author: Spalding, J.

text:
    *Moses Cotterell and John Cotterell v. Enoch Long et al.
    If a contract for the conveyance of land be intended as security for a debt, it is a mortgage, whatever may be its form or the name given it by the parties.
    This is a bill of review, reserved in the county of Clermont.
    The following is a concise statement of the case:
    On April 7, 1829, William Cotterell, the father of complainants, executed and delivered to Thomas Morris the following instrument:
    “ This shall oblige me, my heirs, executors, etc., to make or cause to be made to Thomas Morris, his heirs or assigns, a good and sufficient deed of conveyance for a certain tract or parcel of land, lying in the township of Miami, in the county of Clermont and State of Ohio, supposed to contain thirty acres—it being the'same tract of land devised or left to me by the last will and testament of my father, Thomas Cotterell, and of which I am to have the possession on the death of Peggy Cotterell, the widow and relict of my said father ; or I will pay to the said Thomas Morris $100' in two years from this date, and in default of payment of the above sum at the time stipulated for payment, then this obligation for the conveyance of the land aforesaid shall be absolute. In witness whereof, I have hereunto set my hand and seal this April 7, 1829.
    “William Cotterell. [l. s.]
    “Witness: J. D. Morris.”
    On August 11, 1832, Thomas Morris, in consideration of $100, assigned this obligation to Moses Long, and bound himself, his-heirs, etc., to cause to be made and completed to him, the said Moses Long, a good and sufficient title to the land therein described, “with the exception therein mentioned.”
    *On November 5,1833, Moses Long, in consideration of one hundred dollars, assigned to Enoch Long all his right and title to said obligation, and bound himself to cause to be made to said Enoch Long a good and sufficient title to the land, “ with the exception therein mentioned.”
    On November 6,1833, Enoch Long filed, in the court of common-pleas of Clermont county, his bill in chancery against Thomas Morris, Moses Long, and Mary Ann, Moses and John Cotterell, infant heirs of William Cotterell, deceased, setting forth the obligation, the assignment, and the failure of William Cotterell to execute the deed or to pay the money; and calling upon all the defendants to answer under oath, and praying that the legal title in said tract of land might be perfected in the petitioner.
    At the same term of court, on motion of counsel for complainant, Owen T. Eishback, Esq., was appointed guardian ad litem. to the infant defendants.
    At the August term, 1834, Thomas Morris filed his answer, in which he stated that William Cotterell, in his lifetime, gave him the title-bond mentioned in the bill, and that he assigned the same to Moses Long; that he never did, at any time, receive from the said William Cotterell any part of the said sum mentioned in said bond, but that he sold the same, in good faith, to Moses Long, and verily believed that the complainant was justly entitled to a decree for the land.
    At the same term of court, Moses Long answered and acknowledged the assignment from himself to complainant, and expressed his belief that his assignee was entitled to the land.

      On September 5, 1834, the guardian ad litem filed an answer in behalf of the-infant heirs of William Cotterell, deceased,-in which be stated that he had seen and inspected the title-bond mentioned in complainant’s bill, and that it appeared to him to have been fairly executed; that he knew nothing about the original transaction, nor did he know any reason why the complainant should not obtain the relief he ^sought, saving to the infant heirs such fights as they might be entitled to on their arrival at full ,age.
    At the same term, to wit, the August term, A. D. 1834, the court ■of common pleas, upon said bill, answers, and exhibits, rendered a decree in which they found the equity of the case with the complainant, and ordered, adjudged, and decreed that the land mentioned in his bill, to wit, thirty-seven acres of land in the county of Clermont, on the waters of the Little Miami, being a part of surveys,' etc., bounded, etc., “of right belongs to tho complainant, and that the said infant heirs of William Cotterell, deceased, do each, three months after coming of full age, make and execute to said complainant, a quitclaim deed for the land hereinbefore described, and in default of making such conveyance, then this decree to operate as such.”
    To reverse this decree, this bill of review is brought, and tho following are the errors relied upon to sustain it :
    1. There was no service of process upon the infant defendants.
    2. Tho personal representatives of William Cotterell were not made parties.
    3. The bond or agreement of Cotterell was nothing more than a security for the payment of the one hundred dollars; and thero was no finding by said decree of the amount duo thereon, and there was no day given for the payment of the money.
    4. Tho decree does not find that the assignments of said bond, •by Morris and Long, were, in fact, made.
    5. The decree does not find the execution and delivery of the •bond by Cotterell to Morris.
    6. If the bond had been properly executed, and the assignments, duly made, all that the complainant would have been entitled to by said decree would have been the amount specified therein, with interest; and a day should have been given for the payment •of tho same, and, in default of payment, a sale of the land ordered.

      *7. The decree does not find that the money due on said bond had not been paid.
    8. The decree directed said infant defendants to convey said land, when William Cotterell had nothing but a life estate therein, by the will of Thomas Cotterell, and said defendants, by said will,, had the- fee simple.
    9. No day was given said defendants to show cause against the decree, after their arrival at full age.
    Sundry depositions are introduced on either side, but if strictly admissible in a proceeding of this sort, they are of no essential importance, any further than to show the respective ages of the present complainants, Moses and John Cotterell, and the nature of the indebtedness of William Cotterell to Thomas Morris, at the time the bond was executed. It appears from the deposition of Joseph Cotterell, who was the brother of William Cotterell, deceased, that Moses Cotterell was born in the year 1824, and John in the year 1827. The bill of review was filed September 19, 1849.
    On cross-examination by defendants in error, Joseph Cotterell was asked by them this question: Did not William Cotterell give Thomas Morris his interest in this land for his services in the case in which he was charged with killing his wife? To which the witness answered, that he understood he was to give him $100; and to secure that amount, he signed him his interst in the land. The will of Thomas Cotterell gives this land to his wife, Peggy Cotterell, for life; remainder to his son William, and his heirs. Peggy Cotterell lived to an advanced age, and died in 1847 or 1848.
    Fishbaok, Swing & Fishback, for complainants:
    I. It is the well-settled doctrine, both of English and American courts, that whenever the rights of infants are sought to be affected by proceedings in court, they must be brought before the court by actual or constructive process upon them, or publication of notice against them. Ontario Bank v. Strong, *2 Paige’s Ch. 304; Grant v. Vanschoonhoven, 9 Paige’s Ch. 255; Walker v. Hallett, 1 Ala. N. S. 379; Walker v. Bank of Mobile, 6 Ala 452; Collard’s Heirs v. Groom, 1 J. J. Marsh. 487; Graham et al. v. Sublet, 6 J. J. Marsh. 44; Jones v. McGrisky, 3 Dana, 425; Huston v. McClasty, 3 Litt. 274; Carrington’s Heirs v. Brents, 1 McLean, 174; Hollingsworth v. Barbour, 4 Pet. 466.

      II. The personal representatives of William Cotterell were necessary parties to said bill. Massie’s Heirs v. Donaldson, 9 Ohio, 377; Huston v. McClasty’s Heirs, 3 Littell, 274.
    Ill and VI. The third and sixth errors aré of the same character, and present the question :—What was the true nature and character of the obligation from Cotterell to Morris? It was a mere security, in the character of a mortgage, for the payment of money ; and was so intended by the parties. Hughes et al. v. Edwards and wife, 9 Wheat. 489; Morris v. Nixon, 1 Howard’s U. S. 118; Miami Exporting Co. v. Bank of United States and Ruffnor, Wright’s S. C. 249; Jarbrough v. Newell, 10 Yerg. 376; King v. Newman, 2 Mumf. 240; Ketchum v. Johnson, 3 Greene. Ch. 370; Wright v. Bates, 13 Vt. 341; McIntyre v. Humphreys, 1 Hoff. Ch. 31; Henry v. Davis, 7 Johns. Ch. 40; Oldham v. Halley, 2 J. J. Marsh. 113; Secrist v. Tromer, Ib. 471; Edrington v. Harper, 3 J. J. Marsh. 353; Bishop v. Rutledge, 7 Ib. 217 ; Harrison v. Loeman, 3 Blackf. 51.
    The condition of defeasance exists in the agreement; but should it be doubtful whether it be a conditional sale or mortgage, this court will construe it a mortgage. Skinner v. Miller, 5 Littell, 84; Flagg v. Mann, 2 Sumner, 486; Conway’s Executor and Devisees v. Alexander, 7 Cranch, 218.
    No bond to pay the money from Cotterell to Morris, or covenant to pay, in the instrument itself, is necessary to constitute the contract a mortgage. Flagg v. Mann, 2 Sumner, 534; 4 Kent, 145. These authorities are not changed by the case of Walton et al. v. Coulson, 1 McLean, 120.
    IV, V, VII. The fourth, fifth, and seventh errors are of the *samc character. The execution of the bond and the assignments thereof should have been duly proven, and those facts should have been specially found in the decree. The answer of a guardian ad litem is not binding upon infant defendants, and no decree can be pronounced on its admissions without service of process. Wright v. Miller, 1 Sandf. Ch. 103; 1 Dan. Ch. Pr. 217, 219; 2 Ib. 1217 ; Mills v. Dennis et al., 3 Johns. Ch. 367.
    VIII. As to the eighth error, see 15 Gris. Ohio, 559.
    IX. A decree, directing infants to make a conveyance, must give them a day after their arrival at full age to show cause against it. 1 Dan. Ch. Pr. 209 ; 2 Ib. 1214 ; Bing, on Infancy, 135 ; Kelsall v. Kelsall, 2 Mylne & Keen, 409; 2 Vern. 232, 342; 2 P. Wms. 403; Coffin v. Heath et al., 6 Met. 76; Mills v. Dennis, 3 Johns. Ch. 367; Pope v. Remaster, 5 Litt. 77; Collard’s Heirs v. Groom, 2 J. J. Marsh; 487 ; 1 Amer. Dec. 121, 122.
    The proof shows that all of the complainants were minors when the bill of review was filed, but if only one of them had been within, the “saving clause” of the statute, his right to review the decree would inure to all. Williams et al. v. Phillips, 3 Ham. Ohio, 50; Massee v. Matthews’ Ex’r et al., 12 Stant. Ohio, 351; 2 Bibb, 371.
    John W. Lowe, for defendants:
    Errors 3, 6, and 7 do not exist in fact, because nothing was ever due on the bond—there is no promise or obligation on the part of Cotterell to pay the $100 mentioned in it. The bond was never regarded between the parties to it, nor intended by them as a security for the payment of $100. Morris, with this bond in his possession, could not have sued Cotterell either on the bond or for his professional services. The tender of a deed would have discharged it.

      A debt must exist before it can be secured, and this instrument can not be considered a mortgage or a security until there *is Some debt to secure. The title-bond provides for nothing but the making of a deed; a court of equity could compel a conveyance, but not the payment of money. The principle sustained by the authorities is, that, if an instrument is given to secure a debt, it may be regarded as a mortgage ; but no such case is made out.
    As to the ninth error it is claimed that the decree did give three months to the minors, after arriving at the age of majority, to execute a quitclaim deed, and during that time they could show cause against the decree.
    The errors assigned relate, first, to the jurisdiction of the court over the infants at the time of decree; and secondly, to the character of the obligation upon which the decree was rendered.
    I. The original bill shows that a praecipe for a subpena, against all the defendants, was filed, and it was doubtless issued and served, though it does not appear in the record. In Trumpon v. Barton, 18 Grisw. Ohio, 425, the court say “ they would hardly reverse a former decree unless some benefit might by possibility result to those seeking it.”
    II. The authorities cited do not sustain the position that this bond is a mortgage. There are authorities in point that it is not. Walton & Payne v. Coulston, 1 McLean, 120; 9 Pet. 62 ; 7 Cranch. 218, 237; 9 Ohio, 28; Glover v. Paine, 19 Wend. 518; Flemming v. Litton, Dev. & Battel, 623; Sug. on Vend. 187; 5 Leigh, 434; Hickman v. Cantrell, 9 Yerg. 172; 1 Mad. Ch. 517; Bennett v. Robb, 2 Yerg. (Tenn). 6; 4 Kent, 144.
    In a defeasible purchase, the condition must be strictly performed at the day, or no relief will be granted. Chapman v. Turner, 1 Call, 192; David v. Thomas, 1 Russ. & M. 506; Conway v. Alexander, 7 Cranch, 218; Chit. on Cont. 728. This bond was but a conditional sale, or rather a sale with a privilege to repurchase; within a given time, at a stated price.
   Spalding, J.

In the view wo take of this case, it only becomes necessary to notice the third ground of error, in the ^assignment of errors by counsel for complainants, to wit, that the agreement was nothing more than security for the payment of the $100.

It is true that it nowhere appears among the papers that the infant heirs were served with process in the suit which so vitally affected their interests; and, under other circumstances, this omission would have received our serious consideration. As it is, the whole case will be made to turn upon the character of the instrument executed by William Ootterell to Thomas Morris, on April 7, 1829.

The court of common pleas of Clermont county, in making their decree, treated it as a conditional sale. In this we think they erred. The deed is in equity a mortgage. Upon its face it is really no more than a security for the payment of $100 in two years, although it commences with an undertaking to convey land-. This undertaking to make conveyance of the land, however, it must be remarked, is exceedingly limited. It is only in default of payment of the $100 by the time stipulated (two years), that the obligation to convey becomes absolute. How does this differ in effect from the ordinary mortgage deed? In the case of this latter instrument, the lands are first actually transferred with covenants of seizin and warranty; but then a simple condition is inserted, that if a certain sum of money be paid by the grantor to the grantee in a given time, the whole conveyance shall be void.

In the agreement we are considering, there is only a promise for a deed, and then a stipulation that, if the money be paid in two years, this promise for a deed is not to be considered an absolute promise. In the language of the instrument: “ On default of payment of the above sum, at the time stipulated, then this obligation for the conveyance of the land aforesaid shall be absolute.”

Who can fail to see that the object of Thomas Morris, in taking this obligation from William Cotterell, was to obtain security for his debt? And if so, the instrument is a mortgage, no matter what shape it may have assumed.

*Chief Justice Buchanan, in Dougherty v. McColgan, 6 Gill & Johns. 281, asserts this doctrine: “Whenever the intention is to take a security for a subsisting debt, or for money lent, and to avoid or restrict the equity of redemption, chancery, seeking to protect the debtor against the rapacity of the creditor, and to do full and equal justice between the parties, will defeat such intention, by treating the transaction as a mortgage, and extending to the debtor the benefit of the equity of redemption.”

See also Page v. Foster, 7 N. H. 394, wherein the judge remarks : “If it was intended as a security, it is a mortgage.”

And so in Flagg v. Mann, 2 Sumn. 533, where Judge Story lays down the rule: “ If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage. If it be not a security, then it may be a conditional or an absolute sale.”

It is true that the agreement to convey the land is followed by a seeming alternative, to bo adopted by the obligor, at his option, within two years: “ Or I will pay to the said Thomas Morris $100 in two years,” etc. But the legal effect of this phraseology is to create a defeasance, as much as if the words were, on condition,” or “provided, however,” etc. Chief Justice Shaw, in Nugent v. Riley, 1 Met. 110.

Again, it is urged that this deed from William Cotterell to Thomas Morris was not a mortgage, inasmuch as there was no personal obligation given for any debt, from the former to the latter. This the law does not require. “A mortgage is the conveyance of an estate by way of pledge for security of a debt, and to become void on the payment of it.” 3 Kent’s Com. 129. “It is none the less a mortgage because there was no collateral personal security for the debt taken at the time.” Rice et al. v. Rice, 4 Pick. 349; Smith v. People’s Bank, 11 Shep. 195.

If the claim of Morris to the $100 could have been enforced either in personam or in rem, it would have been *a subsisting debt between the parties, and the conveyance of land would be construed a mortgage. See Judge Story’s opinion in 2 Sumner, 534, already cited. But, as the same learned judge remarks elsewhere, it is well known that courts of equity lean against construing contracts of this sort to be conditional sales; and, therefore, unless the transaction be clearly made out to be of that nature, it is always construed to be a mortgage.” So Lord Hardwicke laid down the doctrine in Longuet v. Scawen, 1 Ves. 406, and it has never been departed from. The onus probandi, then, is on the defendants to establish it to be a conditional sale.

The assignees of Thomas Morris have given us no such proof. Nay, the very assignment of Morris to Moses Long contains no slight evidence that the assignor, himself an astute lawyer, was fully conscious that, although his contract for a conveyance had, by its terms, become absolute, an equity of redemption still subsisted in the heirs of William Cotterell. It makes a show of warranting a title to Long, his heirs and assigns, but winds up with this pregnant reservation: “ with the exception therei n mentioned.’

What need of alluding to the stipulation that the payment of a $100, if made within two years, would relieve the land, the time having elapsed, if the parties regarded the transaction as a conditional sale ?

On the whole, we are unanimously of the'opinion, without reference to the depositions, that the contract executed by William Cotterell to Thomas Morris, on April 7, 1829, was intended by the parties as security for the payment of a debt, and consequently, in equity, must be regarded as a mortgage. The decree of the court of common pleas of Clermont county is erroneous and will be reversed.

The cause will be remanded to that court, with directions to take an account of the money due, by reason of the original debt of $100, and interest, and to charge said land therewith as upon a mortgage.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    *Alexander H. McGuffey v. Alexander Finley and Ann Ellen Finley, his wife; Susan Connery and Edward Connery, her husband.
    In a suit in equity to foreclose by an assignee of a mortgage, if the assignment has been absolute, transferring the entire interest of the mortgagee, it is not indispensably necessary that the mortgagee should be a party, although this court believes the better practice to be in all such cases to make him a party.
    This is a bill in chancery reserved in Hamilton county.
    The bill in this case shows that Alexander Finley and his with, on February 1, a. d. 1850, mortgaged to Nathan L. Rice certain real estate in Cincinnati, which is particularly described, to' secure the payment of a certain promissory note of that date, for the sum of $575, made by the said Alexander Finley, and indorsed by Ann Ellen Finley, and payable four months afterdate to the said Nathan L. Rice or order. That, on June 27, 1850, the said note and mortgage were, by the-said Nathan L. Rice, assigned and transferred to the complainant, whereby all the right and title of said Rice in and to said note and mortgage, and the money thereby secured, became vested in complainant.
    The assignment was made on the mortgage, and both the mortgage and assignment are referred to and made part of the bill.
    It is then stated in substance, that the money not being paid according to the terms of the note and mortgage, the estate had become absolute at law, etc. The complainant then states that he is informed that Susan Connery and her husband, Edward Connery, claim some interest in the land, and prays that Alexander Finley and Ann Ellen Finley, his wife, Susan Connery and Edward Connery, her husband, may be made defendants. The prayer of the bill is as usual in cases for the foreclosure of a mortgage.
    *A copy of the mortgage is attached to the bill, and the original is before the court as an exhibit, with the note attached.
    Subpena was issued for all the defendants named in the bill, but they are in default for answer.

    The assignment indorsed on the mortgage is as follows:
    “For value received, I hereby assign and transfer to Alexander H. McG-uffy all my interest in and under the within mortgage, and the note therein described.
    “ N. L. Rice.

      “June 27, 1851.”
    Rice is not a party to the bill.
    McG-ueeey & Holcombe, for complainant:
    Is a mortgagee, who has assigned his whole interest in the debt and mortgage unconditionally, but not by deed, a necessary party on a bill to foreclose filed by the assignee ?
    It would seem from the language of the authorities, that this question is settled. Story’s Equity Pleadings, secs. 153,199. This doctrine, it is true, is stated where ho is treating of the proper parties as plaintiffs to a bill to foreclose; but the principle is the same.
    So in Calvert on Parties, marginal page, 185: “If an assignment of all the interest of the mortgagee has been made and the mortgagor filed a bill aga'inst the assignee to redeem, or the assignee against the mortgagor to foreclose, the mortgagee need not be brought before the court.” Whitney v. McKinney, 7 Johns. Ch. 144; Hobart v. Abbott, 2 P. Wms. 642; Johnston v. Hart, 3 Johns. 322; Williams v. Sawell, 4 Ves. 389 ; Miller v. Bauer, 3 Paige, 168; Hosford v. Nichols, 1 Paige, 220; Anderson v. Walls, 6 B. Mon. 542; Shaw v. Hoadley, 8 Blackf. 165; Newman v. Chapman, 2 Rand.
    But it is insisted that the mortgagee should be made a party, because he holds the legal title, after conditions broken, and does *notpass all his interest by a written assignment on the mortgage, unless such assignment is a regular deed of conveyance.
    There is some confusion in the authorities in respect to the condition in which the mortgagee stands after condition broken. The weight of opinion is in favor of the doctrine that he may pass his whole interest without an instrument under seal. 11 Ohio, 341; Lessee of Phelps v. Butler, 2 Ohio, 224; Lessee of Hill v. West, 8 Ohio, 443; 4 Kent’s Com. 194; Brace v. Harrington, 2 Atk. 235; Brown v. Kirby, 10 Ohio, 215.
    Admitting that the legal title is in the mortgagee, after the assignment, that title is an airy phantom, and does not require the 'potent wand of a chancellor’s decree to dissipate it into nothingness.
    Tho question of leaal title is in no way involved. We simply seek the payment of a debt, and we ask this payment of the mortgagor, not of the mortgagee.
    And if the ground assumed by defendant’s counsel be tenable, it must follow that a debt evidenced by negotiable paper can not be assigned, except by deed, if it happened to be secured by mortgage l

    The point raised in this case has been decided by Judges Spalding and Avery, on the circuit, in the case of Hill v. Welsh, Pickaway Supreme Court, November Term, 1850; 8 Western Law Journal, 371.
    No argument came to the hands of the reporter, for defendants.
   Hitchcock, C. J.

It will be seen by the statement of the case, that Nathan L. Eice, the original mortgagee, is not a party in this case, either as complainant or defendant; but the exhibits show that there was.an absolute and unconditional transfer of the note and mortgage by Eice, for a valuable consideration, to the complainant, and the solo question raised, is, whether, under the circumstances of the case, the complainant *is entitled to a decree; in other words, whether the assignee of the original mortgagee can enforce the mortgage against the property mortgaged without having his assignor before the court.

According to the earlier practice of this court, it is believed to have been absolutely necessary, in such case, that the mortgagee should be made a party; and the same rule was applied in all cases where an assignee came into court to' enforce a contract, made and entered into between his assignor and a third person. We believe that this rule is founded in good sense; and that it should never have been departed from. The general rule is, that all parties interested in the subject matter of litigation in a chancery proceeding, should be before the court.

It may be said that a mortgagee, having made an absolute and unconditional assignment, has no interest. The fact, however, that such an assignment has been made, may be material to be ascertained by proof, as the assignment can not prove itself. Upon the existence of this fact, the question, whether the assignee has any title, must depend ; and it is contrary to our usual notions of legal propriety, that evidence should be introduced to prove that one who was once interested in a contract or mortgage, has parted with that interest, when he is not before the court to contest, if he .thinks proper, the proof so offered. But, although such is believed to have been formerly the uniform practice of this court, yet, within these latter days, the rule has been, in some instances, departed from, and bills in chancery have been sustained at the suit of the assignee of a mortgage, or other contract, without having the assignor before the court. In adopting this practice, we have followed the courts of other states in the Union, and perhaps the courts in England.

In Whitney v. McKinney, 7 Johns. Ch. 144, Kent, Chancellor, gays, “I do not apprehend it to be necessary, in all cases of a bill to foreclose, by the assignee of a mortgage, that the mortgagee should be made a party defendant.” Again, on page 147: “ But where the assignment is absolute, and the ^assignee parts with all his interest in the mortgage, and there is nothing special and peculiar in the case, the assignee is under no necessity to make the mortgagee a party to a bill to foreclose.” To sustain the text, the chancellor cites 7 Ves. 287; 4 Ves. 389.

In Miller v. Bear, 3 Paige, 466, Chancellor Walworth says:

“There are many cases where an assignee of a chose in action, or of an interest in property, is now permitted to sue, without bringing the assignor before the court, where the latter was formerly held a necessary party. Where the assignee has the equitable interest in himself, so that nothing remains to be done by the assignor, who has parted with his entire interest in the proj^erty, both at law and in equity, I see no benefit which can result to any person by making him a party.”

In Story’s Equity Pleadings, sec. 153, it is said: “ The true principle would seem to be, that in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party.”

But it is unnecessary to cite further authorities. All the cases referred to by complainant’s counsel, go to sustain the principle to a greater or less extent. We yield to these authorities; but still we believe the old practice to be the best, and, as before stated, regret that it should have been departed from.

The complainant is entitled to a decree for a sale of the mortgaged promises, having first ascertained the amount due upon the note secured by the mortgage.

       For decisions in relation to mortgages, see Wilcox’s Dig.; and for other decisions, 17 Ohio, 264, 356, 371, 482; 18 Ohio, 35, 273, 428; 19 Ohio, 212; 1 West. Law Journal, 207, 398; 2 West. Law Journal, 70, 325; 7 Ib. 581; 8 Ib. 256, 371, 472, 536. See also 18 Ohio, 567.


author: Ranney, J.

text:
    *William Blizzard, Administrator de bonis non of Hazel Clary, deceased, v. William C. Filler, Administrator of Henry Karns, deceased, Thomas Foster, Alfred Chapman, and Stephen D. Karns.
    At common law, no action could be sustained by an administrator de bonis non against the representatives of a deceased administrator, or the sureties in his official bond.
    Section 26 of the act 'of 1840, to provide for the settlement of the estates of deceased persons, does not, in this particular, change the common law. Such suit can not be maintained upon general chancery principles.
    This is a bill in chancery reserved in Muskingum county.
    The bill was filed upon leave granted by the court,  and alleges the death of Hazel Clary, the proof of a verbal will, the appointment of Henry Earns as his administrator, with the will annexed; that defendants Foster, Chapman, and Earns became his sureties in the administration bond; that large sums came into the hands of Henry Earns, as administrator of Ciar}* 1', which he failed properly to administer; that he diedhopelessly insolvent, and that defendant Filler administered upon Earns’ estate; and complainant was appointed administrator de bonis non of Clary. Prayer for an account, and for general relief.
    Process is served upon all the defendants. Filler alone answers, and his answer is replied to. The other defendants do not plead, answer, or demur; S. D. Earns appears on one occasion, and moves for a continuance. The other defendants attend at the taking of depositions. °
    The only opinion sought from the Supreme Court is, whether a court of equity has jurisdiction of the case. ,
    *0. B. Goddard, for complainant:
    The bill was evidently filed upon the supposition that section 26 of the act of 1840 (Swan’s Stat. 343, 344) applied to the case. If it do not, I claim jurisdiction upon general principles: 1. This suit being necessary to avoid circuity of action, to marshal the assets, and to subrogate the sureties in the bond to complainant’s rights, against the estate of Henry Earns. 2. No objection was taken to the jurisdiction by defendants by demurrer, but they have proceeded to take testimony. See 9 Watts, 479, 485, 495.
    C. W. Seabxe and N. A. Guille submitted the case without ar- • gument.

       See section 184 of the act of March 23, 1840, to provide for the settlement of the estates of deceased persons.

   Ranney, J.

The single question presented for the consideration of the court in this case is, can an administrator de bonis non, appointed upon the death of the first administrator, bring a suit upon his official bond, upon an allegation that money came into his hands for which he failed to account? Earns was the administrator of Clary, and before he had settled the estate, died. Blizzard was then appointed administrator de bonis non on the estate of Clary, and Filler administrator on the estate of Earns. The other defendants were Earns’ sureties. It is alleged that Earns failed properly to administer the estate, converted a part of the assets, and died hopelessly insolvent.

Without th.e aid of legislative provision, it is undeniably clear that no right of action arises in favor of the administrator de bonis non, cither against the representatives of the deceased administrator or the sureties in his official bond. The reason of this is found in the fact that he represents only the decedent, and is authorized to administer upon such of his goods only as have not been previously converted by some other representative of the estate. To no other can he be made liable.

*JBut it is claimed that such legislation does exist, and we are referred to section 26 of the administration law (Swan’s Stat. 343, 344), as authorizing this bill. By that section it is enacted, that “an administrator appointed in place of an executor or administrator, who has resigned, been removed, or whose letters have been revolted, shall be entitled to the possession of all the personal effects and assets of the estate unadministered, and may maintain a suit against the former executor or administrator and his sureties on the administration bond, for the same, and for all damages arising from the maladministration or omissions of the former executor or administrator, in the manner prescribed in the seventh part of this act.”

By section 189 of the same law, it is provided that a suit in ■chancery, “instead of a proceeding at law,” may be instituted by any person interested in an estate upon the executor’s or administrator’s bond. Earns did not resign, nor was he removed, or his letters of administration revolted. This caséis not, therefore, within the terms of the act referred to; and unless this court are authorized to add to the section, this case can not be brought within its provisions. The three sections of the law preceding the one cited, provide in what cases the administrator may be removed, and for what his letters may be revoked, as well as for the appointment of an administrator de bonis non, in the event of his death ; but the case of death is manifestly, designedly, left out of the section allowing the second administrator to sue upon the bond of the first. This leaves the matter in that case as it stood at common law, and there it is well settled that he could not maintain an action. If it is desirable that cases like this should be brought within such a remedy, the power is with the general assembly, but without legislation can not be applied by this court. We are referred to the eases of the Commonwealth v. Sfcrobocker, Drenkle v. Shannon, and Weld v. McClure, all in 9 Watts, 479, 485, 495, as sustaining the positions of the complainant’s counsel. The first of these was the case of a /dismissed administrator, and was decided upon a statute of the *State of Pennsylvania, very similar to our own. The general doctrine is explicitly recognized by the judge delivering the opinion, that without such legislation the proceeding could not be maintained.

The case of Drenkle v. Shannon was also decided upon section 31 of a law of that state, passed in 1834, which provided that “ administrators de bonis non, with or without a will anñexed, shall have power to demand and recover from their predecessors in the administration, or their legal representatives,” etc. This section differs from our statute in extending to all administrators de bonis non, and expressly provides for proceedings against the legal representatives of a deceased administrator. The judge says: “The object of this section was to change the common law in respect to the matters therein provided for ;” and further, he says : “Every one acquainted with the law as it stood before the passage of the act, must be sensible of the embarrassment that arose with creditors, legatees, and distributees of the deceased persons, in relation to having the respective claims adjusted and paid, from the circumstance of their being compelled to look to various sources and different persons, in some instances, for that purpose.” Hero again the common-law rule is acknowledged, and the decision placed upon a statute with which we have none to correspond.

The case of Weld v. McClure was the case of a dismissed administrator. Sergeant., J., in delivering the opinion, says• “The incapacity under which an administrator de bonis non labored previous to the act of February 24, 1834 (the one referred to in the last case), to recover the assets in the hands of the representatives of a prior executor or administrator who had died, arose from the want of title to the property of the decedent not remaining in specie. That reason does not apply in the case of a dismissed executor or administrator, because section 3 of the act of April 4, 1797, expressly gives to the successor the administration of the unadministered part of the estate, and directs that the dismissed party ^surrender up the residue of the estate.” Our law is the same, in effect, as this law of 1797, but we have no provision corresponding to the act of 1834. Without it we have tha authority of this case for saying that it would be governed by the common law, and no action could be maintained. The fact that no objection to the jurisdiction is taken, can have no weight in this case. We do not decide it upon the ground that the remedy is at law, but upon the ground that no remedy in favor of the present plaintiff exists either at law or in chancery. The bill must be dismissed.

       7 Ohio, 270.


author: *Spalding, J.

text:
    The Zanesville Canal and Manufacturing Company v. The City of Zanesville.
    A gift to a charitable use is to receive the most liberal construction.
    The Mclntire fund, given to establish “ a school in the town of Zanesville, for the poor children in said town,” is not limited in its benefits to the children of parents residing in that locality which constituted the town corporate of Zanesville, at the decease of the testator.
    The charity will be administered for the benefit of poor children in the town of Zanesville, according to the most general and popular sense of the term.

      This is a bill in chancery reserved from Muskingum county.
    The case stands upon bill and answer. The facts are undisputed.
    John Mclntire, by his last will, dated March 18, 1815, directs that his estate be sold and invested in the stock of the Zanesville Canal and Manufacturing Company; “ and the president and directors of said company are, annually, forever to appropriate all the profits, rents, and issues of my stock as aforesaid, and all my estate, of whatever kind the same may be, for the use and support of a poor-school which they are to ^establish in the town of Zanesville/or the use of the poor children in said town. The children who are to be the objects of this institution are to be fixed upon by the president and directors of said company.”
    This will was proved August 4, 1815.
    John Mclntire and Jonathan Zane were the original proprietors of the town of Zanesville, which was laid out upon the section granted by Congress to Ebonezer Zane. See Swan’s Land Laws, 147. The section included land on each side of the river Muskingum and on each side of Licking creek.
    The town plat was exclusively confined to the east side of the Muskingum. Twenty lots were, however, subsequently laid out on the west side, and north of Licking, forming what is commonly called West’Zanesvillo; and additions were made to the town, on the east side, by Mclntire and others, upon Congress land adjoining the section.
    An act to incorporate the town of Zanesville was passed January 21,1814. Section 1 of that act reads as follows:
    “ All that part of the town of Zanesville, in the county of Muskingum, included in the original plat thereof, and now on record in the county of Muskingum, together with all the additional lots since added thereto, on the east side of the river Muskingum, and now on record in the county of Muskingum, be and the same is hereby erected into a town corporate, and shall henceforth be known and distinguished by the name of the ‘ Borough of Zanesville;’ subject, however, to such alterations and regulations as the legislature may from time to time think proper to make.”
    The limits of the town have since been enlarged by successive legislative enactments, all subsequent to Mr. Mclntire’s death ; and, March 19, 1850, a city charter was granted, and the limits much, enlarged. 48 Laws of Ohio, 473.

      After tho date of his will, April 21, 1815, Mr. Mclntire laid out
    an addition to the town, and caused tho plat to be ^recorded. His executors laid out another subsequent to his death.
    The directors of this company, who are. made the trustees by Mr. Mein tire’s will, pray the aid of this court in executing the trust. There are poor children living beyond the bounds of the town, as incorporated at the time of Mr. Mclntire’s death, whom they would “fix upon as objects of this institution,” if the law-will permit them to do it.
    At the session of the general assembly next after the death of the testator, the corporate powers of tho Zanesville Canal and Manufacturing Company, conferred by the original act of incorporation of February 21, 1812 (10 Ohio Stat. 173), were enlarged -by a now act of incorporation, entitled “an act to incorporate the stockholders of the Zanesville Canal and Manufacturing Company,” passed February 24, 1816. 14 Stat. 293. This act authorizes the corporation to act as trustee under the will of Mclntire.
    At tho date of the will and at the time of the death of the testator, Zanesville was an incorporated town, with boundaries defined by its charter. There were certain lots, called additions to the town, not included within its corporate limits. These, with tho facts stated in argument and in the opinion of the court, are all that are material.
    C. B. Goddard, for complainants,
    referred to the following authorities :
    Kent v. Burnett, 10 Ohio, 392; Regina v. Cottle, 3 Eng. L. & Eq. 474; Regina v. Fisher, 8 C. & P. 614 (34 E. C. L. 550); Malian v. May, 13 Mee. & Welsby, 510 ; also 518, in note.
    Charles C. Converse, for city of Zanesville :
    I claim that the true construction of the will brings within tho range of selection by the trustees of the charity, the poor ^children of Zanesville as it now exists, and may hereafter extend itself; and that this bequest to purposes of general charity is not to be restricted to the territory that was included within the narrow limits of the corporation of Zanesville, as defined at the time of the death of the testator.
    1. The language of the will itself, in the clause creating the charity, speaks that intent. The bequest is for the benefit of the poor children of the town of Zanesville generally, not only as the town chanced then to be, but as it might be in all future time. The original charter of the town, in force at the date of tho will, was “subject to such alterations and regulations as the legislature might think proper from time to. time to make.” The testator must, therefore, be taken to have contemplated the exercise of this power at some future day, by way of an enlargement of the limits. There are no restrictive words in the bequest, binding down the gift to the particular blocks or squares at that time embraced within the corporate limits of the town. The terms of the will are comprehensive and general. This bequest is not one that exhausts itself at once in persons particularly designated. The bequest is to the trustees, who are ascertained and certain—the beneficiaries are not designated—only a class, from which they are at a future time to be taken. The selection is lodged in the trustees. The only restriction is, that the beneficiaries shall be taken from among “ the poor children in the town of Zanesville.” If, at the time of selection, those “ fixed upon ” as subjects of the testator’s bounty, are “ poor children of Zanesville,” the restriction is satisfied.
    In the interpretation of charitable bequests, greater liberality of construction obtains than in cases of ordinary legacies. The construction that gives the limits of Zanesville as they are, or may be, as the limit of the range of this charity, is more reasonable than that which fixes as such limit unalterably the boundaries of Zanesville as it chanced to be at the date of the will or testator’s death.
    2. If we look to the condition of things at the time of the execution of the will, and to the relation in which the testator *stood to Zanesville, it is very clear that any such restriction as limits this charity to a part only of what now constitutes or may at any time hereafter constitute Zanesville, is repugnant to the general intent of tho testator.
    Parol evidence is admissible, to show the condition of things at the time of the execution of the will, and the relation of the testator to tho town of Zanesville.  Boys v. Williams, 2 Russ. & Mylne, 689; S. C., 13 Eng. Cond. Ch. 232, 235; Tucker v. The Seamen’s Aid Society et al., 7 Met. 205 ; 1 Jarman on Wills, 358, 363; Gresley’s Eq. Ev. 282, 283 ; Wigram on Ambiguities in Wills and the Admissibility of Parol Evidence, 2 ed. 75.
    The lots in Zanesville were owned in common by Zane and Mclntire, and partition was not made until after the death of Mclntire. Mclntire owned other lands adjoining “ Zano’s Grant,” near to and adjoining Zanesville, which was laid out on said “grant.” The testator evidently contemplated that the town would expand itself beyond the limits which served its municipal purposes prior to his death. He and others laid out additions after the making of his will. The fund which is to support this charity is yet to be increased by the provisions of the will, out of the proceeds of the testator’s real estate.
    In view of all the facts, the construction claimed is the natural and obvious one. The liberal spirit in which the bequest was made, calls for the like liberal spirit in its administration. I invoke that construction of the will, which will widen, not narrow, the channel in which this munificent charity shall flow forever.

       See Hildebrand v. Fogle, 20 Ohio, 147. In Wigram on Extrinsic Evidence, in aid of the interpretation of wills, seven propositions are maintained as the results of principle and authority, and as illustrating the classes of cases-in which extrinsic evidence'may be received. It is said that “every claimant under a will has a right to require that a court of construction shall, by means-of extrinsic evidence, place itself in the situation of the testator, the meaning of whose language it is called upon to declare.” The authorities are referred to in notes. See 2 Hew Library of Law and Equity, 96; and see Broom’s Legal Maxims, 300; 2 Just. 11.

   *Spalding, J.

The petitioners invoke the aid of this court in giving a construction to the wifi of John Mclntire, wherein a munificent bequest was made for the establishment of a school in the town of Zanesville, “ for the use of the poor children in said town.”

The single question raised and discussed is, whether the funds placed under the control of the president and directors of the Zanesville Canal and Manufacturing Company, for the support of such school, are so to be administered as to confine the benefit of them exclusively to poor children residing in the district which constituted the town of Zanesville, at the decease of the testator.

It is a rule in equity, that a gift of real or personal estate; ■either inter vivos, or by will, to promote education, is a charity. It is also considered as a settled rule, that such a gift to a charitable use is to receive a most liberal construction. It is not like penal enactments and contracts made in restraint of some general right, both of which are to be construed with the utmost strictness.

If an act of the general assembly, passed in 1815, inflicted a penalty upon any person who should vend spirituous liquors within the town of Zanesville, its operation would bo restricted to such offenses as might be committed within the corporate limits as they existed at that date. Such is the spirit of our decision made at this term, in Robert Hall v. The State of Ohio. So^ where the plaintiff sought to restrain the defendant from carrying on the profession of a surgeon-dentist in “Great Russell street,” London, Malian v. May, 13 Meeson & Welsby, 511. The defendant had bound himself not to practice in “ London.” The city of London is an ancient city and county of itself, with well-defined limits—■ and “Great Russell street” is not within such city limits. The court said: “ Words were to be construed according to their strict and primary acceptation, unless from the context of the instrument, and the intention of the parties to be collected from it, they ^appear to be used in a different sense. London in its proper sense as the city of London, was intended, and not London in its popular or colloquial sense.”

The difficulty that exists in the application of the bounty of John Mc-Intire, has arisen from the fact that when he made his will, and at the time of his decease, Zanesville had been erected into a town-corporate, with certain well-defined boundaries, which have been subsequently, from time to time, extended, until finally it has attained a city charter, covering a greatly increased territory and population. If there had been no act of incorporation whatever, and the people living upon “ Zane’s Grant” had con-i nuod to call their place of residence by that good old Saxon name, “a town,” the trustees of this charity would have had no trouble in designating its beneficiaries, . . . for a town is a town still, whether it “ consist of twenty houses or of twenty thousand.”

So says the philologist, (Webster’s Dict. Unabridged), and so says the jurist (8 Carrington & Payne, 612), Pattison, Judge: “I do not see how I can say that 1 town ’ is to have two different meanings. It is very difficult to define what is a town in ordinary meaning. It varies from day to day; by the erection of new houses.” We think the increase in population, and the consequent extension in territorial limits of Zanesville, furnishes no sufficient reason for restricting the application of the Melntire school fund to the “blocks and lots” laid out and incorporated at the time of the testator’s decease, if he did not thus limit his benevolence, by the precise languago of his bequest. That he did not use words requiring at our hands such a restricted application, we are well persuaded.

The testator has directed in his will, that the rents, issues, and profits of his estate be appropriated by his trustees to the use and support of a school “ which they are to establish in the town of Zanesville, for the use of the poor children in said town." The advocates of strict construction claim that Mr. Melntire intended to confine the selection of the objects of his bounty to the corporation of Zanesville as it existed in 1815. *Has he said so in his will ? So far from it, ho has omitted to use the name given to that corporation by the act creating it, which was passed January 21, 1814, to wit, the “ Borough of Zanesville,” and has used the words “ town of Zanesville,” as we think in their old, popular, and colloquial sense, which would designate the cluster of log cabins first erected on the village-plat of John Melntire and Jonathan Zane, as well as the wide-spread city with its teeming jjopulation.

If wo travel out of the will, however, and take a survey of the position that the testator occupied in respect to the inhabitants of Zanesville, at the time he conceived the generous purpose of making this bequest, every doubt, it seems to us, must be put at rest. This the law permits us to do. Tea, further—“it is obviously essential,” says a learned elementary writer, “that the judicial expositor should place himself as fully as possible in the situation of the person whose language he has to interpret; and, guided by the light thus thrown on the testamentary scheme, he may find himself justified in departing from a strict construction of the testator’s language, without allowing conjectural interpretation to usurp the place of judicial exposition." 1 Jarman on Wills, 363.

“At an early day,” says the counsel, “John McIntire, the testator, and Jonathan Zane, boing the owners, as tenants in common, of the section of land known as ‘ Zano’s Grant,’ on the Muskingum river, laid out, on a portion of said section, the town of Zanesville. Some time afterward they made partition, allotting to each in severalty, all the section except that part of it embraced within their plat of Zanesville. No partition of the lots in said town was made until after the death of Melntire, when it was effected upon the application of Zane. Melntire also owned other lands adjoining ‘Zane’s Grant,’ near to, and some of them adjoining the town of Zanesville. He directed, by his will, his executors to sell, so soon after his death as they might think proper, all his real estate, except that,part of it lying within ‘Zane’s Grant,’ which last should be sold after the death of his wife. He directed that the proceeds of *such sales should be invested in a particular manner; and, upon the happening of the contingencies mentioned in the will, the rents, issues, and profits of all his estate were to bo appropriated to the support of his charity.”

Zanesville was then in its infancy. It was but beginning to grow; and it could not but have been contemplated by its original founder and proprietor, that it would, in process of time, expand itself greatly beyond the limits which, at that early day, served its municipal purposes. In fact, the bill shows that after the date of his will, to wit, on April 21, 1815, Mr. Mclntire laid out an addition to the town, and caused the plat to be recorded. His executors laid out another addition upon lands appropriated to this charity, subsequent to his death, but in pursuance of a plan formed by the testator himself.

It further appears from the bill, that as early as 1809, Mr. Mclntire laid out'lots numbered one to twenty, inclusive, on the west side of the Muskingum River, calling them “ additional lots annexed to the town of Zanesvillea plat of which was recorded prior to the passage of the act of incorporation of the date of January 21, 1814.

It seems that none of these last-mentioned additions to the town of Zanesville, laid out by Mr. Mclntire, and by his executor, are within the corporate limits of the Borough of Zanesville,” as it existed at the death of the testator; and, of consequence, if the rule of strict construction prevails, the children of citizens living in those precincts, although never so poor, must be debarred the privilege of attending the school. We do not thus interpret the will of John Mclntire. His object was to create a perpetual fund, the magnitude of which would be commensurate with the growth of the place and the wants of the people, to supply the means of education—not to the rich—not to those in moderate circumstances —but to the poor children in the town of Zanesville. A noble bequest! But could a heart .capable of such disinterested philanthropy, circumscribe, by mathematical lines, in the same town, the ^objects of its bounty ? More especially would the testator be supposed incapable of doing this in a growing manufacturing district, where the very class of people he is seeking by his bounty to elevate, are, by the pressure of circumstances, constantly forced back from the center to the circumference; where, and where only, their poverty will allow them to live.

Wo advise that the trustees of this charity be not restricted in the selection of the “poor children ” who are to be admitted into their school, by any arbitrary lines, whether of town corporate, borough, or city; but that the fund be administered according to the dictates of that enlarged philanthropy which we may suppose actuated its founder in making the bequest. In this spirit let the almoners of John Mclntire’s bounty select the beneficiaries indiscriminately, from Zanesville, according to the popular acceptation of the term—not Zanesville on the east of the Muskingum—not Zanesville on the west—not Zanesville as it was—not Zanesville as it is ; but Zanesville as it may be found whenever the grateful •duty is to be performed.


text:
    John Collins et al. v. Thomas Hope et al.
    Wills are to he construed from the written language of the instrument, not by evidence aliunde.
    Parol evidence may he received for the purpose of counteracting fraud in the devisee, and in some peculiar cases to attach a trust to the estate devised. But, in such cases, courts will act with the extremest caution.
    This is a bill in chancery reserved in the county of Ross.
    The facts in the case, as the same are disclosed by the pleadings and evidence, are as follows:
    On December 3, 1831, Nathan Reeves, then a resident of Chillicothe, made his last will and testament, and died a few *days after its execution. The will is short, and gives the whole property to the wife of the testator in the words following :
    “ It is my will and desire that, after my decease, all my estate, of every description, real and personal, be held and possessed by my beloved wife, Nancy Reeves, to her and her heirs and assigns forever, to be disposed of in such manner as she may judge best. My meaning herein is, that the residue of my estate, after payment of all debts due by me at the time of my decease, shall belong to my said wife, her heirs and assigns forever.”

      This will was duly admitted to probate by the court of common pleas of Ross county, on December 14, 1831.
    Nancy Reeves, the widow and general devisee, survived her husband until October 31, 1841, when she died, leaving a will, dated August 3,1835, by which she devised all that then remained of the property devised to her by her husband, to their daughter Cynthia Wells, to the childron of Cynthia, and to the children of their son, James Reeves, deceased.
    This will was duly admitted to probate, and remains uncontested.
    The complainants are certain of the testator’s grandchildren being the children of Eliza D. Collins, a daughter of the testator by his said wife Nancy, for whom no provision was made in the will of Nancy.
    They claim that their grandfather, Nathan Reeves, in November, 1831, was desirous of making his will so as to divide his property equally among his children, but in such a way as to prevent his son-in-law, James Wells, and his son, Samuel T. Reeves, who were men of dissipated habits, from controlling their portions of said estate; that he gave instructions to his attorney, Thomas Scott, to prepare a draft of the will accordingly; that during the preparation of the will the testator became very feeble, and a few days prior to his death, Mr. Scott was again sent for; that, fearing the will could not be prepared before his death, Nancy, his wife, well knowing his wishes and intentions, proposed that he should devise all the ^property to her, with the understanding that she would convey the property as he desired it should go;' that, yielding to this assurance, ho made the will in favor of Nancy, and, shortly thereafter, died. They insist that Nancy Reeves, under and by virtue of the will of Nathan Reeves, took tho estate in trust, to be equally divided, at her death, among the four children of the said Nathan, and they ask that one-fourth part thereof be decreed to them in right of their mother Eliza D. Collins, deceased.
    In support of the claim set up by complainants in their bill, but two material witnesses are introduced.
    Thomas Scott testifies, that, during the last sickness of Nathan Reeves, and about six or eight weeks previous to his death, he was sent for to the house of said Reeves, in order to write his last will; that Mr. Reeves explained to him, in the presence of Mrs. Nancy Reeves, and as witness thinks, in presence of David Col* lins, the manner in which he intended and desired to dispose of bis estate; that, although there had been some inequality in the advancements already made, his desire was that the residue of his estate should be equally divided between his children, but that ho wished his will so prepared that Mr. "Wells, his son-in-law, and bis son Samuel, should not have the control of the portions that would otherwise fall into their hands. Witness suggested that a trustee would be necessary to protect that part of the property intended for the benefit of the families of his son Samuel and his son-in-law Wells; and Mr. Reeves replied that he would try and select one. Mrs. Reeves was to have a life estate in the property. The preparation of the will was postponed to some future day; Mr. Reeves observing that ho would send for witness when he was ready to proceed.
    A short time previous to the death of Mr. Reeves, witness was again sent for to prepare his will. He appeared so feeble, and conversed with so much difficulty, that witness was fearful the will could not be prepared, in accordance with previous instructions, before he would bo incapable of executing it. Witness *then observed to Mr. Reeves, that his wife, Mrs. Reeves, knew the disposition he desired to make of his property; to which be replied in the affirmative, she being present and assenting thereto.
    Witness then asked Mr. Reeves “whether he had such confidence in his wife that, if he devised it to her, she would dispose of it in such manner as he had before indicated?” His answer yms, that he had. He consented that the will might be so drawn, transferring the property to her, and it was so drawn and executed.
    Some few days after the death of the testator, and after probate of his will, witness called on Mrs. Reeves, and urged upon her the propriety of executing an instrument, disposing of the projmrty in the manner in which her husband had desired it to be done; and she promised to execute such instrument.
    David Collins, who was the executor of Nathan Reeves, and is the father of complainants, testifies that a few days before the death of his father-in-law he was sent for, and the messenger stated that Mrs. Reeves wished to see him previous to his seeing ‘‘ the old man.”

      He called on her first, and was told by her that her husband wished witness to get some person to write his will; that he had spoken to Judge Scott to draw it some time before, and wished witness to go and bring him down, as the doctor said his recovery was doubtful. She also stated that “the old man” wished his projierty to be equally divided among all his children, but that she thought he was too weak to go into details in making a division, and wished witness to use his influence with her husband to induce him to will all his property to her, and she would immediately make a will carrying out his wishes.
    Witness went after Judge Scott, and in his presence Mr. Reeves stated that his wife wished him to devise all the property to her for her life, and then she would divide it among all the children, as he intended to do. Judge Scott suggested that ;the had better have his wife present, and see if she was willing to do as he wished.
    Mrs. Reeves came, and in presence of witness and Judge Scott,, promised that if her husband would will it to her, so that she could have the use and control of the property during her. life, she would then divide it equally among his heirs. -She further promised that she would, soon after his death, make her will; and Mr; Reeves requested Judge Scott to draw it for her, as he knew his wishes respecting Wells and his son Samuel. Judge Scott then wrote the will.
    William T. MoClintiok, T. Ewing, and H. H. Hunter, for complainants:

      The principles on which the case rests.—Assuming the truth of the testimony on the part of complainants, the equitable principles on which the case depends are comprehensively and accurately stated in the well-considered opinion of Chancellor Bland, in Colgate D. Owing’s case. Bland’s Ch. 370. The chancellor says: “If a person, before his death, communicate his intention to make or alter his will, and give a legacy or portion of his property to a certain individual or individuals, and the heir or any one else interferes, and prevents the making or alteration of a will by a promise to' pay the amount of the proposed legacy, to transfer the property, or to give something else in lieu of it to the individual or individuals thus intended to be benefited, the promise so made is binding, and being made on consideration of a loss to the individual, who may therefore enforce the specific performance of it in a court of equity.” Hoveden on Frauds; and 1 Story’s Eq., sec. 526.
    It by no means conflicts with the well-known rule, that parol testimony is inadmissible to vary, control, contradict, or explain a written will. It depends on proof extrinsic of the will, and perfectly consistent with it.
    It belongs to a peculiar class of trusts (a class which may be *said to belong to the great family of trusts which exist by operation of law)—trusts which owe their validity, not to the will or the declaration of the testator, but to the fraud of the devisee. Tn such case the trust arises ex maleficio, and therefore equity turns the holder of the legal title into a trustee. We refer to the following English eases, illustrating this doctrine. Thynn v. Thynn, 1 Vern. 295; Devemill v. Bains, Proc. in Ch. 3; Oldham v. Littlefield, 2 Vern. 506; Drakeford v. Wilks, 3 Atk. 539; Barrow v. Greenough, 3 Ves. Jr. 151; Chamberlain v. Ager, 2 Vez. & Beames, 259; Strickland v. Aldridge, 9 Ves. Jr. 638; Mestaer v. Gillespie, 11 Vez. Jr. 638; Hugenin v. Beasly, 14 Vez. Jr. 290; Beach v. Kennigate, Ambler, 47; Wicket v. Baby, 3 Brown’s Parl. Cases, 16, cited in 10 Yerg., 273, and 2 Story’s Eq. 16; Marriott v. Marriott, 1 Stranger, 666; Podmore v. Gunning, 5 Simons, 485; 7 Eng. Ch. 505; Podmore v. Gunning, 7 Simons, 644; 10 Eng. Ch. 341. We also refer to following American cases: Richardson v. Adams, 10 Yerg. 273; Colgate D. Owing’s case, Bland’s Ch. 307; Brown v. Brown, 1 H. & J. 430; McKee v. Jones, 3 Barr’s Penn. St. 497; McKee v. Jones, 6 Ib. 428; Hoge v. Hoge, 1 Watts, 163, 214; Gaullaher v. Gaullaher, 5 Watts, 200; Fay v. Fay, 2 Hay. 131.
    In Ohio, as in North Carolina, we have no provision in the statute of frauds, nor any statute, requiring express trusts to be evidenced by writing, in relation to lands ór personalty.

      Henry Stanbery and John L. Green, for defendants,
    very fully reviewed the evidence in the case, and the ^authorities cited, and insisted that the authorities did not, upon the facts, support the complainants’ claim to relief; and they insisted that all the English cases relate to trusts as to personalty. Two of the American cases relate to lands, but they fasten the trust, not on the testator’s estate; they do not in any particular change the will of the testator; but they raise a trust on the devisee, in reference to property of his own.
    In all the cases, the controlling fact is present, of the prevention of a bequest or testamentary act in favor of the plaintiff, by the interference of the alleged trustee, and upon the faith of the parol promise. No such case as the one at bar has ever, yet been sustained; for here it is claimed an entire will, embracing all the estate of the testator—realty as well as'personalty—is, in effect, to be set aside upon a parol declaration of a very equivocal character; and that, too, after the death of the supposed trustee, after the lapse of many years, and against the denial of defendants in their answer.
    The ground upon which such trusts are sot up is simply that of fraud, practiced by the party on whom the trust is to be fastened; and nothing short of that can ever be held sufficient. If that element is not present, no matter how clear may be the proof of the testator’s intention, no matter how distinct and repeated may be his declarations, they can not be admitted to control the written will, or to make it speak any other language than the written language. 1 Story’s Eq. 256 ; Hill on Trustees, 60; 1 Jarman on Wills, 349.
    The general doctrine, as to the inadmissibility of parol evidence to contradict or impeach the provisions of a will, has been often recognized in Ohio. Painter v. Painter, 18 Ohio, 263. In regard to the proof now offered, there is a graver objection to it than this common rule of evidence; for here the proof conflicts with a written will—with a document, which to have any efficacy at all, must be written. The law of Ohio scarcely tolerates parol evidence of a testamentary intent, or disposition, even where there is no written will with which it comes into conflict. The case of a nuncupative will is the *only one in which it is allowed. In the case at bar, there is a written will, and the evidence to contradict it has rested in parol for a greater number of years than the number of days allowed in a nuncupative will I After so great a lapse of time, the clearest case of fraud should be made out to allow parol proof to overcome a written will. The written will was not procured by the wife, nor did she prevent any intended will. In making the devise, the testator trusted to the discretion of his wife.
    To create a trust there must he fraud. A knowledge of the testator’s intentions, and a refusal to carry them out, is not fraud. Fraud is not established by proof of the declared intentions of the testator, and the promise,to fulfill them by his wife—not fraud in that sense of the term which will justify the introduction of' parol proof to change, much less to contradict, a written instrument. There must be fraud in procuring the will, as by the false reading of it, the false suggestion, or concealment of material facts, etc.
    McClintick, Ewing & Hunter, in reply,
    The objections urged against complainant’s claim are :
    1. That a trust in reference to real estate can not be shown by parol. The English and American cases establish the contrary.
    2. That the parol proof is inadmissible by reason of our statute of wills, which requires wills to bo in writing. We answer, the complainants do not seek to disturb the will, but in a manner claim under it. This same objection has been made and overruled in England, Maryland, Tennessee, and Pennsylvania, and yet in those states, as in Ohio, wills are required to be in writing.
    3. That there is no proof of fraud on the part of Mrs. Beeves. The proof settles that. Her refusal to perform a prior promise, relates back to the inception of the transaction, and taints it with fraud in the eye of the law, as in Podmore v. Gunning, cited above.
    ^Finally, the lapse of time is set up. Complainants could not know that Mrs. Beeves would refuse to execute her promise, until she died, and the bill was filed within four years after the probate of her will. A portion of the complainants had, until recently, been minors, and one was a minor when the bill was filed.

       As to trusts 'which, “result from the established doctrines of equity, without any declaration by the parties,” and which may be “set up upon parol evidence,” see "Walker’s Am. Law, 314, sec. 341 and note. Steele v. Worthington, 2 Ohio, 182, 264; Woods v. Dille, 11 Ohio, 455; 1 Ohio, 314; Flemming v. Donahoe, 5 Ohio, 255; Stiver v. Stiver, 8 Ohio, 217; Miami Bx. Co. v. Bank U. S., Wright S. C. 249; Watson v. Le Bow, 6 Barb. S. C. 481; Bathbun v. Bathbun, Ib. 98; Morton v. Southgate, 28 Me. (15 Shep.) 41; Lemmond v. Peoples, 6 Ired. Eq. 137; Mahomer v. Harrison, 13 S. & M. 53; Smith v. Sackett, 5 Gilman, 534.

   Spalding, J.

If ever a will was made in so plain, direct, and simple language as to be “ its own best interpreter,” it would seem to me, that the last will and testament of Nathan Beeves is such an instrument.

In the first paragraph, the testator gives all his estate, real and personal, to his wife Nancy, and “to her heirs and assigns forever.” ’ This is a devise in fee. It was claimed that a life estate was intended, and that the devisee was to dispose of the remainder according to the well-known and expressed wishes of the testator.

The next following sentence is an ample refutation of any such claim : “ To be disposed of in such manner as she may judge best” And as if to make “ assurance doubly sure,”'tho testator then proceeds to reiterate his devise in fee simple. “ My meaning herein is, that the residue of my estate, after payment of all debts clue by me at the time of my decease, shall belong to my said wife, her heirs and assigns forever.” It is not seriously contended by counsel for complainants, that parol evidence can be introduced in this case for the purpose of contradicting, adding to, or explaining the will of Nathan Reeves.

That.11 the judgment of a court in expounding a will should be simply declaratory of what is in the instrument,” seems to bo conceded. Otherwise, as has often been remarked with great pertinency, courts would permit the witness to make the will instead of the testator. Parol evidence is admissible, however, for the purpose of counteracting fraud, as “ to show that one paper was obtruded on the testator for another, which he intended to execute.” 8 Durn. & East, 147.

*So “if a father devises to the youngest son, who promises that if the estate is devised to him, he will pay £10,000 to the eldest son. Equity would compel the former to discover whether that passed in parol; and if he acknowledged it, even praying the benefit of the statute, ho would bo a trustee to the value of £10,000.” And it is said to be clear, that in such a case, if the trust were denied by the heir or devisee, it might be proved, aliunde. 1 Jarman on Wills, 357. But in all such eases courts will move with the utmost caution.

If parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will, when the attempt is made directly to overturn its provisions, how extremely guarded should courts of justice be, when the same end is sought to be attained, through an indirect and covert attack, by means of the same instrumentality.

In the ease at bar, the parol testimony introduced by the complainants, falls far short of satisfying this court that the testator intended that his wife should take, by his will, anything short of an absolute estate in the premises devised.

The principal witness, who was the draughtsman of the will—himself a profound lawyer—does not venture to say that any alteration was made in the will of Nathan Reeves at the instance of his wife, who was made his only devisee. On the contrary, Judge Scott says expressly, that he himself suggested to the testator the propriety of devising the whole property to his Wflfe, “if he had confidence in her that she would dispose of it in such manner as ho had before indicated.” In this he is contradicted by Mr. Collins, who evidently is not an unbiased witness, and his testimony will receive no further comment. The testator declared he had that confidence in his wife; and the will was executed accordingly # Mrs. Reeves declared that she understood her husband’s wishes in that respect, and would act accordingly. Has she done so ? No mortal can toll. The will was executed some six weeks after the conversation between Judge Scott and Nathan Reeves, touching an equal distribution *of the property among the children. We do not know how often he changed his mind after that, nor what new rule of distribution he may have imparted to his wife. She said, in the presence and hearing of the witness, that she fully undei’Stood her husband’s wishes in regard to the property. As she was the mother of the children of whom he was the father, it is by no moans surprising that he placed his whole property within lier unlimited control. - She had the same interest with himself in making provision for the wants of their children. She had the same parental feelings to gratify, in contributing to their comfort and happiness/ Sho has dealt out to these children, from the abundance left her by her husband, most profusely; perhaps not in exactly equal proportions, but of this she was made the judge, by the express language of the will.

We can see nothing in the conduct of this devisee, either before or after the decease of the testator, that can be tortured into a fraud upon the rights of the complainants. She did not, as we believe, solicit her husband to alter his intended bequests to his children ; and consequently, his absolute devise to her can not be burdened with a trust created by proof aliunde.

The bill will stand dismissed, with costs.