text:
    Rock v. Monarch Building Company et al.

      Ancillary to lease of land — Lessee gives bond for erection of building —No time named for erection of building — Stipulation must be performed in reasonable time — Suit by lessor for default of lessee — No defense to suit on bond, when.

    1. Where, as ancillary to a lease of land, the lessee has given a bond stipulating that he will erect upon the premises a building of a certain named value, which building is to be the property of the lessee at the end of the term, and no time is named in the bond or lease for the erection of such building, the stipulation is to be performed with, i a reasonable time, and a failure to so perform will be a breach of the bond.
    2. The fact in such case that the lessor has, after a reasonable time has expired for the erection of such building, prosecuted to judgment a claim for forfeiture of the lease because of non-payment of stipulated rent, does not constitute a defense to a suit by him upon the bond.
    (No. 13047
    Decided December 17, 1912.)
    Error to the Circuit Court of Cuyahoga county.
    Action was brought in the court of common pleas of Cuyahoga by the plaintiff in error, John Rock, against the defendants in error, The Monarch Building Company and The National Surety Company, to recover upon a certain bond executed November 13, 1905, by the defendants in error to the plaintiff in error in the sum of five thousand dollars, by the Building Company as principal and the Surety Company as surety, given to secure the due performance by the Building Company of the stipulations of a lease of certain lands in Cleveland, Ohio, executed by Rock to the Building Company and to run for the period of ninety-nine years.
    Issue was taken by answers and replies, and trial of the cause entered upon to a jury, when the defendants interposed a motion to the court for judgment in their favor on the pleadings, and the cause was submitted to the court on an amended petition, answers and replies. On consideration, this motion was sustained and final judgment in favor of defendants and against plaintiff, dismissing his amended petition, was entered. This judgment was affirmed by the circuit court. Plaintiff in error asks a reversal of the judgments and for judgment here.

      Messrs. Ong, Thayer & Mansfield, for plaintiff in error.
    Numerous cases hold that, where at the end of the term the constructions required by the lease are to become the property of the lessor, the lessee has the full term in which to make them; that in such instances the forfeiture of the lease on any other grounds, as the failure to pay rents, will be held to terminate the contract as to such constructions. 1 Tiffany on Landlord and Tenant, Sec. 117; Palethorp v. Bergner, 52 Pa. St., 149.
    The authorities are to the effect that claims fon rentals, or breaches which mature after forfeiture, are cut off thereby; but all rents, and damages growing out of breaches of covenants, which have accrued prior to the forfeiture, still remain. 2 Wood on Landlord and Tenant (2 ed.), Sec. 513; 24 Cyc., 1359; Stewart v. Herron, 77 Ohio St., 147; 2 Page on Contracts, Secs. 1154, 1155.

      Messrs. Kline, Tolies & Morley; Messrs. How-land, Moifet & Niman and Mr. PI. O. Yoder, for defendants in error.
    The bond and the lease must be construed together. 2 Page on Contracts, 1736; Thayer v. Luce, 22 Ohio St., 74; Stacey v. Randall, 17 Ill., 467.
    The present case comes within a special rule of the law of landlord and tenant, that when a lessee agrees to make improvements upon the leased premises, no time being mentioned for the completion of the improvements, the lessee has the full term of the lease within which to complete the improvements. 24 Cyc., 1101; Jones on Landlord and Tenant, 404; 1 Tiffany on Landlord and Tenant, 774; Palethorp v. Bergner, 52 Pa. St., 149; Colhoun & Cowan v. Wilson, 27 Gratt. (68 Va.), 639; Chipman v. Emeric, 5 Cal., 49, 63 Am. Dec., 80; Givens v. Caudle, 34 La. An., 1025; Mortimer et al. v. Hannah, 82 Miss., 645, 35 So. Rep., 159; Gates v. Hendrick, 54 Hun (N. Y.), 92.

      The plaintiff has altered the surety’s risk and the latter is therefore discharged. Trustees of Sec. I6 v. Miller, 3 Ohio, 261; Johnson v. Flint, 34 Ala., 673; Benton v. Burbank, 54 N. H., 583.
    The bond was not a security against forfeiture. Lint v. Curtis, 24 C. C., 592; 2 Tiffany on Landlord and Tenant, 1707; Lawrence v. Knight, 11 Cal., 298, 70 Am. Dec., 729; Finkelmeier v. Bates, 92 N. Y., 172; Glaser v. Cumisky, 40 N. Y. St. Rep., 872, 16 N. Y. Supp., 89; Kutter v. Smith, 2 Wall., 491; Myres v. Parker, 6 Ohio St., 501; C. H. V. & T. Ry. Co. v. Burke, 54 Ohio St., 128.
   Spear, J.

An analysis of the pleadings, together with concessions and uncontradicted statements on oral argument in this court, shows this kind of a case: John Rock, being at the time the owner of a parcel of land situate on Woodland avenue and Kinsman street, in the city of Cleveland, on November 4, 1905, by a duly executed lease, leased the same unto the Building Company, a corporation, for ninety-nine years from and after December 31, 1905, the lease providing for the payment of specified rentals, and the doing of other things, including also the right to construct buildings and make other improvements upon the premises, which buildings and improvements, at the end of the term, if the provisions thereof had been fully complied with, should belong to the lessee, but in case of failure of said Company to comply with said provisions, the lease might be forfeited and terminated, and thereupon said premises and all said buildings and improvements should become the property of the lessor, and he would have the right to take and thereafter hold possession of the same. Said lease was not delivered at its date, but was delivered at a time hereinafter stated.

On November 13, 1905, the Building Company as principal and the Surety Company as surety, entered into a written bond or contract with Rock in the sum of five thousand dollars, which bond contained the condition following:

“The condition of this obligation is such that whereas the said The Monarch Building Company has entered into a certain lease of premises owned by said John Rock, located on Woodland avenue and Kinsman street in the city of Cleveland, Ohio, for ninety-nine years from December 31, 1905, a copy of which lease is hereto attached marked' ‘Exhibit A.’; that said The Monarch Building Company, as part consideration for the leasing of said premises, has agreed with the said John Rock to erect upon a part of the premises described in said lease, a building or buildings costing not less than ten thousand ($10,000.00) dollars; this obligation is to become void when such building or buildings are completed ready for occupancy.

“Now, therefore, if said The Monarch Building Company, its successors and assigns, shall cause to be erected at its own expense a building or buildings upon said leased premises costing not less than ten thousand dollars, then this obligation shall be void; otherwise the same shall be and remain in full force and virtue in law.”

The lease is not set out in haec verba in the pleadings, but it seems not to be doubted that while the lease contemplates that the lessee will erect a building or buildings on the premises, yet the lease contained no provision whereby the Building Company obligated itself in terms to erect buildings, the definite obligation in that respect being contained in the bond. The bond, it is to be noted, specifies no time for the erection of a building or buildings. The lease, a copy of which was attached to the bond as Exhibit A., set up in the defendant’s answer, provides that in case the lease is forfeited by reason of the default of the lessee, the buildings are to belong to the lessor, but in case the lease remains in force during the term, the buildings are to enure to the benefit of the lessee either by purchase by the lessor, or, in case of renewal of the lease, to remain the property of the lessee.

On delivery of this bond to the plaintiff, to-wit: November 13, 1905, and as part of the transaction, Rock delivered the lease to The Monarch Building Company, which Company entered into possession of the premises and held the same until the forfeiture of the lease as hereinafter stated.

The Building Company, without any apparent cause, having neglected and failed to erect any building on the premises, the plaintiff, on January 7, 1909, notified the defendants in writing, demanding of them that the building or buildings be forthwith erected in pursuance of the terms of the bond, and that unless a building or buildings should be forthwith erected in pursuance of the terms of the bond, and that unless the same should be commenced on or before February 1, 1909, and thereafter be continued to completion, suit would be commenced on the bond for the recovery of damages and said lease forfeited.

Sometime prior to February 15, 1909, the Building Company having failed' to pay the rental and comply with the terms of the lease relating thereto, an action was commenced by Rock in the court of common pleas against the Building Company and others, praying forfeiture, and on the above date the court adjudged the lease forfeited in so far as the remainder of the term was concerned. Rock went into possession of the premises.

Prior to the beginning of the above action and prior to the judgment forfeiting ■ the lease, the Building Company had become insolvent, and a reasonable time had elapsed for the erection of the building or buildings, but the defendants had wholly failed to erect the same or any part thereof.

Upon this state of the case what should have been the judgment?

The substance of the claim of plaintiff in error is that by the terms of the bond, the obligation imposed upon the Building Company was to erect the buildings within a reasonable time, and the failure so to do, and the failure of the lessee to pay rent, worked a breach of the bond and justified a forfeiture of the lease.

The substance of the claim of defendants in error is that there was no default of the bond by reason of the failure to erect the buildings because the lessee.had the full term within which to perform; that the plaintiff had himself altered the surety’s risk and the surety is therefore discharged; that the bond was not a security against forfeiture; and these propositions seem to have met with the approval of the circuit court and to have been the basis of its judgment.

The question, therefore, is, did the lessee have to the end of the term to erect the buildings, and also did the forfeiture of the lease procured by the plaintiff itself absolve the surety of its liability on the bond?

The fact that the buildings, the subject of controversy, were, at the expiration of the term, (the lease and bond still being in force), to be' and remain the property of the lessee, differentiates this case from many to be found in the books. And the inference is obvious that the purpose of the bond was not to benefit the lessor in case the stipulations of the lease were fully performed by the lessee, but to afford a security and to further indemnify him against loss in case of forfeiture to the lessor for performance of the stipulations as to the payment of rent because of default of the lessee. Had. the lease provided that the buildings were to become the property of the lessor at the end of the term it would manifestly have been to his advantage to have their erection delayed. But, under the terms of the lease with regard to the buildings there could have been no rational purpose of the bond other than to afford a security to the lessor of the performance by the lessee of the stipulations on his part to be performed. That is, the added value to the land by the erection of buildings thereon was plainly the object of the bond. Otherwise that instrument was an idle ceremony. The lessee had agreed to erect the buildings. The surety thereupon agreed that the lessee would perform that contract. When? It is inconceivable to suppose that the parties understood that the performance of that contract, and the consequent life of the bond, was to be postponed for ninety-nine years. Why go through the useless formality of giving and receiving a formal bond which was not, after all, to create any obligation admitting of practical enforcement?

Courts are required, by the application of known rules of law, to enforce valid and reasonable contracts of parties, with the view of carrying out their clear intent, rather than, by resort to technical construction, to render such contracts void. That is certain which may be made certain. Hence the well established rule, and one requiring no citation of authorities in its support, that where the consideration is legal and the promise to perform is clear, but no time for performance is definitely stated in the contract, the stipulation is to be performed within a reasonable time, such being the presumed intent of the parties to be drawn from the entire instrument. We think the rule applies to the circumstances of this case. We think, also, that three years and three months afforded abundant time within which to at least commence the erection of the buildings under the agreement, especially as reasonable notice was given to commence. The foregoing, we think, answers the first proposition urged by defendants’ counsel.

As to the claim that the surety was discharged by the action of the plaintiff in procuring a forfeiture of the lease and resuming possession of the land, we think the foregoing sufficiently covers it. Surely it could not be assumed that the parties contemplated that plaintiff would withhold, for ninety-nine years, action to get rid of an insolvent lessee, one who had repudiated its contract, being indeed unable to perform it. While it is true that the bond does not bind the obligor to make good the rent, nevertheless the failure to pay rent by the lessee brought about a condition which made the failure to erect the buildings a material damage to plaintiff, and which justified him in seeking a forfeiture and in resorting to the bond for his damages thereunder. At least there is nothing in the bond which enjoins any duty on the lessor to withhold effort to enforce his remedy. We hold that the forfeiture of the lease procured by the plaintiff did not absolve the surety from its liability under the bond.

These conclusions require a reversal of the judgment of the courts below, and the cause having been submitted. to the trial court by both parties, it follows that plaintiff in error is entitled to final judgment. The cause will, therefore, be remanded to the court of common pleas with direction to render judgment for plaintiff in accordance with the prayer of his petition.

Reversed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.


source: Caselaw Access Project

author: Davis, C. J.

license: Public Domain

text:
    The New York, Chicago & St. Louis Railroad Co. v. Fieback.

      Policeman appointed by governor — At request of railroad company— And salary paid by railroad company — Under ¿Sections 9150 and 9151, General Code — Is public oIEcer with authority from state — Railroad company not liable for his wrongful act, when.

    1. A policeman who is appointed and commissioned by the Governor, under Sections 3427 and 3428, Revised Statutes (General Code, Sections 9150 and 9151), although his appointment was upon the application of a railroad company and -his salary is paid by such company, is a public officer, deriving his authority directly from the state; and his acts will be presumed to have been performed in his capacity as such officer, until such presumption is overcome by sufficient evidence.
    2. A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the public duties of a policeman, and which was authorized or ratified by such company.
    (No. 12658
    Decided December 17, 1912.)
    Error to the Circuit Court of Huron county.
    Flenry A. Fieback, the defendant in error, commenced this action by a petition in the court of common pleas of Huron county, alleging that the defendant is a railroad corporation operating a railroad from Buffalo to Chicago and passing through the village of Bellevue in the county of Huron, and that on and prior to March 29, 1908, the defendant was using in' connection with the operation of its railroad a yard located in the said village of Bellevue; that on and prior to said date the defendant had in its employ one John Beattie whose duties were to patrol the said yard and eject or arrest trespassers found therein, in addition to other duties not enumerated; that on the evening of that date plaintiff went to the yard for the purpose of meeting one of the employes of defendant, passing along and by a place that is generally frequented by the public, and while he was in said place he was assaulted and injured by said John Beattie then in the discharge of his duties patrolling said yard for the purpose of finding trespassers and ejecting them, and said plaintiff was injured as hereinafter described; that at the time he did not know who said John Beattie was and did not know that he was in fact an employe of the defendant with authority to inquire into the plaintiff’s business or with authority to eject the plaintiff from the yard of the defendant; that said John Beattie did not have any badge so that plaintiff could see it and did not in any way disclose to plaintiff the authority to eject plaintiff or order him from said yard; that said John Beattie asked him what he was doing there and that he asked Beattie who he was; that Beattie refused to tell him who he was or his authority and without any provocation whatever illegally and violently assaulted plaintiff, striking and wounding him and knocking him to the ground and otherwise ill-treating him, said Beattie claiming at the time that plaintiff was about to steal a ride upon one of the trains of the defendant and that he was trying to prevent the plaintiff from doing so; that plaintiff had no intention of stealing a ride upon the defendant’s train and made no effort to do so; that Beattie used more force than was necessary to prevent the plaintiff from getting aboard the train and more force than was necessary in ejecting him from said yard and that he struck and continued to beat the plaintiff after he got plaintiff to the ground and after he had the plaintiff under his complete control; that in the scuffle that ensued plaintiff’s leg was broken and his ankle sprained. The plaintiff claims damages in the amount of five thousand dollars. Attached to his petition and filed therewith were certain interrogatories.
    The defendant for its answer to the petition admitted that it is a railroad corporation operating a railroad as alleged in the petition and that on and prior to the 29th of March, 1908, it was using in connection with the operation of said railroad a yard located in the village of Bellevue. It also admitted that said John Beattie asked the plaintiff on the occasion alleged in the petition what the plaintiff was doing there, and further answering the defendant denied all and singular the allegations in the petition contained except as herein-before stated to have been expressly admitted. The defendant attaches to its answer due answers to the interrogatories propounded by the plaintiff as follows:
    “No. 1. Was John Beattie on the 29th day of March, 1908, in the employ of said defendant? Answer. John Beattie on the 29th day of March,-1908, was a policeman appointed by the governor of Ohio. His compensation was paid by The New York, Chicago & St. Louis Railroad Company.
    “No. 2. Upon said date was John Beattie’s official title ‘Railroad Detective of the N. Y., C. & St. L. R. R. Co.’? Answer. His official title was watchman or policeman.
    “No. 3. Prior to said date did the defendant pay the salary of said John Beattie, as one of its employes? Answer. Defendant paid the salary of John Beattie as police officer appointed by the governor as aforesaid under the provisions of Section 3431, Revised Statutes of Ohio.
    “No. 4. What were the duties of said John Beattie? Answer. His duties were those prescribed for such officers by the laws of Ohio.
    “No. 5. To what officer or officers did John Beattie report? Answer. To the division superintendent.
    “No. 6. Upon the 29th day of March, 1908, did John Beattie have authority to patrol the yards at Bellevue, to find and eject trespassers therefrom, or to prevent persons from stealing rides on the trains of the defendant? Answer. He had authority conferred upon him as policeman appointed as aforesaid by the governor of Ohio, under the statutes of said state.”
    On the trial in the court of common pleas, and at the close of all the testimony, the defendant moved the court to direct a verdict for the defendant. This motion was overruled and a verdict was returned for the plaintiff. After a motion for a new trial, which was overruled, the court of common pleas rendered judgment upon the verdict, and upon error the circuit court affirmed the judgment of the court of common pleas. This proceeding is to reverse the judgment of the circuit court and of the court of common pleas.

      Messrs. C. P. & R. D. Wickham and Mr. John H. Clarke, for plaintiff in error.
    The contention of the plaintiff in error is, and was, upon the trial that Beattie, on the occasion in question, was a police officer, an officer of the state, and not the agent of the plaintiff in error; and that being such officer, he was presumed to be acting as such; and that such presumption could only be overcome by the clearest proof that he was acting in what he did, on the occasion in question, as the agent of the plaintiff in error. This we think is shown overwhelmingly by the following authorities: Samuel v. Wanamaker, 107 App. Div., 433, 95 N. Y. Supp., 270; Healey v. Lathrop, 171 Mass., 263, 50 N. E. Rep, 540; Hershey v. O’Neill, 36 Fed. Rep., 168; Section 9151, General Code; 2 Wood on Railroads (2 ed.), 1392; Tolchester Beach Imp. Co. v. Steinmeier, 72 Md., 318, 8 L. R. A., 846; Woodhull v. Mayor, etc., 150 N. Y., 450, 44 N. E. Rep., 1038; Jardine v. Cornell, 50 N. J. L., 486, 14 Atl. Rep., 590; Brill v. Eddy, 115 Mo., 605, 22 S. W. Rep, 489; N. & W. Ry. Co. v. Galliher, 89 Va., 639, 16 S. E. Rep., 935; King v. Illinois Central Ry. Co., 69 Miss., 245, 10 So. Rep, 42; Horton v. Newport, 27 R. I, 283, 1 L. R. A., N. S., 512; Union Depot & Ry. Co. v. Smith, 16 Col, 361, 27 Pac. Rep., 329; Dempsey v. N. Y. C. & H. R. Ry. Co., 146 N. Y., 290, 40 N. E. Rep., 867; Tucker v. Erie Rd. Co., 69 N. J. L., 19, 54 Atl. Rep., 557.
    The. power of a policeman appointed by the governor, as provided in the statute, is. a broad one. It provides that he shall “possess and exercise all the powers and be subject to all the liabilities of policemen of cities of the first class.” People, ex rel., v. Squire, 107 N. Y., 605, 14 N. E. Rep., 824.
    Can it be that a policeman, when he sees one about to commit a trespass upon another’s property, may not interfere to prevent the execution of the wrong? Section 7129, Revised Statutes; Reinhart v. Columbus, 49 Ohio St., 257; State v. Lewis, 50 Ohio St., 179; White v. Kent, 11 Ohio St., 550; Ballard v. State, 43 Ohio St., 340; State v. Hunter, 106 N. Car., 796, 8 L. R. A., 529; Wolf v. State, 19 Ohio St., 248.
    Beattie was presumed to be acting as a public officer, on the occasion in question.
    The defendant had the right to suppose that Beattie was acting as an officer. The defendant knew that he was an officer.
    The facts from which an agency may be implied must be sufficiently distinct as to leave no doubt about the intention of the party appointing. 1 Am. & Eng.. Ency. Law (1 ed.), 344; Fisher v. Moyer, 4 Atl. Rep., 64; Hood v. Adams, 128 Mass., 207; Little Miami Rd. Co. v. Wetmore, 19 Ohio St., 110; Nelson Business College v. Lloyd, 60 Ohio St., 448; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398; Schulte v. Holliday, 54 Mich., 73; B. & O. Rd. Co. v. Colvin, 118 Pa. St., 230, 32 Am. & Eng. Rd. Cases, 160; Warner v. N. Y. C. & H. R. Ry. Co., 44 N. Y., 465; Golden v. Newbrand, 52 Ia., 59; Axtell v. Northern Pac. Ry. Co., 9 Idaho, 392, 74 Pac. Rep., 1075; Thurn
      v. Williams, 84 N. Y. Supp., 296; Dowell v. Williams, 33 Kans., 319, 6 Pac. Rep., 600.
    Again, in the nature of the case, he cannot act both as an officer and as an agent. No such combination of duties is known to the law.
    There cannot be more than one responsible superior for the same subordinate at the same time and in the same transaction. Blake v. Ferris, 5 N. Y., 48, 55 Am. Dec., 304; Atwood v. C. R. I. & P. Ry. Co., 72 Fed. Rep., 447; Currier v. Henderson, 85 Hun, 300.
    It was the duty of the jury to have resort to the evidence to determine in what capacity Beattie was acting. The plaintiff claimed that he was acting, as the agent of the defendant, while the defendant claimed that he was acting as a policeman. That was the issue; it could be determined only by the evidence. Assuming, for the sake of argument, that he could act in either capacity, would not his intention throw some light upon what he in fact did? If not conclusive, would it not be a circumstance? Ohio Coal Co. v. Davenport, 37 Ohio St., 194; Superintendent, etc., Cortland County v. Herkimer County, 44 N. Y., 22; Seymour v. Wilson, 14 N. Y., 567; Kerrains v. People, 60 N. Y., 221; Lombard v. Oliver, 7 Allen (Mass.), 155; Fisk v. Inhab. of Chester, 8 Gray (Mass.), 506; McKown v. Hunter, 30 N. Y., 625; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381, 24 S. W. Rep., 881; Lima Ry. Co. v. Little, 67 Ohio St., 91; Whistler v. Cowan, 4 C. C., N. S., 625, 70 Ohio St., 514; Rathbun v. Snow, 123 N. Y., 343, 10 L. R. A., 357.

      Mr. Jesse Vickery, for defendant in error.
    Beattie was appointed on application of the railroad company. Section 3427, Revised Statutes. His powers and duties are clearly defined by Section 3428, Revised Statutes. He is required to wear a badge when on duty. Section 3430, Revised Statutes.
    Corporations are responsible' for the wrongs committed or authorized by them. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, etc., was ultra vires and the individual wrongs of the agents themselves, but this idea no longer obtains. 1 Cooley on Torts (3 ed.), 198.
    A corporation may be liable for an assault and battery, when its agent, in committing it, was performing some act within the limits of his authority, but wrongfully or with excessive force. 1 Cooley on Torts (3 ed.), 202; Passenger Rd. Co. v. Young, 21 Ohio St., 518; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398; Galveston H. & S. A. Ry. Co. v. Zantsinger, 92 Tex., 365, 71 Am. St. Rep., 859; Rose v. Louisville, N. O. & T. Ry. Co., 70 Miss., 725, 35 Am. St. Rep., 686; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381, 41 Am. St. Rep., 105; Duggan v. B. & O. Rd. Co., 59 Pa. St., 248, 39 Am. St. Rep., 672; Bess v. Chesapeake & O. Ry. Co., 35 W. Va., 492, 29 Am. St. Rep., 820; Goodloe v. Memphis & Charleston Rd. Co., 107 Ala., 233, 54 Am. St. Rep., 89; Dickson v. Waldron, 135 Ind., 507, 41 Am. St. Rep., 440, 34 N. E. Rep., 506, 35 N. E. Rep., 1.

      An employer is liable for the wilful or malicious acts of his servant done in the course of the servant's employment, and it is a question for the jury from a consideration of the evidence to determine whether the servant was acting within the scope of his employment. Blakely v. Greer, 18 C. D., 33; Scioto Valley Trac. Co. v. Craybill, 29 O. C. C., 95; C. H. & D. Ry. Co. v. Klute, 29 O. C. C., 702; Nelson Business College v. Lloyd, 60 Ohio St., 448; Lima Ry. Co. v. Little, 67 Ohio St., 91.
    A railway company is liable for a wrongful assault or arrest made or caused by a detective employed by it in the course of such employment, even though he has also been given police powers by the public authorities at its request. 3 Elliott on Railroads (2 ed.), Sec. 1265; Evansville & T. H. Ry. Co. v. McKee, 99 Ind., 519; Pennsylvania Co. v. Weddle, 100 Ind., 138; Union Depot & Ry. Co. v. Smith, 16 Col., 361, 27 Pac., 329; Harris v. Louisville, N. O. & T. Ry. Co., 35 Fed. Rep., 116; King v. Ill. Cent. Ry. Co., 69 Miss., 245, 10 So. Rep., 42; Eichengreen v. Louisville & N. Rd. Co., 96 Tenn., 229, 34 S. W. Rep., 219.
    Where the act which the officer or agent is authorized to do, is an act which requires the exercise of discretion, the corporation is responsible, if, in so carrying out its business its officer or agent is guilty of malice. Blumenthal v. Chamber of Commerce, 7 W. L. B., 328, 8 Dec. R., 410; Goodloe v. Cincinnati, 4 Ohio, 513; Smith v. Cincinnati, 4 Ohio, 514; Pittsburg, Ft. W. S. C. Rd. Co. v. Slusser, 19 Ohio St., 157.

      A false arrest by a detective employed to arrest and prosecute persons unlawfully obstructing track, makes the railroad company liable. Evansville & T. H. Rd. Co. v. McKee, 22 Am. & Eng. Rd. Cas., 366; 14 Am. & Eng. Ency. Law (1 ed.), 822, 823; Healey v. City Passenger Rd. Co., 28 Ohio St., 23; Molloy v. N. Y. C. & H. R. Rd. Co., 10 Daly (N. Y.), 453.
    If a trespass is committed by the servant in defense of the master’s property or possession, the master will be liable for an assault committed by the servant in such employment. Wood’s Master and Servant (2 ed.), Sec. 309; 1 Am. & Eng. Ency. Law (1 ed.), 793, 798; Krulevitz v. Eastern Rd. Co., 140 Mass., 573, 5 N. E. Rep., 500; C. H. & D. Rd. Co. v. Boyer, 10 C. D., 199, 18 C. C., 327; B. & O. Ry. Co. v. Reed, 31 O. C. C., 521.
    Where a person is injured by the act of a servant, done in the course of his employment, we see no good reason why the motive or intention of the servant should operate to discharge the master from liability. Thompson’s Ohio Trial Evidence, Sec. 922; Harbison v. Ilif, 10 Dec., 58, 8 N. P., 392; P. C. & St. L. Ry. Co. v. Shields, 47 Ohio St., 395.
   Davis, C. J.

It is clear to us that the court of common pleas erred in refusing to grant the motion, made at the close of all the testimony, to direct a verdict for the defendant; and that the circuit court erred in affirming the judgment of the court of common pleas. The process by which we arrive at this conclusion is neither long nor intricate. It is as follows.

By Sections 3427 and 3428, Revised Statutes, (General Code, Sections 9150 and 9151), the governor is authorized to appoint and commission, upon the request of a railroad company, such persons as the company may designate, or as many as he may deem proper, to act as policemen for and upon the premises of such railroad or elsewhere, when directly in discharge of their duties for such railroad; and it is therein provided that: “such policemen so appointed and commissioned shall severally possess and exercise all the powers, and be subject to all the liabilities of policemen of cities of the first class, in the several counties in which they are authorized to act while in the discharge of their duties for which they are appointed.”

It appears that John Beattie, for whose conduct the defendant in error seeks to recover damages from the plaintiff in error, was so appointed, commissioned and sworn to perform the duties of a policeman for the plaintiff in error, The New York, Chicago & St. Louis Ry. Co., and was at the time of the acts complained of, authorized so to act. So that, although he was appointed at the request of the railroad company and although his salary was paid by it, he was in fact, at the time of the plaintiff’s injury, a public officer; and by the express terms of Section 3428, Revised Statutes (General Code, Section 9151), the railroad company would not be liable for his acts if a municipal corporation would not be liable. Police officers, by whomever appointed or elected are generally regarded as public or state officers deriving their authority from the sovereignty, for the purpose of enforcing the observance of the law; and for their malfeasance, misfeasance or non-feasance in office the city is not responsible. 20 Am. & Eng. Ency. Law (2 ed.), 1204. But where the act complained of is outside of the public duties of a policeman, and were authorized or ratified by the corporation, the latter would be liable. It follows, therefore, that the only competent issue tendered by the defendant in error in his petition below, is whether the act of the policeman was outside of his public functions and was authorized by the railroad company.

We start then with the clear presumption of the law that the policeman was acting officially and in the line of his duty. Jardine v. Cornell, 50 N. J. L., 486; Tucker v. Erie Ry. Co., 69 N. J. L., 19; Tolchester Beach Improvement Co. v. Steinmeier, 72 Md., 313; Brill v. Eddy, 115 Mo., 596, 605; Foster v. Grand Rapids Ry. Co., 140 Mich., 689. The foundation of this rule is that one who is invested with authority by the sovereign, commissioned and sworn to faithfully perform the duties pertaining to such commission, must necessarily be supposed to be acting in conformity thereto; and anyone who claims that the officer was not so acting must show affirmatively that such was the case. In the present case, there is no testimony whatever that any person competent to act for the railroad company, authorized or directed Beattie to in any way interfere with the defendant in error; and the circumstances as well as the testimony of all the witnesses are consistent with Beattie’s own claim that he was acting as an officer of the law. A train was coming in and the defendant in error was pointed out to Beattie by a person not an officer or employe of the company as being in a position in the company’s yards to excite suspicion. He went to the defendant in error and asked him what he was doing there. The answer was evasive and words followed which quickly ended in a combat, in which the defendant in error had his leg broken, by falling' or being thrown upon the railroad track. Beattie wore a policeman’s badge, but it was pinned on his vest and his coat and overcoat were buttoned over it at the time of the fracas. He also had a policeman’s club or “billy” and a revolver, but these were not in view. He was then and had been for some time assigned for duty as a detective or railroad policeman in the Bellevue yards and reported to the chief of the railroad police or division superintendent. There is no proof that he performed any other duties there. This is the sum of all the testimony, which we have read from beginning to end; and it is in no respect incon- ’ sistent with the officer’s claim, and the legal presumption, that he was attempting in the line of his duty as a policeman to arrest the defendant in error, or to eject him from the company’s grounds. So the presumption prevails. If there was any excess of force used or any improper conduct by the officer, the railroad company is not liable for it. Tolchester Beach Improvement Co. v. Steinmeier, supra; Tucker v. Erie Ry. Co., supra; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381; Healey v. Lathrop, 171 Mass., 263; Woodhull v. The Mayor, etc., 150 N. Y., 450; Samuel v. Wanamaker, 95 N. Y. Supp., 270, 107 App. Div., 433.

Beattie testifies, and perhaps the weight of the evidence supports him in this, that he told the defendant in error that he was an officer of the law; but inasmuch as the defendant in error denies it, we have not allowed that matter to enter into our consideration of the case.

The motion to direct a verdict for the company should have been granted. The judgment of the circuit court, and the judgment of the court of common pleas, are reversed and judgment given in this court for plaintiff in error.

Reversed.

Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


author: By .the Court :

text:
    The State of Ohio v. Mutchler.

      Indictment under Section 13104, General Code — For obtaining money or property by false pretense — Must allege intent to defraud, etc. — Criminal lam.

    An indictment under Section 13104, General Code, for obtaining money or property by false pretense, must allege that the money or property was obtained with intent to defraud, as well as that it was obtained by false pretense. Intention to defraud is made an essential element of such offense by the section referred to.
    (No. 13884
    Decided December 19, 1912.)
    Error to the Circuit Court of Franklin county.
    Defendant in error was convicted in the common pleas of Franklin county on an indictment for obtaining property b)^ false pretenses. The judgment of the common pleas court was reversed by the circuit court, on the ground that the indictment was insufficient, and this proceeding in error is brought to reverse the judgment of the circuit court.
    Pertinent parts of the indictment are as follows:
    '‘The jurors of the grand' jury of the State of Ohio, duly elected, impaneled, sworn and charged to inquire of crimes and offenses committed within the body of Franklin county, in the State of Ohio, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that Finley H. Mutchler, late of said county, on or about the twentieth day of February, in the year of our Lord one thousand nine hundred and eleven, within the county of Franklin aforesaid, the said Finley H. Mutchler represented. to one Joseph Wild that he, the said Finley H. Mutchler, was then and there the president of a certain corporation known as The Moxahala Brick Company; that the said Finley FI. Mutchler did then and there unlawfully and falsely pretend, with intent to defraud, to the said Joseph Wild, that the said, The Moxahala Brick Company, a corporation as aforesaid, was then and there the owner in fee simple of a certain five-acre tract of land near the town of Moxahala, in the State of Ohio; that upon said five-acre tract of land, the said The Moxahala Brick Company had then and there certain buildings, sheds, machinery and equipment for the manufacture of brick, and that said buildings, sheds, machinery and equipment were then and there the property of and belonging to the said The Moxahala Brick Company; that the said The Moxahala Brick Company was then and there in possession and control of one hundred and eighty-six acres of land adjoining said five-acre tract, and that the said The Moxahala Brick Company held, owned and controlled said one hundred and eighty-six acres of land by virtue of certain leases, and that the said one hundred and eighty-six-acre tract of land was held by said The Moxahala Brick Company under said leases for a term of ninety-nine years; that all of said lands were then and there brick-clay producing lands; that the said The Moxahala Brick Company was then and there organized for the purpose of manufacturing various kinds of brick, and that the said The Moxahala Brick Company had then and there in its treasury, to be used for the purpose of equipping and operating a brick plant, the sum of about eight thousand dollars ($8,000) in cash money; that the said The Moxahala Brick Company had then sold six million brick at a profit of four dollars per thousand; that the said The Moxahala Brick Company was then and there in need of a manager, and that it, the said The Moxahala Brick Company, would pay the said manager the sum of one hundred and twenty-five dollars ($125) per month as a salary for his services as manager; that the said The Moxahala Brick Company would require its said manager to invest in the capital stock of the said The Moxahala Brick Company a sum of at least one thousand dollars ($1,000); by which said false pretenses the said Finley FI. Mutchler did then and there obtain from the said Joseph Wild a certain draft for the payment of money, which said certain draft was then and there of the amount and value of one thousand dollars and of the personal property of the said Joseph Wild.”

      Messrs. Turner, King & Ballard, for plaintiff in error.

      Messrs. Belcher & Connor and Mr. F. F. D. Albery, for defendant in error.
   By .the Court :

This indictment is founded on Section, 13104, General Code, which reads as follows:

“Section 13104. Whoever, by false pretense and with intent to defraud, obtains anything of value or procures' the signature o£ another as maker, indorser or guarantor to a bond, bill, receipt, promissory note, draft, check, or other evidence of indebtedness or whoever sells, barters or disposes of a bond, bill, receipt, promissory note, draft or check or offers so to do, knowing the signature of the maker, indorser or guarantor thereof, to have been obtained by false pretense, if the value of the property or instrument so procured, sold, bartered or disposed of, or offered to be sold, bartered or disposed of, is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than three years, or, if less than that sum, shall be fined not less than ten dollars nor more than one hundred dollars or imprisoned not less than ten days nor more than sixty days, or both.”

Attention to the language, and the punctuation, of this section, will disclose that it was the manifest intention of the legislature to enact that the intent to defraud shall be an essential element of the offense. “Whoever, by false pretense and with intent to defraud, obtains anything of value,” etc.

An indictment under this section should set forth that the property or money was obtained with intent to defraud, as well as, that it was obtained by false pretense.

Where a criminal statute makes a certain intent an essential element of an offense, that intent must be averred directly and specifically in an indictment under such statute by proper affirmative averment. Drake v. State, 19 Ohio St., 211; Kennedy v. State, 34 Ohio St., 310-316; Coblentz v. State, 84 Ohio St., 235.

The allegation of the instrument in question, is as follows: “By which said false pretenses the said Finley H. Mutchler did then and there obtain from the said Joseph Wild a certain draft for the payment of money, which said certain draft was then and there of the amount and value of $1,000 and of the personal property of the said Joseph Wild.” There is no averment that the property was obtained with intent to defraud. In as much as the legislature has plainly provided that the intent to defraud shall constitute one of the essential elements of the crime, we are forced to hold, that the indictment in question in this case, does not meet the requirements of well settled rules, or secure to the defendant the constitutional safeguard of the right to demand the nature and cause of the charge against him, so as to directly and specifically advise him of what he must prepare to meet. The judgment of the circuit court will be affirmed.

Judgment affirmed.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.

Shauck, J., not participating.


author: Wilkin, J.

text:
    Mook, Trustee, v. The Akron Savings & Loan Company.

      Supreme court not to weigh evidence, when — Certificates of stock in building and loan company — Made testamentary gift to granddaughter — To be held in trust — Trustee for personal use pledged trust stock — Loaning company charged with notice of trust— And regarded a party to breach of trusteeship — Liability and law of trusteeship.

    1. - Where the evidence is chiefly documentary, decisive and not conflicting, the court has only to declare its probative effect, not to weigh it.
    2. M. C. invested money in stock of a building and loan company, took the certificates in the name of her granddaughter thirteen years old, with a parenthetic clause after the name “(M. C. or other legal guardian may draw)” and she retained possession of them. Held: This was an inchoate gift in trust for the granddaughter, to be followed, as later events disclosed, by a testamentary designation of the purpose and limitation of the trust.
    3. Shortly thereafter the grandmother died, leaving a will, wherein she named her lawyer R. as executor (without bond) and trustee of the property she should die possessed of, for the use and benefit of the granddaughter. She gave to her executor all moneys held by her in trust for the granddaughter, declaring in the will her intention to make her executor her successor in said trust, to hold for the granddaughter and pay to her or for her benefit the income, till she be thirty years old. The executor qualified as such, having in his possession the certificates which the testatrix placed in his hands, and he sent the company a copy of the will, with notice that he held the certificates under the will, and requested that dividends be paid to him as trustee. Thereafter he borrowed money from the company for his personal use, pledging the certificates as collateral security, and cancelled and turned in some for cash, signing the transfers and the written pledges as trustee. He squandered the money and died insolvent. Held: The company was a party to this breach of trust and conversion, and it must surrender to the plaintiff as successor in the trust, the pledged securities, and pay to him the value of those cancelled, with accumulated dividends and interest.
    4. The company required the executor to obtain the granddaughter’s power of attorney, ratifying all his transactions with the stock. She was then twenty-two years old, but feeble, and not as capable of business as the average woman, and had been living with the executor’s family as a daughter. She did not read the writing, did not know its contents, nor that he had converted and squandered her funds; he told her it empowered him to draw her funds and deposit them in another bank, and she trusted him implicitly as a father. Held: The company is chargeable with notice of the fraud, being warned by him of his dread to disclose the truth to her. At that time she had no power over the corpus of the fund. For both these reasons the company cannot take benefit of the writing.
    (No. 13374
    Decided February 11, 1913.)
    Error to the Circuit Court of Summit county.
    This is a suit in equity to recover the possession or value of eight certificates of $1,000 each of the stock of the defendant company, alleged to have been held in trust for Henrietta C. Vance /by her grandmother, Martha Cooper, at the time of the latter’s death, and thereafter held in the same trust by one L. A. Russell, executor of the will of Martha Cooper, and acting trustee for Henrietta, and pledged by him for money lent to him by the company; and the value of six other certificates of the same stock held by him as such trustee (five of the face value of $1,000 and one of $500), and by him cancelled and surrendered to the company for their face value; in all fourteen certificates of the total face value of $13,500.00, which the plaintiff avers that Russell wrongfully diverted from the purpose of the trust, converted into money and appropriated to his own use, with the assent and connivance of the defendant company; and the accumulated dividends on said certificates and $2,050 of certificates still held in like trust, with interest on the total indebtedness.
    The defendant admits that these certificates were issued and delivered to L. A. Russell, but avers that certain of them were regularly surrendered and cancelled; that eight were in good faith pledged with the company for loans and are by it still held as security for the repayment of the loans with six per cent, semi-annual interest; that these, amounting to $8,000.00, are still outstanding, and that the company is ready and willing to account to the legal owner of the uncancelled certificates and pay their value, including unpaid dividends, after deducting the amount due on loans; and admits that Martha Cooper died February 26, 1899, leaving a will of which L. A. Russell acted as executor; but denies every other averment, thus disputing that the plaintiff is duly qualified as trustee, vice Russell, for Henrietta Vance.
    Counsel for the defendant further recite in their brief as follows: July 6, 1898, L. A. Russell purchased fourteen certificates of ten shares each from the company, aggregating $14,000.00. These were issued in the regular form and course to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” August 6, 1898, another certificate of $1,000.00 was purchased by Russell; April 4, 1902, a certificate of $50 held by Mariam Russell was assigned to Henrietta C. Vance; and April 12, 1902,. another for $500 was purchased by L. A. Russell. Said investments in stock by Russell aggregated $15,500.00.
    The essential parts of said will are as follows: “I hereby make, constitute and appoint Samuel Lispenard Cooper * * *, a nephew of my late husband, and L. A. Russell, of Cleveland, Ohio, executors of this my last will and trustees of the property I shall die possessed of and entitled to, for the use and benefit of the beneficiaries of this my will. * * * I direct that all bequests in trust and all powers herein given to my said executors shall apply to either who 'shall qualify. * * * I give and bequeath all my property, real, personal and mixed and rights to property of which I shall die possessed and entitled, to my said executors or whichever of them shall qualify * * * in trust, to be by them held and invested, or sold and reinvested in their or his discretion, and the income thereof

      to be paid semi-annually, quarterly or monthly, as it may be available, and the principal thereof to be fully paid and distributed as follows, viz.:
    “I give and bequeath out of my personal estate $5,000 to my said granddaughter, Henrietta, the principal thereof to be held for her by my executors as trustees, and the income paid to her till she is thirty years of age, when the principal shall be paid to her.

    “I also give to my said executors to so hold for her and pay income thereon to her or for her benefit till she be thirty years of age and then to her be paid the principal thereof, all such moneys as at the time of my death I shall or may hold in trust for said Henrietta, so intending to make my said executors or executor who shall qualify, my own successor in said trust or trusts for said Henrietta. * * *
    “These bequests and all of them in trust for each of my said grandchildren, I hereby make subject to these conditions: The share given to each, shall in the event of his or her death before becoming thirty years of age, immediately upon such death become the property of the survivors of them, share and share alike if there be two, and all to one if only one survive, but under the like conditions as to payments of income only, ■ till such surviving one or ones be each thirty years of age, as I have provided in the original bequest to each.” * * *
    They also admit that Russell qualified as executor of the estate of Martha Cooper and continued to have charge of her property and assets until the time of his death in February, 1908.
    Henrietta C. Vance lived with her grandmother, Martha Cooper, until the latter’s death in 1899, from which time she made her home with said Russell and continued to live with him until his death in February, 1908. Miss Vance became of full age November 22, 1902.
    From March 8, 1904, until February 3, 1907, said Russell, from time to time, secured loans from the defendant in error and pledged with said company various certificates of said stock to secure said loans and thereafter the company can-celled said pledged certificates, pursuant to Russell’s direction.
    In the will it appears that Henrietta will not be thirty years old till November 22, 1914. The record shows other material facts, which seem not to be disputed in the briefs nor in oral argument, as follows:
    L. A. Russell was Martha Cooper’s attorney and negotiated for her with the defendant company, and had all of the fifteen stock certificates which were issued before her death, made to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” The last one was dated August 1, 1898.
    January 26, 1899, one month before Martha Cooper’s death, in reply to a letter from the company, Russell wrote: “Please consider Mrs. Martha Cooper, Guardian of Henrietta C. Vance, applicant to surrender $5,000 of certificates for cash,” etc. She was not the “legal” or statutory guardian, but Russell as her attorney was treating her as quasi-guardian, and the defendant brought the letter into the record as showing the company’s acquiescence. Again, February 20th, “Yours saying $3,000 could be taken up of Mrs. Cooper’s stock held for Henrietta Vance, came duly. She is now too ill to sign. If she shall die, as seems probable, as her executor and Henrietta’s guardian, I shall probably need to change the investment.”
    March 26, 1899, about one month after Martha’s death, and after he qualified as executor (but not as trustee), he sent the defendant company a copy of the will, with his letters executory, and wrote: “No one has become guardian for Henrietta. I hold her securities in trust, as I did in Mrs. Cooper’s lifetime, but nozo under the authority of Mrs. Cooper’s will. * * * When dividends are payable * * * please make them payable to me as Trustee instead of to Guardian as face of certificates calls for.” This request was complied with.
    April 7, 1902, Russell purchased the $500.00 certificate of stock, written on its face to “L. A. Russell, Trustee for Henrietta 'Cooper Vance.”

    From March 7, 1904, to December 16, 1904, Russell borrowed $2,500.00 from the defendant and pledged three of these certificates, one $500, two $1,000, as collateral security; and three others of $1,000 each he surrendered to defendant for $3,000.00; all transferred to the company by endorsements signed by him either as “Executor and Trustee” or as “Trustee for Henrietta C. Vance.” Five were cancelled July 1, 1904; the last one January 5, 1905.
    Thereafter he pledged, eight more certificates of $1,000 each for loans to him from October 16, 1905, to February 7, 1907, amounting to $8,000.00, and transferred them to the company by endorsements subscribed by him either as “Trustee” or “Trustee for Henrietta C. Vance.” These latter are still in vogue but in pledgee with the defendant.
    These transactions were all after the death of Martha Cooper, and were conducted in part by exchange of letters between Russell and the defendant company. October 6, 1906, replying to his request for another loan, the company wrote, expressing “doubt as to our legal right to make loans to you as trustee. Looking over the will and your appointment, it was not clear to us that you were in power to borrow on the stock,” etc. November 27th they required him to get a power of attorney from her, saying: “Talk it over with her (Henrietta) * * * we think you can explain to her satisfactorily.”
    Russell responded: “I very much prefer taking up my loan, to open the subject with Henrietta. I hold the fund for her under Mrs. Cooper’s will and not othertvise, and so far her own expenses are within her income. I do not wish to discuss my loan with her. If I can pay off the loan, it is better for me and your Board.” The company renewed its demand December 3d, thus: “This matter must be fixed up by Saturday of this week, either by paying the cash or securing the signature of Henrietta to the- certificates, notes and pledges.”
    December 15, 1906, Henrietta signed an instrument empowering Russell, “as my Trustee and Guardian in fact, in whose family I have my home, to do every act concerning the $10,000 of stock in The Akron Building & Loan Association which I could do, if the Trusteeship of Russell under the will of Martha Cooper were closed, and the control of the stock were turned over to me; hereby confirming every act he has done in regard thereto, as well before as since I became of age.” All loans and pledges but the last were made before the instrument was executed.
    Russell died in February, 1908, insolvent, leaving his debt of $8,000.00 unpaid (for which the defendant still holds Henrietta's eight $1,000 certificates of stock as security), without restoring or accounting for the trust fund.
    The common pleas court rendered judgment against the defendant for the pledged stock that was cancelled, in the sum of $3,445.00, with interest; ordered defendant to turn over to plaintiff the eight certificates of $1,000 each, free and clear of all claims, liens, and encumbrances; and rendered judgment for $2,194.00 dividends for the years 1907 to 1910 inclusive, due on the eight certificates, and on the $2,050 of certificates in the plaintiff's hands (less $22.50 paid directly to Henrietta), with interest; and found for defendant as to the $3,000 of certificates which were surrendered to the company outright.

      The circuit court reversed this judgment, finding and decree for the plaintiff, because the same was •not sustained by the evidence. Plaintiff now seeks to reverse the judgment of the circuit court.

      Mr. C. F. Taplin, for plaintiff in error.
    The defendant is here seeking to collaterally attack the standing of the present plaintiff as a trustee of the certificates of Henrietta Vance. It is a well-settled principle of law that an appointment of a trustee or executor by a probate court cannot be collaterally attacked if that court had jurisdiction of the subject-matter. Union Savings Bank & Trust Co. v. Western Union Tel. Co., 79 Ohio St., 100; First Natl. Bank v. Natl. Broadway Bank, 156 N. Y., 549, 42 L. R. A., 139.
    The will gives no right to the trustee to pledge, and this is so even -as to the property of Mrs. Cooper as to which the power of sale and reinvestment was given, for a power of sale does not include a power to pledge or mortgage. 27 Am. & Eng. Ency. Law (1 ed.), 225; 18 Am. & Eng. Ency. Law (1 ed.), 940; Wilson v. Maryland Life Ins. Co., 60 Md., 152.
    The cases are unanimous in holding that a party who knows or ought to know that he is dealing with a trustee deals at his peril and is put upon inquiry to ascertain if the action of the trustee is proper. O’Herron v. Gray, 168 Mass., 573, 47 N. E. Rep., 429; Strong v. Strauss, 40 Ohio St., 87; Third Natl. Bank v. Lange, 51 Md., 138; Ford v. Brown, 114 Tenn., 467, 1 L. R. A., N. S., 188; Duncan v. Jaudon, 15 Wall., 165; Shaw v. Spencer, 100 Mass., 382.
    The cases further hold that knowledge of the existence of a will, however obtained, charges the party with knowledge of the contents of that will. Caulkins v. Gas-Light Co., 85 Tenn., 683; Stewart & Duffy, Trustees, v. Firemen’s Ins. Co., 53 Md., 564; Marbury v. Ehlen, 72 Md., 206, 19 Atl. Rep., 648; Lowry v. Comm. & Farmers’ Bank, Taney, 310.
    The defendant company also failed to perform the duties imposed by law upon it as a corporation, in that it failed to protect one of its stockholders as it should have, upon presentation of her stock for transfer. 2 Cook on Corporations (6 ed.), Sec. 399; Magwood v. S. W. Railroad Bank, 5 S. Car., 379; Loring, Trustee, v. Salisbury Mills, 125 Mass., 138; Geyser-Marion Gold-Min. Co. v. Stark, 106 Fed. Rep., 558, 45 C. C. A., 467; Peck v. Bank of America, 16 R. I., 710, 19 Atl. Rep., 369.
    Since Russell took possession of the property and assumed to act as trustee under the will, the law will consider him as a trustee and hold him liable to the duties of one. Winder et al., Exrs., v. Scholey et al., Trustees, 83 Ohio St., 204.
    As to the effect of acts of minors, or those recently come of age, done at the request of one standing in loco parentis or in a fiduciary relation to them, see Berkmeyer v. Kellerman, 32 Ohio St., 239; Lane v. Reserve Trust Co., 10 C. C., N. S., 512; Noble’s Admr. v. Moses Bros., 81 Ala., 530; Espey v. Lake, 10 Hare, 260; Maitland v. Irving, 15 Sim., 437; Branch v. Buckley, 109 Va., 784.
    On the question of the power of attorney acting as a confirmation or ratification of all of the previous acts of Mr. Russell, such a confirmation is not binding as long as conditions remain the same, or if there was not independent advice; there must be a complete disclosure of the facts, independent legal advice and a knowledge of the party’s right to impeach the previous transaction, and also the confirmation must be for the cestui que trust’s benefit. 2 Pomeroy’s Eq. Juris. (3 ed.), Sec. 964.

      Messrs. Musser, Kirnber & Huffman and Mr. •F. H. Waters, for defendant in error.
    No matter from whence came the money to purchase the stock nor whose it might have been, the title to it passed to the savings and loan company, and there was taken, in lieu thereof, the certificates of stock in that company, in the name of Plenrietta Cooper Vance, before Martha Cooper died, and they became her sole and absolute property. Having the certificates issued in the name of Plenrietta Cooper Vance, and having her name entered upon the record of the savings and loan company as the subscriber therefor, constitute them her sole property without reg'ard to whose money was used for their purchase. 14 Am. & Eng'. Fncy. Law (2 ed.'), 1040; McDonald v. Donaldson, 47 Fed. Rep., 771.

      We contend that any provision of the will of Martha Cooper attempting to dispose of Henrietta C. Vance’s property in trust or otherwise, could only dispose of her own property and if she held any of Miss Vance’s stock as guardian or trustee, she could not dispose of or control it by a last will and testament. If she were a guardian, such relation terminated at her death, and likewise, if she were a trustee for the stock referred to, that trust relation ended and terminated with her death. Martha Cooper, therefore, having no authority by will to dispose of Miss Vance’s property or to create any trust with respect to it, it must necessarily follow that the plaintiff, Mook, as trustee, has no capacity or authority to maintain the suit. Page on Wills, Sec. 135; 1 Jarman on Wills (6 ed.), 73; Schouler on Wills (3 ed.), Sec. 28; 30 Am. & Eng. Ency. Law (2 ed.), 614, 615; Young v. Snow, 167 Mass., 287.
    The evidence in this case seems to show that Russell, if he received money from Martha Cooper for the benefit of Henrietta, which he invested in the shares of stock in controversy, invested it as agent for Henrietta Vance and not for Martha Cooper; and that, when he received the shares of stock, he received them as agent for Henrietta Vance. Rote v. Warner, 9 O. C. D., 536, 17 C. C., 350.
    So far as The Akron Savings & Loan Company is concerned, the evidence shows that Miss Vance recognized that agency and in fact, she executed for Russell and permitted it to come in the possession of the defendant in error, a complete and full written power of attorney, and said company had a right to rely on said power of attorney, in view of the fact that there is no evidence that such agency was ever revoked or in any manner withdrawn until the death of Russell. Aetna Ins. Co. v. Stambaugh-Thompson Co., 76 Ohio St., 138.
   Wilkin, J.

At the threshold, the defendant refers us to the circuit court’s finding that, “there is not sufficient proof to sustain the judgment of ' the court of common pleas' and the defendant says, that judgment, being based upon the weight of the evidence alone, cannot be reviewed by this court. That judgment is not based upon the weight of the evidence, but upon its insufficiency. The evidence is almost entirely documentary; there is no conflicting testimony to be weighed against the documents. We have simply to determine a question of law; that .is to say, what legal relations do the facts in the record establish; and what rights and duties spring out of those relations?

The answer being a general denial, excepting express admissions hereinbefore stated, challenges the capacity of the plaintiff to maintain the suit. This objection was not made in oral argument, but it is raised in the defendant’s brief. The duly authenticated copy of the proceedings in the probate court of Cuyahoga county establishes the fact of the plaintiff’s appointment and qualification “to act as the trustee of a trust estate created for the benefit of Henrietta C. Vance by the last will and testament of Martha Cooper deceased.” But the defendant, catching at the initial averment of the petition, which alleges that “the plaintiff is the duly appointed trustee, vice L. A. Russell, deceased,” makes the point that Russell was never appointed nor qualified as trustee under the will, and that Martha Cooper, during. her life, never held the funds nor the certificates of stock in the loan company as trustee for Henrietta.

The second question thus .raised is, what is the effect of the style in which the certificates were taken out by Martha Cooper, through her attorney? They are issued to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” This is a declaration of an inchoate, passive trust; incomplete, (1) ' as a donation of the fund, because she retains dominion over it, and, (2) as a limitation or designation of the purpose of the gift, because it does not signify for what purpose or in what manner the donee is to enjoy the fund. It is an executory, passive trust. 2 Pom. Eq. Jur. (2 ed.), Secs. 1000, 1001, 988, 989.

Martha retained dominion over the fund, first by retaining possession of the certificates; and, secondly, by reserving power in herself to draw it out. In what relation or character did she reserve dominion ? As absolute owner ? Manifestly not, for she prescribes that, “other legal guardian may draw,” thus showing an intention to put the fund in ward or trust for the use of her granddaughter Henrietta. The word “legal” is suggestive; it indicates that she regarded herself as a trustee or a gMtm'-guardian, and the word “other” conveys the idea that she had in mind that the trust should pass to another custodian when her control should cease. Her successor might be a statutory guardian or a testamentary trustee, upon certain contingencies, and therefore she covers both characters by the use of the words “legal guardian.”

As the insertion of this parenthetic clause in the title of the certificates, creates an executory trust, we are not restricted to rigid legal rules in the interpretation of the language of the donor. Fortunately we have some extraneous clues to the meaning of her language. Mr. Russell, who was her legal adviser and who transacted this business for her, doubtless dictated these words to be written into the certificates. By conduct and correspondence he interpreted the language for us, in his letter to the company, saying: “Consider Martha Cooper as a guardian,” and the company adopted that construction of her relation to the fund. It does not lie in the defendant’s mouth to assert otherwise now. If any doubt still lurked in the form of these certificates, it is completely dispelled by the will.

This brings us to the third question: what was L. A. Russell’s relation to this fund and these certificates, at and after the death of Henrietta’s grandmother, Martha? He is nominated in the will as executor and trustee of the property, for the use and benefit of the beneficiary of the will, in trust, etc. Referring to her granddaughter Henrietta, she gives to her said executor, for her, (Henrietta) or for her benefit, till she be thirty years of age, “all such moneys as at the time of my death I shall or may hold in trust for said Henrietta, intending to make my said executor * * * my own successor in said trust for Henrietta.”

It is perfectly clear to us on the record, that the plaintiff was regularly appointed and fully qualified and empowered to bring this suit as the successor of L. A. Russell, who succeeded Martha Cooper as trustee of this fund. L. A. Russell was a testamentary trustee and acquired his authority from the will. The fact that he was not named as trustee in his letter of authority issued from the probate court is of no importance, and it affords the defendant no immunity from the demands of the new trustee appointed by the probate court to execute the trust defined by the will.

Fourth. Another point raised by counsel for the defendant is, that Russell was the mere agent of Henrietta. But he acted as a trustee. One month after her grandmother’s death, he sent the company a copy of the will, and wrote that he held the certificates in trust under the will and that the dividends should be paid to him thereafter as trustee. By the subscriptions to the transfers endorsed upon the certificates as well as by his subscriptions to the written pledges lodged with the company for the loans, the company was advised that it was dealing with Henrietta’s trustee. And as if to warn the defendant that- • it was lending him trust funds, 'he repeatedly reminded the company in his letters that he held the certificates in trust under the will and not otherwise.

Counsel for the defendant say in their brief: “The Loan Company finally made up its mind that the money represented by the certificates belonged to Henrietta Vance, and it required Henrietta to ratify all of Russell’s transactions, * * * and Henrietta, the cestui que trust, for whom Moolc is now trustee * * * ratified Russell’s acts.” This refers to the power of attorney.

At the time Henrietta gave that power of attorney, she was twenty-two.years of age, nevertheless she was not quite sui juris. She lived in the family of Russell, a lawyer, prominent in the city of Cleveland, and a great friend of her father, Dr. Reuben A. Vance, deceased. “It was out of this friendship that the dependence of the family on Mr. Russell came,” says a witness, a lawyer of Cleveland, who knew the family for twenty years after the father died. Asked about her ability to transact business, this witness said: “She would need a strong friend. When she was a little girl she was very severely hurt and had an illness, from which she seemed never to fully recover. She was never strong, always puny, weak and. anaemic. She is not quite as well. able as the average woman to manage, her affairs.”

The defendant called Henrietta as a- witness against herself. She had lived with Mr. Russell as a member of his family about eight years, when he took her to his office and' asked her to sign this paper. She merely glanced at- it, and did not know its contents. He told her it' gave him power to take money out of the Akron bank and place it in a Cleveland bank, or elsewhere at will. She did not know then that $11,500 of the certificates were cancelled or pledged to The Akron Savings & Loan Company. She had no advice, no person was present except Mr. Russell, and he did n®t- read it to her. The reason she did not read' it was, she regarded Mr. Russell as a father; she had implicit confidence in him. •

Russell stood to this girl in loco parentis; her relation to him was not only one of trust and confidence but dependence. This power of attorney was an imposition and a fraud upon her.

Fifth. How does it affect the defendant? The defendant knew that the grandmother had placed the funds in custody for the girl till she should arrive at the age of thirty years; that Russell dreaded to explain to her that he had converted and used her funds, and that he deemed it better for him and for the company, if that shift were not attempted. This was enough to put the defendant on inquiry and charge it with knowledge of the girl’s dependent situation, and of the vice of inducing her to approve Russell’s defalcation and to acquit the company of all responsibility. Nay, more, the defendant must have contemplated the compelling' temptation Russell would be under to deceive and beguile his unsuspecting ward.

Aside from this consideration, there is one conclusive answer to the defendant’s plea of ratification. Henrietta herself had no power over the corpus of the fund till she be thirty years of age, which she will- not be till November 22, 1914.

Sixth. The last palliation offered by the defendant deserves a passing notice. It is that the bylaws of the company and a statute of the state “authorize exactly what it did, namely, withdrawals of the stock by borrowing and putting up certificates as. collateral for loans, and in the event the loan was not paid subsequently, to cancel the pledged certificates.” This is a bald petitio principium; it assumes that the borrower owns the stock in his own right and has the right to pledge it for his own debt or exchange it for money for his personal use. There could be no by-law nor statute to empower a trustee to deal thus with securities of an infant cestui que trust, upon his mere volition, and to appropriate the money to himself.

This reference to its powers as a corporation calls attention to its Responsibilities and duties. It received Henriétta’s money in trust and assumed to protect and preserve it. When it lent or exchanged the money to L. A. Russell for his personal use, it violated a trust enjoined upon it by the law of the land, aside from any trust declared in the will. For this reason, as well as because it had full and ample knowledge of the trust-character of the investment, and received the money impressed with the trust limited in the will till the beneficiary be thirty years old; and because it permitted and assisted the faithless trustee to convert the securities and squander the trust-estate, the defendant must repair the loss and restore the money, and account for accumulated dividends and interest.

We cannot adopt the suggestion that three certificates were cancelled outright with the view of reinvestment. The conduct of the defendant in this whole affair is of one piece, and it does not invite our confidence, since there is no convincing evidence of defendant’s diligence and fidelity. The judgment should have been according to the prayer of the amended petition in both courts below.

Judgment of the circuit court reversed, that of the common pleas modified, and judgment will be entered here for the full amount of the plaintiff’s claim as prayed for.

Judgment for plaintiff.

Shauck, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.


author: Newman, J.

text:
    Foster et al. v. Clifford, Executor, et al.

      Testator gives wife all property secured to her — By Ohio laws of distribution — Where wives survive intestate husbands — Gives all remaining property to brother — Wife thereby receives only dower interest — And allowance — Under Sections 86oy and 10656, General Code.

    A testator gave to his wife all that part and interest in his estate, real, personal and mixed, which is secured to her, as his widow, by the laws of distribution of estates of the state of Ohio, in the cases where wives survive husbands who die intestate, and gave, absolutely, the remainder of his property, real, personal and mixed, to his brother. Held:

    That, under this will, the widow took her dower interest in the real estate of the testator, situated in Ohio, one-half of the first four hundred dollars and one-third of the remainder of the personal property subject to distribution, the use of the mansion house, under the provisions of Section 8607, General Code, and the year’s allowance provided for in Section 10656, and that the remainder of the estate, real, personal and mixed, went to the brother.
    (No. 13522
    Decided February 11, 1913.)
    Error to the Circuit Court of Hamilton county.
    This was an action brought in the common pleas court of Hamilton county by the executor of the estate of Thomas Foster, deceased, for a construction of the will of said Thomas Foster, in respect to the proper distribution of his real and personal property.
    The testator left surviving him a widow, Mary Foster, but no child or children — never having had any children. The widow, Mary Foster, and James E. Foster, a brother of the testator, devisees and legatees under the will, were made defendants.

      James E. Foster filed an answer to the petition, but, before the trial of' the cause, he died, and the action was revived in the names of his administrator and his children and heirs at law. Subsequently, one of the children of James E. Foster, who had been appointed administrator of the latter, died, and the action was again revived in the names of the administrator de bonis non of said James E. Foster, devisee and legatee named in the will, and, the deceased child’s widow and minor children. These parties are plaintiffs in error in this' court.
    The will, which was executed March 1, 1906, and probated January 19, 1909, is as follows:
    “In the name of the Father of all, amen.
    “I, Thomas Foster, of Cincinnati, Ohio, being of sound mind and memory, and well knowing the uncertainty of all life, do make, publish and declare the following for, and to be, my last will and testament, hereby revoking and cancelling all former wills by me made.
    I.
    “I desire, and direct that all my just debts be first paid out of my estate.
    II.
    “I give and bequeath to my beloved wife, Mary Foster, all that part and interest in my estate, real, personal and mixed, which is secured to her. as my widow, by the laws of distribution of estates, of the State of Ohio, in the cases where wives survive husbands who die intestate.

      III.
    “I give, devise and bequeath absolutely, all the remainder of my property, real, personal and mixed, after the dispositions in items one and two herein have been made, and wherever the same may be situated, to my dear brother James E. Foster, now of Chicago, Illinois.
    IV.
    “I hereby nominate and appoint my said brother James E. Foster and George Clifford, of Cincinnati, Ohio, to be the executors of this will, and my faith in each justifies me to request herein, as I do, that they be not required to give bond.
    “In testimony whereof I have hereunto set my hand and seal this 1st day of March, 1906.
    “Thomas Foster. (Seal.)”
    Thomas Foster, a resident of Cincinnati, Ohio, at the time of his decease, December 27, 1908, was possessed of a large amount of personal property and certain parcels of real estate situated in Hamilton county, Ohio, and Campbell com^, Kentucky, all of which real estate, according to averments of the petition and the admissions in the several answers in the case, was acquired by the said Thomas Foster by purchase.
    The widow claimed in her answer that, under the terms of the will, she was the owner of and entitled to the possession of the entire personal estate of her husband, and the owner of and entitled to the possession of the entire real estate in Ohio, of which her husband died possessed, and to her interest, as widow, in and to the real estate located in Kentucky, subject only to the just debts of the testator and the costs of administration. It is conceded, however, that inasmuch as the widow elected to take under the will, she is barred of the interest in the Kentucky property, which otherwise would be secured to her under the laws of that state.
    James E. Foster, in his answer, claimed that as residuary legatee and devisee, and under the terms and provisions of the will, he was the owner of and entitled to a two-thirds part of the entire personal property belonging to said estate, after the payment of debts and expenses of administration, and all of the real estate, subject to the dower interest of Mary Foster therein. This claim was made by the plaintiffs in error herein also, in their answers, filed in the case after the same had been revived in their names.
    Upon the trial of the cause, evidence was offered by plaintiffs in error herein “tending to show the circumstances of the testator, his character, the objects of his bounty and his ties of affection, and instructions to the scrivener who drew the will.”
    This evidence was received subject to the objections of the defendants in error, but after-wards was held by the trial court to be incompetent, irrelevant and immaterial, and, therefore, inadmissible.
    The common pleas court found that the widow, Mary Foster, under the terms and provisions of the will, was the owner of and entitled to the entire personal property belonging to the estate after the payment of all just debts and expenses of administration, and that she was the owner, as devisee in fee simple, also of all the real estate of which Thomas Foster died seized, lying within the state of Ohio, and that James E.. Foster became the owner, under the terms and provisions of the will, in fee simple, of all real estate of which Thomas Foster died seized, lying in Campbell county, Kentucky, which said real estate passed, under the terms and provisions of said will, to said James E. Foster, free from any claim or interest therein of said Mary Foster, and that the several defendants who were made parties in said action, as heirs of James E. Foster, deceased, have succeeded to his interest as such, and the judgment of the common pleas court was that the construction, above found, should be placed on the will, and that the executor of Thomas Foster, after the payment of all just debts and expenses of administration, should distribute the balance of said personal estate to said Mary Foster, as sole distributee.
    This judgment was affirmed by the circuit court on error, and this proceeding is brought to reverse the judgments of the common pleas and circuit courts.

      Mr. Herman A. Bayless; Messrs. Kramer & Bettman and Mr. Joseph B. Foraker, for plaintiffs in error.
    It is our contention that the proper construction of the will and the one which dissolves all ambiguities is that construction adopted by the dissenting opinion below (33 C. C., 432; 14 C. C., N. S., 394), which gives to the wife her dower and distributive share, popularly known as the “widow’s thirds,” and gives the remainder of his estate to his “own blood,” his brother, James E. Foster. Weston v. Weston, 38 Ohio St., 473.
    Among the well-settled principles of construction of wills, we cite the following as especially applicable to the will in the case at bar. Mooney v. Purpus, 70 Ohio St., 57; 2 Jarman on Wills (Sweet’s 6 ed.), rule 7, p. 2209, rule 16, p. 2210; Robbins v. Smith, 72 Ohio St., 17; James, Exr., v. Pruden, 14 Ohio St., 251; Starling’s Exr. v. Price, 16 Ohio St., 29; Richey, Exr., v. Johnson, 30 Ohio St., 288.
    As to evidence tending to show the circumstances of the testator, his character, the objects of his bounty, and his ties of affection, and his instructions to the scrivener who drew the will, see Wigram on Wills (2 ed.), 142; 30 Am. & Eng. Ency. Law (2 ed.), 679; 1 Redfield on Wills, *621; James, Exr., v. Pruden, supra; Starling’s Exr. v. Price, supra; Lessee of Worman v. Teagarden, Jr., 2 Ohio St., 382.
    The doubt which arises in the construction of the will is in the nature of what is called in the decisions, a latent ambiguity. Wigram on Wills (2 ed.), rule 7, p. 189; 4 Wigmore on Evidence, Sec. 2472; 1 Jarman on Wills (Sweet’s 6 ed.), 516.
    The ambiguity involved in the will under consideration may belong to the intermediate class, midway between latent and patent ambiguity. Peisch v. Dickson, 1 Mason (U. S.), 10.
    Instances are not wanting in cases of doubt or ambiguity- similar to the case at bar, in which declarations of intention of the testator and instructions to the scrivener have been admitted in evidence. Sharp v. Wightman, 205 Pa. St., 285; Royal v. Smith, 28 Ga., 262; Klock v. Stevens, 45 N. Y. Supp., 603; Schlottman v. Hoffman, 73 Miss., 188.

      Mr. Oliver B. Jones; Messrs. Morse & Tuttle and Messrs. Ireton & Schoenle, for defendants in error.
    The law of Ohio as to the construction of wills, has been so clearly laid down in numerous cases in our supreme court, following the general law as laid down by the text-books and authorities, that it is not necessary to go outside of Ohio cases. Lessee of Worman v. Teagarden, Jr., 2 Ohio St., 382; Townsend's Exrs. v. Townsend, 25 Ohio St., 477.
    Instead of stating specifically what part of his property testator desired to go to his “beloved wife,” he makes use of “the laws of distribution of estates of the state of Ohio,” to facilitate testamentary language, as was said by the court in Huber v. Carew, 7 C. C., N. S., 611, 26 C. C., 389, 74 Ohio St., 469.
    The ordinary dictionary definition of the word “secure,” is given by the Century, Standard and Webster’s dictionaries.

      The argument made by our opponents on the words “as my widow” is evidently based upon the language of Judge Jones in his dissenting opinion in this case. 14 C. C., N. S., 394.
    This is clearly wrong, as she would take under Section 8592, General Code.
    So, as widow, she would clearly take all of the personal property, even under the most narrow and technical meaning of the words.
    In Parker v. Parker, 13 Ohio St., 110, the rule in Ohio is stated: “When an interest is given or an estate conveyed in one clause of the instrument, in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt, upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate.” Thornhill et al. v. Hull, 2 Cl. & F. (H. L. Cas.), 22.
    This doctrine was affirmed and reiterated in Collins v. Collins, 40 Ohio St., 353. And it is well expressed in the opinion of the court in Luce v. Dunham, 69 N. Y., 36.
    Evidence was offered for the purpose of showing the good-will existing between the testator and his brother, and what they claimed was the coldness between testator and his wife. This latter testimony could not in any way explain their so-called ambiguity, and was clearly inadmissible. Mackie et al. v. Story, 93 U. S., 589; 30 Am. & Eng. Ency. Law (2 ed.), 673; 1 Greenleaf on Evidence (16 ed.), Secs. 289, 290; Schouler on Wills (3 ed.), Sec. 569; 2 Jarman on Wills (Sweet’s 6 ed.), rule 8, p. 2209; 1 Redfield on Wills, *425, n., *604, n. 12; King v. Ackerman, 67 U. S. (2 Black), 408; Collins v. Hope, 20 Ohio, 492; Charch v. Charch et al., 57 Ohio St., 561; 40 Cyc., 1436; Lincoln v. Perry, 149 Mass., 368; Griscom v. Evens, 40 N. J. L., 402; Zabriskie v. Huyler, 62 N. J. Eq., 697, 64 N. J. Eq., 794; Hollenbeck v. Smith, 231 Ill., 484; Clark, Exrx., v. Trustees of Hardwick Sem., 3 C. C., 152.
    Evidence to prove different intention from that appearing on the face of the will is incompetent. McNeal v. Pierce, 73 Ohio St., 16; Boston Safe-Deposit & Trust Co. v. Coffin, 152 Mass., 95, 8 L. R. A., 740; Allen’s Exrs. v. Allen, 18 How., 393; Painter v. Painter, 18 Ohio, 247; McKelvey v. McKelvey, 43 Ohio St., 213; Mann v. Exr. of Mann, 1 Johns. Ch., 231, 14 Johns., 9; Schouler on Wills (3 ed.), Secs. 568, 569.
    While the purpose of making a will is to express the intention of the testator and the object of construing it is to ascertain that intent, yet this must be gathered from the words he has used. The inquiry is, not what thought did testator wish to express, but what thought has he here expressed? 1 Redfield on Wills, *433; Burke v. Lea, 76 Va., 386; Pack v. Shanklin, 43 W. Va., 304; Hancock’s Appeal, 112 Pa. St., 532; Sturgis v. Work, 122 Ind., 134; Robbins v. Smith, 5 C. C., N. S., 545, 27 C. C., 91, 72 Ohio St., 1; Thayer on Common Law Evidence, 584; Page on Wills, 538.

      The construction which we urge in this case is the one which would give to the wife the same property which she would have taken if there had been no will, under the appropriate statutes of descent and distribution. 2 Jarman on Wills (Sweet’s 6 ed.), 2208; Hieatt v. Simpson, 4 O. L. R., 136, 77 Ohio St., 597, 78 Ohio St., 446; Bane v. Wick, 19 Ohio, 328; Crane v. Doty’s Exrs., 1 Ohio St., 282; Schouler on Wills (3 ed.), Sec. 479; Park’s Estate, 4 Pa. Co. Ct. Rep., 560; Wright v. Hicks, 12 Ga., 155, 56 Am. Dec., 451.
   Newman, J.

We must presume that the will in question was drawn with knowledge, on the part of the testator, of the laws of distribution of the state of Ohio. The word “distribution” applies' particularly to personal property, but the use of the word by the testator in this case should not be taken in its technical sense, but should be extended so as to apply to all the estate, real, personal and mixed.

It is urged by counsel for the widow that the testator had in mind Section 8574, General Code, applicable to non-ancestral real estate, and Section 8592, pertaining to personal property, and that these sections, together with Sections 8573, 8578 and 8606, should be read into the will; that, reading these sections into the will, the testator, in the us'e of the words “my widow” and “in the cases where wives survive husbands' who die intestate,” intended to give to his widow all that she would have .taken had no will been written. There are two sections of the Code, relating to the case of a wife surviving her husband who dies intestate — one where there are children, and one where there are not. It is claimed by counsel that, while the testator does not, in words, say that he had reference to cases where husbands die intestate without children, yet the language actually used must be taken in connection with the words, “my widow,” and that he had in mind his own case where there were no children, and, therefore, the widow took all the Ohio real estate, under Section 8574, and all the personal property, under Section 8592.

But, in construing this will, we must not depart from the well established rules of construction. The rule approved by this court in Robbins v. Smith, 72 Ohio St., 17, should be recognized, and the “conflicting provisions of a will should be reconciled so as to conform to the manifest general intent.” It was evidently the intention of the testator, in the case at bar, and clearly so we think, that the widow was to have but a part, or interest, in the estate, real and personal. This is evidenced by the use of these words in Item two, and the bequest and devise to James E. Foster of the remainder of the property, real and personal, in Item three, gives additional force to this position. The brother is to receive a portion of the personal property, and, if the construction claimed by the widow is tenable, Item three of the will, as to personal property, would be wholly ineffective.

The part the widow was to receive is the part secured to her by the laws of distribution of the state of Ohio. Can it be urged, with any force, that the whole estate of a husband is secured to his widow by the laws of the state, even if there are no children, in the sense that the word is ordinarily and generally used? We cannot subscribe to the meaning given the word “secured” by the circuit court, when it held that the testator meant that the widow was devised and bequeathed that which she would “obtain” or “have” as his widow. The laws of this state will protect a widow to the extent of her dower interest in the realty and to a one-third (approximately) interest in the personal estate, in the occupancy of the mansion house, under Section 8607 of the Code, and her year’s allowance, under Section 10656. The husband is free to dispose of the remainder as he sees fit, and the protection afforded her by the law cannot affect such a disposition made by the husband. As has been said in this case, the widow is the prospective heir at law of all the estate in the event there are no children, but it cannot be said that she is secured - in this, for the reason that two-thirds (approximately) of the estate can be taken from her, by the husband, by will.

Had the testator intended that James E. Foster should have the Kentucky real estate only, this could have been provided for by a devise to him of that property, and the residue of the estate to the widow. This certainly would have been the ordinary and customary method, but clearly the intention of the testator was different, for he provides that the widow is to have a part of the real and personal property, and the brother the remainder.

Evidence was offered by counsel for plaintiffs in error tending to show the circumstances of the testator, his character, the objects of his bounty and his ties of affection and the instructions to the scrivener who drew the will. This evidence was rightly rejected by the trial court, in accordance with the well settled rules as to the competency of extrinsic evidence in the construction of a will, as laid down by this court in Lessee of Worman v. Teagarden, 2 Ohio St., 380, and Townsend's Exrs. v. Townsend, 25 Ohio St., 477. It appears, from the record, that the fact that the testator had no children, and the further fact that the property was acquired by purchase, were admitted, and no objection made to the use of these facts in aiding in the construction of the will. We might say that, in our view of the matter, these facts are wholly immaterial — the part of a husband’s estate secured to his wife being the same whether there are children or not, or whether the property is ancestral or nori-ancestral.

Our attention has been called to the case of Smith v. Hunter, Trustee, 86 Ohio St., 106. This case, in our opinion, is not in point, and is not applicable to the case at bar.

We conclude, therefore, that, under the terms of this will, the widow is entitled to her dower interest in the Ohio real estate and to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. In addition thereto, she would be entitled to the use of the mansion house for a year, under the provisions of Section 8607, and the year’s allowance provided for in Section 10656. The remainder of the estate, real, personal and mixed, upon the death of the testator, went to the brother, James E. Foster, and the several plaintiffs in error, heirs and personal representatives of said James E. Foster, deceased, have succeeded to his interest as such, and judgment is rendered accordingly.

Judgments of the circuit and common pleas courts reversed, and judgment for plaintiffs in error.

Judgments reversed.

Shauck, C. J., Johnson, Donahue, Wanamakee and Wilkin, JJ., concur.