text:
    Railroad Company v. Walrath.
    1. A passenger, by train of a railroad company, traveling in the coach of a sleeping-car company, may properly assume, in the absence of notice to the contrary, that the whole train is under one management ; and in such case, where he sustains injury by the negligence of one in the employ of the sleeping-car company, he may maintain an action against the railroad company. What the effect of such notice would be is not determined,

      2. On proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping-car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable. Railroad Co. v. Mowery, 36 Ohio St. 418, followed.
    Error to the District Court of Hamilton county.
    Walrath brought suit in the superior court of Cincinnati against the Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company, to recover damages for an injury alleged to have been sustained while he was a passenger on the company’s road. He paid to the company his fare from Cleveland to Cincinnati, and also, after the train had started, paid for a berth in a car of the Woodruff Sleeping-Car Company, which car formed part of the train. After riding in his proper seat in the sleeping-car an hour or more, the upper berth came down, striking him, as he alleges, on the head, causing injury to the spinal cord, and ultimately paralysis. This, he avers, was without fault on his part, and by reason of the negligence of the railroad company, as well in using defective appliances as in the management of the same. There was evidence that the berth had never fallen before or afterward, and that, on examination after the accident, ,no defect could be discovered in its construction.
    The case was heard upon petition, answer, reply and testimony, and a verdict for $6,000 was found, upon which judgment was rendered. The judgment was affirmed in the district court, and the opinion of the court, by Avery, J., will be found in 7 Am. Law Record, 555. This petition in error was filed by the railroad company to reverse the judgments.
    Refusing to charge in terms that no presumption of negligence arose, from the fact that an accident occurred to Walrath while traveling as a passenger in the sleeping-car, and that, if there was no defect in. the road, or the car, or the mechanism used, the burden to show negligence of the railroad company’s employees was on him, the court charged the jury, among other things, as follows:
    “ The burden of proof is on the plaintiff to show that he was injured by the defendant’s negligence, either in not providing safe and suitable cars, or in not properly inspecting and taking care of said cars. A mere statement that a person was injured while riding on a railway, without any statement of the character, manner, or circumstances of'the injury, does not raise a presumption of negligence on the part of the railway company. But if the character, manner, or circumstances of the injury are also stated, such statement may raise, on the one hand a presumption of such negligence, or, on the other, a presumption that there was no such negligence. If the plaintiff was in fact injured while sitting in his proper place, by the falling on to his head of the upper berth, while said upper berth ought to have remained in place above, such fact raises a presumption in this case of negligence, for which the defendant is liable. If you find that there was no defect in the road, or in the ear, or the mechanism used, yet, if upon the evidence in this case, you find it reasonable to presume that the accident happened by reason of the upper berth not having been properly fastened in place, or by reason of the persons having charge of the ear having failed to observe that it had become loosened, if such insecure condition would be observed by proper diligence, you have a right so to presume, and you would then find the defendant guilty of negligence. If, on the other hand, in such ease, you find it equally reasonable to presume that the fastening of the berth was loosened by some other person, not those in the employment of the defendant, and such insecure condition would not be observed by proper diligence on the part of the persons having charge of the car, you have the right’so to presume, and in that case would find the plaintiff failed to make out a case of negligence against the defendant. . . . The plaintiff is entitled to damages for injury traceable to the defendant’s fault, but not for injury caused by his own act.”
    Exception was taken to specified portions of this charge.
    The railroad company also insisted that it was not liable for the negligénce of the servants of the sleeping-car company, but the charge of the court was adverse to the claim, and exception was taken.

      Stallo, Kittredge S Shoemaker, for plaintiff in error,
    commented on cases cited by defendant in error, and, on the question as to the presumption of negligence, cited: Railroad Co. v. Mowery, 36 Ohio St. 418; Railroad Co. v. Mitchell, 11 Heiskel, 400; Pierce on Rail. 314; Shear. & Red. on Neg. § 280; McPaddon v. Railroad Co., 44 N. Y. 478; Railroad Co. v. Napheys, 90 Pa. St. 135; 1 Albany L. J. 318; 18 Alb. L. Jour. 70; Railroad Co. v. Gibson, 23 Alb. L. Jour. 431; Bridges v. North London Railway, 7 Eng. & I. App. 213; Bird v. Great North. Railway, 28 L. J. Ex. 3; Hanson v. Railroad Co., 20 Weekly R. 297; Cooley on Torts, 661; 9 Met. 1; 53 Texas, 46.

      Follett, Eymcm & Dawson, and T. H. Kelley, for defendant in error:
    1. Railroad company liable for negligence of porter in sleeping car. Penn Co. v. Roy, 102 U. S. 451; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Thorpe v. Railroad Co., 76 N. Y. 402; Knisely v. Railroad Co., 125 Mass. 54; Kennedy v. Railroad Co., 62 Ill. 395.
    2. Charge as to presumption of negligence was correct. Railroad Co. v. Mowery, 16 Ohio St. 418; Cooley on Torts, 663; Sullivan v. Railroad Co., 30 Pa. St. 234; Wharton on Negligence, § 661; Railroad Co. v. Napheys, 90 Pa. St. 135; Railroad Co. v. Noell, 32 Gratt. (Va.) 394; Railroad Co. v. Reynolds, 88 Ill. 418; Railroad Co. v. Cragin, 7 Ill. 177; Lyons v. Rosenthal, 18 N. Y. S. C. 46; Garrett v. Railroad Co., 36 Iowa, 121. See also, Ware v. Gay, 11 Pick. 106; Stevens v. E. & N. A. Railway, 66 Me. 74; Meier v. Penn. R. R. Co., 64 Penn. St. 225; Pittsburgh & Connellsville R. R. Co. v. Pillow, 76 Penn. St. 510; Boyce v. California Stage Co., 25 Cal. 460; Skinner v. London, Brighton, &c. R’y Co., 5 Exch. 787; Carpue v. London & Brighton R’y Co., 5 Q. B. 747; Dawson v. Manchester, Sheffield, &c. Railway Co., 5 L. T. (N. S.) 594; Byrne v. Boadle; 2 Hurlst. & C. 596; Scott v. London & St. Katherine Docks Co., 3 H. & C. 594; Pennsylvania Co. v. Roy, ante. The principle for which we contend is the same as that decided by this court in the case of Graham v. Davis, 4 Ohio St. 362, and which, has since been followed in numerous decisions. Wharton on Neg. § 422; 2 Redfield on Railways (4th ed.) § 192.
   Okey, C. J.

Two questions are presented : first, as to the liability of the railroad company for injury to a passenger traveling on one of its trains in a coach of a sleeping-car company; secondly, as to the presumption arising from proof of the injury.

1. In Southern Express Co. v. Railway Co., 10 Fed. Rep. 210, Miller, J., said that “the express business is a branch of the carrying trade that has, by the necessities of commerce and the usages of those engaged in transportation, become known and recognized“ that it is the duty of every railroad company to provide such conveyances, by special cars or otherwise, attached to their freight or passenger trains as are required for the safe and proper transportation of this express matter on their roads “that under these circumstances there does not exist* on the part of the railroad company, the right to open and inspect all packages so carried; ” and “ that, when matter is so confided to the charge of an agent or messenger (of the express company), the railroad company is no longer liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due cai’e, skill and diligence on the part of the railroad company.” And see Penn. Co. v. Woodworth, 26 Ohio St. 585.

Counsel for plaintiff in error argue in this case that sleeping-cars have became recognized as so far necessary to the comfort and convenience of passengers by railway, that railway companies may be compelled, in like manner, to attach the coaches of sleeping car companies to their trains, where they have failed to provide their own cars for such purpose, in which case there should be a corresponding modification of the liability of the railroad company, and that whether the arrangement between the companies be enforced or conventional, the railroad company should not be liable for injury to passengers resulting solely from negligence of the agents of the sleeping car company.

In support of this view, attention is called to the fact that in Penn. Co. v. Roy, 102 U. S. 451, where the liability of the railroad company for an injury received in a car of the Pullman Palace Car Co. was asserted, Harlan, J., lays stress on the fact that the railroad company had published and circulated cards, which were in such form as to induce the belief that the sleeping-car was under the management and control of the railway company. But, on examination of the whole opinion, we find there was no intention to place the liability on such narrow ground; and we have no hesitancy in saying that, in the absence of notice, that the company will not be liable for defective appliances in the sleeping-car or negligence of servants of the sleeping-car company, a passenger may well assume that the whole train is under one general management. Thorpe v. Railway Co., 76 N. Y. 402; Kinsley v. Railroad Co., 125 Mass. 54. How far a railway company may, by agreement with a sleeping-car company, known to the passenger, exonerate itself for liability for such injuries, is a question concerning which wo express no opinion.

2 As to the presumption stated in the charge, counsel for plaintiff in error say that there was no evidence that the injury resulted from defect in the car or any part of it. Hence, the injury was occasioned by the negligence°of the porter in securing the berth in its place, or by-the interference of some other person with the fastenings of the berth. This statement is probably correct. Now, in charging that the burden was on "Walrath to show the injury resulted from the negligence of the defendant below, and that he could only recover for negligence traceable to the defendant’s fault, the court virtually charged that he was required to show that he was without fault. This being shown, we think the court might then well say, under the circumstances, that the negligence of the defendant might be presumed. We are aware that upon this subject the authorities are in some conflict. Roscoe’s N. P. Ev. (14th ed.) 695; Thompson on Car. Pas. 209 ; Schouler on Bailments, 642 ; 2 Wait’s Act. & Def. 90 ; Pierce on Rail. (ed. of 1881) 298; Johnson v. Railroad Co., 20 N. Y. 65; Readhead v. Midland Railw. Co., 4 L. R. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Railw. v. Fawcett, 1 Moore (P. C.) 101, 116; cf. Czech v. General Steam Nav. Co., 3 L. R. C. P. 14. But tlie general question was carefully considered in Railroad Co. v. Mowery, 36 Ohio St. 418, and we think the principle of that case sustains the court below in the charge given and in refusing the charge' requested. Railroad Co. v. McMillan, 37 Ohio St. 554, was an action for killing a horse on the company’s road, and has no application. Whether the sentence next to the last in the portion of the charge set forth in the statement of this case, was not more favorable to the railroad company than was warranted, we need not determine.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Conard v. Conard.
    An appeal will lie from the court of common pleas to the district court in an action by one co-tenant against another for rents and profits, under the act of May 18, 1868 (S. & S. 578), involving an account of profits received and also of expenses incurred in the improvement and betterment of the common property.
    Error to the District Court of Licking county.
    The original action was brought under favor of the statute of May 13, 1868 (S. & S. 578), by a tenant in common against his co-tenant, for an account of rents and profits received by the defendant, who had enjoyed the sole possession of the common property for a number of years. The plaintiff claimed to be the owner of 13-86th parts of the premises, and, denying that the defendant's possession was under any contract or agreement between the parties, demanded judgment for 13-36th parts of the rental value of the premises.
    The defendant, by answer, alleged that he had not received from his use of the land profits equal to its rental value, and that during his possession he had expended large sums of money and labor in the improvement and betterment of the land, and in the payment of taxes; namely, in the construction and repair of permanent buildings, fences, ditches, &c.

      On the trial, in the court of common pleas, judgment was rendered for the plaintiff.
    Defendant appealed to the district court, where the appeal, on motion of the plaintiff, was dismisssed, on the ground that the cause was not appealable.
    The dismissal of the apjoeal is the sole ground alleged for error.

      James R. Stanbery, for plaintiff in error.

      Charles II. Kibler, for defendant in error.
   By the Court.

The action given by the statute is a “ civil action ” for rents and profits “ received ” by a co-tenant in excess of his full share, “according to the equity and justice of the case.” A civil action in which neither party has a right to demand a trial by a jury may be appealed. The case made upon this record is not an action for the recovery of money merely, but for an account according to the principles of equity, in which neither party had a right of trial by jury.

In this respect, at least, our statute differs from the English statute of 4 Anne, c. 16, § 27, which gave an action at law against a co-tenant as bailiff.

"Without undertaking, however, to define the rights given to co-tenants by our statute, we are unanimously of opinion that the district court erred in dismissing the appeal.

Judgment reversed.


author: Lonqworth, J.

text:
    Kuhns v. McGeah.
    One who purchases land, receiving a deed of general warranty, without knowledge of a mortgage theretofore made by his grantor, but which mortgage was duly recorded, acquires no greater estate than an equity of redemption, notwithstanding the fact that the mortgagee, from time to time, for a valuable consideration, after the purchase, extended the time of payment of the debt secured until the mortgagor became insolvent.

      Error to the District Court of EranMin county.
    The original suit was brought in the common pleas court of EranMin county by Matilda S. McGeah to foreclose a mortgage upon a lot of land in the city of Columbus, made by William J. Kuhns to secure a loan of $2,100, payable in one year. The cause was appealed to the district court, and upon trial there, the plaintiff obtained a judgment of foreclosure and order of sale of the mortgaged premises. To reverse this judgment the proceeding before us was instituted. The bill of exceptions taken at the trial contains the agreed statement of facts, which was the only evidence offered, and which is as follows:
    “ It is agreed, That William J. Kuhns, on the 24th day of May, a.d. 1868, borrowed of the plaintiff the sum of $2,100 and executed therefor his said note, for $2,100 payable in one year, and also his two notes of $105 each, one payable in six months, and the other in twelve months, as interest, at the rate of ten per cent., on the principal sum so borrowed; and at the same time executed his said mortgage on the said premises described in the petition, which was duly recorded, to secure the payment of said notes. Said interest notes were duly paid, and, at the expiration of the year, the payment of the principal was extended for another year at ten per cent, interest, which interest, at that rate, was duly paid.

      “ On the 24th day of May, 1870, the said note was again extended for another year, at twelve per cent, interest, which interest was also duly paid, and the note was then extended to November 24, 1872, at ten per cent, interest per annum, and this interest was also paid.
    “ On the 24th day of November, 1872, said note was again extended for one year, at the rate of eleven per cent, per annum; this interest was also paid. About this time, or before, a new note of same date was given for the principal sum, to wit, $2,100; and the old note, the back of which had become covered with indorsements, was for that reason given up. Erom November 24,1873, to May 24, 1876, payment of said note was, by agreement between plaintiff and said William J. Kuhns, extended from year to year, and interest at the rate of twelve per cent, for that time was paid.
    “ On the 24th day of November, 1876, an extension for another year was agreed upon at ten per cent, interest, and said “William J. Kuhns gave his three notes for interest at the rate of ten per cent., one payable in four months with interest, for $105, being interest then due at ten per cent., and one payable in six months, for $105, and the other payable in twelve months, for $105. These three notes remained unpaid, and are produced in court. Neither of the defendants, Augustus Kuhns or Henry Mithoff, had any knowledge or notice of any said extensions.
    “ On the 19th day of February, A. d. 1869, said William J. Kuhns sold and conveyed by deed, with covenants against incumbrances, and of general warranty, the said premises so mortgaged, to the defendant, Augustus Kuhns, for a full and valuable consideration, and without actual notice to said vendee of said mortgage.
    “ On the 29th day of March, a. d. 1873, Augustus Kuhns sold and conveyed by deed with covenants against incumbrances, and of general warranty, said premises, for a valuable consideration, to defendant, Henry Mithoff, who had not actual notice of the existence of said mortgage.
    “ The plaintiff, during the year 1870, had notice of the said sale of said premises by William J. Kuhns, to Augustus Kuhns, and after said sale, and notice thereof, extended the time for the payment of said indebtedness, for a valuable consideration. The said William J. Kuhns, at the time the said note matured, and at the time he sold said premises, was solvent, but is insolvent now, and was at the time this action was brought; and he was solvent at the times, and after the plaintiff, with knowledge of said sale of said premises, extended the .times for the payment of said note.”

      Jones da Jones and Hoffman dt Hoffman, for plaintiff in .error:
    By the agreed statement of facts in this case, it appears that the defendant in error, having knowledge of the fact that her mortgagor had sold the mortgaged pi’emises for a full and valuable consideration ; having knowledge of the fact that her mortgagor’s vendees had no actual notice of her mortgage, and were resting securely in the belief that they were in the possession of a perfect unincumbered title; and having knowledge of the fact that her mortgagor was solvent, and therefore able .to save his vendees harmless against loss on account of said mortgage, extended the payment of said mortgage, from time to time, upon usurious considerations, until her mortgagor became insolvent.
    The mortgagor of defendant in error, becoming unable longer to meet her usurious exactions, she instituted proceedings in the court below, to foreclose ber mortgage.
    We claim that the extension of the time of payment of the mortgage, upon unconscionable and usurious considerations, made in the full knowledge that lier mortgagor’s vendees had paid full value for the premises, and that they were without knowledge of the existence of .any defects in their title, until the time arrived when the covenants of their grantor became worthless, was an act of bad faith on the part of defendant in error, amounting to fraud in law. Story’s Eq. § 333; Watkins v. Hill, 8 Pick. 522; Fry v. Shehee, 55 Ga. 208.

      George J. Atkmson for defendant in error:
    The mortgagee’s security cannot be affected by any dealrngg. of the mortgagor with other parties. Robinson v. Urquehart, 1 Beas. (N. J.) 515; Strachn v. Foss, 42 N. H. 43.
    As to the extension of time of payment of said indebtedness until the mortgagor became insolvent, we would respectfully refer the court to the following :
    “ The extension of time of payment of a mortgage in no.way impairs the security as against subsequent incumbrances,, even if this be effected by a renewal of the mortgage note.?’’ Jones on Mortgages, §924, and cases there citecL
    To the same effect are the following cases ; Bank of Utica v. Fink, 3 Barb. Ch. 293; Whitacre v. Fuller, 5 Minn. 508; Cleveland v. Martin, 2 Head (Tenn.) 128; Pomroy v. Rice,
      16 Pick. 22; Watkins v. Hill, 8 Pick. 522; Davis v. Maynard, 9 Mass. 242; Hadlock v. Bulfinch, 31 Maine, 246; Strachn v. Foss, 42 N. H. 43; Robinson v. Unquehart, 1 Beas. (N. J.) 515.
    The claim made by plaintiff in error would nullify the registry laws of our state.
   Lonqworth, J.

The fact that the purchaser of the land in question had no knowledge of the existence of the mortgage, which had been duly recorded, cannot affect the estate which he took by the deed made tó him. That estate was an equity of redemption only. It could be no greater estate for the reason that the grantor had no greater estate to convey. It is claimed, however, that the taking up of the old notes and giving others was a payment and satisfaction of the indebtedness, as respects the rights of the mortgagee, at least in so far as it was secured by the mortgage ; but the law is well settled that the substitution of the new note, is not a payment or release of the mortgage even as to subsequent purchasers. Jones on Mortgages, § 927, and cases therein cited. “ A mortgage secures the debt and not the note, or bond, or other evidence of it.” Ibid. § 924. See also Hilliard on Mortgages, 4th ed. 476. Numerous other authorities might be cited to the same point. Indeed, in Rice v. Dewey, 54 Barb. 455, it was said that “No case can be found holding that a mortgagee, whose mortgage is duly recorded, loses any right by neglecting to give personal notice of such mortgage to a purchaserand in Fisher v. Mossman, 11 Ohio St. 42, it was held that nothing short of fraudulent action on the part of the mortgagee will defeat hds rights under a mortgage duly recorded.

We should not have considered it worth while to cite any authority upon this question, were it not for the decision of a court of deservedly high standing in the case of Fry v. Shehee, 55 Ga. 208, where we find the following language: “ If the mortgagee indulges the mortgagor, for a consideration, until he becomes insolvent, such indulgence will make the purchaser’s title good.” A careful examination of the case (by no means satisfactorily reported), leaves it doubtful whether any such question ever was so decided in it; but if it was, we can only say that we are unwilling to adopt it.

Judgment affirmed.


author: McIlvaine, J.

text:
    Weston v. Weston.
    A testator, having executed his -will giving, in trust for the benefit of his sole and only child, property consisting of non-ancestral real estate and personal property, and directing that “in case my said child should die without issue her surviving, then all and singular the property so devised shall pass to and vest in my heirs-at-law,” died leaving surviving him his said child, and also his wife, a brother and two sisters who survived the child. Held: That upon the death of the child without issue, the widow of the testator succeeded to the property, under the will, as heir-at-law of the testator.
    Error to tbe District Court of Darke county.
    The action below was for the purpose of obtaining a construction of the last will and testament of Washington A. Weston, who died April 15, 1876. The following is a copy of the will:
    “ Eor the purpose of settling and disposing of my estate, I, Washington A. Weston, of Greenville, Ohio, do make and publish this, my last will and testament, as follows, to wit:

      “ First. I give and devise to my beloved wife, Martha J. Weston, one hundred shares of stock in the Farmers’ National Bank, of Greenville, Ohio, in her own right (with authority to her to draw and receive all dividends), for her own separate use and support.
    “ Second. I give and devise to my sisters now surviving, Lucy Green and Ann Hasselman, of Dayton, Ohio, each thirty shares of said bank stock with the limitations following: They are each to draw the dividends in the shares so bequeathed, during their separate lives, if said bank should so long continue to exist and do business as such, and in case the same should terminate during said time then the proceeds of the same shall be reinvested by my executors hereinafter named, and the gains and interests arising from said investments, shall be paid to each of them in like manner during their said lives, and at their death the one full and equal half of the same shall go to their heirs, or as they may by will direct, and the other half thereof to my beloved daughter Mary, on her arrival at the age of majority.
    “ Third. I give and devise to Ellen W. Green, wife of John W. Green, fifteen shares of said bank stock in her own right.
    “ Fourth. I furthér give and devise to my wife, the said Martha, the property where we now reside, being lot 77, 78, 83, and part of 84, in Greenville, for and during the term of her natural life, with all the rents, issues and profits thereof, to be held by her in lieu of dower in my real estate, of which I may die seized ; and I further give and devise to her all my household goods, furniture and effects of whatever character, so being in my house at the time of my decease, to be taken by her without appraisement, and without any other or further accounting thereof.
    “Fifth. I give and devise to Mrs. Eliza J. Waring, the wife of my friend Francis Waring, twelve shares of stock now owned and held by me in the Greenville Building and Savings Association, of Greenville, Ohio, in her own right.
    “Sixth. I give and devise to Sophy Waring, the daughter of my said friend, four shares of said stock, and to Lucy Wilson, sister of my said wife, the remaining four shares of said Building Association stock, and I hereby charge my executor, hereinafter named, with the ¡payment of the dues and charges on each of said shares of said Building Association stock until the same shall be fully paid out, so that the same may pass to said legatees at the full par value thereof of two hundred dollars per share, without any charges or expenses to them.
    “ Seventh. I give and devise to my friend, Mrs. Ann G. Putnam, $700 in money, to be paid her by my executors as soon as the same can be conveniently done after my decease.
    “ Eighth. I direct that my executors deliver to my nephew, John W. Green, a certain note held by me on Green & Heron for the sum of $25,000, fully receipted, which I hereby give to Mm unless I shall have made other disposition of the same during my life.
    “Ninth. Subject to these bequests I hereby order and direct that all the residue of my estate, real and personal, of ■whatsoever name or character, pass to and vest in my wife, Martha J. Weston, my brother, Joseph L. Weston, and my friend, Thomas S. Waring, as my executor, of this, my last will and testament, for the uses and trusts following: That is to say, they are 'to manage my said estate to the best advantage, collect moneys and rents, receive dividends on stock and securities, and from time to time, as the same becomes due, reinvest the same in real or personal estate and securities as they may deem most for the interest of my said estate, until the arrival of my dear child, Mary, at full age, when the same shall pass to and vest in her as my sole and only heir.
    “ Tenth. I further order and direct that in case my said child should die without issue her surviving, then all and singular the estate so devised shall pass to and vest in my heirs-at-law.
    “ Eleventh. I do hereby authorize and empower my said executors, or the survivors, or the survivor of them, at any time that they deem it advisable so to do, to sell my said real estate or any portion of the same, and convey the same by good and sufiicent deeds therefor as fully as I might myself do if living. And I further direct, and I so request the probate court of said county, that my said executors, nor either of them, be required to give bonds for the execution of this trust, as I have absolute confidence in their integrity. And I further authorize my said executors, should my wife at any time so deem, to join with her in the sale of the homestead property so devised to her, and reinvest the proceeds in other property, or bonded or other securities, the proceeds of which shall go to her during life as provided in the fourth item of this will.
    “ Twelfth. I nominate and appoint my said wife guardian of the person of our daughter Mary during her minority.
    “ In testimony wherof I have hereto set my hand and seal this 15th day of April, 1876.
    “Washington A. Weston.” [Seal.]

      The testator left surviving him his wife, Martha J., his daughter Mary, and one brother and two sisters of the whole blood, namely, the plaintiff, Joseph L. Weston, and Lucy Green, and Ann Hasselman, mentioned in the second item of the will. Mary died in July, 1876, at the age of ten months.
    At the date of the execution of the will, the testator’s wife was about thirty-eight years of age, the mother of two children by a former husband, one thirteen years of age and the other nine, who had been members of the testator’s family. J os'eph L. Weston was about fifty-eight years old, and possessed of property worth $60,000. He had never been married. Mrs. Green was sixty-six years of age and the mother of one son, John W. Green, mentioned in item 8th of the will. Mrs. Hasselman was sixty-eight years old, and had no children. The sisters, who owned but little property, had lived with Joseph L. for the past twenty-five years and had recieved from the testator from $25 to $30 per month during that period, and had, within that period, cared for one child of testator by his first wife, for four months, from the death of its mother to its own death, and another child of testator by his second wife, from her death to its own, at the age of five years. The testator died at the age of sixty-two, leaving an estate (real and personal) worth $65,000.
    The above state of fact is the substance of the testimony, set forth in a bill of exceptions, taken in the district court, before which the case was tried on appeal from the court of common pleas.
    The district court found that Martha J. Weston, widow of the testator, took as “ heir-at-law of the testator under the tenth clause of the will.

      Warren Hunger, with whom was W. O. Howard, for plaintiff in error.

      Allen <& JDevor, and John W. Safer, for defendant in error.
   McIlvaine, J.

The judgment in this ease was recorded some weeks since; at which time it was announced that no further report would be made ; but since that time, upon a suggestion from the bar, that the decision is not in harmony with Jones v. Lloyd, 33 Ohio St. 572, the case has been placed in my hands for report.

The principal question in the case arises on the tenth item of the will, which reads as follows :

“ Tenth. I further order and direct that in case my said child should die without issue her surviving, then all and singular the estate so devised shall pass to and vest in my heirs-at-law.”

' The “ estate so devised ” consisted of personalty and non-ancestral realty, given by the ninth item to the child Mary, described by the testator as my sole and only heir. ” This child having died “ without issue her surviving,” the question is, To whom does the estate pass under this item of the will ? To the widow of the testator, or to his brother and sisters ? If the testator had died intestate and without children surviving him, this estate, both real and personal, would have passed to and vested absolutely in the widow, under the statute of descent and distribution of March 14, 1853, as amended April 16, 1862, and Marché, 1865. And under the same statute, if the testator had died childless and intestate, seized of an ancestral estate, the same would have passed to and vested in his brother and sisters, subject to a life estate in the widow. And again, if the testator’s daughter, Mary, had taken this property, upon the death of her father, either by inheritance or devise in fee absolute, the real estate, being, in her, ancestral property, would, upon her death, have passed to and vested in the brother and sisters of her father, subject to a life estate im, her mother, and the personalty, would have passed to her mother absolutely.

Such being the law of descent and distribution at the time the will was made, of which it must be presumed the testator had knowledge, it is quite improbable that he intended, in the event of Mary’s death without issue, that his brother and sisters should take as his heirs at law subject to a life estate in the widow. Such would have been the effect under the will and the statute of descent, as to the realty, if there had been no limitation over at Mary’s death; and it is quite plain, that if the brother and sisters take at all under this clause in the will, they take absolutely.

And it is just as improbable, it seems to me, that the testator should have intended, inflexibly, to designate his brother and sisters by the phrase my legal heirs,” inasmuch as it is indisputable that the estate given by this clause in the will is greater than they, under any circumstances, could have inherited from him, his wife surviving; for by our statute of descent, as between the widow and the brothers and sisters of an intestate, oven in respect to ancestral estates, the widow is not wholly excluded from the inheritance.

We do not understand it to be disputed that the person or persons meant to bo designated in a will as “ my heirs-at-law,” are presumably such as would have inherited in case of intestacy ; save only, as is contended, the identification of heirs is to be made by the common law rules of descent, which excluded the widow.

In support of this contention it is claimed that a husband or wife relict, who succeeds to the estate of the deceased husband or wife, cannot, in a legal sense, be called an heir / and Gauch v. St. Louis M. L. Ins. Co., 88 Ill. 251, is relied on as authority. We think the case cited is directly against the claim. The point there decided is, that one taking a dower estate does not succeed to it as an heir; but Rawson v. Rawson, 52 Ill. 62, and Richards v. Miller, 62 Ill. 417, are approved, which hold that a wife or husband relict who takes under the law of descent takes as heir. A^nd such we think is the legal meaning of the word. Brower v. Hunt, 18 Ohio St. 811.

We readily concur in the proposition laid down in Jones v. Lloyd, supra, that the term heirs, when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will. But this proposition in no wise conflicts with the well established rule of construction, that technical words used in a will should have their strict technical meaning, unless it appears that the testator used them in some other and secondary sense.

By the will in Jones’ case, a husband had made provision for the support of his widow, and in lieu of dower, and provided further, that if the widow should assert her right to dower and distribution under the statute., then certain property, which under the provision for her support would have vested in the widow, should be “ shared equally among my heirsplainly indicating that the person or persons meant by “ my heirs ” were others than the widow. The widow in that case would have been the heir of the husband had he died intestate ; but the court found from the context that the husband in his will had not used the word heirs in its technical sense, and so excluded the widow from the provision of the will made in favor of tlie heirs of the testator. An equally noticeable instance in which the word heirs has been used in a secondary sense is found in the fourth proposition in the syllabus of that ease, in which the words “ my heirs,” are construed to mean “ my next of kin, or heirs according to the statute of distribution exclusive of my wife ;” plainly showing, by reference to the statute of distribution of personal property, that the word is used in the sense of distributees. In this sense, the widow in this case would have succeeded as heir to all 'the personal property if her husband had died intestate and childless, or upon death of the child, if the husband had died intestate. But in no event could the brother and sisters have succeeded to the personalty under the statute of distribution, save only in case both wife and child had died before the testator, an event clearly not contemplated.

But there is nothing in this will, or the circumstances surrounding the testator at the time of making the will, that can justify a departure from the ordinary and legal meaning of the word. It is said, indeed, that the phrase “ heirs at law” is used in the plural number, while if the widow alone was intended, it should have been used in the singular. This is not enough : the term used refers to a class, and the class cannot be deprived of the bounty merely because the number of persons composing the class does not correspond with the number of the noun used in describing it; and as to this property, it is quite clear, that if the testator had died intestate, a condition necessary to the relation of ancestor and heir, his brother and sisters would not have been classified among his heirs.

We think the unmistakable intention of the testator was, that this property, in case of the death of his daughter Mary without issue her surviving, should take the identical course under the will, it would have taken under the statute, if he had died childless and intestate. The time when the “ heirs at law” were to take under the will, was at the death of Mary without issue. The number of persons who might, at that time, stand in the relation of heirs to him in respect to this property, was unknown to him; hence the number of the noun used in designating the class does not indicate the testator’s intention as to the particular person or persons who should take under this clause in the will. If his widow was then living, she was the beneficiary intended. If she was not living at that time, his brother and sisters were the persons intended; and if they or their legal representatives were not living, his next of kin.

Judgment affirmed.


author: J ohnson, J.

text:
    Watts v. Watts.
    A testator devised to his wife, who was also appointed executrix, one-half his real estate in fee, and after giving to his children certain legacies in kind, and providing that his sons who remained at home and labored for the good of the family until they were of age, should be paid a sum of money, upon final settlement; gave “all the rest of his real estate” and “ all the rest and residue of his personal estate” to his wife, to be used by her for the payment of his debts and the good of the family as she might think best, until the youngest child became of age ; then all that was left on hand, except the household furniture, which is given to her absolutely, to be divided equally among all his children. The widow elected to take under the will, and qualified and acted as executrix. Meld: 1. That the widow, under this residuary clause, took said real and personal estate in trust, to be used for the payment of debts, and for the good of the family as she might think best, until the youngest child became of age, and the saméis thereby primarily charged with these burdens before resort can be had to other property disposed of by the will, or to the residuary estate, that should be left on hand when the estate for years terminated.
    3. That a discretion is vested in her as to the manner in which she should use this property for the purposes named, and she is not accountable to the estate for the rents and profits of the real estate, which she has used for the good of the family, but is only chargeable with rents and profits applied as assets to the payment of debts, charges and legacies, or which she has diverted to other purposes than the good of the family.
    3. The year’s allowance to the widow and minor children is a debt of the estate, which, on payment by the executrix, is a proper item of credit in her account. If paid, in whole or in part, out of assets of the estate, whether derived from personal estate or rents and profits received from this portion of the real estate, the amount so paid should be charged to her as assets.
    4. If the personal property and the rents and profits of this real estate are used by the widow for the good of the family during the minority of the youngest child, she is not accountable therefor, even though, by the exercise of greater skill, prudence, and economy, she might have saved a fund out of which to pay the debts.
    5. By accepting under the will, the widow did not become personally liable for the debts, beyond the assets which came to her hands applicable, in the exercise of the discretion vested in her, to their payment.
    6. Upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, except as to matters in dispute between two parties which had been previously heard and determined by the court, which shall not again be brought in 'question without leave of the court. This includes the power to correct all errors or mistakes of the court, as well as of the executor or administrator, found in former settlements, whether as to items embraced in or omitted from such former accounts.
    Error to tbe District Court of Huron county.
    Nicholas Watts died about March 28, 1864, leaving the following last will and testament:
    “ The last will and testament of Nicholas Watts. Considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this, my last will and testament, in manner and form following:
    “ First. I give and bequeath unto my beloved wife, Delila Watts, the north half of my lot of land on which I now live, known as lot No. 13, in New Haven township, Huron county, and state of Ohio, together with the appurtenances belonging to the same.
    “ Next I give and bequeath my oldest daughter, Martha J. Loveland, when she is of age, ten sheep, or the value thereof, also two beds and bedding, and one cow, all of which she has had. I have also given to my oldest son, Henry M. Watts, ten sheep and one young horse; I also give and bequeath to my daughters, Roxana E. Watts, Amelia IT. Watts and Mary A. Watts respectively, each -when they become of age, one cow, ten sheep, and two beds and bedding, or the value thereof; and next I give and bequeath to my sons, Corydon Watts, Abner Watts.and Nicholas Watts, Jr., respectively, when they become of age, each one young horse, not less than three years old, and also ten sheep, provided the boys stay at home and labor for the good of the family until they are of age. Then in the final settlement of my estate, 1 give and bequeath to each of my sons the sum of $200 for their labor from the time they are eighteen years old until they are twenty-one years old. And lastly, as to the rest of my real estate, and also the rest, residue and remainder of my personal estate, goods and chattels, of what kind and nature soever, I give and bequeath unto my said beloved wife, Delila Watts, to be used by her for the payment of my debts and the good of the family as she may think best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively. After my youngest child becomes of age all the property left and on hand to be equally divided amongst all my children, and finally I appoint my beloved wife sole executrix of this, my last will and testament.”
    This will was duly probated. The plaintiff in error, Delila Watts, the widow of testator, elected to take under it, and was duly qualified and acted as executrix.
    April 27, 1864, an inventory and appraisement of the personal property was filed in the probate court, amounting to $1,764. This property consisted of horses, cattle, and other chattels usually found on a farm, and suitable for its cultivation and use.
    At the same time the appraisers set off to the widow and the three minor children under fifteen, $250 each, making in all $1,000 for their year’s support. The youngest child came of age May 10, 1874.
    May 2, 1877, the executrix filed her “ third partial aecomvtP In this she charges herself with $636.28 and interest thereon, $3.18, collected in Pluron common pleas of Henry M. Watts, and credits herself with numerous items of taxes, debts, &c. The first item of credit is under date of June 1, 1872, “ Balance due to executrix on the last settlement of her account, $2,124.75.” On this item she credits herself with interest from that date to the date of filing the third account, May 2, 1877. To this account Henry M. Watts and Nicholas Watts, Jr., filed exceptions to the credit balance and interest thereon, to costs of suit in the Huron common pleas against Henry M. Watts, the expenses of said suit, and to all items of interest. These exceptions, on hearing, were overruled, and the account was approved, and the exceptors appealed to the court of common pleas.
    On the hearing in the common pleas, the exceptions were again overruled, and the account was approved, finding there was due to the executrix $2,741, including interest up to the hearing. This is the balance after deducting the amount collected of said Henry M. Watts, for rent. A bill of exceptions was taken, showing that on the trial the exceptors, after putting said will and the inventory in evidence, showed, that the real estate described in the will as “ the rest of my real estate,” embraced a tract of one hundred and forty-two acres of which one hundred and twenty acres were arable, of all of which the said executrix as such, had the use from the death of testator to May 10, 1874, when the youngest child became of age. They then offered to prove, that in making up her accounts, the executrix had credited herself in her former accounts with $675.77, legacies paid and interest thereon,' also $1,000 the amount set off for the years’ support, and $480 interest thereon, but the court rejected the evidence.
    It was also shown that she had accounted for no part of the rents and profits of said real estate, except the amounts collected of Henry M. Watts, to wit, $639.46, as before stated. They also offered to prove to the court that “ the net annual rents and profits of said real estate, which is described in said will as ‘ the rest of my real estate,’ were six hundred and fifty dollars per annum during the whole term, from March 28, 1864, to May 10, 1874, that said sum had been received by said Delila Watts and appropriated to her own use and support of herself and said minor children, until the youngest became of age. And that the same, with the personal property described in said inventory, was more than enough to pay all debts and legacies under said will, the year’s allowance to said widow and minor children, and to support and maintain said minor children and said widow until said youngest child should become of age.” Whereupon counsel on the part of said Delila Watts objected to the admission of said testimony or any part thereof, because, as they claimed under said will, the said Delila Watts as executrix, was not required by law to account for any part of said rents and profits. And the court then and there held that under said will the said Delila Watts as executrix, was not required to account for any pa/rt of said rents and profits, and sustained said objections, a/ud said testimony was by the court ruled out a/nd rejected, to which opinion and ruling of the court the said exceptors Henry M. Watts and Nicholas Watts then excepted.

    The court then found the balance due the executrix as before stated. The exceptors then took the case to the district court on error, assigning, as grounds for reversal, 1st, that the common pleas erred in rejecting the evidence offered, and 2nd, that it erred in finding in favor of the executrix.
    The district court found that there was error of the common pleas, in deciding that there was anything due the executrix, on any of the items of credit excepted to, on the ground that she was not entitled to such credit.
    The district court further held, that there was no error in rejecting the evidence relating to the rents and profits, for the reason, that by the provisions of the will, the said Delila Watts was bound to pa/y all the debts and all proper charges, against the estate, including the legacies, and therefore was not bound to keep or render any account “ as to said property, rents and profits, further than to show, that the debts, charges and legacies have been paid.” The judgment of the court of common pleas was therefore reversed, and the cause remanded for further proceedings. To reverse this judgment, error is prosecuted by the executrix, in this court.

      G. T. Stewart, for plaintiff in error:
    I. The exceptions in this case are as to matters set out and specified in the accounts covered by the adjudications of the probate court in the two former settlements, and there is no impeachment attempted, nothing but bare exceptions filed, more than five years after the second judgment. The questions sought to be raised are res adjudieata. McAfee v. Phillips, 25 Ohio St. 314.
    The district court erred in holding that there was error in the refusal of the court of common pleas to set aside the balance adjudged by the probate court at the previous settlement and to open up the former accounts by. admitting evidence as to facts existing at the time when that settlement was made and of which the exceptors had then full knowledge. The refusal of the common pleas court to do this was a matter of discretion, and cannot be assigned for error in a reviewing court. Stayner's case, 33 Ohio St. 481.
    II. The district court erred in holding that Delila Watts “ was bound to pay all the debts and all proper charges against said estate and the legacies provided in said will.”
    Her husband had fully and unconditionally given and devised to her their homestead, including the north half of lot 13, and all the household furniture. The appraisers had set off to her one thousand dollars more, for her year’s support and that of her three children under fifteen years of age. This was absolutely hers. She was not required to become executrix of the will. She could have accepted its provisions and declined its trusts. Her acceptance of the dTities imposed upon her as executrix was purely an act of maternal fidelity and self-sacrifice on her part. Under that trust, she gave all her time and labor for ten years, without compensation, and without a single inducement but the desire of her husband expressed in his will and the good of her children. She occupied her own house and farm and gave the children a home with her there. The whole care and education of the family devolved on her. Yet with no personal benefit in view, the district court held that by assuming the sacred trust and fulfilling it with this long and unselfish devotion, she personally incurred all the pecuniary burdens of the estate, and bound herself to pay -all debts, charges, and legacies against it.
    The allowance to the widow for her support for the year is such a debt against the estate of her husband that resort may be had for the payment of the same, against land or its proceeds. Allen v. Allen, 18 Ohio St. 234.

      Jacob Bcroggs and E. B. Finley, for defendant in error:
    When the will of Nicholas Watts was admitted to probate, his-widow, the plaintiff in error, was required to make her election whether she would take under the will or under the statute. She had the full statutory time in which to make this election. It was the duty of the court to fully advise her of her rights under the statute, and of her rights under the will. She had the right to inquire for herself as to the relative value of these respective estates. . To this end she could have had the subject referred to a master for examination and report. The presumption is, that the court discharged its duty, and that she was fully instructed as to her rights. And it is also fair to presume that she investigated the matter for herself. She elected to take under the will; and with the construction given by the district court, no one conversant with the facts can say her election was not a wise one, and one highly profitable to herself. But whether profitable or unprofitable, she is bound by her election. She cannot have the benefits and evade the responsibilities of her act. The testator must have intended that all debts, legacies and charges should-be paid out of his personal property and its increase and the income of the one hundred and forty-two acre tract of land, for he provided no other fund. The testator could not have intended that his estate should be charged with the one thousand dollars set off by the appraisers for the year’s support of the widow and the three children under fifteen years of age; because in the will he provides for the support of his family, the widow and these minor children included. But if it were a debt or a charge against the estate, it was to be paid, as other debts, out of the property set apart for the payment of the debts. We think then that, by a fair construction of this will, when the widow elected to take under its provisions and received the property devised, she became bound for the payment of the debts and legacies at all events; that she was not required to keep an account further than to show that she had paid the debts, legacies and charges. We claim that the widow took an estate for years in the residue or remainder. 2 Black. Com. 143. The widow, by accepting under the will, and qualifying as executrix, and by taking charge of -the trust property, became a trustee as clearly as if she had made a formal declaration of acceptance of the trust. 1 Perry on Trusts, 333, 334, 337; 23 Ohio St. 272.
   J ohnson, J.

The district court erred in holding that the widow, by accepting the provision made for her in the will, thereby became bound to pay all the debts, charges and legacies of said estate. It thus made her personally liable for these obligations imposed upon the property bequeathed to her, even though they exceeded the property she received. It was wholly immaterial whether the assets that came to her possession were sufficient for that purpose or not. As a deduction from this, that court further held that the, executrix was not bound to keep any account of rents and profits of the real estate further than to show that all the debts charges and legacies were paid, and therefore the common pleas erred in allowing any of credits excepted to, and, they might have added, any other credits, for it is held that by accepting under the will she assumed the debts, charges and legacies, even though these assets were insufficient to pay them.

The common pleas also erred in holding that she was not accountable for any part of the rents and profits, though used to pay the debts, costs and legacies for which a credit was allowed. The result of this was to allow the executrix credit for all debts, charges, legacies and taxes, even though paid out of rents and profits of the real estate not used by her for the good of the family. In effect this was to construe the will as a devise of the real estate to her for years with all its rents, issues and profits, free from all liabitities. This conflicts with the terms of the will, which give her this real estate and personal property to be used by her for the payment of my (his) debts and the good of the family as she may think best.” The judgment of the common pleas and district court are both erroneous, and must, therefore, be reversed.

As the proper mode of accounting depends on a construction of the will of the testator, and as this case must be remanded for a new trial, we have considered the question presented as to the character of the estate bequeathed to the widow by this residuary clause, and the duties and obligations imposed upon her as executrix. Had no will been made, all the property would have been subject to payment of the debts according to law, the personalty being primarily liable.

The will changes this somewhat. After giving to the wife the north half of the land in fee, and certain legacies in kind to his children when they come of age, those to the boys on condition that they stay at home and labor for the good of the family until that time, he gives to each of his sons in the final settlement of his estate two hundred dollars for their labor from the time they are eighteen until they come of age. Then follows the residuary clause of the will, out of which this controversy grows. It reads as follows:

“ And lastly, as to the rest of my real estate, and also the rest, residue and remainder of my personal estate, goods and chattels, of what kind and nature soever, I give and bequeath unto my said beloved wife, Delila Watts, to be used by her for the payment of my debts and the good of the family as she may think best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively. After my youngest child becomes of age, all the property left and on hand to be equally divided amongst all my children, and finally I appoint my beloved wife sole executrix of this, my last will and testament.”

The “ rest of my real estate,” and the rest, residue and remainder of my personal estate,” are bequeathed to his wife, Delila Watts, <: to be used by Tier for the payment of my (his) debts, and the good of the family as she may thinh best, until the youngest child becomes of age, the household furniture to belong to my wife exclusively.” As executrix she assumed the duty of administering this estate, under the will, so far as necessary for the payment of debts, legacies and expenses. As a devisee or legatee she was the owner of the property thus given her to be used for the good of the family until the majority of the youngest child; then, after payment of all debts, legacies and proper charges, what was left and on hand, except the household furniture, was to be equally divided amongst all his children. As the youngest child would not reach majority until May 10, 1874, this was a devise of this real estate for a term of over ten years, to be used as therein directed, By operation of the statute the executrix might first exhaust the personal estate in her hands for the payment of debts, but a discretion was vested in her to use both real and personal estate for such payment, and-for the good of the family. The testator clearly intended to keep his wife and minor children together as a family until the youngest child became of age, for he makes the bequests to his three minor sons conditional upon their remaining at home and laboring for the good of the family. The executrix so understood the will, and acted accordingly. The property included in this residuary bequest to his wife was placed in her hands to be used as she might think best for the payment of his debts and the good of his family. As between it and any property specifically devised it was primarily liable, but as between the real and personal estate embraced in this clause a discretion was vested in her as to the manner she should use it for the purposes expressed.

If, in the execise of the discretion vested in her by the will, the rents issues and profits of this estate for years were used for the good of the family, then she is not chargeable therewith in her accounts as executrix out of which to pay debts, charges and legacies. The same is true of the personal estate that came into her hands, if kept for the use of the family. But this real estate, for the term of years it was placed in. her hands, and the rents and profits derived therefrom, as well as the personalty, exclusive of the household furniture, was charged with the payment of debts, as well as with the support and maintenance of the family, and if these rents and profits or any part of them was in fact used to pay these debts, charges and legacies, or if they were diverted by her to any other use or puipose than the good of the family, they were assets with which she should be charged, she being entitled to credit for all proper disbursements. It would be an abuse of the trust reposed in her by her husband, to allow her credit for the payment of all debts,charges and legacies, and not to charge her with the assets out of which she has paid the same in whole or in part.

This would cast upon the property, after the term for years had expired, all the obligations of the testator, and give the estate for years to the wife free from the debts, though not used by her for the good of the family.

As executrix, she was entitled to credit for all debts, charges and legacies that the estate is liable for, which she has paid, and she is also chargeable with all assets which came to her hands from rents and profits or otherwise, and were actually used by her in payment of the same, or which were by her diverted to other purposes than the good of the family. If the rents and profits of this real estate, which she received, were used by her for the good of the family, they should not be charged to her in this account, for the will vested in her this discretion. If, on the other hand, they were not so used, but were used as assets to pay these debts and legacies, or were diverted to other purposes than the will devoted them to, under such circumstances as amount to waste, or an abuse of her trust, she is accountable.

This does not involve an inquiry into the mode,and manner in which she has administered the trust reposed in her, further than to hold her accountable for an abuse of the trust, charging her with rents and profits actually received and used as assets in the payment of debts, or which she has diverted to other purposes than the good of the family. She is vested with a trust and confidence to be exercised in her discretion. The fee of this real estate, in case of deficiency of personal assets, is liable for these debts and legacies. If, in the exercise of the discretion vested in her, the executrix decided to use the rents and profits of the real and the personal estate, for the good of the family, and for the payment of the debts, instead of converting the same into money for that purpose, then the rents and profits not used by her for the good of the family became assets in her hands so far as necessary to pay debts. The heirs or devisees cannot charge her with the obligations against the estate, by merely showing that she accepted under the will, nor that, by the exercise of greater skill, prudence or economy, she might have kept the family and saved sufficient to pay these obligations. The net rents and profits received by her and not used for the good of the family are to be used in the payment of debts, legacies and charges. They are, for that purpose, assets for which she is accountable. If, in the exercise of her discretion, they have all been used for the good of the family, there is nothing to charge her with in her account as executrix, arising from this source, and the fee of this re'al estate is liable to her for all proper obligations she has paid.

II. In the common pleas, the exceptors offered to show that in her former accounts the executrix had credited herself with the $1,000 allowed for the support of herself and minor children for one year, together with interest thereon. $480, but the court refused to look into the former accounts and rejected this evidence.

It is settled, that the years’ allowance to a widow and minor children, is a debt of the estate (Allen v. Allen, 18 Ohio St. 234; Dorah's Adm'r v. Dorah's Ex'r, 4 Ohio St. 293); and that a widow, electing to take under a will containing provisions for her, expressed to be in lieu of dower and all other claims against the estate, is not barred of her years’ support provided by law out of the estate. Collier v. Collier, 3 Ohio St. 369; Bane v. Wick, 14 Ohio St. 505, 513. As a debt, it has a, preference over all others, except funeral expenses, those of the last sickness, and expenses of administration. 1 & S. C. 581.

This item was therefore a preferred debt, to be paid out of the assets, the same as other debts.

The family, for whose good, as well as for the payment of debts, this devise was made, consisted of the widow and three minor children under fifteen, for whom this years’ allowance was made, and other minor children. This allowance was not for the support of these other minor children. The provisions made in the will were for the whole family.

So far as the executrix, has drawn from the rents and profits of this real estate or the personal property, to support the widow and these minor children under fifteen, during that year, it operates as a reduction of this claim. The amount derived from this source should be charged as so much paid on this debt.

III. As to items of interest excepted to, we have not the data before us to determine whether she is entitled to it or not.

The general rule for charging or allowing interest in the accounts of executors and administrators are applicable. They should be applied in settling this question.

IY. One of the exceptions is to a balance of $2,124.75 due her on the last settlement. This is not an exception to any item in the present account, but rather to the correctness of a former account.

It is quite doubtful whether it' is sufficiently specific as to direct the attention to any item in the former accounts.

The statute, however, provides: “ That when an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein, excepting that any matter in dispute between two parties which lias been previously heard and determined by the court shall not again be brought in question by either of the same parties without leave of the court.” See also Stayner's case, 33 Ohio St. 481.

If, therefore, there was any error or mistake, either in the debit or credit side of the former accounts, not theretofore adjudicated between these parties, it was subject to correction in this account, whether that error or mistake consisted in omitting proper charges or credits, or in including incorrect charges or credits, or whether made by the court or the executrix.

Judgments.of the district court and of the common pleas reversed, and cause remanded for further proceedings.


author: White, J.

text:
    Church v. Swope.
    1. If the drawee of a bill of exchange is without funds of the drawer, and pays the bill, he is entitled to be reimbursed by the drawer; and if there ar-e several drawers, part of whom are securities for the others, all are alike liable to reimburse the drawee in the absence of any understanding to the contrary.
    2. Where a bill of exchange is made payable to S., and at the time of its execution C. signs his name on the back, he becomes a party to the request upon the drawee to pay the bill; and in an action by the drawee to recover the amount paid in taking up the bill, C. is to be regarded as a drawer.
    Error to tbe District Court of Huron county.
    The original action was brought by the firm of Swope & Hughes, against "William "W. Bissell, individually, and Charles H. Church, Joshua B. Bissell and William W. Bissell, composing the firm of Church, Bissell & Co., to recover money paid by the plaintiffs as drawees of a bill of exchange, at the request of the defendants. The following is a copy of the bill of' exchange:
    “ $350.00. No. 1092. Church, Bissell & Co., Produce Dealers. , “New London, O., Dec. 8, 1874.
    “ Pay to the order of M. H. Smith, cashier, three hundred and fifty dollars, value received, and charge to account of
    “ W. W. Bissell.
    “ To Swope & Hughes, ) Buffalo, N. Y. \

    w , , „ No Protest
    "Written on the back was, “ Church, Bissell & Co.
    “ M. H. Smith, C’r.”

      This bill, without the indorsement of “M. H. Smith, c’r,” was discounted at the Bank of New London, of which Smith was cashier, and the proceeds were placed to the credit of Church, Bissell & Co. By an arrangement between Church Bissell & Co. and W. W. Bissell, the proceeds were used by the former for the latter’s benefit. At the time of drawing the bill it was expected that the drawees would be put in funds to pay it by a lot of sheep, which W. W. Bissell was about to ship to them for sale. Bissell accompanied the sheep, and had them taken to Albany, New York, instead of stopping with them at Buffalo. After having sold the sheep at Albany, he returned with the proceeds to New London, and paid Church, Bissell & Co., as he testifies, the money to be remitted to Swope & Hughes, to refund to them the amount they had paid in honoring the bill, which remittance they refused to make, and credited jthc amount thus paid to his account.
    The testimony on behalf of Church is to the effect, that the payment thus made was only $340. Testimony was also given, on behalf of plaintiffs, tending to show, that on a settlement between W. W. Bissell, and Church, Bissell & Co., the latter recognized their liability to pay Swope & Hughes, and agreed to do so.
    There was no evidence of prior dealings between the defendants and plaintiffs, nor on whose credit, or request, the bill was paid by the plaintiffs, except as is to be implied from the instrument itself.
    The case was tried to the court, which found for the plaintiffs. A motion for a new trial was made and overruled, and a bill of exceptions taken embodying the evidence. Judgment was rendered for the plaintiffs, which on error was affirmed by the district court. It is now sought to reverse these judgments.

      G. T. Stewart, for plaintiffs in error.

      FrcmMin Sawyer, for defendant in error.
   White, J.

We find no error in the court rendering judgment for the plaintiffs.

Where a drawee is without funds of the drawer of a bill of exchange, and pays the bill, he is entitled to be reimbursed by the drawer for the money thus paid ; and if there are several drawers, part of whom are sureties for the others, all are alike liable to reimburse the drawee.

The principle is thus stated in Nelson v. Richardson, 4 Sneed, 307: The surety drawer of a bill of exchange becomes chargeable with every obligation and liability which the law imposes upon the principal, as well those that are implied by law as those that are expressed; and this is so in regard to all the parties, the drawee or acceptor no less than the payee indorsee or holder of the bill. When the drawee pays the bill without funds of the drawers, the relation between the parties is reversed; the drawee, instead of being a debtor, becomes the creditor of the drawer for the money advanced, and may recover the same of such surety drawer, not, indeed, upon the bill itself, but upon his implied promise to reimburse the drawee. To the same effect are Dickerson v. Turner, 15 Ind. 4; Swilley v. Lyon, 18 Ala. 552. See, also, Story on Bills, § 420; Daniel on Neg. Ins. § 95.

The question in the present case is, in what character did Church, Bissell & Co. sign the hill ? They, by signing their name upon the bill at the time of its execution, filled up as it was, became parties to the request upon the drawees to pay the amount named in the bill to Smith, the payee. The payee can only regard them as drawers of the bill, chargeable alike with W. W. Bissell as such drawers. By signing on the back, they may have evinced, as the fact was, that they were sureties of Bissell. Nevertheless they were drawers, and, being drawers, as respects the payee, they must also be drawers as respects the drawees. The essential element of a drawer is that he is an original party to the request upon the drawee to pay the bill. If W. W. Bissell is regarded as sole drawer of the bill, Church, Bissell & Co. would be strangers to it, and could not be indorsers of the bill, to the payee; hence their true relation to the bill must be that of drawers, and thus equally bound with Bissell to furnish funds to meet it. It can be no more said that the drawees would have paid the bill without the names of Church, Bissell & Co. than it can be said that the bank would have discounted the bill without their names.

The fact that the name of Church, Bissell & Co. was written on the back of the bill instead of on the face, does not preclude their being regarded as drawers. Penny v. Innes, 1 Cr. M. & R. 439.

Judgment affirmed.


author: Okey, O. J.

text:
    Rutter v. The State.
    Where the superintendent of an insane asylum, acting in good faith, with the assent of the trustees of the institution, and solely with reference to the welfare of the patient, permits her to be removed to and remain temporarily at the residence of a near relative, the husband of the patient cannot, by mandamus, compel her restoration to the asylum; and the fact that such residence is beyond the limits of the state will make no difference.
    Error to the District Court of Franklin county.
    Jane Gatrel, wife of James Gatrel, was on July 31, 1880, adjudged to be insane, in a proceeding in lunacy before the probate court of Pickaway county, Ohio, and on August 27, 1880, she was committed to the Hospital for the Insane at Columbus, in pursuance of such adjudication. Dr. Rutter, superintendent of the hospital, on May 21, 1881, permitted Mrs. Regan to take the patient on a visit to her (Mrs. Regan’s) residence, in the state of Texas, and on June 10, 1881, James Gatrel obtained from the court of common pleas of Franklin county the allowance ,of an alternative writ of mandamus, among other things commanding said Rutter to cause the patient to be returned to the hospital or show cause why he should not do so. The answer of the superintendent contains, among others, the following allegations: “Jane Gatrel, wife of said relator, was received as a patient at the Columbus Asylum for the Insane on or about the 27th day of August, 1880, during the administration of Dr. Firestone as superintendent thereof, and was an immate of said asylum when your respondent took charge of the same as superintendent on or about the 15th day of March, 1S81: that said Jane Qatrel has shown neither homicidal nor suicidal tendency or disposition since her admission as a patient into said asylum; that from the date of such admission said Jane was afflicted with a mild form of insanity, unaccompanied by violence, and this respondent had personal knowledge of her case from the commencement of his superintendency ; that on or about the 2d day of May, 1881, your respondent, as superintendent, received a letter from the sister of said Jane, Mrs. Catharine Kegan, residing in San Antonio, Texas, in reference to said patient, which letter your respondent answered ; that the result of the correspondence with said sister was an offer or proposition from her to take charge of said Jane, take her on a visit to her home in San Antonio, temporarily, keep her safely, and return her to said asylum when so directed by its superintendent; that this respondent accepted said proposition and entrusted said Jane to the personal care and custody of her said sister, who by authority of this respondent, under and pursuant to said arrangement, took charge of said Jane and conducted her on said visit to her home in San Antonio, leaving the asylum to make her journey on the 21st day of May, 1881; that your respondent has been advised of the safe arrival of said Jane and her sister, at the home of the latter in San Antonio, and within the past few days has received a letter from said sister reporting marked improvement in the health of said Jane; that your respondent was moved to accept said proposition by the following among other considerations, to wit: the removal temporarily of said Jane to the climate of the state of Texas, and to the new and different associations, promised to be beneficial to her health, and was, under the circumstances, in the judgment and opinion of your respondent as a physician and surgéon and the superintendent of said asylum, desirable and advisable as a part of her treatment as a patient. Your respondent further says that in what he has done he has exercised a just discretion for the best interests of said patient.”

      The trustees of the asylum fully ratified the action of the superintendent, as appears by their answer.
    A demurrer to the answer of Dr. Rutter was, on July 18, 1881, sustained, and a peremptory mandamus was awarded by which Dr. Rutter, as such superintendent, was required to use all the power and. authority he possessed to restore said Jane to the hospital, which order was affirmed in the district court of Franklin county ; and this proceeding in error is prosecuted by said Rutter in this court to reverse the judgment of affirmance and also the orders made by the court of common pleas.

      G. K. Wash, attorney-general, and J. T. Holmes, for plaintiff’ in error.

      Bolin & Grigsby, for defendant in error.
   Okey, O. J.

If the act of the superintendent, in permitting the patient’s sister to remove her temporarily to Texas, required the assent of the trustees of the hospital to render it valid, their subsequent assent, in view of the statute and the mode of conducting business at the hospital, should be regarded as equivalent to precedent authority. Assuming, then, without deciding, that a husband is entitled to a peremptory mandamus for the restoration of his wife to an insane asylum, where the superintendent has permitted her to be removed therefrom without authority, the question here is, whether such superintendent acting in good faith, with sole reference to the welfare of the patient, may, with the assent of the trustees, permit such temporary removal under the circumstances stated.

“ A patient may be discharged from an asylum for the insane upon the application of the superintendent to one of the trustees, and order of such trustee.” Rev. Stats. § 709. “ If the friends of a patient ask his discharge from the asylum, the superintendent may require a bond to be executed to the state, in such sum and with such sureties as he deems proper, conditioned for the safekeeping of such patient.” Rev. Stats. § 717. Other provisions relate to the powers and duties of the trustees and officers of such institutions ; but it was obviously impossible to provide in detail for the management of such. asylums, and hence it is provided that the board of trustees shall establish such rules and regulations as may be deemed expedient for the government of such hospitals. Rev. Stats. § 639.

Much reliance is placed by the counsel for the relator on the statutory provision, that “all persons who have been or may hereafter be admitted into either of the asylums for the insane belonging to the state, shall. be maintained therein at the expense of the state.” Rev. Stats. § 700. No doubt this prohibits the maintenance of a patient, at the expense of the state, in any other place than the asylum. But it would lead to absurd consequences to hold that a patient cannot be taken beyond the walls of the asylum. If a dangerous epidemic should appear in such place, it cannot be doubted that there would be authority to remove the patients therefrom, and manifestly there would be such right in case of fire, and yet no provision is made for removal in case of either pestilence or fire. So, a visit to an exposition, or fair, or other like public place, is sometimes permitted, on the ground that it will be conducive to the patient’s restoration; but the statute confers on the superintendent no such express power. In fact, the power of the superintendent is measured, in no small degree, in matters of that sort, by the apparent welfare of the patient.

In no respect is the advance in civilization exhibited in a more marked degree than in the treatment of the insane. The harshness to which this unfortunate class was formerly srrbjected was in many cases revolting. But in this respect there has been a revolution, and the inmates of insane hospitals are now, as a rule, treated with kindness and a humane regard for their welfare. As we have seen, one still insane may be discharged from the asylum and placed in the care of friends. This, no doubt, may be done whether such friends live within the state or beyond its limits. The general rule that “ general words in statutes must always be construed in view of the territorial limit to the powers of the general assembly” (10 Ohio St. 121), has no application to the statutes upon this subject. Experience has shown that such change may be for the welfare of the patient, and desirable for other reasons. Ray’s Med. Jur. of Insanity, ch. XXYIII. There would seem to be as much reason for permitting the friends to have charge of the patient where the removal is temporary as in case of discharge ; nor is there any more reason for restricting such removal to a place within the state in one case than in the other. True, there is no absolute right in Mrs. Kegan or tbe superintendent to remove the patient from Texas to the Columbus asylum ; but the comity which in all similiar cases is constantly recognized, would doubtless permit such removal, and if need be the authorities of Texas would probably aid in such removal. "Wharton’s Conf. L. §§ 263, 269.

Construing the statutes relating to asylums and the insane in the liberal spirit in which they were enacted, and viewing the question before us as simply one of power, we are of opinion that the law places no such restriction as that claimed on the authority of the superintendent. We hold, therefore, that the court of common pleas erred in sustaining a demurrer to the answer of the superintendent, and that the district court erred in affirming the orders of the court of common pleas.

Judgment reversed.


author: Longworth, J.

text:
    Bebout v. Bodle.
    Where a principal debtor, by falsely and fraudulently representing to the creditor that his surety has consented to an extension of time for payment, procures from the creditor an agreement for such extension in consideration that interest be paid, such agreement is, as to the creditor, fraudulent, and he may, upon discovery of such fraud, even after the period of extension has expired, repudiate such agreement and sue upon the original contract without refunding or tendering back the interest paid under such invalid agreement.
    Error to the District Court of Knox county.
    The original action was brought in the common pleas court of Knox county, by Phrebe S. Bodle, against William A. Bebout and Solomon Bebout, to recover a judgment upon a promissory note, signed by them jointly.

      Solomon filed his answer, setting fourth that he signed the note without any consideration, and as a mere surety for his son William, which the plaintiff at all times well knew; and that afterwards, without his consent, the note was extended for 'a further period of time, upon an agreement to pay interest.
    To this answer the plaintiff replied as follows:—
    “And now comes the said plaintiff, Phebe S. Bodle, and for her reply to the matter and things set up and allegations made in the answer of the said defendant, Solomon Bebout, says : that on the said 29th day of April, a. d.'1873, the defendant, William A. Bebout, contriving and intending to cheat and defraud the plaintiff out of her rights in the premises, and to fraudulently procure the discharge and release of said Solomon Bebout, who is his father and the security on .said note upon which this action is founded, came to this plaintiff and requested her to extend the time for the payment of said note to the 15th day of June, A. d. 1873. Plaintiff says that she then and there declined and refused to agree to extend the tizne of the payment of said note, unless the said Solomon Bebout, who was the only solvent paz-ty on said note, would agree to and consent to the same, and thei'eupon the said defendant, William A. Bebout, to induce and procure the said plaintiff to consent to the said extension of time for payment of said note, falsely and fraudulently represented and stated to the plaintiff that he had duly informed his father, Solomon Bebout, of his desire to procure said extension of time for payment of said note, and of his intention to request plaintiff to agree to the same, and that said Solomon Bebout had fully consezited thereto, and that his said application for said extension was made with the full knowledge and consent and authority of the said Solomon Bebout, which said statements so made were then and there falsely and fraudulently made by said William A. Bebout, to cheat, defraud and injure the plaintiff, and to fraudulently procuz-e consent of plaintiff to said extension of time on said note for payment thei'eof, and thei’eby procure the discharge of said Solomon Bebout from all liability on said note; as in point of fact and in truth the said Solomon Bebout had not consented nor agreed to the said extension of time, and had not authorized said William A. Bebout to procure the same, and indeed knew nothing about the same. Plaintiff says that she believed and relied upon said statements and representations so made to her by said William A. Bebout as aforesaid, and relying upon and believing said statements and representations she did agree (as she would not otherwise have done) to extend the time for the payment of- said note until the said 15th day of June, a. d. 1873, and gave plaintiff writing to that effect, which is now in his possession. Plaintiff says that this is the same agreement set up and described in said answer. Plaintiff avers that said agreement was obtained as aforesaid by falsehood, fraud and deception, and was never of any legal force or effect, and never binding on this plaintiff, and in no way acted as a release or discharge of said Solomon.”
    To this reply a general demurrer was interposed, and sustained by the court, and, plaintiff failing to amend, judgment was rendered against her in favor of. said Solomon.
    Upon proceedings in error in the district court this judgment was reversed, and the reply held to be sufficient.

      George W. Morgan and William M. Moons, for plaintiff in error :
    1. Surety was released by payee giving time in consideration of interest paid in advance, without the knowledge or consent of surety. 14 Ohio St. 387; 15 Ohio St. 70, 295; Fawcett v. Freshwater, 31 Ohio St. 637.
    2. It was incumbent on the payee to ascertain from the surety, whether he was willing to enter into a new agreement as surety for the principal; and the neglect to do so, released the surety from the obligation of his contract. 1 Story Eq. Jur. (10 ed.) 324, 325, and cases cited ; 2 T. R. 73 ; McCramer v. Thompson, 7 Am. Law Reg. 92.
    3. The representations of a man bind him so far as his own interests are concerned, but cannot affect the interests of other parties, unless he was authorized to make them. If the representations of the principal were not tested by the payee, by ordinary vigilance, she cannot make an innocent party liable for her own laches. Selser v. Brock, 3 Ohio St. 302; Farmers

      and Traders’ Bank of Jamestown v. Lucas, 26 Ohio St. 385; Kerr on Fraud and Mistake, 136, 137, 256, 257; Story Eq. J. (10 ed.) 324, 325; 2 Parsons on Cont. 270, 271; Moore v. Turbeville, 2 Bibb 602; Saunders v. Hatterman, 2 Ind. 32; Farrar v. Alston, 1 Dev. 69; Post v. Williams, 6 Ind. 219, 2 Kent Comm. 484; Warner v. Daniels, 1 Woodb. & M. 90, 101, 102; Chitty on Contracts (10 Am. ed.) 750, 751.
    4. The agreement for the extension of time was voidable. It was the right of the payee, to affirm, or disaffirm it. She elected to affirm and did not sue until after expiration of extended time. It is too late to set up the fraudulent representations of the principal. A party who affirms a voidable contract, is bound by it in all its parts. 2 Story on Cont. 297; Galloway v. Holmes, 1 Doug. 330; Pearsoll v. Chapin, 44 Penna. 9; White v. Gardner, 10 C. B. 919; Deposit and General Life In. Co. v. Ayscough, 6 E. & B. 761; Clark v. Dickson, El., Bl. & El. 148; Nicholls’ case, 3 D. & J. 387; Mixer’s case, 4 D. & J. 580; Scholfield v. Templer, 4 D. & J. 586; Kerr on Fraud & Mistake, 48, 49.
    5. The agreement to give time, though founded on the false and fraudulent representations of the principal, was binding on the payee until she refunded to him the money received in consideration for the extension of time. Moreley v. Dickinson, 12 Cal. 561.

      W. C. Cooper and H. H. Greer, for defendant in error.—
    If Mrs. Bodle, prior to the expiration of the time agreed upon, had ascertained that the surety had not consented to the extension, and with full knowledge of all facts, had still elected to affirm the fraudulent agreement, there would be reason in the claim that she had waived her right to repudiate the contract; but this is not the fact. There is nothing to show that Mrs. Bodle had any knowedge of the fraud, or knew the surety had not consented to the extension of the time of payment, until he filed his answer in the case. Counsel for the plaintiff in error insist that Mrs. Bodle is bound to refund the money before she can repudiate the contract. We reply, why should Mrs. Bodle return this money to William A. Bebout, when there is no dispute that there was due from him to her many times the amount so paid ? He was entitled to credit for the amount, but not for a return of the money. We think the case of Moreley v. Dickinson, 12 Cal. 581, is not analogous to the case at the bar and does not support the claim of the plaintiff in error. We respectfully invite the attention of the Court to : 8 Ohio, 191; 26 Ohio St. 379; 28 Ohio St. 10; 61 Penn. St. 427; 23 N. Y. 264; 50 N. Y. 670.
   Longworth, J.

That a valid agreement, with a principal debtor, to extend the time of payment of the debt, made without the consent of his surety, operates to discharge such surety, is an elementary proposition.

It is equally clear that to have such effect the agreement must be valid and binding upon the parties between whom it is made. It must be the substitution of a subsequent for a former agreement. Such is not the case here if the facts stated in the reply are truly stated; and this the demurrer admits.

The agreement for extension, although a pecuniary consideration passed, was voidable by reason of the fraud practiced upon plaintiff by the principal debtor. It is said that it was in the faith that his fraudulently false statements were true that plaintiff consented to the extension, which she otherwise would not have done. Here, then, was no valid agreement, even as between the creditor and principal debtor, and nothing which could operate to discharge the surety.

But it is claimed in argument that the plaintiff, by not suing until after the expiration of the extension, must be held to have ratified the invalid coir tract. We do not so understand it. That she would have had the right to ratify it is clear; and if, upon discovery of the fraud she liad failed to take any action ■signifying her intention to repudiate the agreement, she might be held to have ratified it, we may concede. But the only facts before us are those stated in the record, and upon this ¡matter it is silent.

It is further urged that in order to enable plaintiff to repudiate the contract she was bound to refund to William the money paid as its consideration, or at least to tender it back. This cannot be true. This sum, which was the interest covering the period of extension, during which the principa] remained actually unpaid, was due to the plaintiff from William, irrespective of the question whether the agreement was valid or invalid. We can see no reason why plaintiff should be compelled to pay to this defendant money which was her own in either event, and to which he could not, in any aspect of the case, be entitled.

Judgment affirmed.


text:
    Davis v. The State.
    An indictment charging that the accused burglariously broke and entered into ‘ ‘ a certain dwelling-house, to wit, the infirmary of Morgan county,” is not insufficient as failing to aver the fact of ownership, or as charging the offense to have been committed in a place other than those enumerated in section -6835, of the Revised Statutes.
    Motion for leave to file a petition in error to the Court of Common Pleas of Morgan county.

      John E. Fauna and Wm. Foull&e, for plaintiff in error. Franlc F. Metcalf \ prosecuting attorney, for defendant in error.
   Longworth, J.

The plaintiff in error was convicted and sentenced in the common pleas court of Morgan county of the crime of burglary. The only question presented by the record for our consideration is whether the court erred in overruling his motion in arrest of judgment, based upon the alleged insufficiency of the indictment under which conviction was had. The charge against the prisoner was, that he feloniously broke and entered “ a certain dwelling-house, to wit, the infirmary of Morgan county, there situate, &c.” It is said that here is no allegation of ownership in Morgan county or its commissioners of the building charged to have been entered. To this we cannot agree. Taking the language in its ordinary meaning, the word of,” in this connection, is equivalent to “ the property of” or belonging to.” If the charge were breaking into “ a certain dwelling-house, to wit, the tenement of J. S.,” it could not be claimed that here is no averment of ownership in J. S. Why, then, in the case of Morgan county ? Because, it is answered, a county is only an intangible entity existing in contemplation of law, and incapable of occupying a dwelling-house. True, but does it follow from this that it is incapable of owning a dwelling-house ? Were plaintiff’s argument sound it would not be an offense under our statute to break and enter any dwelling-house occupied by others than the non-resident owner.

It is further urged that a county infirmary is not a dwelling-house within the meaning of the section of the code defining burglary (Rev. Stats. § 6835), and, not having been mentioned in the enumerating clause of that section, the charge of burglary will not lie (see Wilson v. State, 34 Ohio St. 199-202). This argument is wholly untenable. Whether a building is or is not a dwelling-house depends upon the use to which it is put. A barn may be converted into a dwelling-house, or a dwelling-house into a barn, by a change of uses; so an infirmary may or may not be a dwelling-house, depending in no wise upon the cpiestion of its ownership or the purposes of its original construction, but upon outside facts and circumstances. See Barnett v. State, ante, p. 7. Had the indictment in the present case simply charged a breaking and entering into the “ infirmary of Morgan county,” there would be no doubt of its insufficiency ; but it goes farther and alleges that the infirmary of Morgan county is a certain dwelling-house. It was incumbent upon the state to prove the truth of this allegation, aud, from the record, we must presume that it was proved to the satisfaction of the jury.

Motion overruled.