author: Spear, J.

text:
    Moeller, Archbishop of Cincinnati, et al. v. Poland et al., Exrs., et al.

      Duty of trustee to cestui que trust — One of absolute good faith— Honest motive not sufficient, when — Specific enforcement of executory contract — Between trustee and third party — Without valuable consideration — Not decreed by court of equity, when.

    1. Inasmuch as a trust estate exists for the benefit of the cestui que trust, it is the duty of the trustee to administer the trust respecting the property of the cestui que trust strictly within the terms of the power given and for the benefit of the trust. And .while a coúrt of equity will treat a trustee with indulgence, and where he has acted in absolute good faith in all respects, will sustain him if it can be done without violating equitable rules, yet he will not be upheld in a course palpably arbitrary and unreasonable, for it is not sufficient that he be honest, and from a strictly moral standpoint act in good faith; he is bound in law to exercise diligence and to act reasonably.
    2. Where, with respect to the disposition of the property of ■ the trust, a trustee’s judgment is finally to control, and yet there be .devolved upon him by the nature of the trust the duly to take reasonable means to enable him to arrive at a correct and reasonable judgment, and such duty be entirely neglected ' by the trustee, the mere presence of good intention and absence of bad motive will not be sufficient to relieve him of a charge of breach of trust.
    3. A court of equity will not decree specific enforcement of a contract by a trustee bargaining away the property rights of his cestui que trust, by a contract executory in its character and . without valuable consideration, and in behalf of a party who was fully aware of the character of the trust and who in no way changed position or conduct in consideration of the acts or promises of the trustee.
    (No. 10927
    Decided June 8, 1909.)
    Error to the Circuit Court of Hamilton county.
    The present controversy in error grows out of a suit brought May 27, 1905, in the court of common pleas of Hamilton by the defendants in error Law-..fence Poland and Joseph B. Butler, executors of the estate of Gregory Rossiter, deceased, against the plaintiffs in error, Henry Moeller, archbishop of Cincinnati, The St. Joseph’s Orphan Asylum Association, and others, legatees named in the will of Gregory Rossiter, for a construction of the will and directions as to distribution.
    It is averred in the petition that the will was executed July 5, 1898; that the testator died June 5, 1899, and that the will was admitted to probate June 26, 1899. By the second item thereof the testator gives to his sister, Mary L. Rossiter, all the income, rents, profits and use of all his real estate and leasehold property wherever situated, during her natural life with full power to sell or lease the property No. 24 East Eighth street, Cincinnati; also all real estate he may have in Minnesota. The proceeds of sale of which, she will hold in trust as my estate and if she invest it she is to have all the income therefrom as her own during her life. Then follows a gift to the Roman Catholic Asylum, Cumminsville, five hundred dollars cash; to the Little Sisters of the Poor five hundred dollars cash; to the Catholic Foundling Asylum five hundred dollars cash, and to the pastor of St. Xavier’s Catholic Church on Sycamore street one thousand dollars-cash to be used by him.for the benefit of the church. The third item makes a gift of money to a nephew, a like gift to two nieces, and payments of cash for life to two cousins. The fourth item provides that if his sister Mary shall live until July 1, 1910, at which time Mr. Mulhauser has privilege of buvng our property corner Fifth and Elm streets, Cincinnati, and shall buy it, then Mary mav invest his (testator’s) share as she sees proper in the name of my estate, she to have the income during her life. And Mary is recommended to consult the archbishop of Cincinnati as to its proper investment. Then follow items five and six, viz:
    “Fifth. After the payment of all bequests herein made I do give all the remainder of my estate of every description, cash, stocks, bonds and credits (except proceeds of sale of real estate in Cincinnati) to my sister, Mary L. Rossiter.
    “Sixth. After the death of my sister, Mary L. Rossiter, and myself, I give and bequeath to the Most Rev. W. H. Elder, the Catholic archbishop of Cincinnati, and his successor in office, all my real estate and personal property of every description, wherever situated, that I .may own or be entitled to at the time of my death, to be by him or his successor in office, to be held or disposed of in such way as he or his successor in office may choose for .the benefit of the Catholic Orphan Asylum now located at Cumminsville, Cincinnati, or wherever else it may be moved to. I most humbly beg that the orphans and the devoted Sisters of Charity in charge of them, remember me in their prayers.”
    Then follows provision appointing his sister Mary executrix without bond, and in case she •should be unable to serve, the present executors, Mr. Lawrence Poland and Mr. Joseph B. Butler, without bond.
    The petition suggests that while clause five vests an absolute estate in Mary L. Rossiter, that considered in connection with clause six it vests nothing but a life estate in her, and that at her death, by its terms, it goes to Most Rev. Henry Moeller, Catholic archbishop of Cincinnati, as successor to Most Rev. 'William H.'Elder. It is also suggested that by the terms of item five Mary L. Rossiter takes the entire estate of Gregory Rossiter, subject to the payment of the bequests and the legacies provided in the will.
    At the death of Gregory Rossiter the Most Rev. William H. Elder was the Catholic archbishop of Cincinnati, and continued as such until after the death of Mary L. Rossiter. On June 30, 1899 (there being at the time an announced intention to contest the will of Gregory Rossiter on the part of certain nephews and nieces), archbishop Elder and Mary L. Rossiter agreed in writing upon a construction of the will as follows:
    “Whereas, the last will and testament of Gregory Rossiter, deceased, was duly probated on June 26, 1899, case No. 48064, Hamilton county, Ohio, probate court, and
    “Whereas, some doubt or question may exist or hereafter arise as to the true meaning or construction to be given to items five and six of said will as to the legal disposition of the personal property of said decedent,' and.
    “Whereas, it is manifest to our minds that the decedent in referring to personal property in said item six intended thereby to mean and refer to personal property growing out of the investment of the proceeds arising from the sale of real estate, if any should be sold by said Mary L. Rossiter, and to no other personal property, or intended to refer to leasehold property as personal property.
    “Now, therefore, know all men, that we, the undersigned, Mary L. Rossiter, sister of said decedent, and Most Rev. William Henry Elder, Catholic archbishop of Cincinnati, Ohio, a beneficiary trustee under said will, for and in consideration of the avoidance of litigation and in consideration of mutual concessions tending thereto, hereby agree for ourselves and those who may come after us, that the real and true construction and meaning to be given to said items five and six and to all of said will shall be as follows:
    “First. That Mary L. Rossiter shall have the use of and the income of all the real estate of the decedent during her lifetime and such other power jver the same as the will provides.
    “Second. That said Mary L. Rossiter shall have all the personal property of the decedent, including cash in hand, stocks, bonds and credits and other personal property absolutely as her own.
    “Third. That at the death of said Mary L. Rossiter the real estate of the decedent shall pass to and vest absolutely in. the Most Rev. William Elder, archbishop, as aforesaid, or his successor in office, in trust, nevertheless, for the’uses and purposes set forth in said will.
    “Fourth. That after the death' of said Mary L. Rossiter any personal property, the proceeds from the sale of real estate of the decedent made by said Mary L. Rossiter under authority of the will, or any real estate or securities in which such proceeds shall be invested, shall pass to and vest absolutely in said Most Rev. William Henry Elder, archbishop as aforesaid, or his successor in office, in trust, nevertheless, for the uses and purposes set for in said will.
    “In witness whereof we have hereunto set our hands in duplicate this thirtieth day of June, 1899.
    “Mary L. Rossiter,
    “Wit.liam Henry Elder,
    “Catholic Archbishop of Cincinnati.”

      It is suggested that said archbishop had no right or authority in law and under the terms of said will to make such an agreement, and that it has no binding force or effect upon said Cumminsville Orphan Asylum or said St. Joseph’s Orphan Asylum Association, which on the thirtieth day of June, 1889, had the management of said institution under the supervision and direction of said Most Rev. William H. Elder, and still has the same under the supervision and direction, of the Most Rev. Henry Moeller, Catholic archbishop of Cincinnati.
    It is further suggested that by the terms of the trust reposed in him by said will, and also by virtue of his authority as Catholic archbishop of Cincinnati, and his plenary jurisdiction over all religious and ecclesiastical property and institutions, and more especially said orphan asylum, that he had full authority to enter into the agreement above set forth.
    Wherefore plaintiffs pray that said defendants may be required to answer and set up any claims they may have under said will, or otherwise in regard thereto; that the same may be determined and settled and the court give judgment and direction in regard to the true construction of said will and especially of the clauses above referred to and as to what plaintiffs’ duties are in the premises, and shall order a proper distribution of the estate of said Gregory Rossiter and for all further and proper relief.
    To this petition the plaintiffs in error, Henry MndVr, archbishop, and The St. Joseph’s Orphan Asylum Association filed answer and cross-petition, averring in substance that, by the true construction of the will and particularly of items two, four, five and six thereof, there was vested in .Mary L. Rossiter, after the payment of certain small money legacies to their co-defendants, an estate for her life in all the real and personal .property of every description of which Gregory Rossiter was the owner at his death, and an estate in remainder in fee in the said William Henry Elder, archbishop of Cincinnati, and the said Henry Moeller, as his successor in office, in trust, to be held or disposed of in such way as he the said William Henry Elder, or his successor in office, the said Henry Moeller, might choose, for the benefit, however, of the Catholic Orphan Asylum, then and now located at Cumminsville. The ag'reement of June 30, 1899, set forth in the petition, was without consideration, and was entered into inadvertently and without independent advice by the said Elder; that as such trustee for said Orphan Asylum, or as the archbishop of Cincinnati, the said William Henry Elder had no authority to enter into said agreement. And defendants pray the court for a decree in conformity to the above facts.
    A reply was interposed by plaintiffs denying that the agreement was without consideration and denying that it was entered into inadvertently, and averring that it was executed after full consideration, at a time when said Elder was in possession to the fullest extent of his mental qualities, in good faith, for a consideration, and for the best interests of those sought to be benefited by the will.
    Defendant Harriett H. Hartnett, for herself and as executrix of Mary L. Hartnett, deceased, filed answer and cross-petition averring the true construction of the will to vest in Mary L. Rossiter absolute title to all the personal property of which Gregory Rossiter died seized; that after the making of the contract with archbishop Elder set forth in the petition Mary L. Rossiter entered into a vigorous and active defense of the validity of the will which was threatened with a contest at the abpve date, suit for such purpose being instituted shortly thereafter, incurring large expense, and was induced to do so in part at least by the execution of said agreement. A decree was prayed for conformably with the allegations of this answer.
    Afterward an amendment to the petition was filed by plaintiffs, averring, among other things, that the will was prepared and written by the testator himself, he being a man of advanced years and not learned in the law, and not having the aid of any one learned in the law; that his nearest living relative was his sister Mary L. Rossiter; that he also had living four nephews and two nieces, children of a deceased brother, three of whom were mentioned in the will, and cousins of his own blood residing in New York, also mentioned in the will; that at the date of the will, which was executed about one year before his death, the testator was, jointly with his sister, the owner of real estate at Fifth and Elm streets, Cincinnati, then leased by a perpetual lease to one Henry Mulhauser, with privilege of purchase for $100,000 after July 10, 1910; also certain real estate on East Eighth street, Cincinnati, negotiations for the sale of which were pending at the time of the execution of the will, so that there was a possibility of said real estate being converted into personal property; they were also jointly interested in property in Minnesota. All which real estate was subject at any time to be converted into personalty by suit and sale in partition; that at the time of his decease his estate amounted to something over $70,000, the real estate being valued at about $60,000 and the personalty at about $15,000. According to the true construction of the will the legal title to the real estate, at the death of the testator, vested' in archbishop Elder in trust for the St. Joseph’s Orphan Asylum, he being at the time the sole trustee of said Asylum; that by the terms of the will the real estate vested in him as trustee for himself as trustee for said Orphan Asylum; that by virtue of his office as archbishop the Orphan Asylum was for all purposes under his absolute control for the uses and purposes for which it was established, and his authority unlimited except by the uses and purposes for which it was established.
    At the time of the execution of the agreement a suit to contest the will was threatened, and was in fact soon thereafter instituted; that said Elder knew of the threat and that to engage in such controversy would be highly prejudicial to all the beneficiaries and might cause the will to be set aside and cause him as trustee to lose all that he or they might otherwise obtain under the will, and this, among other things, was the consideration for the execution of the agreement. The testator could not have consulted with those in the active management of the Asylum, they numbering some twenty-one persons, without in some measure making public the alleged defect in said will and thus jeoparding his and their rights; nor was it necessary for him to do so.
    Jn fact and in law the said Elder was also the cestui que trust under said will, the execution of the agreement was for the best and the sole interest of his cestui que trust; was executed, by him in good faith and was a beneficial exercise of the power given to said Elder under the will as well as under the laws of the Catholic Church and of the land. After the execution of the agreement and after the institution of the suit to contest the will, Mary L. Rossiter engaged in an active defense of the validity of the will, incurring* large expense in so doing, and was induced to do so in part in consideration of the execution of the agreement, resulting in the validating of the will and thus securing to the Asylum its full rights thereunder.
    An answer to the amendment to the petition, filed by the plaintiffs in error, admitted the allegations respecting the making of the will and age of the testator; also the statement as to his relatives; also the statement as to the location and character of his property interests; also the allegation respecting the bringing of an action by the nephews and nieces to contest the will, which action resulted in a verdict and judgment sustaining the will, and- denying all other allegations for want of knowledge as to their truth.
    The cause was tried upon these pleadings in the common pleas and from the judgment of that court appealed to the circuit court. By the decree of that court the will was construed as giving a life estate only in the personal as well as the real estate to Mary L. Rossiter, the court further adjudging that the contract betAveen archbishop Elder and Mary L. Rossiter Avas valid and ordering distribution accordingly. Henry Moeller, archbishop, and The St. Joseph’s Orphan Asylum Association, bring error, filing in this court a bill of exceptions and resting their case upon'that and on the pleadings.

      Facts are stated in the opinion. .

      Messrs. Stephens, Lincoln & Stephens, and Mr. Denis F. Cash, for plaintiffs in error.
    The agreement between Mary Rossiter and archbishop Elder, construing the will of' Gregory Rossiter, was without legal force and effect.
    • The contract concedes to the sister all she claimed — the- entire -matter in controversy. Miss Rossiter did not bind herself to do anything, either to forbear bringing suit or to defend her brother’s will, either in the contract or before it was executed. She got all she claimed and promised nothing in return. There is, therefore, no mutuality in the contract, and for that reason it must fail.
    But even if we concede that there was a technical consideration sufficient to support a contract, we submit that archbishop Elder, as trustee, was without power to make such a contract. Fie took no personal or beneficial interest under the will of Gregory Rossiter, but was constituted trustee, and charged with the duty of holding and disposing of the property received “for the benefit of the Catholic Orphan Asylum.” While he was clothed with a discretion as to the way in which he migirt expend it for his ^cestui que trust, he was given no other discretion. Certainly he was given no power to give away or concede without equivalent the rights of the charity.
    The proposition that a trustee cannot concede or give away the rights of a cestui que trust is so elementary that it has never been contested, and it is difficult to find adjudicated cases upon the matter.
    The power of a trustee over the legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust. Story’s Equity, section 977; Stoddard v. Smith, 11 Ohio St, 589.
    He cannot divest himself of the trust by conveying or assigning the property away to third persons unless the trust itself is for the very purpose of a sale or other disposition; and even then he can only dispose of the property in pursuance of the trust and to carry out its objects. 3 Pomeroy’s Equity Jurisprudence, section 1067; Holgate v. Eaton, 116 U. S., 33; Armstrong v. Robarás, 81 Mo., 445; Morris v. Thomas, 17 111., 112.
    He cannot make a contract to the disadvantage of the trust estate. Mayrant v. Guiguard, 3 Strobhart Eq. (S. Car.), 112.
    Pie cannot prejudice the cestui que trust by his admissions, declarations or negligence. 2 Perry on Trusts, section 476; Caldwell’s Exrs. v. Prindle’s Admr., 19 W. Va., 604; Thomas v. Bowman, 29 111., 426; McKissick v. Pickle, 16 Pa. St., 140; Eitelgeorge v. Building As'sn., 69 Mo., 52.
    .The trustee of a deed of trust cannot, without the consent of the beneficiary, compromise or yield a right already accrued to the trust. Bissell v. McKinnon, 121 N. Car., 186; 2 Perry on Trusts, section 483.
    The case is not one 'of the compromise of a doubtful claim; but the authorities are that a trustee has no general power to compromise claims, and that his power is only to make such compromises as the court can see are clearly beneficial to the trust estate, and which it would have authorized had it been appealed to beforehand. 2 Beach on Trusts and Trustees, section 455; 2 Perry on Trusts, section 482; 28 Am. & Eng. Ency. Law (2 ed.), 983.

      Under the true construction of the will of Gregory Rossiter his sister took a life estate in his personal property, and the archbishop the remainder in fee, as trustee for the orphan asylum. If item fifth had not been qualified by item sixth, so far' as his personal estate was concerned, we would admit that Mary Rossiter took an absolute estate in all his cash, stocks, bonds and credits, except proceeds of sale of real estate in Cincinnati. But inasmuch as the bequest of her is followed by an equally positive bequest to the archbishop, as trustee, after her death, it follows, according to the well-settled rule, that the sister took a life estate and the trustee a remainder in fee after her death. No other interpretation would give any effect to the positive language of item sixth. Robbins v. Smith, 72 Ohio St., 1; Page on Wills, sections 470, 597; Constable v. Bull, 3 De G. & Sm., 411; In re Sandford, 1 Ch. Div. (1901), 411; Smith v. Bell, 6 Peters, 68; Stone v. McEckron, 57 Conn., 194, 17 Atl. Rep., 852; 30 Am. & Eng. Ency. Law (2 ed.), 741; Baxter v. Boyer, 19 Ohio St., 490; Johnson v. Johnson, 51 Ohio St., 446; Hamlin v. Express Co., 107 111., 443.
    It is well settled in Ohio and elsewhere that personal property, even money, may be limited to one for life and afterwards to others. King v. Beck, 15 Ohio St., 559; Pruden v. Pruden, 14 Ohio St., 251; Smith w Bell. 9 Extern. 68; Smith v. Van Ostrand, 64 N. Y., 278; Page on Wills, section 596.
    A devise or bequest of property without words of limitation, does not prevent a gift over as repugnant. Howe v. Fuller, 19 Ohio, 51; O’Conner v. Rowland, 73 Ark., 422, 84 S. W. Rep., 472.;
      Hambel v. Hambel, 75 N. W. Rep., 673; Defreese v. Lake, 109 Mich., 415, 67 N. W. Rep., 505; Noble’s Estate, 182 Pa., St., 188; 37 Atl. Rep., 852; Kenistons Will, 73 Vt, 75, 50 Atl. Rep., 558.

      Mr. Otway I. Cos grave, for defendants in error.
    All the authorities agree that when the absolute estate has been conveyed in one clause of the will it will not be cut down or limited by subsequent words, except such as indicate as clear an intention as would the words used in creating the estate. Words which merely raise a ■ doubt or suggest an inference will not affect the estate thus conveyed, and any doubt which may be suggested by reason of such subsequent words must be resolved in favor of the estate first conveyed. Flick v. Oil Co\, 188 Pa. St., 317; Estate of Granniss, 142 Cal., 1; McClellan v. Mackenzie, 126 Fed. Rep., 701; Bailey v. Sanger, 108 Ind., 264; Barks-dale v. White, 28 Gratt., 224; Freeman v. Colt, 96 N. Y., 63; Marshall’s Exrs. v. Hadley, 50 N. J. Eq., 547; Langman • v. Marbe, 156 Ind., 330; Larwill v. Ewing, 73 Ohio St., 177.
    When a residuary clause in a will admits of a limited application as well as one of a more general character, it should be given that construction which will be most favorable to the heir-at-law. Davis v. Davis, 62 Ohio St., 411; Bane v. Wick, 19 Ohio, 328.
    The rule is, that when an estate is devised with an absolute power of disposal, a devise over of what may remain is void, but that where a life estate only is given in express words to the first taker, with an express power In a certain event, or for a certain purpose, to.dispose of the property, the. life estate .is not, by such a power,, enlarged to a fee or absolute right, and the devise over is good. Home v. Lippardt/70 Ohio St., 261.
    An interest or estate in one clause given in clear and decisive terms is not to be taken away or cut down by a doubt as to the extent of or inference from a subsequent clause, nor by any subsequent words less clear and decisive than the gift. Collins v. Collins, 40 Ohio St., 353; Parker v. Parker, 13 Ohio St., 95; Pendleton v. Bowler, 27 W. L. B., 313.
    Very recently the Cuyahoga circuit court in the case of Steuer v. Steuer, reported in 8 C. C, N. S., 71, 'summarized the Ohio decisions on the question of repugnancy in wills. The reasoning and conclusions of the court are well worthy of careful consideration.
    The limitation is void as well of personal as of real property. Pickering v. Langdon, 22 Me., 413; Cole v. Cole, 79 Va., 252; Holmes v. Godson, 8 De G. M. & G, 152.
    Where the testator gives to the first devisee full dominion and control over the estate, and then under the form of a limitation over undertakes to make, as it were, a will for the first devisee, this, the testator can not do. Baxter v. Boyer, 19 Ohio St., 490; Davis v. Boggs, 20 Ohio St., 550;. Stuart v. Walker, 72 Me., 145.
    The rule is well settled by authority and precedent that when there is a devise or bequest simpliciter to one person and in case of his death to another, the contingency referred to is a death in the lifetime of the testator. Fonder v. Ingersoll, 127 N. Y., 473; McClellan v. Mackenzie, 126' Fed. Rep., 701; Webb v. Lines, 57 Conn., 154; Jones v..
      Webb, 5 Del. Ch., 132; 2 Jarman on Wills (6 fed.), 690; Howard v. Howard, 21 Beav., 550; Morrison v. Truby, 145 Pa. St., 540; Estate of Biddle, 28 Pa. St., 59; Elliott v. Smith, 22 Ch. Div., 236; Stratton v. McKinnie, 62 S..W. Rep., 636; Meacham v. Graham, 98 Tenn., 190; Patterson v. Earhart, 6 O. D., 16.
    Where a discretion is vested in a trustee, where there is no semblance of dishonesty, no taint of unfairness, the action of the trustee of the character in this case has been sustained. Reasonableness in the exercise of discretion is all that is required, and when this is apparent the court will sustain the action of the trustee. The test is the good faith of the trustee and the intent to benefit the cestui que trust. Beach on Trusts, 455. A trustee may generally, acting in good faith, release or compound a debt due to his trust estate. Perry on Trusts, 482; Lewis on Trusts, 591.
    A court of equity will not interfere with the exercise of a discretionary power while trustees are acting in good faith and with ordinary prudence and reasonableness. Tiffany & Bullard on Trusts, 733; Chaplin on Trusts, 469, 471; Gelston v. Shields, 16 Hun, 143, 78 N. Y., 275.
   Spear, J.

We have here a controversy involving only the personal property mentioned in items five and six of the will, it being conceded that Mary L. Rossiter took a life estate in the real property and at least a life estate in the personal property, and that archbishop Elder and his successor, archbishop Moeller, a remainder in fee in the real estate in trust for The St. Joseph’s Orphan Asylum.

By the record and argument of counsel two questions are presented. Does the remainder of the personal property go, by proper construction of the will, to Mary L. Rossiter or to archbishops Elder and Moeller, as trustee for the Asylum? If to the latter, then is the agreement entered into between Mary L. Rossiter and archbishop Elder June 30, 1889, effective to give such remainder to Miss Rossiter ?

1. The construction of the will. It was the judgment of both the common pleas and circuit courts that while item five of the will, if it stood alone, would vest absolute title to the whole personal estate in Mary L., after payment of the previous bequests, yet considered in connection with item six, and considering the entire will, taken up by its four corners, to use a common phrase, an intention on the part of the testator is manifest to give to his sister a life estate in the real estate and the use of the personal property for life, with a remainder of the whole estate, personal as well as real, to archbishop Elder and his successor in trust for The St. Joseph’s Orphan Asylum. With this conclusion we agree. The case is reported and the question fully and ably discussed by Swing, J., in 4 O. L. R., 337, and in a brief opinion by Smith, J., in the circuit court in 9 O. C. C., N. S., 535, the latter court resting its conclusion largely upon Robbins v. Smith, 72 Ohio St., 1. The disposition of the question by these two courts seems to us so obviously well founded that we are quite content to rest our conclusion upon those reports, taken in connection with the terms of the will, and do not consider -it necessary to take space with further elaboration of the question here, although it has been very ingeniously argued pro and con by the learned counsel.

2. The contract. Each of the courts below was of opinion that the agreement was entered upon in the utmost good faith, under circumstances showing an emergency, and for the apparent benefit of the beneficiaries under the will, including the Orphan Asylum, and ought for these reasons to be sustained and given effect, and that the authorities on the subject of trusts justify a judgment validating such an agreement, and therefore that this contract should be enforced. Whether or not this conclusion ought to be affirmed depends upon the evidence before the court. There is no finding of facts by the circuit court separate from the conclusions of law, and we are remitted to the bill of exceptions to ascertain what the evidence before that court established. Fortunately there is no conflict in the evidence bearing upon the essential and controlling facts. To sustain the contract two essentials must have been established. One that it rests upon a valid consideration and possesses the element of mutuality, and another that the archbishop was capable in law of making such a contract. The facts relating to the making of the contract rest largely upon the testimony of Mr. Otway J. Cos-grave, and may be briefly summarized. A few days after the decease of Gregory Rossiter, which occurred June 5, 1899, his sister Mary L. Rossiter and Mr. Cosgrave, a practicing lawyer of the Cincinnati bar, went to the box at the safe deposit company and took out the will. Miss Rossiter, on learning its contents, was much irritated, saying it was a foolish will. The lawyer declined to give an opinion as to the proper construction of the will, saying, however, that he didn’t believe the brother intended to make it a mockery by giving her something which amounted to nothing. He cautioned her to be patient, saying to her that possibly the matter might be adjusted, and that they would take it up with the archbishop. Soon thereafter he saw the archbishop, giving him a copy of the will, and having a conference with him, saying that he took the liberty of not making' the fact of the contents of the will public because a repugnant or inconsistent will would throw doubt on the mental character of the testator; saying also that he didn’t want the archbishop to accept his judgment or advice but to consult an attorney .and be advised by him, and whatever he then thought right and best, to do. He also called the archbishop’s attention to different parts of the will, especially to items five and six, apparently revoking by item six what was given by item five, expressing the further idea as a lawyer that perhaps technically that is what the testator has done, but he didn’t think he intended to do that. It was in this connection that he advised the archbishop to consult his lawyer and go with him over this and take his advice; that he (Cosgrave) represented Mary, and of course was for his client. A week or so later Miss Rossiter came to Mr. Cos-g'rave, who drew up the agreement and took it to the archbishop and left it with him.

The agreement was executed in duplicate June 30, 1899. Accompanying the duplicate of the agreement returned to Miss Rossiter archbishop Elder addressed a letter of same date to her containing this statement: “There is no need for me to consult an attorney about the signing of the enclosed paper. The matter is clear in itself."’ And the testimony shows that although the archbishop had at the time a legal adviser, he, in fact, did not consult him as to this matter.

The will was admitted to probate June 26, 1899.

The record shows that, by the decrees of the Third Plenary Council of Baltimore, which is the law regulating Catholic church affairs in the United States, and therefore binding upon the archbishop of Cincinnati, when there is a question of disposing of the property or funds belonging to the diocese, or of doing that which has the appearance of an alienation of church property, the bishops are free to act if the amount does not exceed five thousand dollars; but when the sum involved exceeds that amount, then the advice of the consulters must be obtained, and having obtained that, permission must be sought from the Ploly See. The board of consulters, so-called, is an advisory board to the archbishop whom by the decrees he was required to consult in matters of this kind involving over five thousand dollars. He is required to take the counsel and advice of this board, but it is for him to determine finally. Some of the deeds for church property vest the legal title absolutely in the bishop, his heirs and assigns; others do not, but all are in fact in trust for the benefit of the institutions or the churches which have been established.

It is shown that archbishop Elder did not consult any of these consulters respecting the matter; nor did he consult the officers of the Asylum Association having the management of the financial affairs of the Asylum, as was his habit in regard to matters connected with that institution; nor with his successor, the present archbishop, who at the time was his secretary and bore close relations with his superior. This gentleman did not learn of the transaction for years after.

As a result of this showing regarding the essential facts, what ought to be the conclusion of law? With respect to a consideration necessary to support the agreement of the archbishop to cede away the rights of his cestui que trust, it must be conceded that the expressed terms of the paper are at best shadowy. “For and in consideration of the avoidance of litigation and in consideration of mutual concessions tending thereto” is the language. What concessions? The paper is silent. What right or advantage did Miss Rossiter, by this paper, give up that she before possessed? She had made no claim at any time, and did not then, to a larger interest in the real estate than a life estate which is distinctly provided in the will. As to “mutual concessions” what are they? As to this the paper is equally silent. If the claim of consideration is supposed to rest on mutual advantageous promises then clearly we must look outside the paper for them. And when we look to the oral testimony for such promises they seem to elude us. Was there a promise 'to forbear bringing suit to construe the will, or to contest it? In his testimony Mr. Cosgrave disclaims any purpose on his part to bring suit and any knowledge of any such purpose on the part of' Miss Rossiter. He also disclaims having knowledge of any other agreement than that embraced in the written paper. Whatever agreement there was between the parties he attempted to embody in the paper to the best of his ability. She would (but for the will) have had one-half of her brother’s property absolutely, while as it was she got nothing. “I felt,” he says ‘'‘and still feel it was a wise adjustment.”

Coming again to the matter of promises, what promises did Miss Rossiter make in the paper or out of it? We have failed to find any expressed. Is any to be clearly implied? True, there was, at the time of the agreement, danger of a suit to contest the will, and, equally true, if such a suit should prove successful, the Catholic interests would suffer serious detriment. But how do those facts aid in supplying a consideration for the contract? That is, how do they show any consideration moving from Miss Rossiter to the archbishop? What did she do contemporaneous with or subsequent to the making of this agreement which can be fairly attributable to the execution of that paper? She did, indeed, oppose vigorously the effort of the nephews and nieces to break the will, keeping up that opposition to the very last and with such persistency as to prevent any possible compromise of the case. She did this by her testimony and in other ways. But this was the line of conduct which she had mapped out for herself even before the will was probated, and while the question of the will being admitted to probate and record was still undetermined. A favorite nephew whom she loved had, before the probate of the will, turned against her and joined his brothers and sisters to fight the will and she was very much incensed against him and on his leaving gave him her left hand. From that time on she was anxious to maintain the will, and said she would spend every penny of her brother’s fortune to sustain it. This occurred between the time the will was offered for probate and the probating thereof. All this appears from the testimony of Mr. Cosgrave. It appears further by his testimony that he could not truthfully say that the concessions made by archbishop Elder as to the personal property influenced her in her treatment or defense of the will; and when asked if the real object of getting the archbishop to make the agreement respecting the personalty was that she would vigorously fight for sustaining the will, the witness frankly answered: “No, I wouldn’t say that;” but she was provoked.' It is not shown that she obligated herself to do, or to refrain from doing, anything. And if it had been attempted by the archbishop to specifically enforce any oblig-ation against her growing out of this 'contract, it would be difficult to suggest any possible relief that could have been accorded, or even in reason demanded, or any relief by way of damages for breach of contract.

There remains the question of the power of the archbishop to enter into this agreement. He was trustee for the Orphan Asylum. By the sixth item of the will the remainder of the personal property is given to archbishop Elder, and his successor in office, to be held or disposed of in such way as he or his successor in office may choose for the benefit of the Orphan Asylum. The power of disposition thus given, although in broad terms, cannot be construed as being absolute and unqualified. The dominant idea is that any disposition of the property must be for the benefit of the Orphan Asylum, for the trust exists only for the benefit of the cestui que trust, and by implication at least any attempt at disposition of the property would be expected to be in accordance, as to method, with the established manner of control, disposition and use of the property of the cestui que trust, the Asylum. It is not contended that the archbishop was actuated by any but the best of motives. It is probable, as counsel claim, and especially as shown by the archbishop’s letter to Miss Rossiter, that he believed a proper .construction of the will would give to her the absolute ownership of the personal property, and being convinced upon that point he willingly did that which he considered was right in itself and was calculated to gratify the sister of a brother who had done so much for his cestui que trust. But in this conception as to the will, as we have found, he was mistaken. In this sense the act was inadvertently done: He could not have realized that he was thus parting, or undertaking to part, with a valuable interest of his cestui que trust, for he was of opinion that the Asylum had in fact no interest in the personal property. He was thus induced to act on a mistaken belief which, had the matter been submitted to a court, would not have met its sanction, and to dó an act which the court would in all probability not have authorized. Being so thoroughly satisfied in his own mind, the archbishop took no pains to conform to the usual and indeed the required method with respect to the exercise of his own authority. He did not consult either his cestui que trust as represented by the officers of the Association which had the business of the Asylum in charge, nor with the consulters whom by the law of the church it was his duty to consult, nor with his legal adviser, or any adviser, for that matter. With due respect to the learned courts below we think there was no emergency in the present case which called for hasty action, a condition held to be controlling in some of the cases cited by counsel for defendants in error. As we have found, Miss Rossiter was not proposing to take any step respecting the will which would in the least prejudice the Asylum’s interests. It might have taken a little time to get the consulters together, but some delay would not have worked harm, while a consultation with his immediate associates in office, and with his legal counsel, so strongly recommended by Mr. Cosgrave, could have been had at the farthest in a few hours. Nor can we agree with the court’s conclusion that the archbishop acted in the greatest good faith and exercised a careful judgment. As already stated there is not shown bad faith from the moral standpoint; exactly the opposite appears. But from the legal standpoint how is it? While a trustee will be treated by a court of equity with indulgence and where he has acted in absolute good faith in all respects will be sustained if it can be done without violating equitable rules, yet he will not be upheld in a .course palpably arbitrary or unreasonable, for it is not enough that he be honest and from a moral standpoint act in good faith; he is bound in law to exercise diligence and to act reasonably. Discretionary powers should be exercised in the manner prescribed in the trust instrument, and, in this case, the trust instrument included as well the tenets of the church as the will of the testator. Those tenets (the decrees of the council) enjoined the duty of consultation. While the ultimate judgment, it appears, was to be exercised by the archbishop, yet the duty remained upon him to take reasonable means, and especially the means prescribed, for the enlightenment of that judgment-This duty confessedly the archbishop entirely neglected, and the rule seems to be uniform that where a duty is specifically enjoined, and the trustee absolutely neglects that duty, the mere presence of good intention and absence of bad motive will not be sufficient to prevent him from being held guilty of breach of trust. In the sense here indicated we think the archbishop did not act in the greatest good faith and that his judgment was a hasty rather than a careful judgment. Nor is there force in the suggestion that the contract was in some measure induced by a necessity for keeping the alleged incongruous and inconsistent character of the will from the public. The will had, some days before, been admitted to probate and thus constituted a part of the public records of the county and so open to the inspection of any interested person, and indeed to the whole world.

The case, as made by the pleadings, presents two phases which it is important to keep in mind. Whatever conceivable obligation rests upon the present archbishop because of the agreement is purely executory. Hence the suit is in effect an action to specifically enforce a contract. In another aspect it is a suit to validate an erroneous construction of a will. It is not at all analogous to a case where a trustee who has made investment of the trust fund in good faith and after taking all reasonable means, to ascertain the value of the securities, is sought to be held personally for an unanticipated loss. Hence authorities which apply to that kind of a case scarcely aid the disposition of the case at bar. And reference to those cases is not important here. Indeed we regard this case as resting so entirely upon elementary rules, recognized and enforced everywhere as controlling the conduct of trustees, that we do not regard it important to cite authorities. They have been cited by counsel and will be found collected by the reporter in his notes.

We are satisfied that a court of equity ought not to decree specific enforcement of a contract by a trustee bargaining away the property rights of his cestui que trust, by a ” contract executory in its character and without valuable consideration, and in behalf of a party who was fully aware of the character of the trust and who. in no way changed her position or conduct in consideration of the acts or promises of the trustee.

The judgment of the circuit court will be reversed and judgment entered for plaintiffs in error.

Reversed.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Gray v. The City of Toledo.

      Assessment upon city lot — Section 53, mtmicipal code — -Section 1536-213, Revised Statutes — Amount limited to thirty-three per centum of value — Within five years — Section applies to levies prior to the act, when — Law of taxation.

    Section 53 of the municipal code of- 1902 (Section 1536-213, Revised Statutes, prior to the amendment of April 21, 1904, 97 O. L., 126) which provided that assessments upon a lot for any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof, is so construed that assessments levied prior to that enactment, and within the five year period, are to be considered in applying the limitation to assessments subsequently levied.
    (No. 10922
    Decided June 8, 1909.)
    Error to the Circuit Court of Lucas county.
    The facts are stated in the opinion.

      Mr. B. A. Hayes, for plaintiffs in error.

      Mr. Charles S. Northup, city solicitor, and Mr. John P. Mantón, for the defendants in error.
   Summers, J.

The city of Toledo levied upon the lots of the plaintiffs, fronting on Millard avenue, three assessments for improvements. The first assessment was made in the year 1900 for a district sewer; the second in the year 1901 for a local sewer, and the third in the year 1905 for the paving of Millard avenue, under proceedings commenced in the year 1903.

The plaintiffs brought suit to enjoin the collection of the'assessment for paving. ' The ground of the first cause of action' was, that the assessment was in excess of the limitation prescribed by Section 53 of the municipal code of 1902 [Section 1536-213, Revised Statutes], as it was prior to the amendment of April 21, 1904, 97 O. L., 126.

The court of common pleas sustained a general demurrer to the first cause of action, and on error its judgment was affirmed by the circuit court.

Section 53 of the municipal code, prior to its amendment in 1904, contained the following provision: “In all cases of assessment the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any and all purposes, within a period of five years, exceeding thirty-three per cent, of the tax value thereof.”

Counsel for the city contend that only assessments made after the enactment of Section 53 are comprised in the limitation, or, to express- it differently, for the sake of clearness, that assessments made prior to that enactment are not to be added to assessments subsequently made, in ascertaining whether the limitation has been exceeded, and that to include prior assessments would be to give the statute a retroactive operation; while counsel for the plaintiffs contends that there is nothing in the statute to indicate that the legislature intended the prior assessments to be excluded in making the computation, and that the statute has a prospective operation when only assessments made subsequent to the enactment are enjoined.

In Rairden and Burnet v. Holden, Admr., etc., 15 Ohio St., 207-210, Brinkerhoff, C. J., says: “The words ‘retrospective’ and ‘retroactive’ as applied to laws, seem to be synonymous; and, as such, they are used interchangeably by Mr. Sedgwick in his treatise on constitutional law,” and he quotes with approval from The Society v. Wheeler, 2 Gallison’s R., 139, Mr. Justice Story’s definition of a retrospective law: “ ‘Upon principle every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.’ ” And in Goodale v. Fennell, 27 Ohio St., 426, it is held that the duty imposed upon the general assembly by Article XIII, Section 6, of the constitution to restrict the power of assessment by municipal corporations is subject to the limitations imposed by Article II, Section 28, of the constitution, which declares the general assembly shall pass no retrospective law or laws impairing the obligation of contracts.

The power to make an assessment for the improvement of this street is given by the same act that limited the amount of the assessment, and the extent of the power is measured by the limitation; and so long as assessments made prior to the passage of that statute are not affected, but only considered in applying the limitation to assessments subsequently made, no vested right is taken away or impaired, nor a new obligation created, nor a new duty imposed, nor a new disability attached in respect to transactions or considerations already passed.

The question is, what was the intention of the legislature ?

Article XTII, Section 6, of the constitution, makes it the duty of the general assembly to restrict the power of assessment of municipal corporations so as to prevent the abuse of the power, and Section 1536-280; Revised Statutes, was expressly continued in force by Section 94 of the municipal code, and provides that proceedings with respect to improvements shall be strictly construed in favor of the owner of property assessed as to the limitations on assessments. And in City of Cincinnati v. Connor, 55 Ohio St., 82-91, it is said by Williams, C. J., that: “The rule generally prevails that, independent of any legislative requirement on the subject, statutes imposing taxes and public burdens of that nature are to be strictly construed; and where there is ambiguity which raises a doubt as to the legislative intent, that doubt must be resolved in favor of the subject or citizen on whom the burden is sought to be imposed.”

At the time the municipal- code of 1902 was enacted there were -various statutes limiting the amount of assessments. As to Toledo it was provided, in substance, by Sections 2271 and 2272, Revised Statutes, that the assessment for any improvement should not exceed twenty-five per centum of the fair market value of the lot after the improvement was made, unless it had been petitioned for by the lot owner. Section 2283, Revised Statutes, provided that assessments should be so restricted that the same territory should not be assessed for making two different streets, within a period of five years, in such amounts that the-maximum assessment would thereby be exceeded. As to sewers,. Section 2384, Revised Statutes, provided that in no case should the assessment exceed two dollars per foot front on the property assessed, and in the City of Cincinnati v. Connor, supra, it was held that such. assessments were suDject, not only to this limitation, but also to the limitation of twenty-five per cent, prescribed in Section 2271.

In view of the constitutional mandate, the rule of construction prescribed by the statute, of the previous decisions of this court, and of the statutes referred to, it would be unreasonable to conclude that the general assembly, in the absence of an express declaration, intended to exclude from the computation assessments made prior to the enactment of Section 53. The exaction from a lot owner of an assessment equal to one-third of the value of his property, for an improvement which he may' not wish and cannot afford, even though an equivalent special benefit results, is a heavy burden, and the general assembly wisely has provided that it shall not be exceeded and that he shall have five years in which to lighten the load before additional-burdens may be imposed. No reason is suggested why an exception should be made of those unfortunates who already were bearing the full burden when Section 53 was enacted, and if the statute is to be so interpreted thén a similar misfortune must follow every repeal and amendment of the section.-

The City of Tiffin et al. v. Griffith et al., 74 Ohio St., 219, is cited as supporting the judgment of the lower court. The section of the code under consideration in that case provided “that no * * * municipal corporation shall hereafter create or assume an aggregate indebtedness,” and the word “hereafter” was supposed to indicate a different intention on the part of the general assembly.

The municipal code was enacted to get rid of special laws, and to provide for the uniform opera-' tion of general laws, and in the accomplishment of that purpose, all special limitations ot assessments were merged in this general provision, and the rule of construction applied in Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U. S., 1, that “A new statute should be construed as a continuation of the old one with the modifications contained in the new one, although -it formally repeals the old statute, when it re-enacts its substantial . provisions and the two statutes are almost identical,” should be applied here.

The judgments upon the demurrer are reversed.'

Judgments reversed.

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


author: Crew, C. J.

text:
    Perkins v. The State, ex rel. Knapp.

      Certain animals not to run at large — Section 4202, Revised Statutes —Permission of municipal authority no defense.

    In a suit to recover the penalti.es provided for a violation of Section 4202, Revised Statutes, it is no defense that the animal alleged to be unlawfully running at large, is at large within a municipality by permission of the municipal authorities.
    (No. 10869
    Decided June 8, 1909.)
    Error to the Circuit Court of • Muskingum county.
    This suit was originally commenced under favor of Section 4204, Revised Statutes, by O. T. Knapp as relator, before a justice of the peace of Harrison township, Muskingum county, Ohio, to recover from the plaintiff in error, John Perkins, the penalties provided for a violation of Section 4202, Revised Statutes, which section provides as follows: “No person or corporation being the owner dr having the charge of any horses, mules, cattle, sheep, goats, swine, dogs, or geese, shall suffer the same to run at large in any public road or highway, or in any street, lane or alley, or upon any uninclosed land, or cause such animals to be herded, kept, or detained for the purpose of grazing the same on premises other than those owned or occupied by the owner or keeper of such animals, except as hereinafter provided; and any person violating the provisions of this section shall forfeit and pay for every such violation, as penalty therefor, not less than one dollar, nor more than five dollars; continued violation, after notice, or prosecution, shall be held to be an additional offense for each and every day of such continuance.” The relator, O. T. Knapp, in his bill of particulars filed with the justice of the peace, alleged that on four different days, to-wit: May 19, 20, 21 and 22, 1906, the defendant, John Perkins, “at the village of Taylorsville in the township of Harrison in the county of Muskingum, Ohio, * * * did then and there unlawfully and wilfully suffer and permit an animal of the cattle kind, to-wit: one certain cow, to run at large' upon the unenclosed lands, streets and alleys of. the said incorporated village of Taylorsville, Ohio, the said defendant being the owner and having the control of said cow and having been notified * * * that his said cow was running at large contrary to law.” The defendant, Perkins, by way of answer to said complaint, filed the following bill of particulars :
    “The defendant admits that on or about the nineteenth day of May, 1906, the twentieth day of May, 1906, the twenty-first day of May, 1906, and the twenty-second day of May, 1906, and on each of said dates, he suffered and permitted an animal of the cattle kind, to-wit, one certain milch cow, to run at large upon the unenclosed lands, streets and alleys of the incorporated village of Taylorsville, in said Harrison township, Muskingum county, Ohio, he being the owner and having the control of said milch cow, and having been notified on May 14, 1906, that his said milch cow was running at large. Defendant further answering says that on July 3, 1890, an ordinance was duly passed by the council of said incorporated village of Taylorsville, which said ordinance was duly published immediately after its passage, and was in full force and effect on May 19, 1906, May 20, 1906, May 21, 1906, and May 22, 1906, which said ordinance is in the words and figures following to-wit:
    “ 'An Ordinance to Prohibit the Running of Stock at Large Within the Corporation.
    “ 'Section 1. Be it ordained by the council of the incorporated village of Taylorsville, county of Muskingum, state of Ohio, that it shall be unlawful for the owner or owners of all cattle (excepting milch cows), sheep, swine, horses, hogs and ducks, to allow the same to run at larg'e within the corporate limits of said village.
    “ ‘Section 2. Any person or persons violating the first section of this ordinance shall, upon conviction thereof, be fined not less than one dollar ($1) nor more than five dollars ($5) for each and every offense and stand committed until fine and costs are paid.
    “ ‘Section 3. It shall be the duty of the marshal of said village to enforce the provisions of this ordinance.
    “ ‘Section 4. This ordinance shall take effect and be in full force from and after its passage and legal publication.
    “ ‘Done in council chamber this third day of July, 1890.
    “ ‘John W. Tignor, Mayor.-

    “ ‘L. H. Green Clerk.’
    “Defendant further says that there is not, and was not on the dates last above mentioned, or any of them, any existing enactment of said council .of the village of Taylorsville relating to the running at large of milch cows, other than that above set forth.
    “Wherefore defendant prays that he may go hence without day,”
    Upon the trial of said cause the relator formally admitted in open court that the facts stated in defendant’s bill of particulars were true, and said cause was submitted upon the agreed facts as therein stated, no other.or further testimony being offered. The justice upon such submission, found the defendant “not guilty” and dismissed said complaint at the relator’s cost. Thereupon the relator filed his motion for a new trial, which was overruled. Relator then filed his petition in error in the court of common pleas, together with a transcript of the proceedings before the magistrate, alleging in said petition in error that the judgment was against the law and the admitted facts. The common pleas court found error in the proceedings and reversed the judgment of the magistrate, to which the defendant in error excepted; and the cause was retained by the common pleas court for trial and judgment, as in cases on appeal. A jury being waived the cause was submitted to said court of common pleas upon the pleadings, which were identical with the original bills of particulars, and the court found the defendant guilty. The then defendant in error, John Perkins, thereupon filed his motion for a new trial, on the grounds that the decision was not sustained by sufficient evidence, was contrary to the admitted facts and contrary to law, and the court on consideration found the motion well taken, sustained the same, vacated and set aside its former finding and decision and granted a new trial, and upon re-submission the court found that there was no error in the proceedings of the magistrate, affirmed, the judgment of the justice and dismissed the cause. Thereupon the then plaintiff in error, relator O. T. Knapp, filed his petition in error in the circuit court, which latter court reversed the judgment of the court of common pleas; and, proceeding to render the judgment which, in its opinion, the common pleas court should have rendered, found Perkins guilty and assessed against him the penalty provided in section 4202, Revised Statutes. To reverse this judgment of the circuit court John Perkins prosecutes the oresent proceeding in error.

      Mr. George K. Browning and Mr. Robert 7. King, for plaintiff in error.

      Messrs. McHenry & Ribble, for defendant in error.
   Crew, C. J.

'The point made and relied upon by-counsel for plaintiff in error as ground for the reversal of the judgment of the circuit court in -this case is, that the provisions of above Section 4202, Revised Statutes, are not operative within the limits of a municipal corporation which has assumed to regulate by ordinance the running at large of animals therein. The claim being that the grant of power to municipalities — Section 1536-100, Revised Statutes, paragraph 10 — “to regulate restrain and prohibit the running at large within the corporation, of cattle, horses, swine,” etc., is necessarily inconsistent with the operation within - the same limits, of the prohibitive provisions of said Section 4202, Revised Statutes; and therefore that no recovery could properly be had in this case against the plaintiff in error, for the reason that the village of Taylorsville had, in the exercise of the power delegated to it, assumed to legislate in respect to animals running at large in said municipality, and had not prohibited the running at large therein of milch cows. That Section 4202, Revised Statutes, is a law of a general nature and was intended by the legislature to have uniform application throughout the state, irrespective of municipal subdivisions or corporate lines, is apparent, we think, from a consideration of the language of the statute itself, and that it was the legislative intent that the provisions of said section should be operative within the corporate limits of the cities and villages of the state, seems. equally clear’ from the language employed in said statute. It is therein provided that: “No person * * * being the owner or having the charge of any * * * cattle * * * shall suffer the same to run at large in any public road or highway, of in any street * * * or alley or upon any uninclosed land * * * except as hereinafter provided.” It is further enacted by Section 4207 of the same chapter, that: “A person finding an animal mentioned in section forty two hundred and two, at large, contrary to the provisions of this chapter may, and any * * * marshal * * * of any city or village, on view or information, shall take up and confine the same,” and there is affixed as a penalty for the non-performance of the duty thus imposed upon the marshal a fine of not more than twenty-five dollars or imprisonment not more than ten days or both. It is inconceivable why the legislature should have imposed this duty upon a municipal officer under such a penalty, or should in Section 4202 have used the descriptive words “street and alley,” if the statute was to be inopérative within the corporate limits of any municipality. The general grant of power to municipalities by Section 1536-100, Revised Statutes, “To regulate restrain and prohibit the running- at large within the corporation of cattle,” etc., is not exclusive, and hence such power must be exercised in subordination to, and in- conformity with, the general laws of the state, and that which the statute absolutely prohibits the municipal corporation may not by ordinance license and permit. As said by this court in The City of Canton v. Nist, 9 Ohio St., 440: “This limitation even if not expressed must doubtless be regarded as implied in all such general grants of power; for it must be presumed that the legislature would not intend to give to a corporation the power of contravening and defeating state policy by ordinances inconsistent with the laws of the state.” It may be noted, that the ordinance pleaded and relied upon as a defense in this case does not affirmatively authorize the running at large of milch cows within the corporate limits of the village of Taylorsville, but enacts and provides only, “that it shall be unlawful for the owner or owners of all cattle (excepting milch cows) to allow the same to run at large within the corporate limits of said village.” But if said ordinance be construed as permitting the running at large of milch cows, within said village, still, the same is no justification or defense to a defendant in an action prosecuted under the statute; for permission from the corporation can be no defense against the statute. In the present case both the statute and ordinance relate to and cover the same subject matter; this however is permissible, and the existence or exercise of express power by the municipality does not abridge or impair the power of the state over the same subject, and where, as in the present case, the grant of power to the municipal corporation is not exclusive, the jurisdiction of the state and the municipality is concurrent. Cooley’s Constitutional Limitations, 279; McQuillan Municipal Ordinances, Sec. 500; Koch v. State, 53 Ohio St., 433. It follows, we think, that the ordinance pleaded by the plaintiff in error in this case could not avail him as a defense, in an action brought against him under the statute.

!’Judgment affirmed.

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


author: Price, J.

text:
    The Lowellville Coal Mining Co. v. Zappio.

      Action before justice of peace — Having jurisdiction of case and defendant — Attorney for defendant — May confess judgment for plaintiff, when — Record prima ,facie evidence of attorney’s authority, when — Section 6¿pó, Revised Statutes — Prosecution of error under Section 6yo/, Revised Statutes — Court procedure

    1. In an action before a justice of the peace in which he has acquired jurisdiction of both the subject-matter of the action and the defendant therein, an attorney employed by the defendant to represent him in the action, may appear before said justice and in open court confess judgment in favor of the plaintiff and against his client, for the amount claimed to be due, and his authority to do so will be presumed until the contrary is shown. The record of the judgment so rendered is prima facie evidence that the attorney who confessed it was properly authorized. • ■
    2. Under the provisions of Section 6596, Revised Statutes, no appeal is allowed from a judgment rendered on such confession.
    3. In said action, and after the judgment on confession had been rendered, the defendant, by said attorney, gave notice of appeal, and an undertaking for appeal was given in due time and to the approval of the justice, which, with a transcript of his docket containing the proceedings in the action, was filed within due time in the court of common pleas. Thereafter the plaintiff filed a motion to dismiss, on the ground that an appeal is not allowed from a judgment on confession. The court overruled the motion. The plaintiff neglected or refused to file a petition in the case, and after the time prescribed by statute for the filing of such petition had elapsed, the court dismissed the action, “for want of prosecution,” and rendered judgment against the plaintiff for costs of the suit.

      Held: 1. That such judgment of dismissal and for costs is a final order as contemplated by Section 6707, Revised Statutes, and forms a predicate for the prosecution of error in the circuit court.
    2. If the circuit court finds error in such judgment of dismissal, it may proceed to consider the order of the lower court overruling the motion to dismiss the appeal, and may sustain the motion and dismiss the appeal.
    (No. 10980
    Decided June 25, 1909.)

      Error to the Circuit Court of Mahoning county.
    The facts are stated in the opinion.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Mr. Frank Jacobs and Mr. D. J. Hartwell, for defendant in error.
   Price, J.

The defendant in error brought suit against the plaintiff in error, before William B. Moore, a justice of the peace for Poland township, Mahoning county, to recover compensation in the sum of three hundred dollars for injuries alleged to have been sústained by him while he was in the employ of said company as a coal miner. The bill of particulars was filed on the 23d day of April, 1906; a summons for the defendant was issued and served. In addition an endorsement appears on the writ as follows: “Defendant accepts service. Jacob Stambaugh, President.” The return day was April 27, 1906, at 9 o’clock a. m. By consent of parties the case was continued to May 1, 1906, same hour. The record shows that on that day the parties appeared and by consent the case was continued to May 2,1906, 1 o’clock p. m. On that day, as the transcript shows, the following occurred: “May 2, 1906. Emil J. Anderson appeared as attorney for the defendant and confessed judgment in favor of the plaintiff in the sum of $300 and against defendant and for costs and gave notice of appeal. It is therefore considered and adjudged by me that plaintiff recover from defendant the sum of $300 debt and costs herein taxed at $-. W. B, Moore, Justice of the Peace.” On the 28th of May, same year, defendant moved that the docket entry be corrected to read: “Judgment by default” instead of “confessed judgment.” This motion was overruled on May 31, and defendant excepted.

On the day judgment was entered, the defendant filed an appeal bond which was in due form and which was approved by the justice on the 10th of May, 1906. On the 31st of May, 1906, a transcript from the docket of the justice was filed in the court of common pleas. On August 3, 1906, the plaintiff filed a motion to dismiss the appeal, which was sustained on the 22d of September, 1906, and the appeal was dismissed. On October 12, 1906, the defendant filed a motion for rehearing, which was sustained October 18, same year, and cause reinstated, and on January 11, 1907, the court overruled the motion to dismiss the appeal.

The record shows the next step was taken May 6, 1907, when the court dismissed the action for want of prosecution. The entry reads: “The plaintiff failing to file an amended petition, the court for that reason dismisses the action for want of prosecution,” to which plaintiff excepted. Judgment was rendered against pla’intiff for costs.

Thereupon Zappio filed his petition in error against the plaintiff in error in the circuit court of Mahoning county, to reverse the judgment and orders of the court of common pleas. The errors assigned in that court were: “First. The court erred in overruling the motion of plaintiff in error to quash the appeal. Second. The court erred in assuming jurisdiction in the premises, other than, to dismiss the appeal and render judgment for costs. Third. The court erred in rendering judgment against the plaintiff in error.”

The circuit court reversed the judgment of the common pleas and rendered the following judgment:'“It is therefore considered by this court that the judgment and decision rendered_ by the said court of common pleas be reversed and held for naught at costs of defendant in error, and the court further proceeding to render such judgment as the court of common pleas should have rendered, find that the motion to quash and dismiss the appeal is ■ well taken and hereby doth grant the same. It is therefore considered by the court that the motion to quash the appeal be sustained and the appeal taken from the magistrate court to the court of common pleas be dismissed at costs of defendant. To all of which judgment and order the defendant in error excepts.”

The coal mining company prosecutes error in this court to reverse said judgment.

We are disposed to consider the several points of error involved in inverse order to that adopted in the brief of the plaintiff in error, because from any viewpoint, the validity of the judgment rendered on confession of the coal company by its attorney, is necessarily to be determined. If the judgment so rendered upon its face is invalid; if an attorney could not legally confess judgment for his client in the case then pending before the justice, the same was not only irregular but void, inasmuch as the justice had no authority to recognize the effort of the attorney and enter such a judgment. In that event the judgment on its face would appear to be void, and might be wholly disregarded or collaterally impeached. On the other hand if such confession was apparently within the authority of the attorney, a judgment so confessed is not void on its face, and while in force must be treated as other judgments on confession.

The transcript from the docket of the justice shows that on the day to which the case had been continued by mutual consent of the parties, “Emil J. Anderson appeared as attorney for defendant and confessed judgment in favor of plaintiff in the sum of $300 and against defendant, and for costs, and gave notice of appeal.” The defendant had been regularly summoned and one continuance had to May 1st. On that day the ■ “parties appeared and by consent case was continued to May 2d at 1 o’clock p. m.” On that day the confession was made. The justice had obtained jurisdiction over the subject-matter and of the defendant, and this jurisdiction was unquestioned when the judgment was rendered. According to the foregoing entry immediately following the judgment so entered on confession by the attorney, he gave notice of appeal. That act was not repudiated, for we see that an appeal bond was given and-approved, and with it a transcript of the docket entries, etc., were duly filed in the court of common pleas.

If the judgment so rendered is considered as a “judgment rendered on confession” then no appeal from it could be lawfully taken to the court of common pleas. In other words, such judgment is final. Section 6596, Revised Statutes, provides that an appeal shall not be allowed in a case where judgment is rendered on confession.

What then is the standing of the judgment under consideration? It is not governed by Section 588, Revised Statutes, for that relates to a party appearing before the justice without process and confessing an indebtedness, in which case on the application of the creditor judgment may be rendered for the amount confessed.

In answer to the foregoing question we are of opinion that in a case attended by the facts appearing in the record and which have been quoted- from the transcript, an attorney has power to confess judgment for his client, and that such power will be implied, where nothing to the contrary appears, and the record of the judgment is prima facie evidence that the attorney who confessed it was properly authorized. See 4 Cyc., 936. And in 23 Cyc., 701-2, it is said that “as a general rule a confession of judgment can be made only by defendant himself, or by some person duly authorized to act for him in that behalf. The authority of an attorney at law appearing in open court will be presumed until the .contrary is shown, but this is not so in the case of an attorney in fact. An agent acting within the scope of his authority and- to the extent of it, may confess judgment against his principal.”

The latter proposition -is made by no less authority than Black, author of the treatise on judgments.

It has not fallen to the lot of this court to pass directly on this question, but we may infer support from both statute and decision.. As counsel for plaintiff in error states, there is no section in the statute regulating procedure before a justice of the peace that expressly directs how he may entertain jurisdiction on a confession of judgment-in open court, even by a defendant in person, but the practice may be borrowed from that prevailing in the court of common pleas. But in Section 6581, we have the following as to a case before a justice: “If the defendant, at any time before trial, offers in writing to allow judgment to'be taken against him for a specified sum, the plaintiff may immediately have judgment therefor with the costs then accrued” and then provides that if plaintiff reject the offer and fail to recover a greater sum, he cannot recover costs. In Carpenter et al. v. Kent’s Admrs., 11 Ohio St., 554, it was held that a writing signed by the defendants by their agent and read in the presence of the parties to the plaintiffs by the agent, offering in its terms to allow plaintiffs to take a judgment in the case for a specified sum against defendants and delivered to the justice, is an offering in writing as contemplated by the statute, although the names to the offer are signed by an agent. We have here also a method by which a justice takes and exercises jurisdiction on offers to confess judgment. If the offer should be for the whole amount claimed, the justice still would have jurisdiction to render judgment. There the agent signed the names of the defendants to the offer and appended his own name as their agent. The offer was held binding under the circumstances. We think under this statute, jurisdiction is conferred upon a justice of the peace to render judgments on confession, whether it be a confession of part, or confession of the whole claim. A defendant can appear in person in that court and confess judgment for the entire demand of plaintiff. And a confession of judgment made by his attorney after court had obtained complete jurisdiction of person and subject-matter is prima facie valid.

There are many cases whicn support the text above quoted. Some of them speak of the question as a judgment by consent through the attorney, others of judgments on confession by the attorney. We give some of such decisions.

In Arnold v. Nye, 23 Mich., 286, it was held that where the record of a judgment discloses that an attorney of such court assumed to answer for a defendant and consented in writing that judgment might be entered against him, the court will assume in the absence of any evidence to the contrary that such attorney was duly authorized. This would be sufficient evidence of jurisdiction of the parties.

In Dockham et al. v. Potter, 27 La. An., 73-75, it is said, that an attorney at law who consents to a judgment, as was done by Haynes in this case, is presumed to have, authority to do so. “This,” says the court, “was expressly decided in the case of Dangerfeld v. Thurston’s Heirs, 8 N. S., 235, and nothing to the contrary has ever been held by this court. If the plaintiff desired this court to notice the suggestion that the attorney at law who consented to the judgment now complained of, in her behalf, had no authority to do so from herself and her husband, she should have alleged the fact under oath, which has not been done.”

Denton v. Noyes, 6 Johnson, (N. Y.), 297, is a case bearing somewhat on the present question and the opinion written by Chancellor Kent is worthy of consideration.

In Price v. Ward et al., 1 Dutcher’s Reports, 225, the supreme court of New Jersey held that, “in an action upon a judgment, want of authority in the attorney by whom the appearance of defendant was entered, or judgment confessed, may be shown in avoidance of the judgment. The record is prima facie evidence ■ that the attorney who appears to the suit, or confesses the judgment is duly authorized for that purpose.”

An important case is found in Wilson v. Spring, 64 Ill., 14. The third, fourth, fifth and sixth sections of the syllabus are quite in point. In the opinion, Justice Walker, on page 18, says: “It has, so far as we are aware, never been contested that an attorney retained in a case, may on the trial, make admissions and waive rights of his client, which will be as binding as if made by himself. This is necessary from the very nature of the employment. If wrongfully made, he is liable to his client for the injury he sustains thereby. * * * It has been repeatedly' held that an attorney may admit facts on the trial, or in pleading, waive a right of appeal, review, notice, etc., and confess a judgment.” See also Dobbins v. Dupree, 39 Ga., 394; Potter v. Parsons et al., 14 Ia., 286; Flanigen v. City of Philadelphia, 51 Pa. St., 491.

The supreme court of Indiana in Thompson et al. v. Pershing et al., 86 Ind., 303, laid down the proposition that, “an attorney has, by virtue of his employment in a cause, such power to agree to the entry of a judgment, that his client will be bound thereby, and if, in doing so, he violate instructions, he will be responsible to the client.” See also Martin v. Judd, 60 Ill., 78; Harper v. Cunningham, 5 Appeal Cases D. C., 203. We forbear citing other cases although they are numerous.

According to the principles maintained by the above authorities, the plaintiff had a judgment in his favor on confession by an attorney in open court whose authority to so confess is presumed until the contrary is made to appear. This confession was made before the justice on the 2d of May, 1906, and at once the attorney gave notice of appeal, which was afterwards perfected.

On the 28th of the same month and year, the defendant moved that docket entry be corrected to read: “Judgment by default” instead of “confessed judgment.” It seems that decision on this motion was reserved until May 31, at 9 o’clock a. m., when it was overruled. We are not informed as to what evidence was offered, if any. Whether anything further was done to have the decision of that motion reviewed we do not know. If the attorney acted without authority in confessing the judgment, we are not advised by the transcript that it was attempted to be shown on hearing of that motion, and h'is authority is still presumed.

After the case reached the court of common pleas on the effort to appeal, we find that the defendant filed a motion in that court to correct or impeach the entry of judgment rendered by the justice; that it should read “judgment by default” instead of “confessed judgment.” That motion failed. It was not claimed that the attorney was without authority to confess judgment, but the motion seemed to imply that he had authority to ask the justice to enter judgment by default.

The plaintiff filed no petition in the court of common pleas, and it is recited in the record of the court of common pleas that, “the plaintiff failing to file an amended petition the court for that reason dismisses the action for want of prosecution.” These acts of the court place the parties in a unique position. If the case was not appealable, and on the record we so hold, the plaintiff had ¡a right to a dismissal of the appeal and could rely ron it. He could not be compelled to file a petition and enter upon a full or further litigation to obtain redress. He resorted to the proper method of testing the appeal. His motion was first sustained and later overruled. He was under no obligation to file a petition if he was right on his motion to dismiss. He did not take the case to the court of common pleas and was not required to keep it there. What should be done?

The plaintiff in error claims that refusing to dismiss an appeal is not a final order upon which error can be prosecuted. In Thatcher v. Watson et al., 51 Ohio St., 561, (a memorandum case) this court reversed a judgment, “for the reason that the order of the court of common pleas, overruling the motion to dismiss the appeal, is not a final order upon which error can be prosecuted.” With this as a general rule we are still satisfied.

But plaintiff in error goes further and claims that the order or judgment of the court of common pleas dismissing the action for want of prosecution was not a final order that could be reviewed on error in the circuit court. These two contentions, if sustained, would make a deadlock.The plaintiff must file a petition and litigate, where he has a judgment on confession before the magistrate, and be defeated in the court of common pleas, before he can have a review of the judgment refusing to dismiss the appeal, because the latter is not a final order. If he declines to file a petition and litigate on the appeal, and the ‘court dismisses the action which defendant took there, for want of prosecution on the part of the plaintiff, there still is no final order upon which error can be prosecuted. This would seem to be a legal paradox. ■

The pendency of the case on an alleged appeal was an obstruction to a direct review of the judgment refusing to dismiss the appeal. According to Thatcher v. Watson, supra, such refusal is not a final order. What shall the court do in such case where the plaintiff fails to file a petition and insists that his judgment on confession has not been suspended or vacated by the attempted appeal? Must the case continue on the docket without any issue being made?

The reason assigned by the court for dismissing the action may be a wrong reason. The action zvas dismissed , by the court, and that ended that action within the meaning of Section 6707, Revised Statutes. It provides: “An order affecting a substantial right in an action, when such order determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this title.”

The dismissal was not made without prejudice, and while it might not bar a new suit on the same cause of action, it was an order which determined the pending action and thereby prevented a judgment other than the dismissal.

Furthermore, by reference to the original transcript of the record in the court of common pleas, we find that that court rendered a judgment against the plaintiff for costs. We think that order of dismissal and judgment for costs terminated that action, and is a final order within the meaning of said statute.

The circuit court reversed this order of dismissal and judgment for costs.

Therefore there was a foundation for the judgment of the circuit court reversing the order of final dismissal and judgment for costs. This paved the way to reach the judgment on the motion to dismiss the appeal, and the circuit court held that the case was not appealable, sustained the motion and dismissed the appeal. With this we find no fault.

If we are right in our regard for the confessed judgment, the plaintiff in error had no standing in the court of common pleas. It had no legal right to take the case there on appeal, and therefore its legal rights have not been prejudiced by the action of the circuit court, and its judgment should be’ affirmed.

Judgment affirmed.

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