to be thus put to trial upon a criminal charge in the dark.” In Fouts v. The State, 8 Ohio St., 98, opinion by Bartley, C.J., it is stated at page 118 that “the want of a direct allegation of anything material in the description of the substance, nature, or manner of the offense, cannot be supplied by any intendment or implication whatsoever,” and quoting Chitty, “ It is not necessary to state a conclusion of law resulting from the facts of a case; it suffices to state the facts, and leave the court to draw the inference.' ” In Redmond v. The State, 35 Ohio St., 81, opinion by White, J., Lamberton v. The State, supra, is distinctly followed both in substance and in text. In Hagar v. The State, same volume, 268, opinion by Okey, J., it is held in substance that while it is not good practice to omit the words of the -statute which define the crime, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient. This case is cited approvingly in Mann v. The State, 47 Ohio St., 556, opinion by Dickman, J. It is reiterated in Whiting v. The State, 48 Ohio St., 220, opinion by Minshall, J., that it is an established rule of pleading that facts, and not conclusions of law, should be pleaded. The principle running through all the preceding cases is recognized and enforced in The State v. Trisler, 49 Ohio St., 583. An illustration of a proper pleading of facts in a case similar to the one at bar is found in The State v. Voute et al., 68 Ohio St., 274.

Our conclusion is supported by decisions in many state courts and in the federal courts. A collection of these authorities which have been presented by the vigilant counsel will be found in the appropriate place preceding this opinion. And our conclusion appears to us to be so obviously correct that reference to many decisions of this court upon the question would have been deemed unnecessary but for a case called to our attention by counsel for the defendant in error which we will now consider. It is that of Davis v. The State, 20 O. C. C., 430, opinion by Hale, J., wherein it is held that “where it is distinctly charged that the bill was false and fraudulent it is not necessary to state in the indictment in what respect it was false and fraudulent.” The case was brought to this court by an application for leave to file a petition in error which was refused, the case, reported by a per curiam, appearing in 63 Ohio St., 173. This report discusses an exception to the refusal of the trial court to give a certain instruction to the jury, and does not directly mention any objection to the indictment. But counsel for defendant in error insist that that point must have been made in this court because the opinion speaks of “various assignments of error,” and states that “we have carefully examined these and think there is but one that needs to be noticed.” Then follows a discussion relating to the refusal to charge. We think the record bears out this claim of counsel, and especially in view of the fact that the insufficiency of the indictment is one of the nine assignments of error in the motion, and upon the further consideration that the known vigilance and thoroughness of counsel who presented the motion would strongly tend to negative any supposition that he omitted to impress upon this court one of the important points, indeed as it now appears the most important point, which he had insisted upon in the circuit court. So that frankness impels the admission that the point herein discussed was probably under consideration in the case cited. This objection to the indictment is not discussed in the opinion of the circuit court, but the learned judge who reported the case merely observes that it being distinctly charged in the indictment that the bill was false and fraudulent, it was unnecessary to state in what respect. It is possible that the multiplicity of the points raised in the circuit court may have caused less consideration of this point than it deserved and that this court gave less consideration to it than would have been the case had it been a question of first instance here for the same reason and because of this court’s high respect for the opinion and judgment of the learned circuit court.

In view of the record in the Davis case, it was natural for the courts below to sustain the indictment in the present case. But a more careful examination of that case, and of a large range of authorities, and a fuller consideration of the principles and rules regulating criminal proceedings, satisfies a majority of the court that the conclusion to be drawn from the Davis case in respect to the sufficiency of the indictment is not consistent with sound legal principles or constitutional safeguards, and should not be sustained. It seems well settled not only in this state but elsewhere that a charge of obtaining property under false pretenses should specifically state wherein the pretenses were false, and not rest alone on the words of the statute, and it seems clear that there can be no essential difference in principle betweén a case where the false representation, as in Dillingham v. The State, supra, is verbal, and where it is, as in the present case, in writing. The same observation is pertinent to the alleged fraudulent character of the claim. The fact that the claim is in writing neither adds to nor detracts from its fraudulent character.

Our conclusion is that a criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged with that which he is required to answer and may expect to meet, and so that the court and jury may know what they are to try, and the court may determine without difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy. This indictment, tested by these rules, is fatally defective.

Our statute of jeofails, section 7215, Revised Statutes, has not been overlooked. We are of opinion that it does not apply to this case.

Other assignments of error are presented by the record. We do not find it necessary to consider them in this opinion.

The judgments below will be reversed, the demurrer to the indictment sustained and plaintiff in error ordered discharged.

Reversed.

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


source: Caselaw Access Project

author: Summers, J. Davis, J.,

license: Public Domain

text:
    Geiger, Executor, v. Bitzer.

      Widow entitled to dower and share in personal property — When husband dies intestate — She elects between them — When husband provides for her in will — Dower and distributive share of widow — When elected, determined, how — Doctrine of equitable conversion — No application in ascertaining her share — Law of wills.

    A widow is, under the law, entitled to dower in the real estate of her deceased husband and a share of his personal property subject to distribution, when he dies intestate or without making provisions for her by his will; and when provision is made for her by his will she may elect to retain her dower and distributive share and not to take under the will, and when she retains her dower and distributive share, either by election or because no provision is made for her by will, such share is to be ascertained by regarding the husband’s estate as if he had died intestate, leaving children, and can be neither increased nor diminished by any of the provisions of the will. The doctrine of equitable conversion, in such case, can have no application in ascertaining her share. Hutchings v. Davis, Exr., 68 Ohio St., 160, overruled.
    (No. 11138
    Decided March 9, 1909.)
    Error to the Circuit Court of Huron county.
    The facts are stated m the opinion.

      Mr. D. A. Heffner, for plaintiff in error. ■
    The Bitzer conversion was made for one sole purpose, to make a more easy division of the estate among his children, and the doctrine will not be extended in its operation beyond such purpose. . 9 Cyc., 839; Hilton v. Hilton, 2 McArthur, 70; Miller v. Miller, 42 Md., 631; Wood v. Keyes, 8 Paige Ch., 365; Cronise v. Hardt, 47 Md., 433; Cook v. Cook, 20 N. J. Eq., 375; Winants v. Terhune, 15 N. J. Eq., 185; Wilson v. Hamilton, 9 Serg. & R., 424; Burr
      v. Sim, 1 Whart, 252; James v.. Hanks, 202 111., 114, 66 N. E. Rep., 1034; Wernstein Estate, 91 N. Y. S., 1117, 99 App. Div., 623; University v. Borden, 132 N. Car., 476; Morris v. Knight, 14 Pa. Sup. Ct, 324.
    The general rule is that the conversion is limited to the purpose of the testator, as expressed in the will, and in the event of total ■failure of the purpose, there is a resulting trust in favor of the heir, or the personal representative, and the property passes according to its. original character. 9 Cyc., 841; Patton v. Patton, 39 Ohio St., 598; Davis v. Davis, 62 Ohio St., 411; Hawley v. James, 7 Paige Ch., 213; Riser v. Perry, 58 Md., 112; Roy v. Monroe, 47 N. J. Eq., 356, 20 Atl. Rep., 481; Cruse v. Barley, 3- • P. Wms., 20; Ackroyd v. Smithson, 1 Lead. Cas. Eq. (4 Am. ed.), 1171; Trippe v. Frasier, 4 Har.. & J., 446; 2 Jar. on Wills., 216; Wright v. Trustees, Hoff. Ch., 2Ó2; Moore v. Robbins, 53 N. J. Eq., 137, 32 Atl. Rep., 379; Slocum v. Slocum, 4 Edw. Ch., 613; In re Vandervoort 1 Redf. Surr., 270, 7 Leg. Obs., 25; Reed v. Williams, 125 N. Y., 560, 21 Am. St., 748; Rinehart v. PI arris on, 20 Fed. Cases, 806.
    A similar result follows where there is a failure in part. 9 Cyc., 842, and many cases, cited.
    A testator who provides “My property shall go as the law directs with the following modifications” makes mere use of the statute to facilitate testamentary language. The property, however, passes by the will, not by the law in such case. Huber v. Carew, 26 C. C, 389, 74 Ohio St, ,469.
    Mrs. Bitzer has made her election to take dower and distributive share of personalty. That should settle her rights. It does not appear from the will that she should have both dower and a distributive share of the proceeds derived from the sale of the land, but if it did so appear, yet she could not have both, as she has elected to take against the will. In re Cunningham, 137 Pa. St, 621, 20 Atl. Rep, 714, 21 Am. St, 901; Barnett v. Barnett, 59 Ky, 254; lames v. Hanks, 202 111, 114, 66 N. E- Rep, 1034; Sections 5953 and 5964, Revised Statutes.
    Had Bitzer died intestate there would have been no conversion. The only conversion is by the 'will. If he had died “intestate” this question would not be here for the court to decide upon. She can not be allowed to say, “I rely upon the provisions of the will for the creation of a fund. I repudiate the will so I may take a share of the fund.” She must either take- or refuse the benefits of the will. So says the statute. White v. Brocaw, 14 Ohio St, 339; Holt et al. v. Lamb et al., 17 Ohio St, 374.
    The effect not to take under the will is as to the widow, to supersede the will and leave the intestate law to govern. A conversion, therefore, which is to be made by a direction of the will, does not take effect as to her. 2 Jar. on Wills (5 ed.), 43; Brink v. Layton, 2 Redf. Surr, 79; Barnett v. Barnett, 1 Met. (Ky.), 254; Hoover v. Landis, 76 Pa. St, 354; Armstrong v. Park, 9 Hump, 195.

      One claiming against the will can not avail himself of the conversion directed by the will for its. purpose. 2 Jar. on Wills (5 ed.), 171; Pomeroy’s. Eq., Sections 1166, 1170, 1171, fully support our view of the case at bar.
    The intent of the testator must- govern as to the extent and purpose of the conversion. Patton v. Patton, 39 Ohio St., 598; Vandewalker v. Rollins, 63 N. H., 460, 3 Atl. Rep., 625.

      Mr. A. B. Gridin, for defendant in error.
    The conversion was the same in effect as if Gottlieb Bitzer had, in his life time, converted his said property, both real and personal, into money and had this money on hand at the time of his death, to be administered by the executor of his will.
    The doctrine of equitable conversion, is an old and well established doctrine. It seems, first, to have been considered by this court in the year 1846, in the case of Ferguson v. Stuart’s Exrs., 14 Ohio, 140; Collier v. Collier’s Exrs., 3 Ohio St., 374; Richey v. Johnson, 30 Ohio St., 293.
    Nearly all of the questions raised in this case at bar were raised and were considered and decided by this court in the case of Hutchings v. Davis, Ext., 68 Ohio St., 160.
    A positive and unqualified direction to the executors to sell realty operates as a conversion of such realty; and for purposes of distribution as indicated by the will, the real property or its proceeds will be treated as personal property. Page on Wills, Section 700 ; 9 Cyc., 830.

      • In the case of wills a conversion of real estate will be implied where there has been a blending of the real and personal estate, so as to show that testator intended to create a common fund out of both the real and personal estate, and to bequeath the fund as money. Peter on Equity, 69 ; In re Marshall’s Estate, "147 Pa. St., 77, 23 Atl. Rep., 391; Hunt’s Appeal, 105 Pa. St, 128; Eaton on Equity, 227.
    The blending of the proceeds of the realty with the personalty, so as to form a common fund, for all the purposes of the will, though it should happen that some of them fail, will render the conversion absolute.' Bispham’s Principles of Equity, Section 318; Craig v. Leslie, 3 Wheat., 563.
    The widow could not make an election in this case, as the property given by the will was the same as the property given by the laws and statutes of Ohio. There was no alternative. The term election, necessarily implies more than one thing between which a choice can be made. And the requirement of the statute “to appear and elect,” necessarily implies that the widow has a right at law to a distributive portion of her deceased husband’s personal estate, which she may retain or renounce at her election. Doyle v. Doyle, Jr.', et al., 50 Ohio St., 340.
   Summers, J.

Gottlieb Bitzer by his last will, executed in 1894 and probated in 1904, devised and bequeathed to his widow such portion of his estate as she would be entitled to under the laws and statutes of Ohio, and subject to that provision for her and the payment of his debts •and funeral expenses, he directed his executor •to convert all of his property into money and to. divide the same equally between his five children. Within the year the widow was duly cited to appear before .the probate judge and to make her election whether she would take the provisions made for her in the will, or be endowed with the lands of her deceased consort and take her distributive share of his personal estate. The widow appeared and failed to elect to take under the will. The executor had dower duly set off to the widow by metes and bounds and converted all of the real and personal estate into money, and upon settlement of his account in the probate court he was ordered to distribute, according to law, the balance found in his hands for distribution.

The widow contends, notwithstanding she has her dower in the real estate, that the proceeds of the sale of the real estate constitute a part of the personal property which is subject to distribution, and of which she is entitled to her distributive' share, and brought suit in the court of common pleas, under Section 6200, Revised Statutes, to recover such share.

The court of common pleas and the circuit court sustained her contention.

Section 5963, Revised Statutes, provides that a widow or widower shall not be entitled to both dower and the provisions of the will in her or his favor, unless it plainly appears by the will to have been the intention that the widow or widower should have such provision in addition to the dower and such distributive share, and that if any provision be made for a widow of widower in the will of the deceased consort, the probate court shall issue a citation to such widow or widower to appear and elect whether to take such provision or to be endowed of the lands of the deceased consort and take the distributive share of the personal estate. Section 5964, Revised Statutes, provides that if the widow or widower fail "to make such election, the widow or widower shall retain the dower, and such share of the personal estate of the deceased consort as the widow or widower would be entitled to by law in case the deceased consort died intestate, leaving children. Section 4188, Revised Statutes, reads as follows: “A widow or widower who has not relinquished or been barred of the same, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inhéritance at-any time during the marriage, and in one-third of all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder; and also in one-third of all the title or interest that the deceased consort had, at decease, in any real property held by article, bond, or other evidence of claim; and the widow or widower may remain in the mansion house of the deceased consort, free of charge, for one year, if dower is not sooner assigned; but dower shall not be assigned .to any widow or widower in any real property of which the deceased consort, at decease, held the fee simple in reversion or remainder, until the termination of the - prior estate.” Section 4176, Revised Statutes, provides' that when a person dies intestate and leaves any children or their legal representatives, the widow or widower shall be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. Section 6038, Revised Statutes, provides for setting off to the widow certain articles of personal property, and where there is not sufficient personal property the appraiser shall certify what sum or further sum, in money, is necessary for the support of the widow or children

The amount for distribution as found by the circuit court is, received from personalty $784.79, and from realty $1560.72. If the husband had died intestate leaving children, the widow’s share would be in the $784.79 only, and would be one-half of the first four hundred dollars and .one-third of the remainder, amounting to $328.26, but the court g'ave her $848.50. The result proves that the process by which it was reached is erroneous. The judgment, it is contended, is supported by the doctrine of equitable conversion.

“Conversion has been briefly and accurately defined as 'that change in the nature of property by which, for certain purposes, real estate is considered as personal, and personal estate as real, and transmissible and descendible as such.’ ” 3 Pomeroy’s Eq. Juris., Section 1159.

“The effect of the conversion is a direct consequence of the principle in question. Personal estate becomes, to all intents and purposes, in the view of equity, real, and real estate personal. Money directed to be invested in land descends to the heir of the original beneficiary, or passes under a general description of real property in his will, while land directed to be converted into money goes to his personal representatives, or is included in a residuary bequest of his ‘personal property.’ ” Pomeroy’s Eq. Juris., Section 371-See also Pomeroy’s Eq. Juris., Sections 1164 and 1165.

The doctrine is beautiful but it has no application to this case.

“The doctrine seems to be correctly formulated by saying that the effects extend only to those persons who claim or are entitled to the property under or through the instrument, or directly from or under the author of the instrument.” Pomeroy’s Eq. Juris., Section 1166. “For conversion, however, absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law casts the real and personal property of an intestate, namely, the heir and next of kin.” 1 Jarman on Wills, 589.

The doctrine of equitable conversion is founded upon the maxim that equity regards and treats that as done which in good conscience ought to be done, and Mr. Pomeroy in Section 365 says that, “it should be observed that the principle involves the notion of an equitable obligation existing from some cause; of a present relation of equitable right and duty subsisting between two parties, — a right held by one party, from whatever cause arising, that the other should do some act, and the corresponding duty, the ought resting upon the latter to do such act. Equity does not regard and treat as done what might be done, or what could be done, but only what ought to be done. Nor does the principle operate in favor of every person, no matter what may be his situation and relations, but only in favor of him who holds the equitable right to have the act performed, as against the one upon whom the duty of such performance has devolved.”

The widow can take only what the law gives her, or what her .husband gives her, unless it plainly appears by the' will that he intended the provision in his will for her to be in addition to what the law gives her. The statute provides that if she fails to take under the will she shall retain her dower and distributive share and if she elects to take under the will she shall be barred of dower and her distributive share and take under the will alone. The provision for her in this will is not in addition to her dower and distributive share, and she failed to elect to take under the will. There is no right in her to require the executor to convert the real estate into personal property and no ought upon him as to her. Her right to dower and a distributive share is paramount to the right of her husband to dispose of his estáte by will, and he can dispose of it only subject to her right, and in the present case he has expressly made it subject to her right. If she does not elect to take under the will, her right remains as it would be had he died intestate leaving children, as to her rights it is as if he had died intestate. There is no will to work a conversion until she has received her dower and distributive share. She retains what the law gives her and the will disposes of what remains, and she having taken under the law can not claim any benefit under the will, and to claim the proceeds of the real estate as personalty is claiming under the will. The direction in the will to sell the real estate and to divide the proceeds does not transmute the real estate into money. “It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such.” Earl, J., in Wilder v. Ranney et al., 95 N. Y., 7. “It was never personalty for any purpose of remedy unconnected with the conversion; and in the hands of the person dr persons who succeeded to it when Mrs. Chambers and. the child were dead, it would not be personalty but realty, and real, not personal, actions would be brought to determine the title. The question, therefore, in the ejectment'suit, or in any other suit involving the title, would not be whether the land had or had not at one time had the quality of personalty impressed upon it, and been _ transmitted as such under the statute of distributions; but the question would be to whom any manner it had been • transmitted, and who now, when unquestionably it is to be considered and dealt with according to its proper nature as realty, is entitled to the possession, enjoyment and control.” Cooley, J., in Shaw v. Chambers, 48 Mich., 355; Crowley v. Hicks et al., Exrs., 72 Wis., 539.

In Cunningham’s Estate, 137 Pa. St., 621, the testator directed his real estate to be converted into personalty and to be distributed. The widow was not named in the will. She elected not to take under the will and claimed that the testator’s will effected a complete conversion of his' real estate into personalty, and that such conversion enured to her benefit and entitled her to one-half of the proceeds of the realty, absolutely. It was contended that the election made by the widow did not affect her right because the will made no provisions for her and left nothing for her to choose, that as to her her husband died intestate, having first stamped the character of personalty upon his entire estate and was bound to know its legal effect in determining the final disposition of his estate. In the opinion Mr. Chief Justice Mitchell says, “The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband’s disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and can not co-exist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or- omission of her in the will, or on the quantum of benefits she receives or renounces under it.” And again, “Election, in the sense that applies to the present contention, means a choice between- two courses of action, acquiescence by the widow in her husband’s disposition of his property, or disregard of it and assertion of the rights the law gives her. There is no third or mixed course. Her legal rights, which are paramount to the husband’s control, attach eo instanti that he dies, and there is no interval during which the will can slip in and work a conversion, and then stand aside to- let in her intestate rights upon the converted estate. Conversion takes place by virtue of the will, but as to the widow so electing there is no will. She must make her choice, and it is will or no will. She has time to consider which she shall take, but the quality of the estate as to her rights is fixed at the moment of death, and she must take one or the other as they were then. The law does not permit her to say there is a will for conversion, and no will as to her share.” To the same effect is Hoover v. Landis et al., 76 Pa. St., 354. In Barnett’s Admr. v. Barnett’s Admr., 1 Metcalfe (Ky.), 256, it is held that, “A widow, who' renounced her husband’s will under the act of 1797,. has no right to consider as personal estate lands which by the will were directed to be converted into money and paid over to the devisees.” In the opinion Chief Justice Simpson says: “Had the husband died intestate, the widow in this case would have been entitled to one moiety of his personal estate, inasmuch as he left no child. There does not seem to us to be any difficulty in determining what constitutes his personal estate. Only such estate as belonged to him, and had assumed the character of personal estate in his lifetime, can with any propriety be denominated his personal estate. The principle that land directed to be sold and turned into money, is to be considered as that species or property into which it is directed to be converted, is fully established. Consequently the testator, by directing á sale of his land and slaves, and the payment of the proceeds to the devisees mentioned by him, impressed upon the property directed to be sold the character of money. But as his will did not take effect until after his death, that character was not impressed upon the property whilst it remained his. During the time it remained his property it consisted in lands and slaves; no conversion of it took place in his lifetime, and the conversion which was made by his will occurred after the property had passed from him, and at the time the right to it vested in his devisees. It never, therefore, constituted a part of his personal estate, and his widow had no right to it as being that kind of property.” Again he says: “But there is one principle of the doctrine of equitable conversion which demonstrates most conclusively that a widow, having renounced her husband's will, has no right to consider as personal estate lands which have been directed to be sold by the testator, and the proceeds paid over to the devisees Although a new character may have been in the most unequivocal terms impressed upon property by means of a trust for conversion, yet such constructive character is liable to be determined by the act of the persons beneficially entitled, who may, at any time before the conversion actually occurs, elect to take the property in its then condition. This right is wholly inconsistent with that claimed on behalf of the widow. For if the devisees, before a conversion of the lands, should elect to take the property in its actual instead of its destined state, a conversion would be thereby prevented, and the character of the property be changed from that impressed upon it by the testator to that which it actually possesses.” And again: “The widow was entitled to such share of her husband’s personal estate as she would have been entitled to had he died intestate; and in ascertaining that share, his estate is to be regarded and treated as if he had died intestate. Her interest in the estate can be neither increased nor diminished by any of the provisions of the will. It must be ascertained and determined as if there were no will in existence.” In Orrick v. Boehm, Trustee, 49 Md., 72-103, Bowie, J., says: “The principles which control the decision of this case, were most thoroughly discussed, and skilfully applied in the argument of Mr. Scott in the case of Ackroyd v. Smithson, before Lord Chancellor Thurlow, in 1780, and all the adjudications since made, have been more or less, the application of the same rules, to the' varying features of cases as they arose.

“Theories of construction have been built upon these decisions, which almost amount to arbitrary rules. Precedents have acquired the force of principles.

“It would be an herculean task,- to attempt to analyze and reconcile all the conflicting decisions in England and the United States. The briefs of the opposing counsel .show how numerous and various these decisions are, and how shadowy and subtle some of the distinctions.

“The basis of all the .decisions is, that the intent of the testator, is the great guide in determining the question, whether there has been an equitable conversion of the realty into personalty.”' In Northrop v. Marquam, 16 Ore., 173-186, Strahan, J., says: “The several important questions of law presented by these findings I will now proceed to examine.

“1. The first question requiring notice is, what interest did Hettie Northrop have in the land in controversy? She was born after the making of her father’s will; she was not named or provided for in the will, and her father died about eight months before her birth. The findings of fact: bring the case fully within Section 3075 of Hill’s' Code, which is as follows: Tf any person shall make his last will and die, leaving a child or children, or the descendants of such child or children, in case of their death, not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator so far as shall regard such child or children or their descendants not provided for shall-be deemed to die intestate, and such child or children or their descendants shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same-shall be assigned to them, and all the other heirs, devisees, and legatees shall refund their proportional part.’ As to Hettie’s interest in her father’s estate, he is deemed to have died intestate. While the will is valid and effectual as to all the children named or provided for therein, it is no will as to-those not named or provided for, and any such-child will take under the law of descent in all. respects as if no will had been made. Hettie,, therefore, though in ventre sa mere at the time of her father’s death, took by inheritance one-fourth of all the real property of which he died seized in this state. And by her and her mother’s death the plaintiffs have succeeded to her interest.

“2. But counsel for respondent claim that conceding this to be true, the will conferred authority on the executors to sell the land; that Hettie’s interest was divested by the sale by the executors, and that she is compelled to accept her proportion of the proceeds of the sale-, and counsel claim that this principle applies to a child not named or provided for in the will. And to sustain this proposition they cite Hatch v. Bassett, 52 N. Y., 360; Power v. Cassidy, 79 N. Y., 613; 35 Am. Rep., 550; Wilson v. Wilson, 54 Mo., 213; Cronise v. Hardt, 47 Md., 433; Allen v. De Witt, 3 Com. B., 276; Phelps v. Pond, 23 N. Y., 69; Stagg v. Jackson, 1 Com. B., 206, and some other authorities not accessible to us. And they claim that this doctrine of equitable conversion applies to the interest of a child not named or provided for in the will; but none of the authorities cited sustains that doctrine as applied to a case of a child not named or provided for. By the terms of the statute thpre is no will as to such child; it is a case of intestacy, and to hold that the estate which comes tp him by inheritance in such case could be in any manner affected by the will would be in effect to disregard the plain provisions of the statute.” In McElroy v. McElroy et al., 110 Tenn., 137, it is decided: “Where a will contains a direction to sell lands, and makes provisions for the division of the proceeds among certain designated parties, but does not name an executor or donee of the power to sell, an administrator with the will annexed has no authority to treat the estate as personalty under the doctrine of equitable conversion, and as such sell it. The doctrine of equitable conversion is not invoked for the purpose of affecting or controlling the mode by which one species of property is converted into the other, but principally to determine succession.” In James v. Hanks, 202 Ill., 114, it is held: “If a testatrix directs her lands to be sold for the particular purpose of paying certain gifts to legatees, the conversion does • not give to the proceeds the quality of personalty for the benefit of her husband, as her heir-at-law.” In Connell et al. v. Crosby, 210 Ill., 380, it is held, that the doctrine of equitable conversion is recognized in equity only, and is not given effect- in courts of law and that an inheritance tax upon funds derived from the sale of lands situated in foreign states cannot be collected in a suit at law upon the ground of equitable conversion by will. In the Matter of the Estate of Swift, 137 N. Y., 77, it was held that personal property of a resident decedent out of the state is subject to appraisal for the purpose of taxation under the collateral inheritance tax act, but that real property of the decedent situated out of the state is not subject to such appraisal and that the doctrine of equitable conversion cannot be invoked to subject it thereto. In Baptist Female University v. Borden, 132 N. Car., 476, it is held that, “Where a testator directs that certain real estate be sold and the proceeds be divided between two devisees, such sale constitutes a conversion for the purpose of division only and does not change the character of the property with respect to its liability for debts and legacies.”

If the direction to convert the real estate into personalty does not transmute it, and if under the doctrine of equitable conversion the real estate is only regarded as converted to give effect to the intention of the testator, then the conclusion must be the same in the case where no provision for the widow is made in the will, and the case of Hutchings v. Davis, Exr., 68 Ohio St., 160, was wrongly decided. It is true that in the case of Ferguson and Wife v. Stuart’s Ex’rs., 14 Ohio, 140, it is said in the opinion that, “The land named in the will was directed by the testator to be converted into money, which has been done. This changes the realty into personal estate.” But the property was not given to the widow under the statute of descents and distribution, but it is expressly found that she took the estate by the express direction of the will. Reed, J., in the opinion says: “The testator then declares, ‘it is my will that the money aforesaid go to my heirs.’ The law determines who are a man’s heirs, and this leaves that portion of the estate not specifically disposed of by the will, to the statute of descents and distribution, to designate the heirship precisely as though no will had been made. That act, under the circumstances alleged in the bill, declares .the wife an heir. The complainant, the widow of the testator, as legatee and heir, then takes the entire estate, by the express direction of the will, as well as by the operation of the act.” In Collier v. Collier’s Ex’rs., et al., 3 Ohio St., 369-374, Ranney, J., says: “In Ferguson v. Stuart’s Ex’rs., 14 Ohio, 140, it was held that land directed by will to be sold and converted into' money is treated as personal estate, and governed by the statutes of distribution as such; and by the 180th section of the administration law (Swan’s Statute, 389), the widow is entitled to the whole of the personal estate where the intestate has left no legitimate child. But it is unnecessary to' decide what might have been her rights in such case, as we are clear in the opinion that the will disposes of the whole,, and that there is nothing in the codicil to annul any of its dispositions.”

If it be contended that in that case the will made no provision for the wife, and that the statute provides for an election only when such provision is made, and that the widow not having been put to a statutory election and the testator having directed a conversion out and out, she may take her statutory share of the converted personal estate, the answer is that, she then would be put to an equitable election between dower and a distributive share, she could not treat the land as both real and personal property and take her dower estate in it as land and then a distributive share of it as personalty. But we do not wish to be understood as holding that in such case she might elect to take a distributive share of it as personal property. If the will makes no provision for her she takes only what the law gives her, and that is dower and a distributive share of the personal property as it exists independently- of the will. Doyle v. Doyle, Jr., et al., 50 Ohio St., 330. We can find no authority for the assumption that a. direction in a will for an out and out conversion of all the property into personalty will effect a transmutation of the property and a devolution of it as personalty. The cases cited in the' opinion do not lend any support to such a conclusion. In Craig v. Leslie et al., 3 Wheaton, 563, the point decided was, that when the testator directed his lands to be sold and the proceeds to be given to his brother and the brother died without having elected to take the lands, the property passed to his personal representatives in the same manner as it would have done if the conversion had been made. In Given v. Hilton, 95 U. S., 591, Mr. Justice Strong, in the opening sentence of ‘ the opinion states, that the question is, what passed under the residuary clause of the testator’s will, and the conclusion is that as the testator had directed the complete conversion, to all intents, of his entire property into personal estate, the residuary bequest carried to the legatee not only that which was personalty at the testator’s death, but that which became personalty by the conversion he had ordered. And the opinion in the case of Harrington et al. v. Pier et al., 105 Wis., 485, so far as the effect of a conversion is involved, is sufficiently indicated by the third paragraph of the syllabus, which is as follows: “If, notwithstanding the failure of a purpose requiring a conversion of realty into personalty to satisfy it, the intention is manifest to accomplish a distribution of the estate in the form of money, that intent will accomplish the conversion of the realty into personalty in equity; and unless otherwise clearly indicated a void bequest will fall.into the residuum and go, to the residuary legatee if there be such.”

In the great Argument of Lord Eldon, then Mr. Scott, in the case of Ackroyd v. Smithson, 1 Bro. C. C., 503, already referred to, he says, “The law says, where there is a residuary legatee, the testator shall be presumed to mean that he should take whatever lapses, either by the death of the legatees, or whatever is not given according to law. So long as there is any person to take, who is declared by the testator to be preferred by him to those whom the law appoints to succeed him, the heir can have no claim. If the testator spoke for himself he would say, If my special - intention of kindness to the charity fails, my general intention of bounty to - my residuary legatee shall take place; but where the residuary legatee is removed, there is nothing like a declaration by the testator in favour of the next of kin, to entitle them to succeed the residuary legatees, as there is where there is a general residuary clause in a will in favour of the persons named in it, to succeed the particular legatees; and to money arising by the sale of land, there can be no claim in the next of his kin but what arises from the declaration of the testator;, for unless he directs or expresses that it shall be considered as personalty, the heir must take it. We admit the heir, then, to be excluded whilst there are any persons ■ who can take the produce of the real estate under the will —the declaration of the testator’s intention: we deny that he is excluded by any who make their claim not under the will, but in defect of the will: or that the intention in the will can affect those who claim, upon the ground that there is no will which relates to the subject.” In 2 Leading Cases in Equity, 1184, it is said: “Mr. Cox, in a note to Cruse v. Barley, 3 P. Wms., 22, which has been highly commended by many eminent equity judges, states his opinion, that' the several cases on this subject seemed to depend upon this .question — whether the testator meant to give to the produce of the real estate the quality of personalty to all intents, or only so far as respected the particular purposes of the will: for that unless the testator has sufficiently declared his intention, not only that the realty shall be converted into personalty for the purposes of the will, but further, that the produce of the real estate shall be taken as personalty, whether such purposes take effect or not, so much of the real estate, or the produce thereof, as is not effectually disposed of by the will at the time of the testator’s death (whether from the silence or inefficacy of the will itself, or from subsequent lapse), will result to the heir.” And the learned authors approve of what is said respecting this by Mr. Jarman, stating that what he says seems to be fully warranted by the authorities. What he says is that this statement requires the following explanatory addition: “But that every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law casts the real and personal property of an intestate, namely, the heir and next of kin.” 1 Jarman on Wills, * 589.

In Fitch v. Weber, 6 Hare, 145, the testatrix devised and bequeathed her real and personal estate, in trust as to the real estate for sale as soon after her decease as conveniently could be, and declared that the trustees should stand possessed of the proceeds of the sale as a fund of personal and not real estate; for which purpose she declared such proceeds or any part thereof, should not in any event lapse or result for the benefit of her heir-at-law: and, after giving legacies, the testatrix directed that the residue of her estate should be applied as she should by any codicil direct or appoint. She made no codicil. Sir J. Wigram, Y. C, after an examination of the authorities, held, that the heir-at-law was entitled to the proceeds' of the real estate undisposed of by the will. He said, “I feel myself called upon, to follow the course of decisions, in holding that the testatrix has expressed an intention to exclude the heir only for the purposes of her will, and that, if her words express more, and she has failed to say who shall take the surplus the law must dispose of it.” In other words, unless some disposition is made of the proceeds of land directed to be converted they will go to the heir as land. There must be not only an intention to convert but also a disposition of the property in the event of a failure of the particular purpose of the conversion, and it is. a devolution by will, although it may be to the same persons to whom it would have gone, in the absence of the will, if in jiact personal property.

If the widow is not mentioned in the will it cannot be- said that the testator intended by his will a benefit for her. And if the testator may, by his will, determine the quality of his estate, as well for those who take by law as for those who take under the will, so that for his widow what was realty becomes personalty and enhances the value of her share, then he may also transmute personal property into real property, so that she will receive one-third of his estate for her life only, whereas by law she is entiled to one-third absolutely.

Judgments reversed.

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

Davis, J.,

dissenting. The will of Bitzer contained the following provisions, which are all that are material in the consideration of this case, viz: “First. My will is, that all my just debts and funeral expenses shall be paid out of my estate, as soon after my decease as shall be found convenient.

“Second. I give, devise and bequeath to my wife, Lizzie H. Bitzer, such portion of my estate, should she survive me, as she may be entitled to under the- lazos and statute of the state of Ohio. Should she not survive me, then it is my will that no part of my estate shall go to her, her heirs, nor to her devisees.

“Third. S%ibject to the above provisions it is my will and direction that my executor hereinafter named shall convert all my property, both personal and real, without any order of court, unless it be necessary for the setting off of dozoer to my wife, into money and divide the same equally among my five children,” etc.

It will be observed that the testator allows to his wife only such portion of his estate as the laws of this state and the statute of descents and distribution would give her. He adds nothing of his own bounty. He gives her nothing by the will, and apparently only mentions her to make it clear that he intends that she shall have nothing from his estate except what she can get by force of “law.” In this respect, therefore, the will is like that which was the subject of controversy in Hutchings v. Davis, 68 Ohio St., 160. Such a will does not call upon the widow to elect between the will and her legal rights, because the will ex vi termini remits her entirely to the latter; and Section 5963, Revised Statutes, rather ostentatiously quoted in the brief of plaintiff in error and the opinion of the majority, has no relevancy whatever, because it expressly applies only “if any provision be made for a widow or widower in the will of the deceased consort.”

For the reasons stated above Section 5964, Revised Statutes, does not apply; and indeed it is fair to, say that if any statute had provided for cases like this and Hutchings v. Davis, these cases, and several like them, would not have been here. If the defendant in error is entitled to what she is claiming, it is by virtue of that body of decision and precedent which the testator refers to as “laws,” when he says that he gives to nis wife “such portion of my estate, should she survive me, as she may be entitled to under the laws and the statute of Ohio.”

Hence the real and only question in the case is whether the widow is “entitled under the laws” of this state to both dower and distributive share in the proceeds of real estate converted into money by the will of her husband. That this was a conversion for all purposes, and not for any specific purpose, is as plain as it can be made. The will reads; “Subject to the foregoing provisions,” that is, the payment of debts and funeral expenses and whatever the .widow may be entitled to under the laws and statute of the. state of Ohio, “it is my will and direction that my executor hereinafter named shall convert all my property, both personal and real, without any order of court, unless it be necessary for the setting off of dower to my wife, into money and divide the same equally among my five children.” It is in its very terms an out and out conversion for every purpose which can arise in the settlement and distribution of the testator’s estate. The testator bequeaths to his wife nothing. He concedes to her, and concedes it grudgingly as to a stranger and an alien, just what the law would give her, and only that because he cannot do otherwise. Intentionally or otherwise, he created an opportunity for a small advantage to her in the conversion of his real estate. It may be true that such advantage might have been avoided by the- heirs taking the estate in kind, nevertheless when the testator directed the conversion and the heirs chose to carry it out, both he and they must abide by the consequences which would result in law from their voluntary act. But it does not follow that because, in effecting the conversion it might be necessary to assign dower or to pay for it in money, the testator intended to give to his widow, or did, by directing a conversion, bequeath to her, anything in lieu of or in addition to dower or distributive share. The language of the will evinces the opposite intention and what she gets the law gives her and not the will. Therefore I say again that the widow could not be required to elect; and with that proposition established a large part of the argument for the plaintiff in error falls to the ground.

There are only one or two of the cases cited in the opinion of the court which seem to me to be at all pertinent to the contention here; but before I review themo I call attention to the fact that citátions and quotations from English text-writers and cases, can have ■ but little consideration here, because the English doctrine of equitable conversion is not entirely in harmony with high American authority.

Bispham on Equity, (7 ed.), Sections 317 and 318, directs attention to this distinction between the authorities, as follows: “In England * * * every conversion, however absolute in its terms, will be deemed a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law ' casts the real and personal property of an intestate, namely the heir and next of kin. * * * In the United States the rule under consideration has not received á construction so favorable to the heir. In Craig v. Leslie, (3 Wheat., 563) it was said to be settled, ‘that, if the intent of the testator appears to have been to stamp upon the proceeds of the land described to be sold the quality of personalty, not only to subserve the particular purposes of the will, but to all intents, the claim of the heir-at-law to a resulting trust is defeated, and the estate is considered to be personal/ It was accordingly held that the blending. of the proceeds of realty with the personalty, so as to form a common fund, for all the purposes of the will, though it should happen that some of them fail, will render the conversion absolute.”

The same distinction is noted in Pomeroy on Equity (3 ed.), Section 1171, note 1. The majority adopt the English rule in this case. For example see quotation from Jarman, ante, p. 73. This is not only opposed to the doctrine of Craig v. Leslie, 3 Wheat., 563; Morrow v. Brenizer, 2 Rawle, 185, and Burr v. Sim, 1 Whart., 252, but also to that of the cases cited in Hutchings v. Davis. I have not thought it necessary to my present purpose to look for others. In Given v. Hilton, 95 U. S., 591, the controversy was over a will in which the purposes of the conversion were not so definite as in this will. The testator directed that as soon after his decease as possible his debts and funeral expenses should be paid out of any portion of his estate which might first come into the hands of his executors; and he then directed that all of his estate except such as he specifically devised and bequeathed, should be sold ' and the proceeds divided in certain proportions. The court held, “that his direction to his executors to sell all his estate not otherwise devised and bequeathed was intended to secure a complete conversion, to all intents, of his entire property into personal estate;” and the reason which the court gave was this, p. 596: “It has been held that a general direction to sell and apply the proceeds indiscriminately to the payment of debts and legacies operates as a conversion out and out. Roper on Legacies, 341, 342, et seq.; King v. Woodhull, 3 Edw., (N. Y.) 82; Durour v. Motteux, 1 Ves., 321. Blending the proceeds of realty and personalty in one fund for the payment of debts and legacies is generally regarded evidence of an intention to give to the proceeds of a sale ordered the character of personalty throughout, though not a conclusive indication in all cases. These indications exist in the will before us, and, were it necessary, they might be called in aid of its. construction.”

It was held in Harrington v. Pier, 105 Wis., 485, that “the blending of realty and personalty in one fund for all purposes of a will strongly evidences an intent that the whole estate shall at all events be distributed as personal property;” and the reasoning and authorities which that court based its conclusion upon are found on pages 491-493 of the report. That decision was upon a will in which the testator directed the conversion of the real estate into money and that after payment of the debts, funeral expenses and expenses of administration three-fourths of the net proceeds should be paid as directed and then the residue h> two persons named.

The cases which I have cited are not more clearly cases of out and out conversion than this, one, for, at the outset, I think I have shown that this will requires a conversion for all purposes,, and in terms for the payment of debts, funeral expenses,'dower and such portion of his estate as his wife is entitled to under the laws and statute of Ohio, and then, in addition thereto, legacies. Now what shall be done with the fund resulting from the conversion? “Generally speaking equity will carry out the principle of equitable conversion in all of its consequences, and as far as it is necessary to effectuate the well defined and lawful purposes of the instrument directing such conversion, and to determine the property rights of all parties claiming under or through it, will recognize all of its legitimate consequences and treat the property, from the time the conversion takes place to all intents and purposes as of the nature and character into which it should have been changed, and will determine the rights of parties to it as in its changed form.” .9 Cyc., 850.

Among the large number of cases which are cited in support of the text just now quoted, are two of the cases cited in the opinion in Hutchings v. Davis, and which the majority opinion in this case attempts to distinguish, namely, Collier v. Collier’s Exr., 3 Ohio St., 369, and Ferguson v. Stuart’s Exr., 14 Ohio, 140.

It therefore seems clear to me that the conclusion of the majority, that the doctrine of equitable conversion has no application to a case of this kind, is both illogical and against the great weight of authority. The “well defined and lawful purposes” of this will are the conversion of the estate into personalty for the payment of debts and distribution, subject to the rights of the widow under the law. The “legitimate consequences’” of such a conversion are that she must have her share, as defined by the statute of distributions, in the estate to be distributed as personalty. Dower or its equivalent she must have, and that is conceded, in the process of effecting the conversion. Thát is another “legitimate consequence” of the conversion.

But it is said that dower in land and in the proceeds of the land are inconsistent rights, that it would be inequitable to allow the widow both, and she musí therefore elect between them. That objection was considered in Hutchings v. Davis, and the answer to it needs not to be elaborated here. Briefly it is this: A widow’s right to dower and her right to a distributive share of personalty are both created by statute; and our statutes nowhere declare them to be inconsistent, nor do they require an election between these rights under the conditions found in this case. A very slight amendment of the statutes would make clear the application or non-application of the doctrine of election in such 'cases, if such should be the desire and meaning of the legislature. The case of Hutchings v. Davis called attention to the defect in 'the statutes, if defect it was, six years ago; and this court has reason to know that the same questions have arisen in several cases within that time, yet legislation which would require the widow to elect in such cases and which would restrict her to the dower right only in real estate converted into personalty, has not been passed, or so far as I know even suggested. The inference is that the alleged inequity in the doctrine of Hutchings v. Davis has not been made apparent to the legislature. Reference was made in that case to Barber v. Hite, 39 Ohio St., 185. Counsel for the plaintiff in error in this case has endeavored to distinguish the cited case by saying that no will was involved in it. That is true. The case, however, was not used as an authority for the application of the doctrine of equitable conversion, but as an illustration of the very point which I am now discussing. Barber sold a farm and agreed to conve}'- it free of dower. His wife refused to relinquish dower unless one-third of the purchase money should be paid to her as her separate property. To this Barber agreed and the purchaser paid one-third to the wife, and paid and secured to be paid to Barber the other two-thirds of the purchase money. Some months thereafter Barber died leaving personal estate, consisting in whole or in part of proceeds of the farm sold. The widow claimed the distributive share in this personalty and it was resisted on the ground that she had received the full one-third of the purchase money. The court below found the facts to be that the widow had received one-third of the purchase money in consideration of releasing her right of dower and that there was no agreement as to her right in any other portion of the estate of her husband; but that court rendered judgment against the widow, which judgment was reversed by this court and judgment was rendered for the widow, on the ground that she was “not estopped from claiming her distributive share of any part of the personal estate of her deceased husband by reason of the fact that such estate was augmented by the conversion of such realty into personalty.” Now it is, scarcely conceivable that, if the inconsistency between these rights and the inequity.of the widow’s, claim were so obvious as suggested here, such a. complete defense to the widow’s claim would have-been overlooked or ignored.

Before concluding I will briefly indicate why I think that several cases, apparently much relied .on by the majority, have neither authority nor persuasiveness here. McElroy v. McElroy, 110 Tenn., 137, does not involve nor decide any of the questions raised in this case. In Barnett’s Admr. v. Barnett’s Admr., 1 Metcalfe, (Ky.) 254, it was held that a widow renouncing the provisions, of her husband’s will under the act of 1797, has a right to dower in lands which are directed by the will to be sold by the executors and the proceeds paid to the devisees; and being so entitled, she can not claim an interest in them as personal estate, converted into that character by the terms of the will. It seems, however, (p. 257) that by the statute in force at the testator’s death, a widow if not satisfied with her husband’s will might renounce the 'benefits thereof, and thereupon she would be entitled to such share of his personal estate as if he had died intestate. The court held that inasmuch as the testator died being the owner of real estate, the subsequent conversion of it into personalty under the direction of his will did not make it his personal estate. Whatever may be said of the soundness of that reasoning under the laws of Kentucky, it can not be regarded as. of any weight in Ohio, because, as I have already shown, in this state a widow can be required to elect or renounce under a will, only .“if any provision be made for” her, Revised Statutes, Section 5963, and because, in this state, the widow’s distributive share is to come from “the personal property subject to distribution.” Section 4176, Revised Statutes.

The two cases, Hoover v. Landis, 76 Pa. St., 354, and Cunningham’s Estate, 137 Pa. St., 621, may be considered together. In the 'opinion in the latter case, p. 628, it is said, “The law does not permit her to say there is a will for conversion, and no will as to her share. This was decided in Hoover v. Landis, 76 Pa. St., 354, but the learned auditor in the present case drew a distinction based on the ‘fact that in Ploover’s will provision was made for his wife, while in Cunningham’s she was not named; but such a distinction is altogether untenable. Followed to its logical conclusion, it would result that a will which gave the widow one cent would require and support a valid election, while one which gave her nothing would not permit an election at all. The law does not sanction such an illusory distinction, and the argument which would support it is founded on wrong premises.” Then follows the passage quoted in the majority opinion in this case. The soundness of the reasoning in this Pennsylvania case depends entirely on two premises, first, that a widow must elect whether a provision is made for her or not, and. second, that a direction in a will to convert realty into personalty is a provision for the widow, although she is not named. I deny both propositions as being law in Ohio, and think I have shown the fallacy of them hereinbefore.

Thus by a process of reasoning of more than doubtful conclusiveness, by a bare majority of one, and a change of mind in only one .of the judges who sat in Hutchings v. Davis, that case is overruled; and thus twice within a short time (Yeager v. Tuning, 79 Ohio St., 121, 129) has this court overthrown an established rule of property, all of which tends to the conclusion that at the present time a decision constituting a rule of property is no more permanent and no more obligatory than a rule of court, and whenever it inconveniences somebod)'’ it may be set aside. I am entirely satisfied that the judgment rendered in the courts below was right and should be affirmed.


author: Crew, C. J.

text:
    Jenney, Administrator de bonis non, et al., v. Walker et al.

      Appeal from probate court to common pleas — Does not vacate judgment appealed from — Error for court to so decree — When appeal proceedings are dismissed — Court procedure.

    1. An appeal from a judgment of the probate court to the court of common pleas, although properly taken and perfected, does not operate to vacate or annul the judgment appealed from, but merely suspends its execution or enforcement during the pendency of such appeal in the appellate court.
    2. If after the taking and perfecting of such appeal, the appellant commences a proceeding in error in the court of common pleas to obtain a reversal of the judgment appealed from, and thereafter, without objection and before trial, said appeal is dismissed and abandoned, it is error for the court to then dismiss said proceeding in error without other reason therefor than that the appeal taken, vacated and extinguished the judgment appealed from and left no judgment to be reviewed
    (No. 11347
    Decided March 9, 1909.)
    Error to the Circuit Court of Hamilton county.
    On March 31, 1905, in the matter of the estate of James H. Walker, deceased, the plaintiff in error, Elizabeth W. Perry, as executrix of the will of Aaron F. Perry, deceased, who at the time of his death was executor of the will of James H. Walker, deceased, filed in the'probate court of Hamilton county, Ohio, her final account of the decedent’s administration of said James H. Walker’s estate, and on the same day, the plaintiff in error, Herbert Jenney, who had theretofore been, duly appointed administrator de bonis non with the will annexed of said James H. Walker, deceased, filed therein his account current. On April 24, 1905, exceptions' were filed by the defendants in error to each of said accounts. These exceptions were subsequently heard by the probate court, and that court having found and adjudged that said exceptions were not'well taken, on August 9, 1905, overruled the same and approved and confirmed said accounts. From this finding and judgment of the probate court the exceptors, defendants in error herein, appealed to the court of common pleas of Hamilton county, and duly perfected such appeal on September 26, 1905, said appeal .being docketed and numbered in said court of common pleas as case No. 132489. Thereafter, to-wit: on December 7, 1905, defendants in error herein also commenced in said court of common pleas a proceeding in error to obtain a reversal of said judgment of the probate court by filing therein their petition in error together with a transcript of the docket and journal entries, original papers, and bill of exceptions from said probate court, which error proceeding was docketed in said court of common pleas as case No. 132992. On Ma}' 29, 1906, the following entry was made in the court of common pleas in the appeal case: “In the matter of the estate of James Walker, deceased, No. 132489. Now come the appellants in the above case and dismiss their said appeal at their costs.” Thereafter, to'-wit: on May 31, 1906, plaintiffs in error filed their motion in the court of common pleas, in the error case No. 132992, asking that said error proceeding be dismissed, which motion was in the words and figures following: “The defendants in error move to dismiss the petition in error in this case, for that prior to the time when said petition in error was filed in this court, the plaintiffs in error had taken and perfected an appeal, case No. 132489 of this court, from the same judgment in the probate court of Hamilton county, Ohio, case No. 8229 of said probate court, to reverse, vacate and modify which the petition in error in this case was filed, and because at the time the petition in error in this case was filed in this court, the said judgment in said probate court had been vacated and suspended by the said appeal taken and perfected therefrom to this court and filed in this court, and because by said appeal-all the proceedings in said probate court in the said case from which said appeal had been taken, had been removed to this court, prior to the filing of said petition in error, for its hearing and determination, and because at the time of the filing of the petition in error herein there was no judgment in said probate court to which error could be assigned which could be made the basis of proceedings in error, and because at the time of the filing of the said petition in error there was pending in this court case No. 132489, an appeal from the same judgment of the said probate court, which the petition in error herein seeks to reverse, vacate or modify.” This motion was sustained by the court of common pleas and said petition in error was dismissed for the reasons and upon the grounds stated in said motion. This judgment of dismissal was subsequently reversed by the circuit court and we are noy/ asked to reverse said judgment of the circuit court and to affirm the judgment of the court of common pleas. .

      Mr. W. H. Mackoy; Mr. Herbert Jenney and Mr. Anthony B. Dunlap, for plaintiffs in error.
    As the order of the probate court, in the case at bar, was appealable, the perfecting of the appeal had the effect to suspend the judgment or order of the probate court, so far vacating it that no final order was left in the probate court upon which to predicate error and no further steps could be taken in the probate court pending the appeal. Grant v. Ludlow’s Admr., 8 Ohio St., 1; Mason v. Alexander, 44 Ohio St., 318; Ginn v. Commissioners, 11 O. C. C., 396, 58 Ohio St., 693; Bassett v. Daniels, 10 Ohio St., 617; Bradford v. Watts, Wright, 495; Field & Co. v. Esch, 18 C. C., 749; State, ex rel., v. Meacham, 6 O. C. C., 31; Brewster, Auditor, v. Anderson, 1 O. C. C, 479; Guardianship of Oliver, 77 Ohio St., 474; Railway Co. v. ITurd, 17 Ohio St., 144; Foeller v. Voight, 4 Am. Law Rec., 671; Tcatf v. Hewitt, 1 Ohio St., 511; Wanser v. Self, 3Ó Ohio St., 378; Menúes v. Candy Co., 77 Ohio St., 386; Rice v. Reed, 29 Ark., 320; Loyd & Wells v. Welch, 35 Ga., 104; Armstrong v. Hand, 36 Ga., 267; In re Railroad Co., 37 Pa. St., 333; Johns v. Fuller & James, 13 Ga 506; Thompson v. Thompson, 1 N. J. L., 159; Martsinger v. Smith, 9 Weekly Notes of Cases, 274; Brozvn v. Plummer, 70 Cal., 337; Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 547; Sections 5235 and 6407,’ Revised Statutes.

      Mr. J. M. Dawson, for defendants in error.
    Applying- the rule of Section 6411, that the pro? visions of law governing- civil proceedings in the court of common pleas shall, so far as applicable, govern like proceedings in the probate court, we find, that appeals in the court of common pleas are governed by Section 5235, Revised Statutes. This provides that “when an appeal is taken and bond given, the judgment is thereby suspended.”
    But suspension is not vacation. Indeed, suspension implies the existence of the judgment, because, unless the judgment subsisted, there could be no judgment suspended.
    As the statute itself defines the effect of the appeal to be “suspension,” does not this exclude the idea of vacation?
    And when Section 5236 of the statutes provides that, “when the party against whom a judgment is rendered appeals his case the lien of the opposite party on the real estate of the appellant, created by the judgment, shall not be removed or vacated by the appeal,” does it contemplate that there shall be a judgment lien upon a judgment that no- longer subsists, a judgment lien without a judgment? Coffman v. Finney, 65 Ohio St., 61; Oakes v. Williams, 107 111., 154; Curtis v. Root, 28 111., 367; Clay v. Notrebe, 11 Ark., 637; Runyon v. Bennett, 4 Dana (Ky.), 599; Insurance Co. v. Hill, 17 Mo. App., 590; Burgess v. Hitt, 21 Mo. App., 315; Railroad Co. v. Railroad Co., 71 N. Y., 430; Walls v. Palmer, 64 Ind., 493; Fawcett v. Superior Court, 15 Wash., 342; Hull v. Bell Bros. & Co., 54 Ohio St., 228; Foster on Federal Practice, Section 487; McFadden v. Mining & Milling Co., 97 Fed. Rep., 670; Hurst v. Hollingworth, 94 U. S., Ill; Mining Co. v. Canal Co., 118 U. S., 264; Thompson v. Thompson, 1 N. J. L., 159; Rice v. Reed, 29 Arle, 320; Paper Co. v. Iron Works,-46 Neb., 900; Iones v. Crawford, 18 Ga., 282; Improvement Co. v. Malone, 78 Ohio St., 232; In re Railroad Co., 37 Pa. St., 333; Smith v. Morrill, 11 Col. App., 284.
   Crew, C. J.

The record in this case presents but a single question, namely: Can the appellant, in a case which is of right appealable, after he has taken and perfected an appeal, prosecute error to the judgment appealed from before his appeal is dismissed or abandoned. That appeal and error may be concurrently taken under the procedure and practice in this state, was affirmatively held by this court in Hull et al. v. Bell Bros. & Co., 54 Ohio St., 228, in which case it was said: “We are not aware of any statutory provision or rule of law which prevents a party who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice, otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting' error, and then be determined adversely to him thus leaving the judgment in force, his remedy on error would be lost.” This rule, that appeal and error may, under our practice, be concurrently prosecuted, was again recognized and reaffirmed by this court in the recent case of The Willson Improvement Co. v. Malone et al., 78 Ohio St., 232. Notwithstanding these adjudications, it is contended by counsel for plaintiff in error in the present case, that even though it may have been held and settled as in the cases above cited, that a party is not required to determine in the first instance, and at his peril, whether or not a cause is appeal-able, but may if he so elects concurrently invoke both the remedy by appeal and by a proceeding' in error, yet, that where the right to an appeal in fact exists and has been exercised, and the appeal duly taken and perfected, thereafter no proceeding in error can be instituted by the appellant to reverse the judgment appealed from, for the reason, as claimed, that after the appeal is perfected there no longer remains any judgment to be reversed or from which error can be prosecuted, but that the operation and effect of the appeal is to wholly avoid, vacate and annul the judgment appealed from. The error of such contention or claim is found in the fallacy of the premise upon which it rests, namely: that the appeal cancels and destroys the judgment. The effect of the appeal is not, as assumed by counsel, to vacate and destroy the judgment appealed from, but its only effect is to suspend such judgment, and to stay proceedings to enforce its execution. It does not operate to annul the judgment; or to otherwise impair its vitality and obligation than by merely suspending its enforcement during the pendency of the appeal. The lien, if any, created by the judgment is not removed or vacated by the appeal, but subsists and continues in the same manner and to the same extent as if the appeal had not been taken. Section 5236, Revised Statutes. Furthermore, in this state, the effect of an appeal upon the judgment appealed from is not left to speculation or conjecture, but is matter of express statutory regulation, and is defined and declared by Section 5235, Revised Statutes, which provides: “When an appeal is taken and bond given, the judgment is thereby suspended,” etc., and this section, by force of the provisions of Section 6411, Revised Statutes, comprehends and includes, as well appeals from the probate court to the court of common pleas, as from the common pleas to the circuit court. If, then, the only effect of the appeal taken by defendants in error in this case, was to suspend the judgment of the probate court, and not to vacate, annul or set it aside, it follows, that when said appeal was dismissed, and the same wholly abandoned by appellants, and this without objection or exception on the part of the appellees and without the cause having been submitted or tried on its merits, there remained and was a subsisting judgment of the probate court, which appellants were entitled to have reviewed by the court of common pleas on the petition in error filed by them for that purpose. The court of common pleas having erroneously refused to hear said petition in error, and having entered a judgment dismissing the same, such judgment was properly reversed by the circuit court, and said judgment of reversal must be

Affirmed.

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