text:
    Truman v. Walton.

      One arrested and brought before village mayor — Liberated on bail— Fails to appear at trial — Mayor without jurisdiction to try and sentence.

    Where a person, accused of violating a village ordinance, .has’ been arrested, brought before the village mayor, the case adjourned for trial to a certain hour of a future day, and the accused, after giving bail for his appearance for trial at the time fixed, is liberated, and fails to appear at the hour fixed for his trial, such mayor is without jurisdiction to proceed with the trial until the accused appears, and should the mayor, in the absence of the accused, proceed to try, convict and sentence him, such conviction and sentence will be void.
    (Decided January 31, 1899.)
    Error to the circuit court of Greene county.
    This action was begun in the court of common pleas of Greene county by the defendant in error against plaintiff in error to recover damages for an unauthorized trial and imprisonment of defendant in error. A verdict and judgment was rendered for the defendant in error, which was affirmed by the circuit court. Whereupon proceedings were instituted in this court by plaintiff in error to reverse both judgments. The facts will be stated in the opinion of the court.

      J. E. Hawes, for plaintiff in error.
    The law which holds judicial officers of minor jurisdiction to a different and stricter accountability, than those of general jurisdiction, is not founded in good sense or justice and should for that reason, not be held to apply, except to cases clearly within its terms.
    We claim that if the plaintiff in error is not protected by the law as laid down in the case of Sheldon v. Newton, 3 Ohio St., 494, it is impossible to frame any general rule in the English language, that would protect him.
    If the common law as to criminal procedure is in vogue in Ohio, in the absence of legislative enactment, then the mayor did not even err in proceeding with the hearing in the absence of the accused. Fight v. State, 7 Ohio, 182.
    Where the accused was erroneously refused a trial by jury, it was held the magistrate was not liable for such error, Madden v. Sinett, 2 C. C. Rep., 174; 1 Circ. Dec., 168. This was quite as important a right as the one which the accused was deprived of in the present case.
    Again, where the magistrate “refused to hear any evidence whatever on behalf of the accused,” it was held that he was not liable for damages. Bannister v. Wakeman, 15 L. R. A., 201.
    After jurisdiction has attached, proceedings before a justice must be liberally constructed. Root v. McBride, 50 Ohio St., 29.
    It has been said that the mayor, instead of proceeding in the absence of the accused, should have declared the recognizance forfeited, and sent up a transcript of his own proceedings to the common pleas court, under Revised Statutes, section 7145. But said court has no power to try a petty case of “disorderly conduct” arising under the ordinances of a village. The section has no application, but if it had we still claim with confidence, the mayor only erred in the matter of procedure, and is not liable. An error in a judicial matter, after jurisdiction has attached, does not render the judicial officer liable. Truesdell v. Combs, 33 Ohio St., 186; Spoor v. Cohen, 44 Ohio St., 502.

      T. E. Seroggy, for defendant in error.
    Counsel for plaintiff in error seems to suppose that if a magistrate once acquires jurisdiction of the person and subject-matter, in a cause, such jurisdiction can not be lost, no matter what the magistrate may do; and that after having so obtained jurisdiction every act thereafter by such magistrate will be a judicial act, for which he can not be held civilly liable.
    Both of these propositions are untenable. It is just as essential that the magistrate remain within his prescribed jurisdiction, as it is that he obtain it in the first instance. At whatever stage of the proceedings he goes beyond his jurisdiction, his proceedings thereafter, and while acting outside of his jurisdiction, are void.
    To “keep” within his jurisdiction means to remain within his jurisdiction. Revised Statutes, section 7301.
    It was not a part of the judgment that the defendant should stand committed until the fine and costs be paid, and there was no sentence imposed at the time of the rendition of the judgment.
    The judicial action of the mayor was complete when he considered upon the judgment to be rendered. His acts thereafter were purely ministerial. Fair

      child v. Keith, 29 Ohio St., 156; Place v. Taylor, 22 Ohio St., 322.
    In trying the defendant, in his absence, the mayor acted entirely outside of his jurisdiction. Such action was in violation not only of the statute, butalsoof section 10, article 1, of the Constitution of Ohio. Summons v. State, 5 Ohio St., 325; Robbins v. State, 8 Ohio St., 131.
    Before the power to hear and determine a cause exists, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing .has been properly brought before the tribunal to answer the charge therein contained. ” Sheldon v. Newton, 3 Ohio St., 499; Spoors v. Coen, 44 Ohio St., 502 ; section 7301 and 7286, Revised Statutes.
    It will also be presumed that evidence was offered to prove that Truman acted maliciously as well as illegally; and that such evidence was in fact offered on the trial is shown by the charge of the court. Wagers v. Dickey, 17 Ohio, 440.
    As to the right of a defendant, in a criminal case, to be present at all stag'es of the proceedings, see: Jones v. State, 26 Ohio St., 208; Kirk v. State, 14 Ohio, 511; Bennett v. State, 10 C. C., 84; 4 Circ. Dec., 129; Rose v. State, 20 Ohio, 31.
    The suggestion that the common law as to criminal procedure may be “in vogue in Ohio, in the absence of legislative enactment,” is answered by the early case of Winn v. State, 10 Ohio, 345.
    We'have no crimes in this state excepting such as are made so by statute. Justices of the peace and mayors have no powers excepting such as are expressly granted. In doubtful cases the power to act should be resolved against them. The mode of proceeding by them, in all criminal cases, including misdemeanors, is regulated by statute.
   Bradbury, J.

The defendant in error filed in the court of common pleas the following petition : Plaintiff says that the defendant is, and was at the time of the grievances hereinafter complained of, the duly elected, qualified and acting mayor of the incorporated village of Spring Valley, in the county of Greene. That on the thirtieth day of May, 1895, at said village, said defendant, as such mayor, issued a warrant for the arrest of plaintiff and caused him to be arrested for the pretended violation of an ordinance of said village, and deprived of his liberty for the space of * * hours, on a pretended charge of disorderly conduct, and thereafter and on said daj^ plaintiff, in order to secure his liberty, was compelled by defendant to enter .into a recognizance for his appearance before said defendant, to answer to said pretended charge, on the eighth day of June, 1895, to which time the trial of said pretended charge was adjourned by said defendant.

On said eighth day of June, 1895, at the time to which the trial of said pretended charge had been adjourned, plaintiff appeared before said defendant to answer to said pretended charge and for a trial thereof, when the defendant again adjourned such trial to the tenth day of June, 1895, at 6 o’clock, P. M.

On said tenth day of June, 1895, at the time to which the trial of said pretended charge had been adjourned, said defendant, as such mayor, in the absence of plaintiff, examined divers witnesses under oath and had a pretended trial before him of said pretended* charge; adjudged the defendant guilty of the facts stated therein and assessed a fine and the costs of said proceedings, amounting to $10.95, against plaintiff, all of which took place without the presence of the plaintiff, or an opportunity given him to testify in his own behalf, cross examine the witnesses against him or to offer the testimony of witnesses in his favor. Plaintiff appeared before defendant on said tenth day of June, 1895, as nearly the hour fixed for the trial of said pretended charge as it was practicable1 for him to do and demanded of defendant a trial of said pretended charge, and an opportunity to testify and to offer testimony in his behalf, but the defendant refused to comply with said demand, and upon the refusal of plaintiff to pay the fine and the costs, as aforesaid assessed against him, the defendant unlawfully, wrongfully, forcibly and maliciously caused plaintiff to be imprisoned in the prison- of said village and there kept during the night of the said tenth of June, 1895, and until the eleventh day of June, 1895, without sleep and without a suitable bed on which to sleep; and refused to release plaintiff from said imprisonment until the payment of said fine and costs were secured.

The whole of said proceedings by defendant against plaintiff were unlawful, wanton, and malicious, and have greatly distressed and humiliated plaintiff and injured him in his good name and character, and by reason of the premises plaintiff has been damaged in the sum of five thousand dollars.

Wherefore the plaintiff prays judgment against said defendant in the sum of $5,000, his damages so as aforesaid sustained.

A demurrer to this petition was interposed and overruled, and exception to the ruling noted. The defendant then filed an answer upon which trial was had in the court of common pleas, resulting in a verdict for the plaintiff below for $525. The defendant below interposed a motion for a new trial, based on a number of distinct grounds, one of which was that the verdict was excessive. The court of common pleas being of the opinion that this ground was well taken, required the plaintiff below to remit $225 thereof. This sum being remitted, the motion for a new trial was overruled and a judgment rendered for $300, which, on error, the circuit court affirmed. Whereupon the defendant below brought the case to this court to obtain a reversal of the judgments of both courts. A bill of exceptions not having been filed in this court, no question that arose on the trial is presented for our consideration, and our inquiry is limited to a consideration of the sufficiency of the petition. The petition shows that the defendant in error, having been on May 30,1895, arrested for violating an ordinance of the village of Spring Valley, Ohio, was on the same day brought before the plaintiff in error, who was mayor of that village, and gave bond for his appearance before the mayor for trial on the eighth day of June following; that he appeared on that day for trial, when the case was again adjourned until the tenth day of the same month, at six o’clock P. M.; that when the day and hour to which the trial had been last adjourned had arrived the defendant in error did not appear. Whereupon the plaintiff in error, as such mayor, proceeded to try, and did try, and convict him and adjudged him to pay a fine, all of which was done in his absence; and afterwards, for its non-payment, caused him to be imprisoned in the village jail. The defendant in error appeared after liis trial and conviction was had and demanded a trial which wasN denied him. This, however, is not material to the question to be considered now, as it would only affect the question of the amount of damages, and there being no bill of exceptions, that question is not before the court. ' If ,the mayor had jurisdiction to try and convict- defendant in error in his absence, the fact that he afterwards refused to open up the judgment.and retry him when he had appeared would not give a right of action. While on the other hand, if the mayor in the absence of the defendant in error was without jurisdiction to proceed with, the trial the ■ judgment was void, and a subsequent imprisonment unlawful, without regard to the action of the mayor in respect to the demand to be retried. The only legitimate effect this refusal to retry the cause could.have would be as to the amount of the recovery. The first question, therefore, to be considered is whether the mayor had jurisdiction to try and convict and assess a fine against the defendant while he was absent. And second if he had not such' jurisdiction was he liable for the injuries that resulted to defendant in error from his unauthorized action. Counsel for plaintiff in error does not contend that such a trial was authorized by law, but insists that it was not void, but erroneous only, and that as the conviction might have been reversed on error it was the only remedy defendant in error had. How the judgment could have been reversed on error, was not pointed out by counsel. Nothing appears to show that the record of the trial by the mayor disclosed the absence of the defendant in error. He was not there to take a bill of exceptions showing the fact of his absence. The trial was set for six o’clock p. M. and in fact occurred after that hour, and the defendant committed to the village prison that very night. The brief time that intervened between his conviction and commitment to prison afforded no opportunity for him to invoke, if the law affords it, an independent proceeding in the courts of the state to establish the existence of the fact that he had been tried and convicted while absent. All this may be immaterial if the mayor had jurisdiction to try and convict a party while absent, but it shows the consequences that may result from holding that such jurisdiction does exist and therefore may not be wholly unworthy of consideration in determining its existence.

The court held by a village mayor is of limited jurisdiction. His power to try persons accused of violating village ordinances or the criminal laws of the state is only such as has been conferred by statute. If such jurisdiction has not been thus created, it does not exist. Sections 1823 to 1830 inclusive, Revised 'Statutes, confer upon village mayors whatever criminal jurisdiction they possess, except in certain special matters not pertinent to the present inquiry. These sections, however, relate exclusively to the subject-matter-That is, they in general terms prescribe the several offenses that may be tried in a mayor’s court. In respect of some of these offenses, whether they be violations of state laws or of village ordinances, his jurisdiction is final. That is, he may, without the intervention of a jury, try and convict persons brought before him charged with their commission. In regard to certain other offenses he has jurisdiction to render final judgment after the accused has been convicted by a jury. Or he may try, and if he convict, render final judgment, even of imprisonment, if accused in writing waive the right to a jury trial. While in a third class of offenses, notably felonies, the mayor has only the powers of an examining court and can only discharge or recognize the accused to the court of common pleas or probate court. The proceedings authorized by the sections of the foregoing statute seem to contemplate the personal presence of the accused. Indeed some of those provisions are inapplicable unless he is present. Other statutory provisions may be found that bear on the question. For instance, section 7129, Revised Statutes, reads as follows: “A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman, or police officer, shall arrest and detain any person found violating any law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained.” This section appears in title II, chapter 2 of our Revised Statutes. And the other sections of this title and chapter contemplate quite as clearly that persons charged with offenses against state laws or municipal ordinances shall be arrested, taken in custody and carried before magistrates for examination or trial to answer in person to the offense charged. This is the only method known to our law by which offenders are brought before the courts. Though if one, knowing himself in danger of arrest, voluntarily appears and submits to the jurisdiction of a court or magistrate it would be equally efficient. Doubtless in a certain sense the jurisdiction of a mayor or other magistrate over any- particular criminal cause begins with the filing of an affidavit and issuing of a warrant for the arrest of the accused. But it could hardly be contended that the magistrate thereby obtains such jurisdiction over the person of the accused that, although not arrested at all, or if arrested, he should escape that, nevertheless, the magistrate could proceed to try, convict and sentence him, and afterwards issue a mittimus for his commitment to prison, just as if the offender had been arrested and brought before the magistrate.

If a magistrate is without power to try one who has never been brought before him, although arrested, what sound reason is there to suppose that such jurisdiction exists in the case of one who has been brought before him, but whose trial has been adjourned to a future day and he liberated on bond and does not appear at the time set. After bail has been accepted he is no longer under the control or dominion of the magistrate or officer who made the arrest. His person is as free from restraint by them as if he had not been arrested at all. He may go and come as he chooses, subject only to the friendly custody of his bondsmen and the penalty named in the bond. If he does not appear pursuant to the bond he forfeits the penalty, and also becomes liable to rearrest, but until rearrested no sound reason is perceived for contending that his person is subject to the authority of the magistrate. The magistrate is not supposed to know where he is, he may have left the state or county and thus be beyond the reach of process, or he may be sick or dead; punishment of the offender is the object sought; this end implies that the subject to be punished should be within the power of the tribunal that is to inflict it. The right of a person accused of an offense to appear and defend himself is recognized by section 10 of article 2 of our present constitution. ' “In - any trial in any court the party accused shall be allowed to appear and defend in person or by counsel,” etc.

It may be said that in the case before us the above constitutional provision was not violated because the absence of the accused was voluntary. This conclusion doubtless is sound, and the constitutional provision was invoked not to show that a constitutional right had been violated but merely to show the importance attached by the fundamental law of the state to the right of an accused person to be present when on trial for an offense. It is a right of which he cannot be deprived by any power within the state. That the legislature may authorize a court or magistrate to try, while voluntarily absent, one who has been fully apprised of the nature of the charge against him, may be conceded. And in respect of a certain class of offenses, i. e., misdemeanors, such trial under certain conditions is authorized by section 7301, Revised Statutes. That statute, however, attaches this condition: the person accused must request in writing to be tried in his absence. This provision of itself raises an implication that without his written request one accused of an offense could not be tried in his absence. If this section is not limited in its operation to cases in the court of common pleas or possibly probate court, but should be held to include mayors’ courts as well, and further if the phrase “a misdemeanor” therein used should be held to include an offense committed in violating a village ordinance, nevertheless it would not authorize the action of the plaintiff in error in trying the defendant in error while absent, because to authorize the mayor to try him while thus absent he must have requested in writing to be thus tried. Now,. this was not done. And for this reason, the statute (section 7301) even if otherwise applicable would afford no justification for trying defendant in error in his absence.

Some courts and authorities have contended that the same immunity granted the courts of general jurisdiction for mistakes on passing on questions of their jurisdiction should be extended to magistrates and courts of limited jurisdiction. Still further it has been suggested that as the latter class of officers possess less knowledge of the law, and for that reason are more liable to make mistakes than the judges who preside in courts of general-jurisdiction, they should have a greater immunity, where they act in good faith and free from malice. If in fact any apparent distinction in this respect exists, it g’rows out of the different presumptions that the law indulges in regard to the jurisdiction of the two classes of courts. The presumption in regard to courts of general jurisdiction is that the court has acted within the scope of its jurisdiction, while no such presumption in favor of the jurisdiction of courts of limited jurisdiction is indulged. Cooley on Torts, 487, and Notes 2 and 3. The authorities are quite unanimous in holding- that the acts of any court, whether its jurisdiction is genera], or limited only, is void unless within the scope of its authority. But no discussion of the immunity extended to courts of general jurisdiction for their mistakes is necessary, and it is equally unnecessary to enter upon any extended comparison between the immunity with which the two classes of courts are clothed, i. e., between those of a court of general jurisdiction and those of a court of limited jurisdiction.

We are dealing with a tribunal of the latter class and can indulge no presumption in favor of its jurisdiction, and are constrained to hold that the statutes of Ohio give no power to the plaintiff in error to try the defendant in his absence and that in doing so he exceeded his jurisdiction. We have discovered no case possessing the features of the one before us, but a number of cases having some analogy to it, where an act of a tribunal was held to exceed its jurisdiction are to be found, among them are Knowles v. Davis, 2 Allen (Mass.), 61; Clarke v. May, and Whipple v. Kent et al., 2 Gray (Mass.), 410; Briggs v. Wardwell, 10 Mass., 356; Vanderpool v. State, 34 Ark., 174; Patzack et al. v. Von Gerichten et al., 10 Mo. App., 424; Mitchell v. Foster et al., 12 A. & E., 472.

That tribunals of limited jurisdiction must at their peril keep within their jurisdiction is a rule established in this state by the case of Truesdell v. Combs, 33 Ohio St., 186, where it was held that:

‘£ 1. Justices of the peace, while acting within the scope of their authority, are not answerable in a private action for the erroneous exercise of the judicial functions with which they are invested by law.

££b2. But such justices, and other inferior tribunals, which are invested only with spécial jurisdiction, and clothed with limited authority, must, at their peril, keep within their prescribed jurisdiction; and if they transcend the limits of their authority, they are answerable to anyone whose rights are thereby invaded.

££3. And, in such a case, honesty of purpose, while it may mitigate damages, cannot justify a clear usurpation of power.”

The petition filed in the court of common pleas, we think, shows that plaintiff in error exceeded his jurisdiction by proceeding to try and convict defendant in error while the latter was absent and that the judgment rendered on such conviction was void and afforded no justification for the sub-, sequent imprisonment of defendant in error.

Judgment affw'-med.


source: Caselaw Access Project

author: Spear, C. J.

license: Public Domain

text:
    The Supreme Council Catholic Benevolent Legion v. McGinness. McGinness v. The Supreme Council Catholic Benevolent Legion.

      Beneficial corporation — May not issue benefit certificates to one not dependent on member, when — Petition to recover on certificate, must show plaintiff dependent on deceased member — Lost certificate — New certificate issued with different payees, invalid when.

    1. A beneficial corporation, whose charter provides that its particular business shall be to afford material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a benefit fund, from which, on the death of a member, a sum not exceeding $5,000 shall be paid to the'family or dependents of such member, is not authorized to issue a benefit certificate providing for payment to one not dependent upon such deceased member.
    2. A petition in an action against such a corporation, brought to recover upon a benefit certificate, in which the plaintiff is described simply as a brother of the deceased member, and containing no allegation showing that such brother was, in any way, dependent upon the deceased member, is bad on demurrer, and will not support a judgment.
    3. Where such a corporation has issued a benefit certificate to a member payable upon his decease to his wife, and afterward, acting upon a mistaken belief induced by the representation of the member, that such certificate has been lost, issues and delivers to the member a second certificate for a like amount, payable two-thirds to the wife and one-third to a person who is a brother of the member but not a dependent, such second certificate will be held invalid and the first be given full force and effect.
    (Decided January 31, 1899.)

      Error to the Circuit Court of Cuyahoga county.
    Louisa McGinness, by her petition filed in the common pleas of Cuyahoga county, charged that the defendant, a New York corporation doing business in Ohio, and formed for social, benevolent and intellectual improvement, and to afford moral and material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a beneficial fund from which, on satisfactory evidence of the death of any member who ,shall have complied with all of its lawful requirements, a sum not to exceed $5,000 may be paid to the family or dependents of such member as he shall have directed, did on the first day of March, 1887, for a valuable consideration, execute to Henry F. McGinness, a member, its benefit certificate numbered 11,240, whereby it agreed to pay out of its benefit fund to Louisa McGinness, wife, a sum not exceeding $3,000 according to the provisions of law governing said fund, upon the death of said Henry. Said Henry died on the twenty-fourth of April, 1894. He was then a member in good standing. The plaintiff is the widow, and at the time of the death of Henry was dependent on him for support. Said Henry, in his lifetime, did not substitute any other beneficiary to reduce the amount of the benefit provided for and agreed to be paid. All conditions to be performed by said Henry were performed by him, and plaintiff has made due proof of loss and performed all conditions on her part to be performed. Judgment for $3,000 was prayed for.
    Thereupon the Supreme Council filed an affidavit of interpleader, averring among other things, that on the third day of February, 1894, said Henry made application to defendant to change the beneficiary from Louisa McGinness to Louisa McGinness two-thirds, and John T. McGinness, one-third, pursuant to the laws of defendant. Thereupon defendant reissued said certificate, but by it agreed to pay Louisa McGinness two-thirds, or $2,000, and to John T. McGinness one-third, or $1,000, which was accepted by Henry, and was in full force at his death. Without collusion with defendant, John T. McGinness now makes claim to $1,000 under said policy last mentioned, while plaintiff claims the entire $3,000. That defendant is ignorant of its rights, as between the claimants, but is willing to pay or deposit the $3,000 as the court may direct and offers to do so in order that claimants may interplead.
    Thereupon John T. McGinness appeared for the purpose only of testing the interpleader, and demurred to the affidavit. This demurrer was overruled by the court and John T. took leave to answer. The money was ordered paid into court which was done. At a subsequent term, on motion of John T., the order made as to interpleader was set aside and his demurrer sustained.
    Thereupon the Supreme Council answered, denying that Henry did not substitute any other in the benefit certificate prior to his death, and averring the fact of substitution of John T. as to part of the benefit, as set forth in the affidavit. Averring also that at the time of the reissue of the certificate said Henry represented that his original benefit certificate, issued March 1, 1887, had been lost. A demurrer to this answer was sustained and judgment rendered in favor of Louisa McGinness for $3,000 and costs. The judgment was affirmed by the circuit court.

      Upon being dismissed from the action of Louisa against the Supreme Council, John T. McGinness commenced an action against that defendant upon the reissued certificate No. 11,240, dated' February 3, 1894, giving a copy of the same, and describing himself in the petition as a brother of the deceased Henry, and asking judgment of $1,000.
    A demurrer to this petition having been overruled, the defendant answered, setting up, among other things, that the certificate of incorporation of defendant specifies that its particular business and object shall be, among other things, “to afford moral and material aid to its members and their dependents, by establishing a fund for the relief of sick and disabled members, and a benefit fund from which, on satisfactory evidence of the death of a member who shall have complied with all its lawful requirements, a sum- not exceeding $5,000 shall be paid to the family or dependents of each member as he shall have directed;” that the constitution of defendant has a like provision; that the by-laws provide thart each applicant shall enter upon his application the name or names of the members of his family, or those dependent upon him, to whom he desires his benefit paid, and the same shall be entered in the benefit certificate. A member may at any time, when in good standing, surrender his certificate and have a new one issued payable to such beneficiary or beneficiaries dependent upon him as he may direct.
    On or about the first day of March, 1887, for a valuable consideration, the defendant company did execute and deliver to Henry F. McGinness its benefit certificate, No. 11,240, in and by which the defendant agreed to pay out of its benefit fund to Louisa McGinness, wife of said Henry, a sum of money not exceeding $3,000, according to the provisions of law governing said fund, upon the death of said Henry in good standing. Afterward, on the third day of February, 1894, the said Henry made application to defendant to change the beneficiary named in said policy, No. 11,240, from Louisa McGinness, $3,000, to Louisa McGinness two-thirds, or $2,000, and John T. McGinness one-third, or $1,000 (wife and brother). That by section 3 of the by-laws said Henry was required to surrender his benefit certificate to the defendant for the purpose of reissue; but being unable to find the same he made affidavit that said certificate, No. 11,240, was lost and that he therefore could not surrender it, and upon payment of certificate fee of fifty cents this defendant reissued to said Henry the benefit certificate No. 11,240, a copy of which is attached to plaintiff’s petition, by which defendant agreed to pay to Louisa McGinness two-thirds and John T. McGinness one-third (wife and brother) a sum of money not exceeding $3,000, according to the provisions of law governing said fund upon the death of said member in good standing.
    Defendant further says that plaintiff, John T. McGinness, brother of said Henry, was not on said third day of February, 1894, or at any time subsequent thereto, a. member of the family of said Henry, nor was the said John T. McGinness at said date, or at any time subsequent, a dependent upon the said Henry, all of which was unknown to this defendant on said third day of February, 1894, and at all times subsequent thereto, during the life, of said Henry.
    A demurrer to this answer was, on hearing, sustained, and judgment rendered in favor of plaintiff for $1,102 and costs. The circuit court reversed this judgment and remanded the cause to the court of common pleas with instructions to overrule the demurrer to the answer, and for further proceedings.
    ■ The Supreme Council seeks a reversal of the judgment in favor of Louisa McGinness, and John T. McGinness seeks a reversal of the judgment of the circuit court, and an affirmance of the judgment of the common pleas.

      Meyer & Mooney, for the Supreme Council.

      Blcmdin da Rice, for Louisa McGinness.

      James Fitch, for John T. McGinness.
   Spear, C. J.

The right of Louisa McGinness to the entire fund may be determined by considering first, what are the rights of John T. Mc-Ginness to a portion of it, inasmuch as her claim rests upon the proposition that the second, or reissued certificate, is invalid.

This presents the question whether or not Henry, the husband, had power to substitute one who stood simply in the relation of brother, as the recipient of part of the fund, and whether the Council had power to issue a certificate calling for the payment of any part of the benefit to him. It is to be borne in mind that John T. describes himself in his petition as a brother of the deceased, Henry, and his counsel claims that this brings him within the class designated by the law of the Council, because it is equivalent to an averment that he was of the family of the deceased, while the answer of the Council averred that John was not of the family of Henry, nor a dependent upon him*, and its counsel contends that the bare allegation that John is a brother is wholly insufficient to bring John within the class prescribed by the charter, and to satisfy the requirement of that .clause of the by-laws which limits the payment of benefits to the family or dependents of a deceased member. Their contention in brief is, that, upon the admitted facts, John T. McGinness is not within the class of persons who might be desigmated by Henry as a beneficiary, and that the designation of him as a beneficiary was an invalid act. That therefore the original designation and certificate remain in full force, and they cite State ex rel. v. Central Ohio Mutual B. A., 29 Ohio St., 399; State v. Moore, 38 Ohio St., 7; State v. Standard Life Ass'n, same vol., 281 ; State ex rel. v. Peoples' Mutual B. A., 42 Ohio St., 579; National Mutual Aid Ass'n v. Gonser, 43 Ohio St., 1 ; American Legion of Honor v. Perry, 140 Mass., 580; Daniels v. Pratt, 143 Mass., 216; Skillings v. Mass. Ben. Ass'n, 146 Mass., 217; Northwestern Masonic Aid Ass'n v. Jones, 154 Pa. St., 99; Rockhold v. Canton Masonic Mutual Ben. Society, 129 Ill., 441; Bacon on Beneficial Societies, section 46, and' Niblack’s Mutual Beneficial Societies, section 3.

The question thus presented is not a novel one, nor do we think its solution difficult. This corporation belongs to that class of organizations known as beneficial societies. They are not insurance companies. The benefits secured by membership are intended for the relief of a member when sick, and for his family or dependents at his decease. The term family, it is true, in a broad sense, includes brothers, as it does sisters, and many others in a remoter degree of consanguinity, and is sometimes extended to include a group or succession of persons connected by blood, but it has never been assumed in any of the many cases in which kindred questions have been considered, that the word family, as used in certificates of this character, embraces so extended a circle, nor, indeed, that it could take in persons not dependent upon a member. Applying the familiar maxim of construction, nosoitur a soeiis, the meaning in the present case is made plain. The term “or dependents” immediately follows the word “family.” The language, taken together, imports one who is dependent upon a member for support, as a wife or child, and it will be noted that the declared purpose of the organization, as specified in the charter, is “to afford moral and material aid to its members and their dependents.” This language might, it is true, include a brother, but not necessarily, for it might easily be that the brother himself was the head of a family, and, for aught' that appears, that is true in the present case. To bring a brother within the category of the benefit clause it would be necessary to allege and prove that he was in fact one of the family in such sense as to be, in part at least, dependent upon the member for support. Ballou v. Ghile, 50 Wis., 614. The relationship of brother, standing alone, would be wholly insufficient. The classes of persons to be benefited being designated in the charter, it is clear that the member would be without power to select as a beneficiary one not so designated, and the corporation equally without power to accumulate a fund for persons other than those of the classes so named. To attempt, therefore, to designate one who is neither of the family of the member, nor dependent upon him, being inconsistent with the charter and the laws, was wholly ineffectual to accomplish that purpose. Nor can we assume that the deceased member intended the procuring of the second certificate to operate as a revocation of the first in the event of its invalidity as respects his brother John. It follows that the allegation in the petition which undertakes to describe the relation of the plaintiff to the deceased, when weighed in connection with the allegations of the answer respecting the charter of the council, was insufficient in law, and taking the two pleadings together, it is clear that the plaintiff had no case. The certificate of February 3, 1894, being invalid, and the liability of Council for the whole amount under the first cer1 tificate being admitted, it would follow that the original certificate should be regarded as in force, and that the widow is entitled to the entire fund. There was, therefore, no error in the judgment of the circuit court affirming that of the common pleas in the case of Louisa McGinness against the Supreme Council, and that will be affirmed.

In the other case, the parties having submitted their cause upon the merits as shown by the pleadings, and the law of the case being held by the circuit court against the plaintiff below, there should have been a final judgment against him in that court instead of an order remanding the cause to the common pleas. And now, proceeding here to render such judgment as the circuit court should have rendered, it will be ordered that the petition of John T. McGinness be dismissed at his costs.

It is difficult to discover a reason for the strange action of the common pleas in setting aside the order of interpleader, sustaining the demurrer of John -T. McGinness to the-affidavit, and in effect dismissing him from the case commenced by Louisa against the Council. The ruling is not ground of error here, as no proper exception was preserved, but we are led to notice it lest silence might be misconstrued. It resulted in the prosecution of two suits on the merits in that court, where one was sufficient to determine every real issue, two error proceedings in the circuit court and two in this court, and that, too, after the defendant had shown its readiness to respond to the court’s order by bringing into court the fund in dispute. If the rules of interpleader are not sufficiently comprehensive to avoid such multiplicity, it would seem that they are of little use.


author: By the Court:

text:
    Jashenosky v. Volrath. Wolf & Son v. Volrath.

      Deed by office7■ of court — Dates from day of sale.

    A deed for real estate executed by an officer of a court pursuant to its order confirming a judicial sale previously made takes effect by relation on the day of the sale and vests in the purchaser the right to intermediate rents.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Franklin county.
    The plaintiffs in error were tenants from month to month of one William Volrath, occupying several storerooms on Fourth street in the city of Columbus. Mrs. Volrath brought her separate actions against them for rent for the months of March, April and May, 1894, alleging that William Volrath had assigned to her his claim for the rents for said months. In their answers Jashenosky and Wolf & Son, not denying that they had entered said premises as tenants of William Volrath, alleged that on March 10, 1894, said premises had been sold at judicial sale to the Commercial National Bank of Columbus and that the rents for which the plaintiff had brought her action had been paid by said tenants to the bank as such purchaser. They also denied the validity of the assignment of the claim to Mrs. Volrath. The cases present the same issues and were submitted on the same evidence. As to the liability of the plaintiffs to William Volrath there was an agreed statement of the facts which is in the record submitted to us. As to the validity of the assignment to Mrs. Volrath parol evidence was submitted to the jury. The trial in the common pleas resulted in special verdicts finding that there was not a valid assignment of the claims to Mrs. Volrath, and general verdicts for the defendants. Motions to set aside the verdicts were overruled and the defendants took judgment.
    On petition in error in the circuit court with a bill of exceptions setting out all of the evidence submitted in the court of common pleas, the circuit court, finding that the court of common pleas had erred in the admission of evidence, and that the verdict was not sustained by the evidence, reversed the judgment of the common pleas; and further, regarding the agreed statement of facts as containing all the evidence necessary to a final determination of the rights of the parties, the circuit court rendered final judgments in favor of Mrs. Volrath for the amounts claimed in her petitions.
    The facts agreed upon are that during the tenancy of Jashenosky and Wolf & Son the bank brought suit against William Volrath to bring the premises to sale for the satisfaction of liens thereon; that pursuant to an order of the court made in said cause the premises were sold by the sheriff to the bank March 10, 1894, and the sale being reported on the same day was confirmed May 30, 1894, and deed executed pursuant to the order of confirmation; and that the rent accruing between the dates of the sale and the confirmation thereof had not been paid to the plaintiff or to William Volrath.

      F. F. D. Albert/, for plaintiffs in error.
    We claim that the sale was completed so far as passing title to the real estate is concerned on the tenth day of March, and that the subsequent act of the court in confirming: the sale and ordering the sheriff to make a deed relates back to the date of the sale and payment of the money by the purchaser, and that the purchaser is therefore entitled to the rents. Rorer on Judicial Sales, 2d edition, page 55, section 106 and page 57, sections 108 and 109. Boyd v. Longworth, 11 Ohio, 235; Oviatt v. Brown et al., 14 Ohio, 285.
    We have not been able to find any Ohio cases in which these decisions have been overruled and it would seem as though they were the only cases in which the question at bar had been passed upon by the court. Other cases out of which the principle for which we contend might be deduced by. comparison. Albin v. Riegel, 40 Ohio St., 339; Black v. George, 26 Ohio St., 629.
    Two cases in Missouri seem to throw some light on the point. Winfrey v. Works, 75 Mo., 55; Stevenson v. Hancock, 72 Mo., 612; Williams & Whann Co. v. Cochran et al., 8 Huston Del. Re ports, 420; Taylor v. Cooper, 10 Leigh (Va.), 317; Anderson v. Towgood, 1 Jac. & Walk., 617; Wagner & Marshall v. Cohen, 6 Gill. (Md.), 102; Lannay's Lessee v. Wilson et al., 30 Md., 536.
    A purchaser under a decree in equity becomes the substantial owner of the property from the moment of final ratification of the sale, and he is ■entitled to and can recover the rents and profits of the estate.
    By such sale the dry legal title and the right of possession often become completely severed, at least for a time, the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser. After the decree and before sale the possession of and title to the property are vested in the court. 3 Bland, 60; 6 Gill, 103.
    This must be so for the sale of a trustee is a sale by the court to the purchaser, the trustee being but the agent of the court to make the sale. 6 Gill, 228; 1 Md. Ch. Dec., 241; 11 G. & J., 8; 19 Md., 391; Lathrop v. Nelson, 4 Dill. (U. S.), 194.
    The English doctrine on this subject seems to be supported by the weight of American authority - (Taylor v. Cooper, 10 Leigh, 317; Wagner v. Cohen, 6 Gill. Md., 102), but the decisions are conflicting. Armstrong v. McClure, 4 Heisk. Tenn., 80; re Bledsoe, 12 Bankr. Reg., 402.

      Samuel Bambleton, for defendant in error.
    The denial of ownership in Mrs. Volrath is embodied in the answer of the defendant.
    The denial therein is a negative pregnant. It don’t deny that an assignment of the claim was made, but denies only its validity, and fails to deny the fact of the assignment, and was therefore, insufficient to put Mrs. Volrath upon proof of ownership. Bliss on Code Plead., section 332. Rumbarger v. Stiver, 6 Ohio, 99; Caldwell v. Caldwell,, 45 Ohio St., 512; Maple v. Redwood, 40 Ohio St., 313; Moser v. Jenkins, 5 Ohio, 447.
    The contract of sale is only executed so as to pass the title by payment of the money, and the execution and delivery of the deed, duly approved or confirmed by the court, as the practice may be. Section 128 Revised Statutes.
    From the several provisions of the statute regulating- judicial sales, the rents accruing- between the date of sale and the date of confirmation and delivery of the deed must belong to the judgment debtor.
    After the return of sale is made by the sheriff, the further duties of the officers, and the rights of the parties, are fixed and controlled by the following sections 5398, 5401 and 5402. Curtis v. Norton, 1 Ohio, 278.
    It is also an established law in Ohio, that “where lands subject to a mortgag-e, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree.” Cassilly v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St., 124; Gorrell v. Kelsey, 40 Ohio St., 117; Reed v. Radigan, 42 Ohio St., 292; Trust Co. v. Gibbon, 10 Ohio St., 566.
    In states where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation (which depends upon the sound discretion of the court), is refused, the rights of the purchaser fall to the ground. Taylor v. Gilpin, 3 Met. (Ky.), 544; Hunting v. Walter, 33 Md., 60 ; Rorer on Judicial Sales, section 10; Sowards v. Pritchett, 37 Ill., 517; Fiedeldey v. Diserens, 26 Ohio St., 312.
    In general, it may be stated, as an established proposition of law, that a purchaser at a judicial sale is not entitled to the rents between the date of sale and the date of confirmation and delivery of the deed. 8 Am. & Eng. Ency. of Law, 273, 274, and cases there cited; Glason v. Corley, 5 Sandf. (N. Y.), 447 ; Astor v. Turner, 11 Paige (N. Y.), 436; 43 Am. Enc., 766 and notes; Beckman v. Sikes, 45 Kan., 120; Taliaferro v. Gay, 78 Ky., 496.
   By the Court:

The parol evidence submitted upon the trial is not before us and we must presume that the circuit court correctly held that it afforded no support to the verdict. It follows that the circuit court rightly held that since all material facts were agreed upon, and nothing remained to be done but to apply the law to those facts, such final judgments as those facts required should be rendered by it. The general doctrine relating to the effect of the confirmation of a judicial sale is that it relates .back to the day of sale and passes a title as of that day. The deed executed pursuant to the order of confirmation by relation takes effect as of the day of sale. This is the established doctrine in Ohio. Lessee of Boyd v. Longworth, 11 Ohio, 236; Oviatt v. Brown, 14 Ohio, 286. It was not applied in Black v. George, 26 Ohio St., 629, because by the terms of the sale there considered the purchaser’s right to possession was deferred until the expiration of a current lease. The equity of the rule is manifest because the purchaser cannot escape from the sale because he may think it disadvantageous to him, and he is required to pay interest from the day of sale on so much of the purchase price as he has not actually paid. That the right to the intermediate rents passes to the purchaser as one of the results of confirmation has been held in numerous cases. Winfrey v. Work et al., 75 Mo., 55; Stevenson v. Hancock, 72 Mo., 612; Taylor v. Cooper, 10 Leigh, 317; Wagner et al. v. Cohen, 6 Gill, 97; Lathrop v. Nelson, 4 Dillon, 194.

Judgments of the circuit court reversed and those of the common pleas affirmed.


text:
    Brady, Clerk, and Rugg, Treasurer, v. The State of Ohio.

      Classification of cities — Change of grade or class advancement— Acts of February S and March IS, 1894 — Grade of Newark.

    The city council of the city of Newark not having declared, pursuant to the provisions of section 1549, Revised Statutes, by a two-thirds vote of all its members, that it was expedient to change its grade, it remained a city of the second class, fourth grade, notwithstanding the amendments made to section 1548, Revised Statutes, on February 6, 1894 (91 O. L., 14), and on March 13, 1894 (91 O. L., 58).
    (Decided January 31, 1899.)
    Error to the Circuit Court of Licking county.
    This action was in mandamus, brought in the circuit court of Licking county by the defendant in error, who is a member of the board of elections of the city of Newark, to compel the plaintiff in error as clerk of said city to issue to him a warrant, or order, on the treasurer of the city for his salary as a member of such board of elections, at the rate of $200 per annum, and to require E. T. Rugg, as such treasurer, to pay the order or warrant when issued. The circuit court after overruling a demurrer to the petition awarded the writs of mandamus as prayed for. The case was then brought to this court for review.

      1. B. Fulton, for plaintiff in error.
    The question of the grading and classification of cities, has been before this court several times. 47 Ohio St., 499; 48 Ohio St., 129 ; 9 C. C.Rep., 357; 6 Circ. Dec., 151; 55 Ohio St., 1.
    We take it that the court will find that the sole object of the legislature in amending section 1548 each time it was amended, was for the purpose of adding a new grade, and not for the purpose of grading the other cities of the state, except those which went into the new grade created.
    The rule for the construction of statutes, as we understand it to have been laid down by the court, is, to ascertain the intention of the legislature, and carry it out, and to get at the intention of the legislature in amending a section, the court will look to the cause or necessity of the amendment. 3 Ohio, 553; 1 Ohio, 381.
    Another rule is, that where a section is amended, the amended section must be construed with the rest of the original act, as if it had been enacted at the same time with it. 9 Ohio St., 627; 13 Ohio St., 485; 21 Ohio St., 184-190; 29 Ohio St., 569 ; 52 Ohio St., 419.
    Still another rule is, that a construction which gives effect to every section and clause, must be favored. 1 Ohio, 381-385; 2 Ohio, 395; 17 Ohio St., 52; 3 Ohio, 187; 5 Ohio, 48; 2 Ohio St., 147.

      J. A. Flory, for defendant in error.
    The only question that is made in this case- by plaintiff in error is, did the circuit court err in finding and holding that the city of Newark is a city of the “third grade of the second class,” for it is conceded that if it is, the defendant in error was entitled to the writ of mandamus. It is conceded that the city of Newark had on the first day of July, A. D. 1890, a population of 14,370, as ascertained by the federal census which whs required, and in fact was reported, to the supervisor of census by July 1, 1890, under the United States Statutes of March 1,1890, Sup. to Revised Statutes page 659 of U. S., and as was ascertained by the reports to be made by the state officials which were made in 1890 and each subsequent year since.
    Newark is a city of the third grade of the second class, made such by the action of the iegislature in its classification and grading of cities in Ohio since the taking of the census of 1890.
    This was the ground upon which the circuit court found in favor of the relator as shown by the report thereof. State ex rel. Miller v. Brady, 16 C. C. (Vol. 40, Bul. No. 22) 509; 9 Circ. Dec., 193.
    It must be conceded that the whole scheme of the grading and classification of cities in Ohio is the creature of the legislature, that has no existence outside of the legislative act. State ex rel v. Baker, 55 Ohio St., 1; Hayes v. Cleveland, 55 Ohio St., 123. The act, 88 Ohio laws, pages 160, 161, as far as sections 1546 and 1548 are concerned was again repealed and new sections enacted on February 10, 1892, 89 Ohio Laws, page 18, the new act being as far as the question before the courtis concerned, the same as that of March 23,1891.

      There is no ambiguity in the language of the statute so that the court is required or permitted to go “fishing” after an intention of the legislature. For the first time in these amendments the legislature specifically prescribed the “first day of July, A. D. 1890” as the day on which the city having over ten thousand and under twenty thousand inhabitants should constitute the “third grade.” The grade depending wholly on legislation the city of Newark is a third grade city, or it is nothing at all, as all former acts are wholly repealed providing for grades and nothing is saved except “existing classes.” If it had been the intention of the legislature to preserve the “grade” of the city it could have done so the same as it did the “class,” and not having done so, but having completely wiped out the former grading, and creating by the same act, new ones, the new must be the ones existing or none are existing’.
    By the rapid increase of population large num- . bers of cities had become subject of change from one grade to another. This change if depending •upon the individual action of each city council would produce such uncertainty as to what grade each city belonged to, that it would require a specific search to be made in the records of each council to ascertain what action, if any, had been taken so as to ascertain what grade that particular city belonged to, and even then subject to mistake, so that it became almost an impossibility to ascertain to what grade the particular city belonged. Gross ununiformity and inequality existed everywhere.
    To remedy all this uncertainty and inequality in the language of this court in the Baker case, 55 Ohio St., 9, “the general assembly to meet the new conditions and wants of the cities, adopted a new classification (and grading’), by which the population necessary to each class (here grade) were divided into grades also based upon population, ” by the enactment of these several amendments of sections 1546 and 1548. Mc Cormick v. Alexander, 2 Ohio, 74, 4 Ohio St., 585; Bower v. Hunt, 18 Ohio St., 241; Woodworth v. State, 26 Ohio St., 198; Endlick on Con. and Intp. of Statutes; section 23, Endlick on Stat. Con. and Int., sections 5, 6, 7, 8 and 9. Mc Cormick v. Alexander, 2 Ohio, 73; Bloom v. Richards, 2 Ohio St., 402.
    Now the census and report having ascertained the population, in order to keep a city from becoming the grade which its population then made it under existing laws occupy, it was necessary for the city council to take affirmative action as was done by the city of Cleveland as shown in the Hayes case, 55 Ohio St.. 120, by declaring it “inexpedient” that it should pass to another grade. (There is a mistake in the report, 55 Ohio St., 120, the word should be “inexpedient” instead of “expedient” as used in the report; see same case, 35 Bui. 379, 380.)
   By the Court:

If the city of Newark is a city of the third grade of the second class then the salary of the plaintiff below, defendant in error here, was $200 per year, and the demurrer was rightfully overruled and the writs of mandamus lawfully awarded. If, however, that city was of the fourth grade of the second class, such salary would have been $50 per annum only and the demurrer to the petition should have been sustained and the writs of mandamus denied. By the census of 1890 the city of Newark had a population of 14,370 which was large enough to entitle it to become a city of the third grade of the second class, for by the terms of section 1548, Revised Statutes, any city having more than 10,000 inhabitants and less than 20,000 is eligible to become a city of that class and grade. Newark prior to the census of 1890 had been a city of the fourth grade of the second class. After the census of 1890 had been taken, and its population ascertained to be large enough (14,370) to entitle it to become a city of the third grade of the second class, it took no steps whatever to advance its grade; and if its grade has been advanced that end was accomplished by operation of law alone. According to the provisions of section 1549, Revised Statutes, as that section read before the amendment of April 15, 1892 (89 O. L., 302), the city of Newark by operation of that section alone would have been advanced and become a city of the third grade of the second class on July 1, 1892, unless its council should previously “determine it to be inexpedient.” As section 1549, Revised Statutes, then read it would have been necessary for its council to take action before July 1, 1892, and declare it to be inexpedient to have the city advanced, or the advancement would have been accomplished by section 1549 on that day. The council could, however, have made the declaration and prevented the advancement at any time before July 1, 1892. On April 15, 1892, before the period had thus expired in which the council mig'ht prevent its advancement, section 1549, Revised Statutes, was amended (89 O. L., 302), and the amendment forbid the advancement unless the council should first by a two-thirds vote of all its members declare a change of grade or class to be expedient. This amendment worked a complete chang'e in the policy of law in relation to changing the grades and classes of municipal corporations. Before, the general policy was to have municipal corporation advance or change its grade, etc., by operation of law alone, unless its council should declare it inexpedient to do so, but by the amendment before noted the policy was changed so that municipalities would remain in their existing grades and classes, notwithstanding a change of population, unless the council by a two-thirds vote of all its members should decide to have it changed. It is quite clear, therefore, that on July 1, 1892, the city of Newark did not become a city of the third grade of the second class, and the reason why it did not, was that its city council did not by a two-thirds vote of all its members declare in favor of its advancement.

As the city of Newark did not become a city of the third grade of the second class on the first day of July, 1892, it becomes necessary to determine whether it has been advanced to that grade since. Unless this was accomplished by the amendment made to section 1548, Revised Statutes, on February 6, 1894 (91 O. L., 14), or by the amendment of the same section March 13,1894(91 O. L., 58), the grade of the city remains as it was before and on July 1, 1892. It will be necessary to consider the - statute as last amended only, and as thus amended it reads as follows:

“Existing corporations, organized as cities of the second class, . shall remain such until they become cities of the first class, and their grades and the grades of those which may be or may become cities of the second class shall be determined as follows: Those which, on the first day of July, Á. D. 1890, had, and those which, on the first day of July in any year, have, when ascertained in the way mentioned in section .1547 of the Revised Statutes, more than thirty thousand five hundred, and less than thirty-one thousand five hundred inhabitants, shall constitute the first grade; those which, on the first day of July, A. D. 1890, had, and those which, on the first day of July, in any year, have, when ascertained- in the same way more than twenty thousand and less than thirty thousand five hundred inhabitants, shall constitute the second grade; those which on the first day of July, A. D. 1890, had, and those which, on the first day of J uly, in any year, have, when ascertained in the same way, more than ten thousand and less than twenty thousand inhabitants, shall constitute the third grade; those which, on the first day of July,. A. D. 1890, had more than twenty-eight thousaud and less than thirty-three thousand inhabitants, and those which on the first day of July, in any year, have, when ascertained in the same way, more than twenty-eight thousand and less than thirty-three thousand inhabitants, shall constitute and be the third grade a; those which on the first day of July, 1890, had more than sixteen thousand and less than eighteen thousand inhabitants, shall, on and after the passage of this act, constitute and be, and those which, on the first day of July, in any year, have, when ascertained in the same way., more than sixteen thousand and less than eighteen thousand inhabitants, shall constitute and be the third grade b; and those which on the first day of July, 1890, had, and those which hereafter, on the first day of July, in any year, have less than ten thousand and more than five thousand inhabitants, shall constitute the fourth grade; except that those which, on the first day of July, 1890, had more than eight thousand three hundred and thirty and less than nine thousand and fifty inhabitants, shall, on and after the passage of this act, constitute and be, and those which may hereafter on the first day of J uly, in any year, have, when ascertained in the same way, more than eight thousand three hundred and thirty and less than nine thousand and fifty inhabitants, shall constitute and be the fourth grade a.”

The clause which relates to cities of the third grade of the second class reads as follows : “those which, on the first day of July, A. D. 1890, had, and those which, on the first day of July, in any year, have, when ascertained in the same way, more than ten thousand and less than twenty thousand inhabitants, shall constitute the third grade.” This language is sufficient to place the city of Newark in the third grade of cities of the second class by its own force. But by comparing this language of the section since its amendment with the language it contained before on this subject, it clearly appears that the section as amended contains nothing in as far as it affects the grade of the city of Newark that it did not contain before the amendment was made. Contention is made by the plaintiff in- error that the purpose of the general assembly was simply to create a new grade, to-wit, fourth grade a, which was made appropriate to a certain city, and that it had no purpose to change the grade of any. other city, and that as to every other city than the one for which a new grade was created, the statute should be read and construed as if it had not been amended; and that the samejwords in the amended statute should not be deemed to produce a result •which they had not accomplished originally. And this reasoning is further enforced by reference to section 16 of article 2 of our constitution which requires that when a section is amended the new section must contain the entire section as amended and the old section must be repealed. It is said that the general assembly when it wished to change a statute in any particular, as it was compelled by the constitution to re-write and re-enact the entire section, and repeal the former section, the new section should have the same operation and effect that the former section had except in as far as the language introduced gave to the new section a different effect. This is.a plausible line of argument, and in regard to many statutes might be controlling. But as the classification of municipal corporations is a subject within the exclusive province of the legislature and as it has power to change their classes and grades at any time whenever it deems a change proper, there perhaps is no way more safe or proper to ascertain its intention in this respect than to gather it from a fair construction of the last words it has employed on the subject. The general assembly has authority to reclass and regrade the municipalities of the state whenever it deems such action expedient and in the amendment of March 13, 1894, (91 O. L., 58) having employed language, the natural and ordinary effect of which was to reclassify and regrade them, how can it be asserted that such was not its purpose. But however this may be, the inquiry will not be pursued further, for there is a proviso in section 1549, Revised Statutes, which reads: “Provided, that no municipal corporation shall pass into any other class or grade, under the operation of this section, or the preceding sections, fifteen hundred and forty-seven and fifteen hundred and forty-eight, unless the council shall first have declared, by a vote of two-thirds of all the members therof, that such change of class or grade is expedient.” The declaration of the city council provided for in this proviso is as necessary to enable a municipal corporation to pass from one class or grade into another, since the amendment under discussion was made, as it was before.

Judgment reversed and petition of defendant dismissed.


text:
    Kirk v. Stevenson.

      Affidavit for attachment that property not exempt — Traversed by affidavit of defendant — Burden of proof — Motion to discharge attachment — Section 6522, Revised Statutes.

    1. Where the averment in an affidavit for attachment before a justice of the peace that the property about to be attached is not exempt from execution is traversed by the affidavit of defendant, and it is shown circumstantially by such affidavit that the property is exempt, the burden is on the plaintiff to maintain the truth of the statement by other evidence, and where no such additional evidence is offered the attachment should be discharged.
    2 Notice of a motion to discharge an attachment given the plaintiff by the defendant the day after the attachment is levied, and before judgment, is reasonable notice within the meaning of section 6522, Revised Statutes. And it is error, in such case, for the justice to overrule the motion for want of sufficient notice.
    (Decided January 31, 1899.)
    Error, to the .Circuit Court of Crawford county.
    Henry Stevenson commenced his action November 29, 1895, against Albert Kirk before a justice of the peace of Crawford county, to recover for money claimed to have been paid by'him as- surety for Kirk, and filed an affidavit for attachment in which it was stated that the property about to be attached is not personal earnings of defendant fob services rendered within three months, and is not exempt from execution, and that defendant is about to remove his property, or a part thereof, out of the county with intent to defraud his creditors, etc., etc. An order of attachment issued which was served December 2d, by attaching sundry articles of property, which were valued by the appraisers at $415.10. On the third day of December, at the time set for trial, but beforé the trial commenced, the parties being present, the defendant orally moved to discharge the attachment as to all the property attached, on the ground that said property is exempt, and thereupon filed a written motion and affidavit representing that he was a farmer, the head of a family, and not the owner of a homestead, and claimed a portion of the chattels attached as exempted absolutely and others by selection then and there made as tools and implements necessary for carrying on his business. Objection to a hearing of the motion was made by plaintiff for the reason that he has no notice and no time to prepare affidavits and other testimony to support the attachment. No continuance was asked by either party. Thereupon the justice overruled the motion on the ground that defendant did not give plaintiff notice of the motion as required by law, and that the demand for exemption was not made to the proper person.
    On error to the common pleas the ruling of the justice was reversed. The court found, also, from the affidavits, that Stevenson was not and is not entitled to hold the property attached, and that Kirk was and is entitled to the possession,of the same as his exemption aforesaid, and that said property was and is exempt from attachment and execution, and there being no evidence whatever to sustain said attachment upon said property as aforesaid, it is therefore ordered, adjudged and decreed that said order of attachment be and the same is hereby discharged as to all of said property so attached as aforesaid, and said Kirk is restored to right of possession of said property and to all rights in connection therewith of which he was deprived by reason of said attachment and the orders and judgments of said justice. This judgment was reversed by the circuit court.

      Edward Volrath, for plaintiff in error.

      Charles Qallinger, for defendant in error.
   By the Court:

The justice of the peace mistook his dutv. The notice given was a reasonable one considering that the attachment was served only the day before, and the motion, being interposed before judgment, was in abundant time. Section 6522, Revised Statutes. If the plaintiff desired to support his claim as to the attachment by further proof he should have asked a continuance. Swan’s Treatise, 442.

The affidavit of defendant traversed completely one essential ground of attachment made by the affidavit of plaintiff, and, as found by the common pleas, left no evidence whatever to sustain the attachment. Seville v. Wagner, 46 Ohio St., 52. Nor was the demand made of the wrong person. The justice had jurisdiction to entertain and dispose of the contention.

The common pleas properly reversed the order of the justice and discharged the attachment, and in reversing that judgment the circuit court erred.

Reversed.


text:
    Sheaff et al. Exrs. v. Williams et al. Exrs.

      Jurisdiction oj Supreme Court in error — Necessary facts should appear in petition or record — Allegations required when the decision is contrary to any circuit court, and not in accord with Supreme Court — Section 6710 Revised Stattites — Act of April 25, 1898 — Supreme Court practice.

    1. When a petition in error and the required transcript of the récord to be reviewed are filed in this court the facts necessary to show the jurisdiction of the court under section 6710, Revised Statutes, as amended April 25, 1898 (93 O. L., 255), should appear, either in the petition or the record ; and when the ground of the jurisdiction is that “the decision is contrary to that of any circuit court and not in accord with the previous decision of the Supreme Court,” the fact of a contrary decision by a circuit court, not appearing in the record should be alleged in the petition in error with such definiteness as to advise court and counsel of the conflict of decision upon which the plaintiff in error relies.
    2. To bring a case within this ground of jurisdiction it must appear that upon a question presented by the record a contrary decision has been made by some circuit court, and it is not sufficient that by a process of reasoning inconsistency between the decisions may be made to appear.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Clark county.
    On motion to dismiss petition in error.
    On the twenty-eighth of July, 1896, the defendants in error filed their petition in the court of common pleas (the cause having come into that court by appeal) against the plaintiffs in error to recover a sum less than $360 on a promissory note. At the January term 1898, after the taking effect of the act of April 25, 1898, to amend section 6710 of the Revised Statutes, final judgment was rendered in the court of common pleas in favor of the plaintiffs. May 16,1898, a petition in error was filed in the circuit court by Sheaff and others, executors, on consideration of which the judgment of the court of common pleas was affirmed. On the sixth of December, 1898, a petition in error was filed in this court for the reversal of the judgments of the circuit and common pleas courts. The first, second, third and fourth assignments of error in the petition filed here relate to the rulings and decisions of the court of common pleas. The fifth and sixth assignments are: “5. Said circuit court erred in affirming’ said judgment of the common pleas court. 6. That the decision of said court is not in accord with the previous decision of the Supreme Court. ” A motion is interposed by the defendants in error to dismiss the petition in error for want of jurisdiction under the act referred to.

      J. K. Mower, for the motion.

      D. F. Beinoehl, contra.

   By the Court:

Counsel for the plaintiffs in error concedes that the case is governed by the provisions of .the act referred to (93 O. L., 255) but claims that although there is not “involved exclusive of interest and costs the sum or value of more than’ ’ $300 this court has jurisdiction because, as stated in his brief, ‘ ‘the decision of the court below is contrary to the decision of another circuit court and not in accordance with decisions of this court. ’ ’ When a petition in error is filed in this court with the required transcript of the record to be reviewed, they should exhibit the facts upon which the jurisdiction of this court depends. Such facts will usually appear from the transcript itself showing that the controversy involves more than $300, or that the subject of the action was of such a nature as to make it re viewable here. But when the jurisdiction of this court attaches because in the language of the statute it is a “case * * * in which the decision is contrary to that of any circuit court and not in accord with the previous decision of the Supreme Court” such facts, since they do not appear in the record, should be alleged in the petition in error with such definiteness as to inform the court and opposite counsel of the conflict of decisions claimed. This petition in error does not allege that there has been such contrary decision of any circuit court.

The manner in which counsel in his brief seeks to make such conflict apparent seems also to imply a misunderstanding of this particular provision of the statute. Obviously it is intended to secure uniformity of adjudication by providing for the submission to this court of the causes depending upon questions with respect to which opposite conclusions have been reached by different circuit courts. To bring a case within this ground of our jurisdiction it is not sufficient to show by a process of reasoning that the judgment to be reviewed is inconsistent, merely, with a decision of another circuit court. The requirment of the statute is that it shall be “contrary to” such decision, and its meaning is that opposite conclusions must have been reached in the circuit court upon the same question. Motion sustained.


author: Shauck, J.

text:
    Mathews et al. v. Krisher et al.

      Statute of descents operates on all intestate property.

    The statute of descents operates upon all intestate property, and the course which it indicates can be changed only by a testamentary disposition.
    (Decided February 4, 1899.)
    Error to the Circuit Court of Hardin county.
    Mathews and numerous other plaintiffs brought suit in .the court of common pleas, against MrKrisher and numerous other defendants, the material parts of their petition being as follows:
    Plaintiffs allege for their cause of action herein*
    That Smiley Mathews, a resident of Hardin county, state of Ohio, died testate on or about the eighteenth day of February, A. D. 1868; that he died seized in fee simple of the following described real estate, situated in Cessna township, Hardin county, state of Ohio, and being more particularly described as follows, to-wit: (Particular description.)
    The said Smiley Mathews, on the first day of February, A. D. 1868, duly made, executed, published and declared his last will and testament, the following of which is a true copy, as follows, viz.:
    Item 1st. It is my will that my just debts and all charges be paid out of my estate. I give and devise my beloved wife, as her dower, all my real estate, and all my chattel property, moneys and credits, as long as she shall live.
    On the fourth day of March, 1868, the aforesaid will was duly admitted to probate and recorded in the Record of Wills, in the Records of the Probate Court, Kenton, Hardin county, Ohio, as provided by law.
    The said testator left his widow, Phebe Mathews, surviving him; said widow died on the second day of February, 1895; said testator, by the provisions and terms of his said last will and testament, limited his widow, Phebe Mathews, aforesaid to a life estate in all his property, both real and personal; said widow occupied, enjoyed and had the exclusive possession and use of said lands and tenements, herein before described, and of which her husband, Smiley Mathews, died seized from the date of the death of her said husband, the aforesaid testator, until the date of her death. No ' dower was assigned to her as such widow in said lands and tenements.
    Plaintiffs allege that said testator, Smiley Mathews, died leaving no heirs of his body begotten, neither the representative of such heirs, who might by any possibility inherit the aforesaid real estate.
    But said testator, Smiley Mathews, did leave surviving him the following named persons, who are his next of kin by consanguinity and entitled to inherit from said Smiley Mathev s, deceased, and are the owners in fee simple by such inheritance, of said lands above described, and of which said Smiley Mathews dies seized, and that said persons hereafter named, are entitled to the immediate possession of said l'ands and tenements by .reason of such inheritance and the death of said widow, subject, however, to the cost of administration which may yet accrue in the due course of settlement of said estate.
    (Then follow averments as to the interests or shares of the several plaintiffs.)

      Plaintiffs further allege that the above named defendants, Emily Wetherill and Jennie M. Krisher, together with her husband, Milton E. Krisher, who resides in Hardin county, Ohio, claim some interest in said lands of which the testator, Smiley Mathews, died siezed; that the nature of said claim, and the facts constituting the same, are to plaintiffs, not sufficiently known in order that they may be set forth the same in this petition, as contemplated by law.
    That on the nineteenth day of August, 1895, the defendant, William J. Mathews, was duly appointed and qualified as administrator de bonis non with the will annexed, of the estate of said Smiley Mathews, deceased, and entered upon the discharge of his duties pertaining to said trust,
    Wherefore, plaintiffs pray that summons issue to said defendants, and that they be required to answer and set up their claim and interest and facts constituting the same, in or to said lands or be forever barred from prosecuting or enjoying the same.
    Plaintiff further allege that the said defendants, Emily Wetherill and Jennie M. Krisher, with her husband, Milton, E. Krisher, have had possession of said lands since the death of the widow of said Smiley Mathews, as aforesaid, without the consent of these plaintiffs.
    Wherefore, said plaintiffs pray a judgment of ouster against said defendants, and that possession be decreed to plaintiffs.
    Plaintiffs further pray that a summons issue to William J. Mathews, the administrator de bonis non, with the will annexed, of the estate of said Smiley Mathews, deceased;'that he be required to answer and set up the amount of personal property in Ms possession, or that may be available to pay the aforesaid legacies, costs of administration, etc.; and that due and legal notice to be given to all other defendants of the pendency of this cause as contemplated by law and mentioned in this petition.
    Plaintiffs pray for partition of said lands and tenements, and that their interests be set off to them in severalty, or if that cannot be done without manifest injury, that such proceedings may be had as are authorized by law.
    General demurrers interposed to this petition were sustained and the plaintiffs not desiring to plead further the petition was dismissed at their, costs. In the circuit court the judgment of the common pleas was affirmed.

      W. D. Mathews; Derr da Corbett and Charles C. lemert, for plaintiffs in error.
    The plaintiffs contend:
    1. That the testator by his said will created all his property, real and personal, into a dower estate, a limited estate; and again by words of express limitation limited the same to her for the period of her own life. Not by mere words of exclusion, but by the creation of an interest. Crane v. Doty's Exrs., 1 Ohio St., 279.
    2. That all of said estate having been created into a dower estate and being limited to her for and during the period of her own life, no estate of inheritance ever vested in her, nor could she convey a greater estate than she herself had. ■
    Conveyance of fee by life tenant will only carry a life estate. Carpenter v. Denoon, 29 Ohio St., 379.
    3. That all the interest of said testator having by the terms of said will been created into a dower estate and limited to her during her own life, there was no interest or estate remaining belonging to said testator which she as his widow could inherit during her life.
    4. That by the rules of inheritance in Ohio it is necessary that the person inheriting real property should be in being at the time of such inheritance, otherwise no fee or other property rights can vest in that person after having departed this life.
    5. That by reason of such limitation and the fact that the said testator left no children nor their representatives, the remainder or fee immediately vested in the brothers and sisters of said testator and their representatives at the time of his death subject to the testamentary dower estate of the widow and the legacies bequeathed by said testator. Jones et al. v. Robinson et al.. 17 Ohio St., 180.
    The interests or estate of the widow having been defined and limited by the will, the- statutes of descent must fix the persons who have the next expectant estate therein. Section 4159, Revised Statutes.
    6. As to what the plaintiffs mean by the limitation of an estate, we respectfully refer the court to that old but substantial and reliable authority: —Sharswoods Blackstones Commentaries, 1 vol., p. 513, sec. 155; Hopkins on Real Property, page 127.
    A limitation determines the estate vpsofaeto, without entry it is conclusive of the time of continuance and of the extent of the estate granted and beyond which it is declared at its creation not to be continued. Williard on Real Property, page 520-102.
    Words in a will are to be understood according to their ordinary, natural and legal sig-nificance unless it is manifest from the context or from other provisions in the will that the testator has used them in a different sense and unless the sense in which they were used is clearly apparent. 32 Ohio St., 1; Bradhurst v. Bradhurst, 1 Page, 331; Rathbone v. Dyckman, 3 Page, 9; Kingsland v. Rapely, 3 Edw., 1; 25 Ohio St., 477; Williard on Real Property, page 48; 17 Ind., 74; Townsends Exrs. v. Townsend et al., 25 Ohio St., 487; Weston v. Weston, 38 Ohio St., 478.
    Technical words must be construed in a technical sense and should have their strict technical meaning unless it appears that the testator used them in some other and secondary sense. Howe v. Fuller, 19 Ohio, 56.
    Are not then the words “All my real property” and “All my personal property moneys and credit” given as dower sufficient to limit the widow to a life estate in that property? Especially where such appears to be the intention of the testator by the use of the words, as long “as she shall live.” Piatt v. Sinton et al., 37 Ohio St., 353. As to what will pass fee. 6 Ohio St., 481.
    And the rule of law is, that when there is nothing in a devise from which a fee can be raised by implication, the devise takes only a life estate. Jackson v. Embler, 14 John’s 198; Witherspoon v. Dunlap, 1 McCord, 546; Gray v. Parker, 4 Watts, R. S., 17; Jackson v. Wells, 9 John’s, 222; Wheaton v. Andres, 23 Wend., 452.
    And this is the rule in Ohio. Gilpin v. Williams et al., 17 Ohio St., 396; Gilpin and wife v. Williams, 25 Ohio St., 283; Bashere v. McKinzie, 8 O. C. C., 682; 3 C. D., 679; 3 O. C. C., 152;2 C. D., 87; Hulse v. Hulse, 1 Cir. Ct. Rep., 362; 1 C. D., 202.

      Affirmed by the Supreme Court of Ohio, 20 W. L. Bull., 353; Davis et al. v. Corwin, et al., 25 Ohio St., 675; Colston v. Bishop, 1 C. C., 460; Hamilton county, 1 C. D., 257.
    In construing wills it is a universal rule that they are to be expounded favorable and according to the intention of the devisor. When this intention can be ascertained it shall prevail however defectively it may be expressed. Deckers Exrs. v. Deckers Exrs., 3 Ohio, 157.
    The cardinal rule in the construction of a.will is that it must be so construed as to carry into the effect, the meaning and intent as expressed in the instrument unless there be some statutory or technical rule preventiug it. Shaw v. Howard, 18 Ohio St., 227; Bane v. Wick, 19 Ohio, 328.
    The one having the next subsequent expectant estate or interest is the heir in this ease appointed by statute. The interests of the widow being-limited by the will. Jones v. Loyd, 33 Ohio St., 572; Lathrop et al. v. Young et al., 25 Ohio St., 463; 37 Ohio St., 468.
    In the construction of a will the intention of the testator must govern in all eases and the whole will must be construed together; the words and language used in the will; what the testator has said; his surroundings; the objects of his bounty, etc., may be taken into consideration. The intent governs no matter how defectively expressed.
    A will is a picture of a man’s kind. Brasher v. Marsh, 15 Ohio St., 108; Starlings Exrs. v. Price; 16 Ohio St., 29. Redfield on Wills, 2 Vol., page 409; Carter v. Reddish et al., 32 Ohio St. 1; Stokes v. Stokes, 12 Bull., 135; Clark v. Linch, 46 Barb., 68.
    So the plaintiffs contend in the case at bar must appear from the will that the testator intended the widow to have more else she can only hold her life estate.
    The intention of the testator is to be gathered from the phraseology of the will itself and to arrive at this intention it is necessary to look into the entire instrument. Edwards v. Rainers Exrs., 17 Ohio St., 597; Williams v. Veach, 17 Ohio St., 171; Beckwith v. Moore, 14 Ohio St., 121; Bowen v. Bowen, 34 Ohio St., 180; Hibbs v. Insurance Co., 40 Ohio St., 556; Williams Lessees v. Veach, 17 Ohio St., 171; King v. Beach, 15 Ohio St., 550.
    A gift to a wife for and during- her natural life to have and to hold and dispose of as she may choose without any provision as to the remainder created only a life estate. 68 Ind., 483; 53 Ind., 267.
    And the same is true where she is given power to dispose of it at her pleasure, at her death. 47 Ind., 425; American Report, 709; 43 Ind., 310; 83 Ky., 333; 15 B. Mon., 383.
    “The balance of my estate I wholly leave to my wife and to be disposed of by her and divided among my children at her discretion” was held to create a life estate only in the wife. 1 Met., 677; 21 Ohio St., 527; 23 Ohio St., 198.
    When the life estate created by the will and the fee begins (by descent) in the same person at the same instant there is no merger; nor take place when there is reason for keeping it separate. Cresfield v. Storr, 36 Maryland, 480, vol., 11; Phelps Exrs. v. Pond, 23 N. Y. Ct. of Appeals, Smith 9, page 62; Areson v. Areson, 3 Den., 458 rev’g, 5 Hill, 410; Vanderwerker v. Vanderwerker, 7 Barb., 221; Hawley v. James, 16 Wend., 61.
    Plaintiffs further contend, that by said election uin pais” the widow elected to take the provisions of the will with its limitations in addition to her statutory dower; and those claiming under her are estopped from denying- her election to take under the will with its limitations. Baxter, Admr., etc., v. Bower, et al., 19 Ohio St., 490; Thompson v. Hoop, 6 Ohio St., 480; Stockton v. Wooley et al., 20 Ohio St., 184; Fritz v. Fritz, 16 Ohio St., 218; Carder v. Commissioners, 16 Ohio St.
    Remainder men owning no interest in life estate, cannot maintain partition. Elrod v. Bass, 13 Bulletin, 463; 1 C. C. R., 38; 1 Circ. Dec., 23.
    And remainder men must be in possession or entitled to immediate possession, which could not exist so long as this estate for years was in existence, consequently an action for partition would not lie. Hence the motion for leave to file petition was overruled. Fabler v. Wiseman, 2 Ohio St., 207; Davison v. Wolf, 9 Ohio, 73; Morgan v. Staley, 11 Ohio, 389.
    So that no question of law could have been decided affecting the case at bar or the rights of these plaintiffs. The plaintiffs not being in possession, •nor having- the immediate right to possession could not maintain an action for partition.
    Brief of Henry J. May, for Jennie M. Krisher, defendant in error.
    We do not deem it necessary to submit a long brief in this case, for the one question presented is so simple and has been so well settled, that it would be presumptious for us to do so.
    The petition is silent as to whether the real estate claimed by the plaintiff, was an estate by purchase or otherwise, so that the court will have to make a guess and you are as liable to guess wrong as right, hence construing the petition most strongly against the pleader, you will guess it an estate by purchase.
    The widow of the decedent Smiley Mathews, would under section 4169, take the estate in fee simple, unless by the will of the testator it should go elsewhere.
    The will did not name any one to take the remainder and having failed to name some one to take the fee simple, the law carried it to the widow.
    The widow having acquired title under the law, the brothers and sisters of the decedent have no claim whatever. 1 Ohio St., 279; 1 Jar men, 315.
    This rule has been adopted as the law in Ohio. Bane v. Wick, 19 Ohio, 333; Gilpin v. Williams, 17 Ohio St., 396; 52 Penn. St., 269; 91 American Dec., 156.
    The legal heir can.only be disinherited by express devise or necessary implication so strong that a contrary intention can not be supposed.
    Intent to disinherit an heir is essential to raise' an estate by implication, the presumption being, in absence of plain words in the will to the contrary, that the testator intended that his property should go in the legal channel of descent and distribution. 56 American Dec., 451; 2 Cowd., 657; 2 Wend., 13; Ingraham v. Fraly, 15 Ga., 169; 3 Ind., 444; 44 Am. Dec., 241; 27 Am. Dec., 590.
    Brief of Thomas G. Mahon and Thomas B. Black, for Emily Wetherill, defendant in error.
    The question raised by the demurrers to the original petition of plaintiffs in error is, in our .opinion, simply a question that can be settled by applying to it section 4159 of the Revised Statutes, under which the widow of the decedent, Smiley Mathews, would become the owner of said lands in fee simple, unless by his will the title thereto was vested in some other person or persons. Weston v. Weston, 38 Ohio St., 473.
    Where a life estate only is devised the fee descends and becomes vested in the heir at law upon the death of the testator. 119 Ind., 525; 22 N. E. Rep., 4.
    Where the will contains no special provisions on the subject, the land of the deceased testator descends to his heirs. Brush v. Ware, 15 Pet., 93.
    That part of the estate of a testator, not disposed of by his will, when he dies without issue, descends to his widow. 13 Ohio St., 426.
    By the will of Smiley Mathews he gave to his widow in lieu of her dower in said premises, an estate during her natural life and as to the remainder therein he died intestate, leaving said remainder undevised to pass and vest under our Statutes of Descent, and we are of the opinion that as to said land, his will is wholly inoperative, for the reason that an heir shall not take by devise when he may take the same estate in land by descent. Barnitz v. Casey, 7 Cranch, 456.
    The widow of Smiley Mathews inherited more than a life estate in this land, the whole estate was vested in her by statute at his death. Bane v. Wick, 14 Ohio St., 508.
    We contend as follows:
    First — That Smiley Mathews, dying- without issue, left his widow as his only heir at law.
    Second — That as to an estate devised to her for and during her natural life he died testate; as to the remainder in said premises, he died intestate.
    Third — That upon his death said remainder was cast upon and vested in his widow.

      Fourth — That as to said remainder in said,premises there is no part of said Smiley Mathews’ will that the court is called upon to construe for the reason that the testator has made no reference to said remainder, nor attempted to dispose of it.
    Fifth — That the title to said premises never vested in plaintiffs in error and that consequently they have no right to partition thereof, against a person or persons in possession of said premises.
   Shauck, J.

The view presented on behalf of the plaintiffs, briefly stated, is that since Smiley Mathews devised the lands in question to his wife “as her dower” to be held by her “as long as she shall live,” making no further disposition thereof, he died intestate ah to the estate in remainder, and that these terms of the will limited her interest to an estate for life notwithstanding the provisions of section 4159 of the Revised Statutes; and that, therefore, the estate in remainder passed to them as “his next of kin by consanguinity.” The petition alleges that “Smiley Mathews died leaving no heir of his body begotten nor representative of such heir.” By not alleging that his estate in these lands was ancestral, it admits that he acquired them by purchase. Sections 4158, et seq. of the Revised Statutes provide for the descent of real estate in cases of intestacy. The pertinent provisions of section 4159 are: “If the estate came not by descent, devise or deed of gift it shall descend and pass as follows:

First, to the children of the intestate and their legal representatives;

Second, if there are no children or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate;

Third, if such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ”

This statute was in force when Smiley Mathews died. His estate in these lands, not having come to him by descent, devise or deed of gift, and he having died without children or their legal representatives, their descent as to any intestate interest therein was, by the second paragraph of the section, cast upon his wife. From the fact that it was not in force when his will was executed, it may be conjectured that he did not then intend that she should take more than a life estate in the lands. But it cannot be assumed against the terms of the will and the statute operating’ upon the lands at the time of his death that, if such was his intention, it remained unchanged. By its terms the statute operates in every case “when a person dies intestate having title or right to any real estate or inheritance in this state,” and there is no presumption of more obvious force or propriety than that the testator had knowledge of the change in the statute and acquiesced in the larger provision which it made for his wife. The comprehensive language in which the statute is made applicable to all cases of intestacy compels the acceptance of the rule, generally recognized, that the heir at law can be disinherited only by a devise of the property to another. Denn ex dem. v. Gaskin, 2 Cowper, 329; Crane et al. v. Doty et al., 1 Ohio St., 279.

Jicdgrnent affirmed.