author: Dickman, J.

text:
    McHenry v. Carson.
    C. and M., partners, field as joint lessees a lease of certain premises for ninety-nine years, renewable forever, with covenants for payment of rent, taxes, and assessments. The partnership was dissolved, and C. conveyed to M. all his undivided interest in the leasehold. The assignee o£ the reversion brought suit on the covenants for rent, against C. and M. jointly, for arrears of rent accrued after the dissolution of the partnership. Pending the suit, M. being in default of answer, C. filed an answer denying all liability for rent, but afterwards paid to the assignee of the reversion the sum of $500, who in consideration thereof, negotiated and executed to him 'a release from all and any liability arising on or growing out of the lease, and forever discharged him from all and any covenants therein, and from all the obligations thereof.

      Meld: 1. There is not such a presumption that the above named sum was paid on accrued rent, and not in discharge of future contingent "liability on the lease, as would entitle C. to recover such sum of M., as money paid for and on his account, upon an implied promise to reimburse C. therefor.
    2. The burden is not on M. to prove that such sum was not applied on the rent.

      Error to the Court of Common Pleas of Hamilton County. Reserved in the District Court.
    Enoch T. Carson, the defendant in error,
    brought two suits before a justice of the peace, against John McHenry, the plaintiff in error, to recover in the aggregate the sum of $500, which, it was alleged, Carson had been compelled to pay for the benefit and use of McHenry, and which, it was claimed, McHenry was bound to refund. On appeal by McHenry to the court of common pleas of Hamilton county, the two suits were consolidated, and a trial by jury having been waived, the case was tried by the court; and the court being requested to find the facts and the law of the case separately, found the following facts from the evidence:
    “ First — That on the 11th day of April, 1867, the executors of the last will and testament of N. Longworth, deceased, executed a perpetual lease of certain premises for a period of ninety-nine (99) years, renewable forever, with privilege of purchase, to the said plaintiff and defendant jointly, the said-executors not having the title to said premises, but were acting under a mere power granted by the will of said Longworth, the said Carson and McHenry covenanting therein that they, their heirs and assigns, would pay all taxes and assessments on the premises and a yearly ground rent of $2,500, payable -quarter-yearty, the same to be a lien prior to all others on the premises.

      '■'■Second — That on the 18th day of June, 1868, the said E. T. Carson conveyed to the said John McHenry, by ordinary deed poll, with covenants of general warranty, all his undivided interest in said perpetual leasehold, and gave to the said McHenry the exclusive possession of said premises, which he has since held.
    “ Third — That on the 1st day of October, 1874, the heirs of Nicholas Longworth, by virtue of the devise to them by said will of said premises, conveyed and transferred to Catharine L. Anderson said premises, the said conveyance containing the following reference to said lease .among others,'to-wit: ‘ Subject to each and all of the above recited leases, the grantee herein taking the place of the lessors therein, as to the rights and rents reserved to and the covenants entered into by them in said leases respectively, either in whole or to the extent of and in proportion to the interest hereby conveyed.’

      “Fourth — That on February 7th, 1879, the said John McHenry, having from time to time paid rent to the said, executors, and afterward to the said Anderson, in full up to January 10th, 1876, but being then largely in default for rent, to-wit — in the sum of $8,125 including interest — the said Anderson brought suit against the said McHenry and Carson jointly, for said sum on the covenants to pay rent contained in said original lease, said claim having all accrued since said transfer by Carson to McHenry, and said McHenry still remaining in possession as the assignee of said lease, and said sum of $8,125 being then due from McHenry for rent under said lease.

      ‘•'•Fifth — That pending said suit, the said McHenry being in default for answer, and the said Carson having filed an answer denying all liability for said rent, the said Catharine L. Anderson negotiated and executed, on the 10th of June, 1879, without any arrangement with the said McHenry on her part, or between him and the said Carson in regard to his, the said McHenry’s liability, and without any request from him upon the said Carson, a release to the said Carson of all liability under or upon the covenants of said lease, for the sum of $500 by him paid, a copy of which release is as follows, to-wit: In consideration of the sum of five' hundred ($500) dollars paid by Enoch T. Carson, the receipt whereof is hereby acknowledged, we do hereby release and discharge the said Enoch T. Carson, his heirs and assigns, from all and any liability arising on or growing out of a certain perpetual lease executed on the eleventh day of April, 1869, between Joseph Longworthand Larz Anderson, as executors of the last will and testament of Nicholas Long-worth, deceased, as lessors, and John McHenry and Enoch T. Carson, as lessees; said lease being of the following described premises in the city of Cincinnati, county of Hamilton and state of Ohio, on the east side of Main street, north of Fourth street, and tying next south of the north line of lot number eighty-nine, thirty-two feet in front and running back the same width to the depth of ninety-nine feet, and we do hereby release and forever discharge the said Enoch T. Carson, his heirs and assigns, from all and any covenants in said lease, and from all the obligations thereof, this being in full and final settlement, and compromise of all claims on said lease.

      “Sixth — That, thereafter before the beginning of these suits, she, the said Catharine L. Anderson, for the sum of $1,200, paid her by the said McHenry, and the surrender by him of said leasehold, with valuable improvements thereon, made by the lessees Carson and McHenry, released him from liability under or upon the covenants of said lease, or by reason of his occupancy of said premises, and accepted a surrender of said lease and dismissed said suit.
    “And as a conclusion of law, the court finds that the said plaintiff is entitled to recover of the defendant the sum of $500, as money paid for and on his account, upon an implied promise to reimburse him therefor, with interest thereon, together with costs herein.”
    Upon this finding of facts and law, judgment was rendered against McHenry for the amount claimed with interest, to which he excepted. The case was thereupon taken to the district court, and a reversal was sought on the ground, that the court’s conclusion of law upon the facts found was erroneous. The district court found that the case involved important and difficult questions of law, and reserved it to this court for determination.

      Me Guffey Morrill, for plaintiff in error.
    I. The theory on which the suits below were prosecuted, was that Carson had compromised, or paid a claim in part, for another, which he, Carson, was compellable to pay, and that therefore he was entitled to reimbursement from such other party.

      I. The claim which Carson so compromised or paid was not enforceable against him in favor of Mrs. Anderson.
    This presents the question whether after an unconditional assignment by the lessee of a lease for ninety-nine years, renewable forever, such lessee is liable for future rent to the assignee of the reversion, such assignee having collected rent from such assignee of the lessee and recognized him as tenant.
    In Worthington v. Hewes & McCann, 19 Ohio St., 66, the negative of this proposition is clearly held, and also, it is further held, “ that after an unconditional assignment by the lessee, he is not liable for future rents,” that is, he is not liable even to the original lessor.
    So far as this case implies that such an assignment defeats any action in such case by the original lessor, it is overruled by the cases of Harmony Lodge v. White et al., 30 Ohio St., 569, and Taylor v. De Bus, 31 Id., 468, but no further.
    This will appear from an examination of the facts of these cases, since in neither of them was the action brought by the assignee of the reversion.
    On the other hand, the action in the case cited from the 19 Ohio St., was by the assignee of the reversion, and so much of that decision as is to the effect that such assignee cannot sue, stands as the law of Ohio.
    In an action by the assignee of the reversion against the lessee after an assignment of his interest no recovery can be had upon his express covenants, there being no priority either of personal contract or of estate between the parties. Taylor v. De Bus, 31 Ohio St., 473, citing Crawford v. Chapman, 17 Ohio, 449; Sutliff v. Atwood, 15 Ohio St., 186.
    In the case at bar there was no privity of estate between Mrs. Anderson and Carson. Privity of estate depends upon occupancy. Taylor on L. & T., § 436. Neither was there privity of contract, for Carson, before this rent accrued, had given exclusive possession to McHenry, and the party to the covenant made by Carson, had previously transferred the reversion.

      Bd. It would seem, then, that the 19 Ohio St. ease is directly against a recovery in such a case as this. And that as bearing upon the question at issue, it has not been overruled.
    II. But secondly, a more serious objection to recovery is this: that the payment relied upon, was not for the benefit of McHenry, nor did it operate to reduce his liability, but was simply a payment to secure the release of Carson as security for McHenry’s rent and from contingent liability for further rent for which McHenry was not then liable and for which he might never become liable.
    1st. Assuming that Carson could be held at all for this rent, after an unconditional assignment of the lease to McHenry, his relation to the latter was simply that of a surety. Sutliff v. Atwood, 15 Ohio St., 186, 194.
    As to the covenants to pay rent in the future, neither was liable, until the rent accrued. This liability at the time in question was wholly contingent as to both.
    2d. If the payment was made simply to release Carson, it cannot be applied to the rent. Peer v. Keen, 14 Mich., 354.
    In such event, it could not be treated as payment of rent for the use of McHenry.
    Again, if paid to release McHenry’s as well as Carson’s contingent liability for future rent, certainly McHenry cannot be compelled to reimburse Carson, for nothing was due from McHenry in this behalf. And, moreover, any payment made by Carson for the release of his own future liability was purely voluntary; he not being compellable to such payment, until there was a default. Pond v. Warner, 2 Vt., 532.
    3d. The only condition of things, then, under which this judgment can stand, is that this $500 was paid exclusively on account of the accrued rent in question.
    Eor if any part of it was in* consideration of the release of future liability, then the judgment for the whole sum is erroneous, since as we have seen anything so paid was not for the use of McHenry.
    But certainly, the facts as found do not show that the parties to this release, intended that this sum should apply exclusively to that rent.
    Indeed we think they show the contrary. According to the sixth finding, the release was negotiated by Mrs. Anderson, without any arrangement with the said McHenry on her part, or between him and the said Carson in regard to his, the said McHenry’s liabilities, and without any request from him on the said Carson.
    Again, no mention is made of the rent, or the suit therefor, in the instrument of pelease, and the gist of the instrument is the “ release and discharge forever ” of said Carson from the covenants of said lease, seeming to have exclusive reference to his individual liability. He alone was contesting the liability for rent set up in the suit, the other party being in default for answer, and we submit that the last clause of the instrument of release to the effect, that this is “in full and final settlement and compromise of all claims on said lease,” taken in connection with the whole instrument, shows that it had no reference to the liquidation of the rent, and that the parties studiously avoided all reference to the rent or to Mr. McHenry, in order that his liability for the entire rent might remain unimpaired in favor of Mrs. Anderson.

      Matthews & Shoemaker, for defendant in error.
    Is McHenry liable to Carson ?
    If one pays a debt for which he is liable, but which as between him and another also liable, the latter ought to pay, he may.recover from the latter. Pownal v. Ferrand, 6 Bar. & Cr., 439; Exall v. Partridge, 8 Term. R., 308; Leake on. Contracts, 77-83 inc.; Burnett v. Lynch, 5 Bar. & Cr., 589; Willson v. Leonard, 3 Beav., 373; Moule v. Garrett, L. R. 7, Ex., 101; Johnson v. St. Packet Co. Id. 3 C. P., p. 45 ; Wharton on Contracts, §§ 759 to 771 inc.
    This principle has been based on several grounds.
    1st. Because the party paying, was, in the eye of the law, authorized to act for the party for whom the payment was made.

      2d. When the plaintiff is compelled to pay the defendant’s debt in consequence of his omission to do so, the law infers that he requested the plaintiff to make the payment for him. Hogg v. Longstreth, 97 Pa. State, 255; England v. Marsden, L. R. 1 C. P., 529; Sapsford v. Fletcher, 4 Term R., 511; Leake on Contracts, 82; Platt on Leases, 428; Farrington v. Kimball, 126 Moss., 313.
    The consideration for the payment of the $500 by Carson to Mrs. Anderson was the “ release and discharge of said Carson from all and any liability arising on or growing out of a certain lease,” etc. The only liability at that time arising on or growing out of said lease was the past due rent. Mr. Carson was called upon to pay this by reason of the failure of McHenry to pay it. As a separate matter, by said document Carson was released from the obligations of said lease.
    It is claimed, that, because Carson was released the payment was made for that purpose alone, and therefore was not the payment of any part of McHenry’s debt, and hence Carson cannot recover in these actions. In other words, if Mr. Carson had paid $8,125, and declined to be released, then he could recover, but not if he paid $500 and accepted a release. But the record shows a different state of facts. It shows that the money was paid for discharge from an existing liability, in other words, a part payment of the rent due. Within a few days thereafter McHenry paid only $1,200, and was also discharged.
    The mistake made by counsel for plaintiff in error is in supposing that we must necessarily ground our right to recover on the payment of McHenry’s debt. I contend that Carson did pay a part of his debt, but even if that is not so, he is entitled to recover his damages that arose from McHenry’s wrongful act or breach of contract, by whatever name it may be designated. Leake on Contracts, 74.
    Carson was in one sense a surety, but as to the lessor he was an original debtor. Between him and McHenry he was a surety. When Carson, the surety, pays to Anderson, the original creditor, money which McHenry, the principal debtor ought to have paid, then Carson, the surety, can recover the amount which McHenry’s default has compelled him to pay. Pownal v. Ferrand, supra.

    McHenry’s implied indemnity extended to the covenants of the lease. What right has he to complain that Carson obtained a release when that was only another way of accomplishing what McHenry had agreed should be accomplished when he accepted the conveyance from Carson, to wit: that the person who occupied and enjoyed the property should perform the covenants ? And even if McHenry could shift the burden by assigning over he never could shift it back to Carson, but would have to shift it on to somebody else who would be his own grantee, and would have'to in like manner indemnify Carson through McHenry. Of course, if McHenry had kept his covenants, whether Carson could charge him with the price of a mere release is another question, but when an immense sum of $8,125 has been piled up against, Carson, it would be strange if he could not protect himself from McHenry’s gross breach' of contract, and accept a release from an obligation which bid fair by reason of such breach to ruin him. Mrs. Anderson was suing for rent, the payment was in compromise of that suit, and accordingly when Carson paid $500 and McHenry $1,200 a few days afterwards, the suit was dismissed.
   Dickman, J.

The assignment by a lessee of all his rights and interests in the premises, without his lessor’s consent, will not thereby discharge him from his express obligations, and he will therefore remain liable upon his original contract after his assignment. But, as his liability thus remains, he is entitled to be indemnified by his assignee, against the payment of rent during the continuance of such assignee’s term. While in the possession of the estate, and enjoying the benefit of the lease, there is an implied promise on the part of the assignee that he will also take the burden from his assignor and indemnify him against the claims of the lessor, while he holds under the assignment. Patten v. Deshon, 1 Gray, 330 ; Farrington v. Kimball, 126 Mass., 313; Moule v. Garrett, L. R. 5 Exch., 132 (S. C. L. R. 7 Exch. Ch., 101;) Burnett v. Lynch, 5 Bar. & Cr., 589. Nor is this principle inapplicable where one of two joint lessees assigns to the other all his interest in the lease. It is stated by Mr. Justice Willes, in Moule v. Garrett, supra, 7 Exch. Ch., 104, in expressing his concurrence in the decision on an appeal in that case, that where á party is liable at law by immediate privity of contract, which contract also confers a benefit, and the obligation of the contract is common to him and to the defendant, but the whole benefit of the contract is taken by the defendant, the former is entitled to be indemnified by the latter in respect of the performance of the obligation.

The record shows, that in June, 1868, Carson conveyed to McHenry all his undivided interest in the perpetual leasehold, and gave to him the exclusive possession of the premises. McHenry paid in full, from time to time, up to January, 1876, all the rent accruing after such conveyance, but in February, 1879, being in default of rent then due, to wit, in the sum of $8125, including interest, the assignee of the reversion, Mrs. Anderson, brought suit for that sum against McHenry and Carson jointty, on the covenants for rent contained in the original lease.

Carson did not cease to be an original debtor to the lessors, for rent that had accrued after his making the conveyance to his joint lessee. But, as between himself and McHenry, he was a surety, and upon payment to the lessors of any portion of such rent, he had his remedy over against McHenry as principal, to be reimbursed. Wolveridge v. Steward, 1 Cr. & M., 644, 660. See also the opinion of Baron Parke in Humble v. Langston, 7 M. & W., 517, 530.

If however in the suit brought by Mrs. Anderson, any sum of money was paid her by Carson — not to be released from the claim for rent already due, the only matter in litigation, but to be discharged from a future contingent liability for rent under the lease — no action would be maintainable by Carson against McHenry to recover that sum so paid by him. Apart from the rent which had accrued, there was then no indebtedness from McHenry to the assignee of the reversión, nor was Carson indebted to her, or under any legal obligation to pay her anything under the lease. When a surety pays the creditor’s claim, he must be legally bound for it, to enable him to recover the amount paid, of the principal. And it must also appear, that at the time of the payment, the principal himself was under a legal obligation to pay. The surety cannot, by a voluntary payment, when not legally bound, place himself in a better position towards the principal, than that of one not a surety, who voluntarily pays money in the discharge of the debt of another person; and cannot by such voluntary payment, impose upon the principal an obligation which he was not under at the time of the payment. Hollinsbee v. Ritchey, 49 Ind., 261.

The release executed bj" Mrs. Anderson shows, that in consideration of the sum paid by Carson, she designed to discharge him, not simply from existing liability, but from all liability that might arise in the future under the lease. It evidently was not intended, that the consideration of the release should extend merely to the rent past due, while the release from all future liability was to be treated as a distinct matter, supported by no consideration whatever. The releasor in unequivocal language says, “ In consideration of the sum of five hundred dollars paid by Enoch T. Carson, we do hereby release and discharge said Carson, his heirs and assigns, from all and any liablity arising on or growing out of a certain perpetual lease, etc., and we do hereby release and forever discharge the said Carson, his heirs and assigns, from all and any covenants in said lease, and from all the obligations thereof, this being in full and final settlement, and compromise of all claims on said lease.” Though the releasor “negotiated and executed the release pending the suit,” it is quite evident, that the consideration of the release refers, not merely to the subject-matter of the action — an existing liability — but also to all possible claims, that might thereafter be made upon Carson, under the covenants of the lease.

What portion of the five hundred dollars paid by Carson, may have been designed by Mrs. Anderson, to be applied in reduction of the large arrears of rent which had been allowed to accumulate, does not appear; nor, have we any basis upon which we can apportion that amount, to the discharge of present and future contingent liability. It would seem to have been deemed all important to Carson,-in his negotiation for a release, to rid himself of the heavy burden of future liability under his covenants, as the rent which had already accrued might be considered as provided for without recourse to him, by reason of its having been made a lien, prior to all others, on the valuable improvements placed on the premises by the lessees.

As to McHenry, we fail to discover, that in his settlement with Mrs. Anderson, he ever got any benefit from Carson’s payment of the five hundred dollars. We find no evidence that the sum paid to her by Carson ever entered into the estimate, in fixing the amount that was paid by McHenry, upon her dismissing her suit and receiving a surrender of the leasehold. The court below found the fact to be, that she executed the release to Carson without any arrangement on her part with McHenry, or between him and Carson in regard to his, McHenry’s, liability, and without any request from him upon Carson. McHenry being in default of answer. in the suit instituted by Mrs. Anderson, her dealings with Carson, from aught that appears, bore no reference to his co-defendant. The subsequent arrangement with McHenry, by which, for the sum of $1,200 paid by him and his surrender of the leasehold, he was released from liability under the covenants of the lease, and the pending suit dismissed, is not shown to have been influenced by the previous transaction with Carson.

The judgment rendered in favor of Carson was doubtless upon the ground that the entire sum of $500 was paid by him to Mrs. Anderson, and by her applied in discharge of a claim for rent that had already fallen due, and which it devolved upon McHenry to pay after the assignment to him of the lease. In our view of the special finding of facts by the court, they do not furnish such a presumption, that the above-named sum was paid and applied on accrued 'rent alone and not in discharge of future liability under the lease, as would entitle Carson to recover such sum of McHenry, as money paid on his account, upon an implied promise to reimburse Carson therefor. Nor, do we think, that the burden rests upon McHenry to prove that such sum was not applied on the rent.

The special finding of facts by the court of common pleas is not before us for review, it not appearing from the record that a motion for a new trial was made on the ground that the finding of the court was against the evidence and that such motion was overruled. Westfall v. Dungan, 14 Ohio St., 276. But such motion for a new trial is not necessary in order that conclusions of law arising upon the facts, may be made subject to review on error. Lockwood v. Krum, 34 Ohio St., 1. The case at bar is not one in which the record discloses that certain evidence was found tending to prove facts, without any finding upon the facts themselves; but there was a special finding of facts from the evidence, which raised a question of law as to the judgment to be rendered. Leach v. Church, 10 Ohio St., 148. The record does not contain the evidence, and as said by Okey, J., in Springer v. Avondale, 35 Ohio St., 624, “ There is a presumption that no evidence was offered, from which any other material fact could be found than those set forth in such finding.”

There having been no exception to the finding of facts, the only question for determination is as to the sufficiency of the facts found to warrant the legal deduction therefrom in favor of the defendant in error. The parties by their action having acquiesced in the facts as found, a question of law only is left for decision; and, we are of opinion, that as a conclusion of law from the special finding of facts, the plaintiff in error, McHemy, was not bound by an implied promise to reimburse Carson the sum paid by him to Mrs. Anderson. The judgment rendered by the court of common pleas is not sustained, we think, by the facts found, and should be reversed, with judgment for the plaintiff in error.

Judgment accordingly.


source: Caselaw Access Project

author: Granger, C. J.

license: Public Domain

text:
    Robert v. Sliffe.
    A wife became seized in fee of land in 1863, and died in 1S72. Her husband and three children survived her. In 1876 the husband mortgaged his estate by the curtesy to secure his own' notes. The children are still living. The mortgagee by action seeks to sell their father’s said estate and apply the proceeds on the mortgage. The children resist.

      Held: Under section 1 of the act entitled “An act concerning the rights and liabilities of married women” (58 Ohio L., 54), passed March 27, 1861, as amended March 23, 1866, (S. & S., 391), the mortgage cannot be enforced so long as either of said children survives.
    Ebbob to the District Court of Tuscarawas County.
    David Sliffe and Susanna Shutt intermarried in 1858. On April 14, 1863, Susanna inherited in fee simple a tract of land in Tuscarawas county, Ohio. She died August 7th, 1872, intestate, seized of the land, leaving surviving her husband, and Lewis, Amanda and Frederick B. Sliffe, issue of said marriage, her only heirs at law, all of whom are living, and to whom the land descended, subject to the dower estate of the widow of Jacob Shutt and the curtesyestate of said David Sliffe.
    That said children were and are in possession of the land: by permission of their father.
    The plaintiff brought an action in the common pleas to enforce the lien of a mortgage of said real estate, made to him on the 31st day of August, 1876, by David Sliffe, to secure the payment of certain promissory notes, some of' which had become due, claiming that at the time of the making of the mortgage the mortgagor held an estate in the; land for the term of his own life.

      David Sliffe, the mortgagor, made no defense.
    Lewis and Amanda Sliffe filed an answer containing two grounds of defense. The second set up the facts as above stated.
    The common pleas óverruled the plaintiff’s demurrer to said second defense, and dismissed the petition at plaintiff’s cost. The district court affirmed the judgment.
    Harrison, Olds & Marsh, for plaintiff in error.
    The only question is, can the owner of an estate by the curtesy, subsequently to the death of his wife, but during the lifetime of heirs of her body, execute a mortgage upon such estate to secure the payment of his debt ?
    The answer to this question depends upon the meaning of the last sentence of the first section of the Married Woman’s Act, as the same was passed April 3d, 1861 (58 Ohio L., 54), and amended March 23, 1866 (S. & S., 391).
    Prior to the taking effect of this act, the owner of an estate by the curtesy could convey or incumber his estate, without let or hindrance, during his wife’s lifetime as well as after her death. This fact suggests the rule of construction by which the meaning of the act must be discovered. Inasmuch as the act operates, to some extent, as a limitation upon the power of the owner of an estate of freehold, to alienate or incumber it, and is, therefore, in derogation of the common law, it must be construed strictly.

    The act provides that. the owner of an estate by the curtesy shall not convey or incumber such' estate unless his wife shall join with him in such conveyance or incumbrance, in the manner prescribed by law in regard to her own estate. This provision presupposes that the wife is living and can join in such conveyance or incumbrance. The prohibition is, therefore, limited to the lifetime of the wife.
    Upon the death of the wife, an estate for her surviving husband’s life vests absolutely in him, in all the lands of which she died seized in fee simple. Hall v. Hall, 37 Ohio St., 184. Subject to such life estate, the fee vests either in the heirs or the devisees of the wife. The act under examination does not provide for the assent of such heirs or devisees to any conveyance or incumbrance of the husband’s life estate after the death of wife, when she cannot join therein. If the intention of the general assembly had been to prohibit the husband from conveying or incumbering his estate' by deed or mortgage executed after his wife’s death and the estate had vested absolutely in him, unless, the owner of the fee in remainder joined therein, they would have expressly so provided.
    We do not believe this court can he persuaded that the legislature intended by this statute to innovate upon the settled policy of subjecting a debtor’s real estate to the payment of his debts, and to provide in favor of a class exemption of unlimited value, several years before public sentiment was supposed to warrant even “a homestead exemption.”

      A. L. Neely and J. T. Holmes, for defendants in error.
    The several statutes relating to the question in the case are: the act of February 28, 1846 (44 Ohio L., 75) ; act of February 5, 1847 (45 Ohio L., 23); and the act of April, 1861 (58 Ohio L., 54) which last act controls the rights of the parties to this suit. For a construction of these several acts, see Spinning v. Blackburn, 13 Ohio St., 131; Lessees &c. v. Green, 4 Id., 232; Newton v. Clark, 1 Disney, 265 ; Jenney v. Gray, 5 Ohio St., 45; Bruner, v. Briggs, 39 Id., 478; Leggett v. McClelland, Id., 624; Hershiser v. Florence, Id., 516.
    'Under the act of 1846 the interest of the husband, curtesy expectant or curtesy initiate, was not taken away. By the act of 1861, under the holding in Leggett v. McClelland, it was wiped completely out of existence.
    In the light of these decisions, and of the language of the section that gives rise to this controversy, the meaning, the intent, of the legislature ought not to be difficult to determine.
    “ This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease.”

      With the breath that gave life to the preceding portion of the section, the law-making power had blown awaj'- every vestige of curtesy interest, by whatever name it might be called,- during the lifetime of the wife. That interest had, from the act of 1846 down to 1861, been under the exemption, mentioned in Bruner v. Briggs, from process for the payment of the husband’s debts, and from alienation by him without the joinder of the wife.
    The language used in expunging it, like the act of 1846, was susceptible of being construed to reach beyond the purpose of the legislature, and was liable to give rise to controversy.
    “ Guarding against an improper construction,” the general assembly at once, in this instance, said the estate after the wife’s death was not affected by the act.
    Continuing the quotation from the statute — “ but during the life of such wife, or any heir of her body, such estate shall not be taken by an3r process of law for the payment of his debts, or be conveyed or incumbered by him unless she shall join,” &c.
    The “ interest ” in the husband is not affected — acted upon — but the power of creditors to reach it, and the power of the husband to alien or encumber it, are affected. These powers are no part of the “ interest ” or its definition.
    A man’s title to his horse is perfect, although it ma}r be unlawful to race with that horse through the streets of a crowded city, or speed him over bridges making a part of the highway, or for a constable to seize and sell him on execution, despite the demand of set-off under the exemption laws.
    The homestead cases of McComb v. Thompson and Roig v. Shultz, just decided by the supreme court, afford an illustration.
    The inhibition of the statute against creditors taking away the title during occupan}’- as a homestead, in no wise affects the title or estate.
    To repeat, these limitations are upon powers, not upon the estate. Possibly the language'used in the section is not perfect. It is clear, however.

      If the doctrine of the Leggett v. McClelland case is sound, the husband has no estate during the life of his wife, and yet the language of the statute is that during Tier life such estate shall not he taken.

    There is no want of clearness. It must be remembered that there is a kind of grouping in two places, or clauses, in this part of the section. Let us see:

      Such estate shall not be taken hy any process of law for the payment of the husband’s debts during — what ? — during the life of the wife, or any heir of her body.
    Now, technically, that has in it a prohibition against an impossibility, for, during the life of the wife, by existing statutes, a husband has no estate or interest in the separate property of his wife; but, embracing the policy of the act of 1846 in that clause, it embraces the same policy in the next, and prohibits a possibility.
   Granger, C. J.

In Canby v. Porter, 12 Ohio, 79, decided at December term, 1848, Lane, C. J., said: “ The interest of the husband is a legal estate: it is a freehold during the joint lives of himself and wife, with a freehold in remainder, for himself for life, as tenant by the curtesy, and a remainder to the wife and her heirs in fee. It is a certain and determinate interest, whose value may be easily ascertained by reference to well known rules. It is in every sense his ‘land' within the meaning of the statute, and liable to respond for his debts.”

This was the law until February 28, 1846, when “An act in relation to the interest of husbands in the estate of their wives ” took effect. I quote the first two sections of this act:

“ Section 1. That the interest of any married man in the real estate of his wife, belonging to her at the time of their intermarriage, or which may have come to her by devise, gift or inheritance during coverture, or which may have been purchased with her sole and separate money or other property, and during her coverture, shall have been deeded to her, shall not be liable to be taken by any process of law or chancery for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body.”
“ Section 2. All conveyances and incumbrances of the husband’s interest in the real estate of the wife, in the first section mentioned, shall be void and of no effect during the life of the wife, and during the life or lives of the heir or heirs of her body, unless an instrument of such conveyance or incumbrance shall have been executed, attested and acknowledged according to the laws of this state, for the conveyance or incumbrance of the estate of the wife in lands, tenements and hereditaments situate within this state.”

This act was repealed' by the act of April 3, 1861, (58 Ohio Laws, 54,) of which the first section reads thus :

“Any estate or interest,legal or equitable,.in real property belonging to any woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, shall, 'together with all rents and issues thereof, be and-remain her separate property, and under her control; and she may, in her own name, during coverture, lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him, unless she shall join therein with him in the manner prescribed by law in regard to her own estate.”

It is urged that the words, “ This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease,” control the entire act, and that the only conveyances, or incumbrances, forbidden are those executed during the coverture, in which the wife is not a grantor. But those words do not constitute a complete and independent sentence. They form the first clause of a compound sentence, and are, themselves, limited and qualified by tbe words that follow “ but.” It seems to us that this “ but ” means “ except that.” Thus read the entire sentence declares that “ This act shall affect the estate by the curtesy of any husband in the real property of his wife after her decease no farther than this, to wit: during the life of such wife, or of any heir of her body, such estate shall not * * * be conveyed, or incumbered, by him unless she shall join therein with him in the manner prescribed bylaw in regard to her own estate.” Under this construction full effect is given to all deeds and mortgages of her own estate legally made ; that is, duly executed and acknowledged by husband and wife. As the property is hers, the legislature does not attempt by new enactment to interfere with her control, farther than to provide a safe mode for ascertaining and attesting that it is Tier deed, or mortgage. The requirement that the husband should join in the conveyance is simply a repetition of a rule of law older than our state. But so long as the wife, or her child, survives, no act, or omission, of the husband alone shall enable a stranger to possess her land, as owner or incumbrancer.

A comparison of section two (2) of the act of 1846 with section one (1) of the act of 1861, favors this construction. The former declared that all such conveyances and incumbrances “ shall be void and of no effect during the life of the wife and during the life or lives of the heir or heirs of her body, unless, &c.” It was possible to understand this language as applying only to conveyances, or incumbrances, made during the life of the wife. But the words “ during the life of such wife, or any heir of her body, such estate shall not * * ® be conveyed, or incumbered, by him unless, &e.,” are unambiguous. .The time within which the husband is forbidden to convey is “ during the life of any heirs of her body,” as well as “ during the life of such wife.”

This may be unwise legislation; with that we have nothing to do. The best way to get rid of an unwise statute is to enforce it according to the meaning of its words as used. The children being the persons for whose protection the mortgage was prohibited, should be held sufficiently interested to be heard against the attempt to enforce it.

Judgment affirmed.

Martin, J., dissented.


author: By the court.

text:
    Eckel v. Renner.
    Error to the District Court of Hamilton County.

      Goss & Cohen and Wm. S. Little, for plaintiff in error,
    cited Ruse v. Ins. Co., 23 N. Y., 516, 526; Baker v. Ins. Co., 43 Id., 283; Ins. Co. v. France, 94 U. S., 564; Rombach v. Ins. Co., 16 Reporter, No. 25, p. 780; Warnock v. Davis, (U. S. Sup. Ct.) Coast Review of June, 1882, p. 377; Basye v. Adams, 16 Reporter, 489; May on Insurance, § 398; Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill., 35; State of Kansas v. Winner, 17 Kansas, 298; Stevens, Adm’r., v. Warren, Adm’r., 101 Mass., 564; Missouri Valley Life Ins. Co. v. Sturges, 18 Kan., 93; Cammack v. Lewis, 15 Wall., 643; Franklin Life Ins. Co. v. Hazzard, 41 Ind., 116; Terry v. Life Ins. Co., 1 Dill., 403; Swick v. Home Ins. Co., 2 Id., 160; 4 Otto, 457.

      I J. Miller, for defendant in error,
    cited in addition to the authorities cited in the opinion of the court, Godsal v. Webb, 2 Keene, ch. 99; Bliss on Life Ins., 40; Reynolds on Life Ins., 151 to 154; Kent’s Com., 369 n.; Schoeffer v. Ins. Co., 94 U. S., 457.
   By the court.

B. effected a valid insurance upon his own life for $1000 for his own benefit, and kept it alive by due payment of premiums. Having neither wife, nor child, and becoming fond of the daughter of a friend (at the time less than nine years old), he assigned the policy to her and delivered it to her father for her. B. died, and under an agreement, to which the insurance company, the child’s guardian and B.’s administrator were, parties, the company paid the money to the administrator. The guardian consented to this without prejudice to his claim, and afterwards recovered a judgment against the administrator for the amount in his hands.

Meld: One who has obtained a valid insurance upon his own life, may dispose of it as he sees fit in the absence of prohibitory legislation, or contract stipulation. It is immaterial, in such case, that the assignee has no insurable interest in the life. See Clarke’s Adm’r. v. Allen, 11 Rhode Island, 439; Valton v. The Life Insurance Co., 20 N. Y., 32; St. John v. Life Ins. Co., 13 Id., 31; Ashley v. Ashley, 3 Simon’s Ch. Rep., 149.

Judgment affirmed.


author: By the Court.

text:
    P. C. & S. L. Railway Company v. Hedges.
    Error to the District Court of Greene County.

      Charles Darlington, for plaintiff in error.

      M. M. Munger, for defendant in error.
   By the Court.

The petition asked damages for horses killed by defendant’s train, and counted upon two distinct wrongful acts as causes of the killing; first, neglect to keep in repair a fence as required by contract; and second, negligence in running the train. A motion to require plaintiff to elect whether he would rely upon the breach of contract, or the tort, was overruled.

Meld: The doctrine of election applies where one wrongful act is charged, and the plaintiff is entitled to treat it as having either of two natures. But the addition of a tort to a separate and distinct act in violation of contract, does to a separate and distinct act in violation of contract, does not deprive the injured party of the right to complain at the same time, of both wrongs. Of course he cannot recover double damages.

Judgment affirmed.


text:
    Rees v. Sessions et al.
    Eeeoe to the District Court of Franklin County.
    Converse, Booth & Keating and C. E. Burr, for plaintiffs in error.

      G. G. Collins and James E. Wright, for defendants in error.
   By the Court.

In January A. D. 1871, D. sold a lot to Mrs. G. for $400 and agreed to build a dwelling for her, upon the lot for $1,250. She paid all of the $400 except. $175. Her husband made his four negotiable promissory notes for $356.25 each, payable to the order of D. in one, two, three and four years respectively after date, with interest payable annually. G. and wife secured said notes by a mortgage on the lot. D. immediately after the delivery of the notes and mortgage, for a valuable consideration, indorsed the notes to S. et al., and assigned to them the mortgage.

In July, A. D. 1871, when the house was almost finished, G. and wife conveyed the lot to R. and W., who agreed “do pay each and all of said notes in- full with all interest on the same, and to protect G. from any loss or damage by reason of the same not being promptly paid when they shall become due.” Afterward, and before it had been completed or delivered, the house was destroyed by fire, and D. made no attempt to rebuild it. In 1877, S. et al., sued R. and W. to recover the sum due on said notes— $1,425 and interest from their dates. R. and W. answered that $1,250 of the .principal was in consideration of the agreement to build the house and that consideration had totally failed. To this the plaintiff demurred.

Held: 1. As purchasers for value before due of notes supported by a valuable consideration at the time of transfer, S. et al. could recover on the notes against G., notwithstanding the subsequent default of D.

2. Under the agreement of R. and W., they became liable in place of G. and said defense was insufficient.

Judgment of the district court affirmed.


text:
    City of Steubenville v. McGill.
    Ebbob to the District Court of Jefferson County.

      Charles A. Reynolds, City Solicitor, for plaintiff in error.

      Trainer & Bigger, for defendant in error.
   By the Court.

In a. d. 1853, the city council of the city of Steubenville, by ordinance, authorized a railroad company to lay one main track and one side track in a street, the tracks to be parallel with the west line of the street, and the center of the western track to be forty feet from said west line of the street. The city reserved the right to require the company to cover any portion of the superstructure, except the rail, with suitable plank in such manner as the council should prescribe, and also to require the company to light said railroad with gas in such manner as the council should prescribe. The company made and left open a ditch between its tracks. This being unlighted at night, M., without fault on his part, fell into the ditch and suffered serious injury. He sued the city. The answer pleaded the said ordinance as relieving the city from responsibility for so much of the street as was occupied by, and lay between, the tracks, averring “ that the place where the plaintiff fell had not been used, maintained or kept up as a street or highway since the said railroad tracks were constructed, and was in the exclusive possession and use of said railroad-company. That the space between said main track of said railroad and the west line of said Water street has been kept open and in proper repair as a street, and furnished ample facilities for the passage of any and all persons who had, or might have, occasion to use it as a street.” The trial court sustained a demurrer to this answer, and the plaintiff recovered a verdict and judgment.

Held: The city’s supervision of, and responsibility for, the street, subject only to the use by the company as granted, continued; and the answer was insufficient.

Judgment affirmed.


author: McCauley, J.

text:
    Harker v. Smith.
    A testator provided in his will as follows: “I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of fifteen hundred dollars per year, to be paid to him by my executor in monthly installments.”

      Held: 1. That this provision of the will in favor of Harker was not a legacy, but a testamentary provision requesting his services in the settlement of the estate and fixing the relation between him and the executors, in case he entered upon the performance of the services and the same were accepted by them.
    2. That the liability of the estate for the discharge of Harker was the . same as if he had been wrongfully discharged from such service when in the performance of a contract with the executors, to serve upon the same terms and conditions.
    Enron to the District Court of Hamilton County.
    This action was brought originally in the superior court of Cincinnati by the plaintiff in error against the defendant in error, as executor of the last will of John Bates deceased, to enforce whatever rights were secured to him under item thirteen of the will. Item thirteen is as follows:
    “ I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of fifteen hundred dollars per year, to be paid to him by my executor in monthly installments.”
    The plaintiff averred in his petition that the will was admitted to probate July 30th, 1870, and that he thereupon took charge of the books of the estate and continued to keep the accounts of the estate until April 18th, 1874, when the defendant dismissed and discharged him. That after said discharge he at various times demanded of the defendant the privilege of keeping the books, and that from the discharge to the time of filing his petition he was willing and ready to discharge his duties under item thirteen of the will, which the defendant refused to permit him to do, although he says such a bookkeeper was necessary to said executor during all of said time and at the time of filing his petition; and asked to recover at the rate of fifteen hundred dollars per year, payable monthly from September 30th, 1874, to March 4th, 1880, the time of trial.
    The defendant for defense alleged that he discharged the plaintiff for the reason that the services of a bookkeeper were no longer necessary to said estate; and also that the plaintiff had failed in divers ways to properly discharge his duties as bookkeeper, and alleged also two other defenses.
    The result of the trial was a verdict and judgment for the plaintiff for $7,391.10. This judgment was reversed by the district court. And the present proceeding is to reverse the judgment of reversal.

      Cowan & Ferris and Hoadly, Johnson & Colston, for plaintiff in error.

      Jordan, Jordan & Williams, for defendant in error.
   McCauley, J.

The liability of. the executor to the plaintiff in error depends mainly upon the question, whether or not the provisions of item thirteen of the will gives him a conditional legacy.

A conditional legacy is defined to be “ a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.” 2 Williams’ Executors, 1258; 2 Roper on' Legacies, 283. The effect to be given to item thirteen of the will is to be determined by the manifest purpose of the testator in making the provision, rather than by giving force and consequence to any particular expression used in it. The evident purpose of the testator was not to give anything either directly or upon condition to Harker; but to appoint him to assist the executor and trustee of the will to perform certain duties to the estate at a stated salary. While the testator says, “ for such services I allow him a salary of fifteen hundred dollars per year,” that expression is used in reference to his services to be performed for the estate. If Harker had refused or become unable from any cause to perform the services, he could not have earned the salary. It was to be paid for the services. It was money to be earned, and if not earned, not to be paid. It is urged that it is a legacy upon condition, the condition being that Harker should serve the executor in a specified way. Service in a specified way is the common way of earning a salary, and the money thus earned as the bookkeeper of the executor belonged to' the servant because of the labor he had performed and not because of the provision of the will. The provision that the salary shall be paid in monthly installments, indicates that payments shall not be delayed as legacies are, until the indebtedness of the estate is paid; but be paid as the settlement of the estate progressed and as a part of the expenses of managing the estate.

Looking to -all the provisions of this item of the will we are of the opinion that it does not provide a legacy for Harker, but is a testamentary appointment of a bookkeeper for the executor, at a fixed salary, and for such time as a bookkeeper was necessary in the settlement of tbe estate. The effect of the appointment would be that Harker had the right to the salary, if he tendered performance of the duties of bookkeeper, while a bookkeeper was necessary, to the executor, even though the executor refused to accept his services; and that after the executor had accepted his services, the same relation as to services and salary and discharge would exist between them as if he had been employed by the executor himself, upon the sanie terms and conditions specified in this item of the will.

Harker was to be the bookkeeper of the executor, in matters pertaining to the estate. And any misconduct, or unfaithfulness or incompeteney on his part would justify his discharge the same as if he had been selected and employed by the executor himself. He was acting under the executor and subject to his reasonable- control and direction. The executor was charged with the care and management of the estate, and if the bookkeeper thus employed to assist in its affairs, no longer acted in the interest of the estate, his discharge by the executors was lawful and proper.

If Harker was wrongfully discharged ■ and could have found employment, or did have employment, whatever he realized or could have realized from it, should be deducted from the salary he was prevented from earning, by the discharge.

The superior court seems to have treated the provision of the will as a provision in the nature of a legacy, and held that Harker was entitled to the monthly allowance, if he offered to perform, whether his services were necessary or not, and whether they were valuable or not.

The district court adopted the same view as to the legal effect of the provision of the will, but held further that the superior court had not jurisdiction of the action, because it was an action against an executor to recover á legacy, before the right to recover it had been fixed by a finding of the probate court. If the provision, however, was not a legacy, as we think it was not, the superior court had jurisdiction of it, and in that aspect of the case, it becomes necessary to consider some of the proceedings upon the trial to determine whether the court erred in overruling a motion bythe defendant for a new trial.

The superior court upon the trial instructed the jury, “ that the defendant by his answer admitting that this provision was made, admitting that the plaintiff entered upon the discharge of his duties, and continued to discharge them until the 18th day of April, 1874, avers that he refused any longer to permit him to discharge those duties, first, because it was not necessary to have his services any longer in taking charge of, or keeping the accounts of the estate for said executors and trustees named in said will, or to have him aid in settling the estate. Second, he says that the plaintiff collected and appropriated moneys of the estate, and kept inaccurate accounts and failed properly to discharge his duties under the provisions of the will; that he became disagreeable and unpleasant in his manner and conduct toward this defendant; and that he also failed to obey the orders given him by this defendant, and that by reason thereof and for the reasons aforesaid he discharged him. Third, lie sets forth that the plaintiff entered into a combination with certain persons to defeat the will of John Bates; but as I have already ruled in the course of the trial that would not authorize the defendant to refuse to permit him to discharge the duties and you will not consider that portion of the answer.” This instruction practically withdraws from the consideration of the jury all matters of defense, in an action other than one for the non-payment of a legacy to which the right of the plaintiff was complete beyond all conditions.

The defendant upon the trial requested the court to instruct the jury “ that Mr. Smith, the executor, had a right to discharge Mr. Harker or refuse longer to employ and pay him if he refused to obey his lawful orders, if he was negligent and unskillful in keeping the accounts of the estate, if he absented himself improperly from the place of business, the office, and neglected its duties, for improperly retaining or using money of the estate,” which request was refused by the court and was not given. The refusal to give this instruction prevented the defendant from having proper and pertinent matters of defense considered, and was error. The motion of the defendant for a new trial should have been sustained, not for want of jurisdiction as held by the district court, but for error in overruling the motion of the defendant for a new trial.

Judgment affirmed.


text:
    Bierce v. Bierce.
    The will of D. contained the following clauses:
    “I further will and bequeath to my wife Martha Darst all the rest and residue of my estate, real and personal, to be kept by her during her lifetime. I further direct that after the death of my wife, Martha, all the property then remaining shall constitute a fund . for the support and maintainance of my daughter, Ann Bierce, and her children during her life; and at the death of my said daughter Ann, the same shall be equally divided between her children. * * * * * * I further will and direct that if at the death of my daughter, Ann, she shall not have left any living child or children, the property shall be equally divided between the living daughters of my brothers Henry and Jacob Darst, and the two youngest daughters of sister Catherine Clem.”

      Held: 1. The “fund” so constituted was charged with the support and maintenance of Ann and her children as its primary object. If the income proved insufficient the principal could be resorted to for proper support.
    2. The personalty having been properly consumed, and the income from the realty being materially insufficient for said support, the decree of a court of common pleas (having jurisdiction of the subject matter and of all parties in interest), construing the will and authorizing sales by Ann and her husband, and the application of the proceeds to said support, will not be reversed because the court omitted to require security from, or accounting by, them.
    Error to the District Court of Pickaway County.
    On the 10th daj'- of October, A. D. 1848, Isaac Darst of Pickaway county, died testate. His will read thus:

      I, Isaac Darst of the county of Pickaway and state of Ohio, at present in usual good health, do make and publish, this my last will and testament, in form following, to wit: I direct that after my death, my executors, hereinafter named, proceed to settle all my business by first collecting all which may be due me and paying all my debts as speedily as possible, using also what money may be on hand for the payment of my debts. Should the money on hand and debts due me be insufficient for that purpose, I direct that that part of all my personal effects, as my wife may direct and not wish to retain, be sold at public vendue and the proceeds applied to the payment of my debts, and in the event of there not being sufficient personal effects to pay all demands against me, I will and direct that such portion of my real estate, as may be considered by my executor least productive, be sold at public sale, and to the best advantage, and the proceeds applied, as hereinafter dii'ected; and upon the sale of anjr portion of my real estate, I hereby authorize and direct my executor to make to the purchaser or purchasers a deed in fee simple for the same. I further will and bequeath to my wife Martha Darst all the rest and residue of my estate, real and personal, to be kept by her during her lifetime. I further direct that after the death of my wife Martha, all the property then remaining shall constitute a fund for the support and maintenance of my daughter, Ann Bierce, and her children during her life; and at the death of my said daughter Ann, the same shall be equally divided between her children. I would further provide and direct that should my daughter Ann become a widow, or should her husband, W. W. Bierce, by sickness or otherwise, become disabled from doing business and supporting his family during the lifetime of my wife, she, my said daughter, shall have the occupancy of the house she now occupies with the privilege of a small garden on lot No. 11, in the town of Circleville, free of charge. I further will and direct that if at the death of my daughter Ann, she shall not have left any living child or children, the property then shall be equally divided between the living daughters of my brothers Henry and Jacob Darst, and the two youngest daughters of sister Catharine Clem. I hereby constitute and appoint my friend Jacob H. Lutz executor of this my last will and testament.
    Given under my hand and seal this 21st day of December, A. d. 1843.
    (Signed), Isaac Darst, [seal].
    Signed, sealed in presence of
    Vi. P. Darst,
    Lewis Huber.
    By February, A. D. 1864, Martha, the widow, was dead ; so much of the “residue” as’was personalty had been consumed; Ann was living with her husband and was the mother of nine children. Six of these were minors. The only “ residue ” then remaining consisted of certain farming lands, and some lots in, or adjacent to Circleville. Part of this was not only unproductive, but had been, for twenty years, an expense to the estate; and the income from the whole of it was materially insufficient for the support of Ann and her children. Thereupon Ann, whose full Christian name was Elizabeth Ann, suing by her next friend, began a civil action in Pickaway common pleas making her husband, her children, and the persons who would be entitled to said residue in case of her decease leaving no child surviving her, defendants. Her petition, after stating the other material facts, and describing the remaining real estate, proceeded thus:
    “The plaintiff says that on or about the third day of April, 1855, said Martha Darst died. That the plaintiff is the first devisee for life under said will, if she is not a: devisee in fee simple. That doubts have arisen as to whether your petitioner is entitled to a fee simple, or life estate in the said lands. And your petitioner being desirous of selling said lands is not able to do so on accouiit' of apprehension in the minds of some persons as to the title. The petitioner further says that a part of said real estate is unproductive, and has been an expense for twenty years. That there is no personal estate now remaining of said testator. That all his debts have been paid. That it is necessary to sell said-real estate in order to support said petitioner and her children; that said sale will be for the benefit of the petitioner and do no injury to the heirs in remainder, if there are any. Your petitioner prays that said will may be construed by the court, and the question determined whether she may under any circumstances, and if so, under what circumstances, sell said lands in fee simple; and that the court may order the same, to -be sold, or in case the court shall refuse to order and adjudge a sale under the aforesaid prayer, then your petitioner asks a sale of the same under the ‘Act to-provide for the sale or lease of estates tail in certain cases,’ passed April 4th, 1859, or for such relief as may be just and proper.”
    The summons for the minors and its return read thus:
    Summons.
    ‘‘ State of Ohio, Pielcaway County, ss:

    “ To the Sheriff of said Piehaway County:

    “ You are commanded to notify Lucy Bierce, Frank Bierce, aged 14 years, Harriet D. Bierce, aged 12 year's, William W. Bierce, Jr., aged 10 years, Columbus Bierce, 6 years, Elizabeth A. Bierce, aged 10 years, that they have been sued by Elizabeth A.. Bierce, by Mary Bierce, her next friend, in the court of common pleas of Pickaway county, and that unless'they answer by the 18th‘day of June, A. D. 1864, the petition of the said plaintiff against them filed in the clerk’s office of said court, such petition will be taken as true, and judgment rendered accordingly.
    “You will make due return of this summons, on the 80th day of May, A. D. 1864.
    Witness my name, and the seal of said court, this 21st day of May, A. D.T864. “ O. Qrmsbee, Clerk.
    [seal.] “Wm. Bowman,
    Deputy Clerk.”

      Sheriff’s Return.
    “Received this writ May 21, 1864. I have executed the command of this writ by delivering a certified copy thereof, with endorsements thereon, to each of the within named defendants. Also delivered to Elizabeth A. Bierce, Sen., a copy thereoff or each of the minors under the age of 14 years, she being the mother, and having the custody and control thereof.
    “ P. H. Delaplane, Sheriff.
    “ By W. E. Bolin, Deputy. ”
    At June term, A. D. 1864, the court appointed a guardian ad litem for said minors. He filed the statutory^ answer on July 6, same year. The case was decided at said term and the following decree entered:
    “ And this cause coming on to be heard upon the petition of the plaintiff, and the answer of the said infant defendants, by their guardian ad litem, and it appearing that all of the said defendants have been duly served with process, and that George W. Bierce, Martha Bierce and Mary Bierce, have filed their consent that the prayer of the petition should be granted, and the said premises described should be sold, as asked by her. And it further appearing by testimony in open court that the allegations of the said pétitiou are true, and more especially, that it is necessary to sell the said premises named in the said petition, in'order to support and maintain the said petitioner and her children, and the court being of the opinion that the said will authorizes said petitioner as trustee for herself'and'children, in the event of its being necessary to the support of herself and children, to sell said premises, do order, adjudge and decree, that the said Elizabeth A. Bierce, and W. W. Bierce, her husband, proceed to sell said premises, for the said purpose, at such times and'places, and at public or private-sale, as they may deem best, and that she apply the proceeds, or the interest thereof, in case the money be invested, to the support and maintenance of herself and children, according to the provisions of said will, but the purchaser thereof shall not be responsible for the application of said moneys.
    “It is further ordered that the said petitioner and her husband execute deeds to the purchasers when said premises are paid for, and that they pay 'the costs of this suit, taxed to $30.20.”
    William W. Bierce, Jr., one of the minors defendant, became of age on May 25, 1877, and Columbus Bierce, another of said minors, on February 2, 1879. On the 8th day of April A. D. 1879, they with other defendants, filed in Pickaway district court a petition in error asking a reversal of the decree of 1864.
    1 On Tuesday, April 15, 1880, by leave of said court of common pleas, the return on the summons of May 21, 1864, was amended as follows: ' '
    Pickaway County, Ohio, Court or Common Pleas.
    Elizabeth A. Bierce, by Mary Bierce,'') her next friend, Plaintiff, vs. William W. Bierce, and others, Defendants.

    “ By leave of court granted in 'this case to the undersigned, late sheriff of said county, he amends his return to the summons, which was issued to him and dated May 21st, 1864, which return is dated May 24th, 1864, by adding at the end . of said return, and before his signature theréto, the following words: ‘ The copies of the said summons which were delivered to the Elizabeth Ai Bierce, Sen., as above stated, were also at the same time left at the usual place of residence of the said William W. Bierce, the father of the said minors, to wit: Frank Bierce, ■Lucy Bierce, Columbus Bierce, Elizabeth A. Bierce, Jr., William W. Bierce, Jr., and Harriet Bierce, in the city of Cir.cleville, in said county of Pickawáy.
    “P. I-I. Delaplane,
    “April 15, 1880. Late Sheriff of Pickaway County, O.’’

      The original summons was attached to said amended return.
    The order allowing said amendment was made by the court upon motion, after due notice to the parties concerned, and after a finding by the court that the facts stated were true. The parties plaintiff in error excepted to the order.
    The district court affirmed the decree of 1864, and this court is now asked to reverse both judgments.
    C. B. Matthews and Matthews & Shoemaker, for plaintiff in error.
    That the intention of the testator was not to have the land sold, is evident from these considerations.
    First. The words of the will are not that all of the property remaining after the death of his widow shall be turned into a fund but that it shall constitute a fund, or in other words, shall be a fund.
    The property is the parts, the fund is an aggregate, and when we say the several parts constitute the whole, we mean simply that they are the whole, the whole being merely the parts considered in the aggregate or in their totality.
    If the land had to be sold before the fund could arise, it would be obviously incorrect to say that the land constituted a fund because, when one or more things constitute another, their cotemporaneous existence is necessarily implied, but in the case supposed, the one goes out of existence in order that the other may arise. I do not mean by this that the land is annihilated but quoad the estate of Darst and as a part of said estate it ceases to exist, and therefore cannot constitute a fund as to said estate. 2 Barb, ch. 22; Baker v. Lorillard, 4 Comst., 257; Pruden v. Pruden, 14 Ohio St., 251.
    The testator describes the subject matter of the devise to. his daughter as the property and in providing for its going over to the children, he says the same shall be equally divided, etc. The same means the same property and nothing else, Harris v. Poyner, 1 Drew., 174, and when he makes provision for the case of the daughter’s death without leaving children, he again calls it the property. The presumption is that he used the word property in the two places in the same sense as describing the same subject matter.
    Why did he not say the said fund shall be divided equally, etc., and the said fund shall go to the daughters of my brothers, etc. ?
    How can the property constitute a fund for the maintenance of Ann Bierce, etc., during her natural life, and the same go to her children, if any, thereafter, and if not the property to go to others, if Ann could sell the property or the same and spend the money without let or hindrance ? 2 Bigelow’s Jarman on Wills, 61 n.

    You cannot reconcile the entire consumption of the estate with its continued existence at the death of Mrs. Bierce, implied from the devise to her children. How could the property constitute a fund during Mrs. Bierce’s life in any other way than by limiting the maintenance to the income?
    In Bradley v. Peixoto, 2 Ves. Jr., 324, a condition repugnant to an estate tail was held void. And in Mainwaring v. Baxter, 6 Ves., 460, an express trust inconsistent with' a subsequent devise was held void.
    The property was to constitute a fund during the life of Ann Bierce. Constitute is to form or compose as an element. Worcester’s Die. During means “for the time of the continuance of.” Worcester’s Die. By putting the definitions for the words themselves in the will it would read: “ All the property then remaining shall form or compose a fund for the support and maintenance of my daughter, Ann Bierce, and her children for the time of the continuance of her life.” .Or, in other words, shall for the time of the continuance of her life, compose, etc.
    .The court is bound to give effect to every word of the will, without change or rejection, provided an effect can be given to it, not inconsistent with the general intent of the whole will taken together. Bigelow’s Jarman on Wills, *page 472, note 1.

      The argument that there is a trust, and yet that the mother could spend all the property is suicidal in its effect. Pushman v. Filliter, 3 Ves. Jr., 7; Malim v. Keighley, 2 Id., 529 a.
    That Mrs. Bierce could spend the fund negatives the idea of a trust. Can there be a trust to fritter away the trust fund? If there can be, what is the object of providing for children? If a testator forbids a sale, then the argument is that the children cannot be maintained. .If he provides that they shall be supported, then the parent can pocket the property. In either event what becomes of the children? Jubber v. Jobber, 9 Sim., 503; Hubbard v. Young, 10 Beav., 203.
    There is no trust involved in Isaac Darst’s will. There is no express devise to the daughter, but it was evidently intended that she should have a life estate. There is no disposition until her death. See Bigelow’s Jarman on Wills, *557. The testator merely gives his reasons or motive for the gift, when he mentions maintenance.
    The following authorities sustain this proposition : Gilbert v. Bennett, 10 Sim.,371; Crockett v. Crockett, 2 Phil., 553.; Scott v. Key, 35 Beav., 291; Armstrong v. Armstrong, L. R., 7 Eq., 518; Lambe v. Eames, L. R., 6 Ch. App., 597; Hammond v. Neame, 1 Sw., 35 ; Benson v. Whittam, 5 Sim., 22; Thorp v. Owen, 2 Hare, 608; Andrews v. Partington, 2 Cox, 223; Brown v. Casamajor, 4 Ves., 498; Biddles v. Biddles, 16 Sim., 1; Byne v. Blackburn, 26 Beav., 41; Bigelow’s Jarman, *402, *404, *391 et seq.

    But suppose it is conceded that Mrs. Bierce was a trustee, what follows? Did she sue as trustee to obtain a construction of the will? Not at all. Who represented the trust estate in the suit below? Nobody.
    It is a fundamental rule in the doctrine of parties, that they are such only in that character, which the statement of the pleadings attribute to them, and in no other. Calvert on Parties, 2.
    If Mrs. Bierce was suing as trustee why use a next friend? The trust is nowhere mentioned in the record, except in the decree.
    If Ann Bierce was a trustee with a power of sale, would she not, under the law, in case of a sale be obliged to invest .on good security? Could a court authorize her to do any less than her legal obligation ?
    The following cases support the positions taken in this brief in every particular: Decker v. Decker, 3 Ohio, 157; Bigelow v. Barr, 4 Id., 358; Howe v. Fuller, 19 Id., 51; Worman v. Teagarden, 2 Ohio St., 384 ; Brasher v. Marsh, 15 Id., 109; Parker v. Parker, 13 Id., 95; Baxter v. Bowyer, 19 Id., 498; Davis v. Boggs, 20 Id., 560; Huston v. Craighead, 23 Id., 206; Gillen v. Kimball, 34 Id., 352; Smith v. Bell, 6 Peters, 68.
    The court below also erred in rendering judgment against the infants, because they were not properly served with process.
    Section 69 of the code of procedure provided: When the defendant is a minor under the age of 14 years, the service must be upon him and upon his guardian or father, or if neither of these can be found then upon his mother, or the person having the care or control of the infant, or with whom he lives.
    The service below, even as amended, was not proper, but the court had no power to allow an amendment, as there was nothing in the record to amend by. Doty v. Rigour, 9 Ohio St., 526.

      Henry F. Page, for defendants in error.
    There is no devise to the executor as a trustee, and no duty is enjoined on him. When all the debts are paid he is functus officio. The estate devised to Martha Darst was to be kept by her during her natural life. The testator made no disposition of the fee in direct and apt words. In such case it descends to the heir. In this case it descended to his only child, Ann Bierce, in trust for her and her children during her life, and after her death, to her children. Hill on Trustees, 471.

      There being no devise to the executor, and no trust created in him, the testator intended that his daughter should use, and receive and apply the “ fund,” to the support and maintenance of herself and children during her life. This was substantially a devise and bequest of all his remaining property to her for such term, and for such uses and purposes.
    Ann Bierce may sell any of the property, in order to “ support and maintain ” herself and children, if it is necessary. Norton v. Norton, 2 Sanf., 276 ; Andrews v. Bank, 3 Allen, 313 ; 2 Spence’s Eq. Jur., 366 ; Going v. Emery, 16 Pick., 111; Putnam v. Fisher, 30 Me., 527; Winston v. Jones, 6 Ala., 550; Hinton v. Powell, 1 Jones’ Eq. N. C., 230; Perry on Trusts, § 766; 4 Kent Com., 319; Mather v. Norton, 16 Jurist, 309; Schermerhorn v. Same, 6 Johns. Ch., 70; Pruden v. Pruden, 14 Ohio St., 251.
    “ After the death of my wife, Martha, all the property then remaining shall constitute a fund for the support and maintenance of my daughter, Ann, and her children.”
    The property “ then remaining” was, in a large measure, unproductive real estate, or in such a condition as to render an outlay necessary to make it profitable.
    Property of that description could not “ constitute a fund for the support and maintenance ” of a woman and her children. It required to be changed into money to constitute a fund for that purpose; which fund in whatever shape it might be put would be a trust fund.
    The word “fund” implies a conversion into personal estate. The testator used it in that sense.
    The remainder of his estate was to be a common stock, or sum of money for a certain purpose. Unproductive real estate could not constitute a fund or sum of money for that purpose. Iñ order to answer the purposes of the trust it must be sold.
    ■ Moreover, if the fund was exceedingly small, and wholly insufficient to maintain the said Ann and her children, for more than one year, she might absolutely consume the whole fund for that purpose. It was left to her in order- to support and maintain Ann and her children. That was the primary and grand object of the testator. Every other object was unimportant in comparison with this. Consequently, if the support and maintenance of herself and children required the use or total consumption of the fund, it might be so consumed.
    Did the testator say that Ann Bierce should keep this fund for her children? He directed that his wife should “ keep ” it for Ann, but in effect he directed Ann to use it for herself and children.
    It is true that the will provides that “ at the death of my said daughter, Ann, the same shall be equally divided between her children.”
    The word “ same ” in the sentence just quoted, implies that the fund is to go to the children of Ann Bierce after she and her family have had their support and maintenance out of it, after it has accomplished the first and great object of,the testator. This means what may remain after the fund has been used for the support and maintenance of the family.
    The court is particularly requested to note the fact that the testator does not say, said real estate, said lots or said farm, shall go to the children of Ann Bierce, but he says “ the same,” that is, the same “ fund.” It is the same fund whether it has been increased or diminished in the life time of Ann Bierce.
    As to amendment of return: The power to all our officers to make amendments is liberally exercised.
    It has been permitted after twenty years, 4 Shep., 124, or as the court say in 7 Humph., 59, at any time. It has been permitted after the officer went out of office, or after he has been sued.
    In many of the following cases there -was nothing to amend by except the recollection of the officer.
    Parol evidence is allowed to amend a record, and why not a return of the sheriff? Lambert v. Mustard, 18 Ohio St., 419; 25 Conn., 337.
    See also the following cases: Buck v. Hurdy, 6 Greenleaf, 162; Smith v. Daniel, 3 Murphy, 128; Rucker v. Harrison, 6 Munf., 181; Woodward v. Harbin, 4 Ala., 534; Gilman v. Stetson, 4 Shep., 124; Planters Bank v. Walker, 3 Smedes & M., 409; Pierce v. Strickland, 2 Story, 292; Spear v. Sturdivant, 2 Shep., 263; Strange v. Forward, 7 Ala., 463; Childs v. Barrows, 9 Met., 413; Palmer v. Thayer, 28 Conn., 237; Hopkins v. Burch, 3 Kelly, 222; Atkinson v. Rhece, 7 Humph., 59; Hoages v. Laird, 10 Ala., 678; Parker v. Warren, 2 Allen, 187; Avery v. Bourman, 39 N. H., 393; Gorham v. Hood, 27 Ga., 299; People v. Ames, 35 N. Y., 482; Webster v. Blount, 39 Mo., 500; Newton v. Prater, 1 Duvall, Ky., 100; Niolin v. Harmon, 22 Ala, 578; Porter v. Miller, 7 Texas, 468; Moss v. Thompson, 17 Miss., 405; Stone v. Wilson, 10 Gratt., 529; Blaisdell v. Steamboat, 19 Miss., 157; Adams v. Robinson, 1 Pick., 461; 17 Pick., 106; 35 N. Y., 482; 15 Ind., 192; 25 Id., 455; see Freeman on Ex., § 63.

      Harrison, Olds Marsh, also for defendants in error,
    made substantially same points as their associate counsel, and in addition claimed: The court of common pleas had equitable jurisdiction on either of three grounds.
    First. The support and maintenance of Ann Bierce and her children was charged upon the property. The court had jurisdiction in equity to enforce the charge and to subject the property to it.
    Second. The uncertainty as to the construction of the will and as to the rights of the parties under it, was a cloud on the title and rights of Ann Bierce, who w'as the tenant in possession, and who had therefore a right to come into equity to remove the cloud and to quiet her title.
    Third. Ann Bierce was a trustee for her children. She took the legal title by devise or descent, and held it and the property not for her sole benefit, but for the benefit of herself and others. She took and held them for the support and maintenance of herself and her children. This was not a mere passive trust, but was one imposing upon her the active duties of receiving, managing and applying the fund to the support and maintenance of all the beneficiaries.
    The trustee being in doubt as to her power and duties, had the right to apply to a court of equity to define them, and give judicial sanction to her acts, and the court had jurisdiction to direct, assist and protect her in the administration of the trust.
    The facts are set forth in the petition of Elizabeth Ann Bierce from which her character and capacity as trustee appear. It was unnecessary for her to aver the legal conclusion that she was a trustee.
    Mrs. Bierce being a married woman, it was proper that a next friend responsible for costs should be named.
    No objection was taken to her petition for want of legal capacity to sue, or defect of parties.
   Granger, C. J.

The case has been fully and ably argued. Counsel have aided us by exhaustive citations from decided cases. After a full review we are satisfied that a careful reading of the will in the light of the circumstances of the testator and of his relation to the objects of his bounty, plainly indicates its true construction.

“ The rest and residue ” of the estate “real and personal” was to he kept by the widow during her life time. In case, during the widow’s life time, Ann should be deprived of the support of a husband, either by his death, his sickness, or otherwise, Ann could occupy the house and garden on lot No. 11, Circleville, free of charge. From and after the widow’s death, all of the property then remaining, real as well as personal, was to “ constitute a fund for the support and maintenance of Ann and her children during her life.” The words “ shall constitute a fund ” are full of meaning. The word “fund” savors of personalty; it means something that can be invested and reinvested. It included, as we think, the intent, that, if for the increase of income or the full and proper maintenance and support of Ann and her children, any sales of realty should become necessary, such sales could lawfully be made: — the proceeds taking the place of the lands sold as part of said fund. It was clearly the intent of Isaac Darst that his daughter and her children should be supported and maintained by said “ fund ” from Martha’s death until Ann’s decease. That support and maintenance was expressly charged upon this “ fund ” without any word indicating that the charge was to be limited to the income of the fund. In such a case if the income happens to be sufficient the principal must remain intact; but if the income becomes insufficient that cannot relieve the “fund” from its duty. The “fund” must furnish the support.

But it is' claimed that because the will directs that at Ann’s death '•'•the same shall be equally divided between her children; ” and that in case no child of hers survived her “ the property then shall be equally divided ” between certain nieces of the testator, the charge in favor of the support of Ann and her children ought to be limited to the-income of the fund.

If a specified parcel of land be devised to A., without further words indicating the estate so given, and the same land is devised “ upon the death of A. to B.,” of course A. can hold only as tenant for life and cannot lessen the estate of the devisee in remainder. But “ a fund ” charged with the support of A. for her life, does not cease .to be “ the fund” because some of its principal is necessarily consumed in supporting A. Hence the words “ the same ” are not so definite as to require, or even to justify, a denial of needed support to Ann and her children during her life, in order to pass to those children, or to her cousins at her decease, the unbroken “ residue.” Considering the relation of the testator to Ann, the natural interpretation of his words treats that support as the primary, the paramount object in his mind. He used more words in providing for Ann and her children during her life, than in stating all of his other devises and bequests. The grant for her benefit, standing by itself, is full and complete. We have no right to limit it unless, without we do so, no reasonable construction. can be placed upon the subsequent clauses of the will. For myself, the correlation of the words incline me to think that the will as dictated read that “the property then remaining shall be equally divided between ” the nieces; and that by a lapsus pennce the word “ remaining ” was omitted. The word “ then ” was unnecessary as an indication of the time for the division. Without it the death of Ann leaving no surviving child determined the time. But treating this thought as of no moment, we regard the words “the property” in this will as- too indefinite to justify a refusal to Ann and her children of any part of their needed support. The policy of Ohio law is unfavorable to entails. Is it not also so unfavorable to provisions “tying ” up property that it will not by liberal construction create such limitations? We do not believe, and the words of the will do not make it our duty to hold, that if the income had been so small that it could not supply Ann and her children with ordinary food and clothing, none of the principal could be applied to preserve .their lives, or health, We may well think that Isaac Darst cared more for his grandchildren than for his nieces; yet the construction claimed by the plaintiffs in error .would, in the case supposed, hasten the death of Ann’s children by exposure and lack of sustenance, in order to transfer to his nieces the fund upon which the support and maintenance of those grandchildren was the primary charge; and that too with the fact before us that the testator expressly preferred to give the whole of that fund to those grandchildren instead of to those nieces.

It is urged that Ann’s minor children were not properly served. The original return showed that a certified copy of the summons was handed to each minor and one also to their mother with whom they were living. It did not state affirmatively that a copy was left at the usual place of residence of their father. The decree included a finding by the court that all the defendants had been legally served. Oral proof that the mother was at her husband’s home when the sheriff handed the copy to her did not contradict the return. After the formal finding by the court the presumption is that the fact was properly proved unless that presumption contradicts the return on the writ. We have no fault to find with the abundance of caution shown by the motion and order that resulted in the filing of the amendment to the return. We think the record shows that the court had jurisdiction of the subject matter and parties. While it was within the power of the trial court to require Ann and her husband before making sales to furnish security that they would properly hold, use and account for the proceeds subject to the control of the court, the omission to use that power was not error affecting the validity or legality of the decree.

Judgment affirmed.