text:
    Ex Parte Stephen Sheldon.
    1. The certificate of authentication provided for in section 5278 of the United States Revised Statutes (1027) is not required to be in any particular form, and where the language employed by the demanding governor in the requisition shows the copy of an indictment annexed thereto to be authentic, it is sufficient!
    2. It is no ground for discharging a fugitive from justice on habeas corpus that the indictment, after charging embezzlement, by way of conclusion in the same count, also avers that “ so ” the defendant committed larceny.
    3. Where from the authenticated copy of the indictment annexed to the requisition it appears that the. fugitive stands charged in the demanding state with embezzlement, the printed statutes of such state, purporting to be published by its authority, may be received to show that embezzlement is made a crime by the laws of that state.
    4. After an alleged fugitive from justice has been arrested on an extradition warrant, he will not be discharged on the ground that there was no evidence before the executive issuing the warrant, showing that the fugitive had fled from the demanding state to avoid prosecution. ■

    Application for a writ of habeas corpus.

      Charles JE. Burr and A. L. Ralston, for tbe writ.
    Before the governor of Ohio is authorized to issue his warrant of arrest, three things are necessary, both by federal law and the law of this state. IT. S. Rev. Stat. 1027, § 5278; 72 Ohio L. 79.

      ■ 1st. A demand, must be made, .to wit, the requisition.
    2d. A copy of an indictment (or affidavit) charging a. crim.e must be produced.
    3d. The copy of the indictment must be certified to be authentic by the governor of the demanding state.
    These requirements are all jurisdictional in their nature, and without which every subsequent step is absolutely void. Kingsbury’s case, 106 Mass. 225 ; In re Clark, 9 Wend. 212-219; Ex parte Thornton, 9 Texas, 646.
    I. The copy of the indictment in this case is not authenticated according to law.
    The governor of the demanding state must certify to the genuineness of the copy. Ex parte Pfitzer, 28 Ind. 450.
    The requisition in question recites: “ Whereas it appears by the annexed papers, duly authenticated according to-■law, etc.'’ When we look at the copy of the indictment, one of the “ annexed papers,” we find that it, in fact, is not authenticated according to law, nor is it authenticated by the governor at all. If the requisition had read, as is usual in requisitions, “ whereas, it appears by the annexed papers, which I hereby certify to be authentic,” there would be no question about it. But there is no certificate to that effect, either in or out of the requisition. The language used is not an official certificate.
    The governor of Missouri was bound to certify officially that the copy of the indictment transmitted was genuine. Until he does this, the- governor of Ohio has no jurisdiction to act. What the governor of Missouri did do was to certify to the genuineness of the attestation by the clerk of the court.
    A record not authenticated according to law is competent for no purpose whatever. Craig v. Brown, 1 Pet. C. C. 352; 4 Harrington, 579; Ex parte Thornton, 9 Texas, 646.
    • II. The second and third objections to the admissibility of the records from the governor’s office as evidence, are that the pretended indictment does not charge a crime, but, on the contrary, is void for repugnancy.

      We do not claim that we can here raise a technical objection as to the form of the indictment, but if the indictment is fatally defective in its averments, or repugnant in the body and substance of the offense charged, then it can not be said that the pretended indictment charges a crime. In re Hayward, 1 Sandf. 701; Matter of Leland, 7 Abb. Pr. (N S.) 64; 1 Park Or. 429; Albany L. J., Dec. 14, 1878, p. 468; 56 N. Y. 182.
    An examination of this pretended indictment shows that in one and the same count two distinct and totally repugnant crimes are charged.
    The first part sets forth in detail all the necessary facts-to constitute the crime of embezzlement, and thus concludes: “And so the grand jurors aforesaid . . do say and present that the said Stephen Sheldon, on,” etc., “ at,”' etc., “the said sum,” etc., “in manner and form aforesaid,, feloniously did steal, take, and carry away, against,” etc.
    It is utterly impossible to tell whether this is au indictment for embezzlement or grand larceny, or even to guess,, were it not for the indorsement on the back of it: “Embezzlement.” The two crimes are absolutely incompatible.. Bouvier L. Die., titles “Embezzlement” and “Larceny.”
    III. If the indictment was for embezzlemeut, there was-neither a certificate of the governor of Missouri, affidavit,, or other evidence before the governor of Ohio that embezzlement was a crime by the law of Missouri.
    This is also, we say, fatal to the jurisdiction of the governor of Ohio to issue his warrant. In the Matter of Clark, 9 Wend. 219; Hurd on Habeas Corpus, 605; 6 Penn. Law Jour. 412; 56 N. Y. 182; 18 Albany Law Jour. 869; 24 How. 66.
    IY. There was no evidence before the governor of Ohio, or the judge who heard the case in the court below, even tending to show that Sheldon fled from Missouri to avoid prosecution for this offense, or was a fugitive from justice at all. This was necessary to be done before the governor of this state would be authorized to issue his warrant. Hurd on Habeas Corpus, 612, book 3, ch. 2, § 4 (1 ed.) ; 2 Carter (Ind.), 396; Albany L. J., Oct. 5, 1878, p. 272.

      JD. K. Watson, contra :
    As to the objection of insufficient authentication, we say that the papers annexed to the requisition are all verified by the seals and signatures of the proper officers, and the .governor of Missouri declares them to be “ duly authenticated.” We think this brings the case within the statute. (See Platt v. Stout, 14 Abb. Pr. 178.
    If there is anything in the objection, it is merely technical, and ought to be cured by the maxim de minimis non •curat lex; and being merely formal, it ought not, in a case where a crime is directly charged, to be regarded. Work v. Corrington, 34 Ohio St. 64.
    As to the objection that no crime is charged in the in•dictment, and that it is void for repugnancy, see Revised Statutes of Missouri, which expressly authorizes a jury to ■find one indicted for embezzlement guilty of larceny, and •vice versa. And as to repugnancy, see 26 Mo. 201.
   Gilmore, J.

Counsel engaged in this case, the court •consenting, have agreed that this application maybe heard .and determined on the full statement of facts as they appear in the bill of exceptions filed in the preceding case •of Sheldon v. McKnight just decided. Ante, 316.

It appears from the petition on which this application is made, and also by the bill of exceptions referred to, that -the petitioner is now detained by the order of Judge Bingham.

The points made and decided can be so stated as to be understood without setting out here all the documentary •evidence introduced on the hearing before Judge Bingham; and (here is no question, but that the oral testimony there introduced as to the identity of the fugitive, was sufficient on that point to warrant the order, and hence the testimony is not here set out.

The petitioner says that he is unlawfully restrained of his liberty, because Judge Bingham “ had no jurisdiction to make the order under which he is detained, for the following reasons, to wit:

“1. That said governor of Ohio had no jurisdiction to issue said warrant upon which he was arrested.

“2. It was not shown to the said judge that your petitioner was charged with treason, felony, or other crime within the said State of Missouri. .

“ 3. That it was not shown to the said judge that your ■petitioner had fled from justice from the said State of Missouri.”

First. The ground upon which the first reason is based, Is that the copy of the indictment upon which the requisition is founded, and which accompanies the same, is not ■duly certified as authentic, by the governor of Missouri.

Section 5278 of the extradition law of the United States ■(Revised Statutes U. S. 1027), so far as it is necessary to set it out for the purposes of this case, reads as follows: Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the ■executive authority of any state or territory to which such person has fled, and produces a copy of an indictment, found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as ■authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it «hall be the duty of the executive-authority of the state or territory to which such person has fled to cause him to be arrested and secured,” etc.

Our statute requires the copy of the indictment found, •or affidavit made, to be “ duly certified as authentic” (72 Ohio L. 79) by the demanding executive. On this point the two laws are in effect the same, and if they were not, the law of this state would have to give way.

In passing upon the sufficiency of the authentication in the requisition, we are not to be governed by the rules of construction applicable to special pleading, but by the rules applicable to the construction of statutes, by which the intention of the law-maker is to be arrived at. As between the states of the Union, the whole subject of extradition isr governed and regulated by positive law. The law of congress, above cited, was passed in conformity to the provisions of the federal constitution upon the subject (art. 4, § 2); and we must suppose that the object of the law was to furnish the means by which the constitutional provision could be fairly and impartially carried into effect between the states.

Confining the inquiry to the point before us, it is plain that it is a “copy of the'indictment found, charging the person demanded with having committed treason, felony, or other crime,” that is required to be certified as authentic by the statute. Why this requirement? Because, otherwise, the executive of the state, upon whom the demand is made, might be imposed upon by what purported to be a true copy of such an indictment, but which, in fact, might be a spurious copy. But, as has been said, the genuineness of the copy is not to be ascertained by a resort to any technical rule for ascertaining the fact, nor need the fact be made to appear in any set form of words, or even in the words of the statute requiring the authentication. All that can be required is, that the language employed by the demanding governor, in the requisition, understood in its ordinary meaning, shows that the copy of the indictment upon which the requisition is made is genuine.

In this case there is annexed to the requisition, "with other papers, a copy of an indictment against Stephen Sheldon, purporting to have been found by a grand jury in the Criminal Court of Jackson county, Missouri, which also purports to be authenticated by the attestation of the clerk of that court under the seal thereof.

In making the requisition, it was the duty of the demanding governor to satisfy the governor on whom the demand was made that this copy was not spurious, in other words, to certify that it was authentic.

If he had personal knowledge of the fact, he could, I suppose, have certified to its authenticity from this knowledge. But he is not supposed to have had such knowledge, •and in its absence, he had to rely for information as to the genuineness of the copy, upon evidence usually received by the executive in such cases, i. e. the clerk’s certificate, •as in this case, of the genuineness of which it is presumed he has the means of knowing, and has knowledge. When such a document comes to his hand, and he is required to act, it is for him to determine whether it is duly authenticated in accordance with the requirement of the laws of his state, and if he is satisfied that it is, then he may make such authentication the basis of information upon which he may, by certifying that the copy of the indictment is ■authenticated according to law, comply with the law which requires the copy to be certified as authentic.

The language of the requisition on this point is as follows : “ Whereas, it appears by the annexed papers, duly authenticated according to law, that Stephen Sheldon stands charged,” etc.

This language, fairly interpreted, is a compliance with the act of congress, which requires the copy to be certified as authentic. It negatives the idea that the copy annexed is spurious or fictitious, and shows that it is genuine.

A copy of the requisition, with the papers annexed thereto, including a copy of the indictment, all duly certified to be correct by the executive of this state, are made •exhibits, and accompany the extradition warrant.

Second. It is contended by counsel that the copy of the indictment is inadmissible as evidence, because “ it does not charge a crime, but, on the contrary, it is void for repugnancy.”

If it is true that the indictment does not charge a crime, then it was not sufficient to give jurisdiction to issue the warrant; and the judge or court, on habeas corpus, could look back of the warrant to the copy of the indictment upon which it was founded, for the purpose of ascertaining whether the executive bad jurisdiction to issue it, and if it appeared that no crime was charged in the indictment, the fugitive would be entitled to his discharge. But it is to-matters of substance, and not to matters oí form, that the-court will look under such circumstances. If a crime is dearly charged, it will be sufficient, notwithstanding the-conclusion of the indictment may seemingly be inconsistent with the charge.

The indictment in this case, which contains but a single-count, after clearly and concisely charging the defendant' (relator) with acts which usually constitute the crime of embezzlement, by way of conclusion, avers that “ so” the-defendant, “ did steal, take, and carry away,” etc.

This form of indictment may be good under the statutes-of Missouri; but be this as it may, it charges the crime of embezzlement, and the sufficiency of the form, in which the-charge is made must be left for the determination of the-courts of that state.

Third,. The ground of this objection is: “ That there was-neither a certificate of the governor of Missouri, affidavit, or other evidence before the governor of Ohio, that embezzlement or the wrongful conversion to his own use of money intrusted to his care as agent, is a crime by the laws of Missouri.”

It is true that it is not made to appear, by any of the-means suggested, that embezzlement is a crime by the laws-of Missouri, and in somp of the states it is held, in proceedings of this kind, that the courts will not take judicial notice of the laws of the demanding state.

But our statute provides that “ printed copies in volumes-of statutes . . . enacted by any other state, . . .. purporting or proved to have been published by the authority thereof, . . . shall be admitted by the courts- and officers of this state, on all occasions as presumptive evidence of such laws.” 75 Ohio L. 654, § 5.

Hence, when it appears, as in this case, that the fugitive stauds charged in the demanding state with embezzlement,, the printed statutes of that state purporting to be published by its authoi’ity, may have been received by the governor, and may be received by the courts to show that embezzlement is a crime by the laws of that state.

On examination of such copies of the statutes of the State of Missouri, we find that embezzlement is made a crime by those statutes, and the governor, before issuing the warrant, had access to that source of information. The fugitive is not, therefore, entitled to a discharge .on this ground.

Fourth. It is next contended that “there was no evidence before the governor of Ohio, or the judge who heard the case in the court below, even tending to show that Sheldon fled from Missouri to avoid prosecution for the oflense, or was a fugitive from justice.”

One of the papers annexed to the requisition, is the affidavit of the prosecuting attorney of Jackson county, Missouri, which is authenticated by the attestation of the clerk of the court in which the indictment is found, and also by that of the secretary of the State of Missouri; in which, after stating the finding of the indictment for embezzlement against Sheldon, affiant, says: “ That said Sheldon is a fugitive from justice from the said State of Missouri, and he has reason to believe, and does believe that the said Sheldon is now in the city of Columbus in the State of Ohio.”

While this does not in terms state that Sheldon had fled to avoid prosecution, it does state as a conclusion that he is a fugitive from justice; and it was for the executive to put a construction upon this language before issuing the extradition warrant; and under these circumstances the fugitive will not be discharged on the ground that there was no evidence before the executive issuing the warrant, showing that the fugitive had fled from the demanding state to avoid prosecution.

Motion overruled.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    The City of Akron v. The Chamberlain Company.
    1. The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if made within the reasonable exercise of their power.
    2. The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resulted from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.
    3. Whether a grade be unreasonable or not, must be determined by the circumstances existing at the time the grade was established, and not by the circumstances existing at the time abutting lots may have been improved.
    4. Within the principle of municipal liability, as above stated, is the case where a lot is improved in anticipation of, and with reference to, a reasonable future grade which is afterward established, and damage results from a subsequent change in the grade.
    Error to the District Court of Summit county.
    The original action was instituted in the Probate Court of Summit county, by the City of Akron, against the Chamberlain Company (a corporation) and others, under the statute (§ 566 of the municipal code), for the purpose ■ of having the damages sustained by the defendants by reason of the improvement of West Market street assessed by a jury.
    The Chamberlain Company was the owner of a flouring mill, erected on a lot abutting on the street, and the damages sustained resulted from an elevation of the grade, about 14 feet, in front of the mill. The mill had been erected in the year 1842, and the grade of the street was raised in 1876, under an ordinance passed in 1873. Testimony was offered tending, among other things, to prove that the mill had been erected before the grade of the street liad been established, and also tending to prove that in 1844 the municipal authorities had established a grade suitable for the convenient use of the mill, and that the improvement of the street in 1876 was a change in the established grade, which resulted in injury to the mill. Testimony was also offered tending to show that no grade had been established in 1844, as claimed by ihe company.
    The jury assessed the company’s damages at $9,600, for which judgment was rendered. This judgment was afterward affirmed in the common pleas and district courts. The errors complained of are assigned upon the charge of the probate court to the jury, and the refusal to charge as requested.

      S. Burke, for the plaintiff in error:
    It was a recognized fact upon the trial that no grade was •established at the time that the buildings constituting the plaintiff’s mill were erected. The court recognized the fact in its charge; and yet it charged the jury that if there was a change made in the street from the grade actually worked and used at the time the mill was built, such change rendered the city liable for damages. We maintain that the charge of the court on this subject wras wrong, and especially that it was calculated to, and did, mislead the julT-
    What is now the city of Akron was, when the mill was built, a comparatively small town, and the town authorities had not in any manner “indicated, ” to the persons who built the mill, or to anyone else, what the grade of the street would be at the point fronting the mill. The town, therefore, did nothing to mislead those who erected the mill; no just anticipations of those who erected the mill were disappointed by any subsequent change upon the part of the -town or city.
    The probate judge went further to recognize or establish the liability of the city for damages in this case than any reported decision of this court justifies. There may be
      dicta for saying that if no grade had been established at the time the buildings were erected, and the builder, having reference to the future grading of the streets and to-public use, anticipates with reasonable certainty the wants, of the public, and erects his buildings in accordance with such reasonably anticipated use, and the town or city afterward grades to his damage and injury, that he may recover. This dicta, however, I understand to be substantially rejected by the supreme court in Railway v. Cumminsville, 14 Ohio St. 523; Cincinnati v. Penny, 21 Ohio St 499.
    The rule that seems to be recognized in Crawford v. Delaware, 7 Ohio St. 459, that a person building is compelled to look into futurity and anticipate a reasonable grade, is. altogether too uncertain for application. How far shall he look into the future ? By what rule will he multiply the-increase of population? By what rule will he determine the grade that shall afterward be established by municipal authority? In any view that we are able to take of this, rule, it seems to us altogether too variable aud uncertain for practical use. It is a severe rule which holds a town or city liable for damages for using its own property in a legitimate and proper manner. It is certainly a hard rule of law which inflicts damages upon either a corporation or a private person for doing that which they have a perfect and lawful right to do, and yet this hard and severe rule is-applied whenever a city or town is held auswerable for damage caused by a change of grade. It is diflicult upon principle to see why a town or city has not the same right to change the grade of its streets and adapt them to the-wants of the public that an adjoining proprietor has to pull down his old house and build a different kind of building.. The law certainly ought not to be more exacting of proprietors of proper!}’ than to require them to so use their own as not to do any unnecessary injury to others. 2 Dillon on-Mun. Corp. 896-900.
    But if we regard this rule as being in force in Ohio, that a municipal corporation is answerable for damages caused by a change of an established grade, still the charge given by the court in this case was clearly wrong, and the defendant in error was not entitled to recover. His buildings-were constructed, foundations for them were laid long before any grade was established; as to him, therefore, there never was a change of grade. He never built a mill upon a grade and adopted a grade which was afterward changed-

      R. P. Spalding, for defendant in error:
    It is claimed for the defendant in error, that a long-continued course of decisions in Ohio has established the doctrine in our state that municipal corporations, after once establishing a grade for a street,, can make no change to the special injury of a lot-holder who has adjusted his buildings to that grade, without incurring the liability to make full compensation for the injury. Williams’ case, 3 Coke, 73, Pt. 5; Woolrich on Ways, 53; Year Book, 27, Henry VIII, ch. 10, p.. 27; Railway v. Cumminsville, 14 Ohio St. 547; McComb v. Akron, 15 Ohio St. 480; Stetson v. Faxon, 19 Pick. 147; Baron v. Baltimore, 2 Am. Jur. 203; Rhodes v. Cleveland, 10 Ohio St. 160; Akron v. McComb, 18 Ohio St. 229; Crawford, v. Delaware, 7 Ohio St. 459; Jackson v. Jackson, 16 Ohio St. 163; Cincinnati v. Penny, 21 Ohio St. 499 ; Youngstown v. Moon, 30 Ohio St. 133.

      F. J. Dickman, also for defendants in error:
    I. The only error alleged by the plaintiff in error consists in the charge of the court as given, and in its refusal to-charge as requested.
    If there was error in this, it was because he followed the current of decisions by the Supreme Court of Ohio.
    The charge of the court, taken as a whole, embodied, as its gist, in unmistakable language, these cardinal principles, viz.:
    1. That the owner of a lot upon a street, the grade of which has not been established, must use reasonable care and judgment in making improvements, with a view to a reasonable and proper grade, and the city will not be responsible for injuries to such improvements by afterward grading the street, if the grade by ordinary care could have been anticipated.
    2 That the owner of a lot who erects his building before the establishment of a grade, either by ordinance or by such continuous use of the street as would indicate that the grade was not to be changed, does so at his peril with reference to such future uses or changes as may be made and adopted by the city.
    3. That it does not follow that the owner who erects his building before such establishment of grade, would not be entitled to recover damages; that he does not, by assuming the risk of building in advance of such establishment of grade, become estopped from recovering compensation for damages by reason of subsequent changes; that if he assumes the responsibility, and fortunately anticipates the identical grade afterward adopted by the city, and continuously used as such, the city would still be liable if, by a subsequent change of grade, the owner’s property is materially injured by reason of such change.
    4. That if the grade established and worked up to was a reasonable grade, and demanded for the convenient use of the street by the public, and the buildings upon the owners’ property were constructed before any grade was established, and without reference to any such reasonable grade as might afterward be established by the city, no damages can be recovered for any injury the owner may sustain by the grade in question.
    5. That it is not necessary that the grade established by the city should be an unreasonable grade in order that the property owner may recover damages for injury by reason of the grade.
    These principles we understand to be the law of Ohio.
    II. 1. If west Market street was graded for the first time, in 1876, the plaintiff would-have been entitled to recover damages. If the mill buildings were begun in 1842, and no grade was established until 1873, those facts would show that the plaintiff had exercised that great care, judgment, and discretion which it is claimed should be exercised in making improvements before a foundation is laid for the-recovery of damages.
    2. But the court below did not give the above in charge to the jury, although we insist the court might, without error, have done so.
    The evidence, at the trial, tended to show that the mill owners, by the exercise of more than ordinary care, judgment, and discretion anticipated the grade of 1844, and placed their building in accordance with it, to wit, two and one-half feet above the level of the road..
    And, the plaintiff’s claim is not for damages caused by this grade of 1844, which was thus anticipated, but by a change of this original grade of 1844, after it had stood, for more than thirty years.
    3. The law does not require infallibility in judgment of any man. It does not ask for impossibilities. But it does ask that the property owner shall exercise reasonable care-in making his improvements, with reference to the right, possessed by the corporation to make a reasonable and proper grade. What, however, may be a reasonable and proper grade at the present time, may not be such twenty years-hence. If, therefore, the owner fails to look so far into futurity, but, in the light of surrounding circumstances, makes his improvements with due precaution, he may still recover damages, though the corporation, after a lapse of many years, establishes a grade which is reasonable and proper, but different from the reasonable and proper grade-that would have been established at or about the time the-improvements were made.
    But the current of authority in conflict with the decisions of the Supreme Court of Ohio is not altogether unbroken. See Brown v. Lowell, 8 Mil. 175; O'Conner v. Pittsburgh, 18 Pa. St. 187; in re Ridge Street, Allegheny City, 29 Pa. St. 391; Alexander v. Milwaukee, 16 Wis. 256; Stetson v. Faxon, 19 Pick. 147; Keasy v. Louisville, 4 Dana (Ky.), 154; 2 Kent’s Com. 340, note c.; 14 Conn. 146; Angell on Highways, § 218.

      W H. Opson and JS. P. Green, also, fox' defendants in •error.
   McIlvaine, J.

We adhere, with entire satisfaction, to the doctrines enunciated in Cincinnati v. Penny, 21 Ohio St. 499, whex’ein the former cases, decided by this court, in relation to the liability of municipal corporations for damages to adjacent proprietors, by reason of the improvement of streets, were approved.

In that case, while the liability of the municipality was .acknowledged in cases where adjacent proprietors make improvements on the faith of corpox’ate acts, whereby they ;are induced to believe that no future change in the street will be made, it was affirmed that such owners must improve, at their peril, whex'e the xvants of the public, as to the improvement of a street, have in no way been indi•cated or defined by the public authoi’ities.

But inasmuch as the decision in the case of Crawford v. Delaware, 7 Ohio St. 459, was approved in Cincinnati v. Penny, it appears that some doubt has arisen as to the true rule. The doubt arises thus, a proposition in the syllabus of Crawford’s case is: “ That when a grade has not been ■established, the owner of a lot must use reasonable care and judgment in making improvements or ei’ecting buildings with a view to a reasonable and proper grade, and the city will not be responsible for injuries to such improvements by afterward grading the street, if the grade by ordinary •care could have been anticipated.” This proposition must bo true, if the lot-owner, in such case, improves at his peril. It is not on this proposition, however, that the doubt .arises, but on a supposed implication, namely, that if the owner uses reasonable care and judgment, and is, nevertheless, injured by subsequent grading, the municipality will sbe responsible, although the grade subsequently established be a reasonable one. Such implication, if it arises, is, of •course, repelled by the decision in Cincinnati v. Penny.

But it does not necessarily arise, as will be seen by an examination of the case then before the court. The ease was not one for the application of such a doctrine. We do not understand, however, that it was the intention of the court, or of the learned judge who wrote the opinion, to hold that the test of liability, in the supposed case, is the reasonableness of the care and judgment, exercised by the lot-owner, instead of the reasonableness of the subsequent grade of the street. But however that may be, we are now unanimously of opinion that if the subsequent grade, in •such case, be reasonable, or, in other words, if it be established in the reasonable exercise of the authority conferred on the municipality, at the time it is made, then such grade .should have been anticipated by the owner of the adjacent lot, and his improvements should have been made with reference thereto. Whatever latitude there may be in the •exercise of discretion in fixing the grade of a street is lodged in the municipal authorities, and not in the adjacent lot-owners.

While we recognize the general rule to be, that no liability on the part of a municipality for injury to abutting property, by reason of the improvement of a street, exists where such improvement is properly made, yet this rule is subject, as we have seen, to the exception, that where abutting property is improved with refei'ence to an existing street, so graded or improved under the authority of the public .agents having the control thereof, as to indicate, fairly and reasonably, permanency in the character of the street improvement, a liability is cast upon the city or village for injuries resulting from subsequent changes.

And it would seem to follow, as a logical sequence, that, if before, a permanent grade is thus established, the owner of an abutting lot improves the same with reference to a reasonable grade to be established in the future, and his anticipations are realized in the subsequent establishment •of the grade, he should thereafter, in respect to such improvement, be entitled to enjoy the same right in the grade of the street which was thus fairly and reasonably anticipated, as if he had improved his lot after the grade had been so established. Surely the rights of such a lot-owner are equal to those of one who improves his lot after the grade was established.

But while we find the doctrine of liability on the part of the municipality, as maintained in this state, fairly stated in the charge of the probate court, we think the rule of non-liability was not well or clearly put to the jury ? especially in a case where abutting lots are improved before the grade of the street has been established, and the buildings thereon are afterward injured by a reasonable grade subsequently established.

We have had some difficulty in determining the sense, In some instances, in which the words “ grade” and “grade established ” were used, in the charge of the court below. But, without referring to instances more particularly, it is enough to say, that we are of opinion that the establishment of a grade whereby lot-owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but it may bo shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not; but otherwise, if the surface improvement indicates a mere temporary use or condition of the street.

The plaintiff in error requested the court to charge as follows :

“ There being no claims made by the claimant of damages in this case that any part of their lands have been taken, and damages being claimed solely on account of a change of grade, the plaintiff can not recover damages for injury to any part of their property built upon, unless such buildings were built after a grade was actually established, by the town or city authorities, in accordance with such, grade, or that such buildings, if constructed before a grade* was established, were constructed with reference to a reasonable grade, and that the city by establishing an unreasonable grade has caused the injury complained of.”

While this request might properly have been refused, on> the -ground that it omitted the case where a reasonable' grade, which had been afterward established, was anticipated by the claimant of damages, it was nevertheless-given, with this qualification :

“ I give you this as law, except the concluding paragraph,, that the city, by establishing an unreasonable grade, has-caused the injury complained of. I say to you that it is-not necessary for you to find that the present grade is an unreasonable one, for the present time, in order that the plaintiff may recover.”

This qualification was calculated to mislead the jury, in respect to the risk which the owner assumed in improving-his lot before the grade of the street was established. He-was bound to anticipate the future grade of the street, in accordance with the future wants of the public. The question is not, what would have been a reasonable grade at the time the lot was improved, but, was the first grade, indicating permanency, reasonable at the time it was established? The liability of the municipality would attach only when such grade was unreasonable, or if reasonable, by subsequently changing it, to the injury of adjacent buildings.

The plaintiff in error also requested the court to charge as follows:

“ The law presumes and the jury will presume that the grade established and the acts done by the city council were legally established and done, and that the grade established and improvement made were reasonable, until the-contrary appears ;” which request was given, the court adding thereto the following charge : “ That what was a reasonable grade in 1873 might not bave been a reasonable grade in 1844. What would be a reasonable grade in a village of two thousand inhabitants might not be a reasonable gradé for a city of fifteen thousand inhabitants. If the plaintiff built, in 1842, in reference to what would have ibeen a reasonable grade then, and such grade was established, his right to recover would not be determined by tlie fact that the preseht grade is or is not an unreasonable one.”

Admitting the last clause of this instruction to be a correct statement of the law, we-think the whole instruction ■was misleading. Suppose that what would have been a reasonable grade ” in 1842, had not been afterward established, and the jury had found, the grade of 1873 to be the •first grade established, then they might well bave understood, from this instruction, that the city was liable, iif they further found that the grade of 1873 would have been unreasonable in 1842. And thus the abutting proprietor would be relieved from the risk of anticipating a future reasonable grade, under the general rule, without bringing himself within the exception which has been .recognized in this state.

Judgment reversed and cause remanded.


author: Okey, J.

text:
    Lima v. McBride.
    1. If two statutfes provide for the levy of a road tax, and the record of the board of county commissioners, levying such tax, is susceptible of a construction which bases the levy equally well on either statute, hut as applied to one, the levy is excessive, and applied to the other, is not excessive, such levy will, prima facie, be regarded as based on the latter act, although the tax therein mentioned can only he levied to provide for a particular condition of the roads, -while the other act is general, and the levy actually made is in general terms.

      % Where the county commissioners, intending to make a levy of taxes for road purposes, under the act of April 30, 1869 (66 Ohio L. 60), cause sueh levy to be entered on the record, in general terms, the tax will not he regarded as invalid, or made under the act of 1877 (74 Ohio L. 92), on the mere ground that the record does not show the existence of facts which warranted the levy under the former act.
    .3. The council of a municipal corporation is not entitled to control any part of the taxes levied for road purposes under the act of April 30, 1869 (66 Ohio L. 60), except as provided in the supplementary act of 1873 (70 Ohio L. 118).
    Mandamus. Lima, a city of the second-class, in Allen •county, obtained in this court an alternative writ of mandamus to compel McBride, auditor of the county, to place to the credit of the city the amount of certain taxes levied by tbe county commissioners for road purposes, in June, 1877, and issue to the city a warrant therefor on the county treasury, or show cause why he fails to do so. The case was heard on the alternative writ, the answer, and an agreement of the parties. The writ contains substantially • the same averments as the application. Omitting merely formal parts, the writ, answer, and agreement are as follows :
    Writ. — The city of Lima has represented that it is a municipal corporation, duly incorporated as a city of the. ■second class under the laws of the State of Ohio; that it has a population of less than ten thousand, and embraces a county-seat, and is situated in the county of Allen, in said state, and that said Nelson McBride is auditor of said Allen county, Ohio; and that at an adjourned session of the board of commissioners of said county, on June 7, 1877, the following proceedings were had, as appears by their journal No. 4, page 207:
    “ The commissioners made a levy for county road fund •of four mills, and ordered the auditor to place the same upon the tax duplicate of Allen county, Ohio, for the year 1877, for collection.”
    And that no other or further proceedings in relation to said levy were ever had by or before said county commissioners.
    And, further, that said journal is the only record of the •proceedings of the said county commissioners as a corporate body, and that it is kept by said Nelson McBride, auditor as aforesaid, as required by law, and that by reason of said levy as aforesaid, said auditor placed said tax on the grand duplicate of Allen county, Ohio, making one-half thereof to be collected with the installment of taxes due December 20,1877, and the other half to be collected with the installment of taxes due June 20, 1878, and that said duplicate included all the property, both chattel and real, assessed for taxation in said city of Lima, and that the amount collected by the treasurer of said county of Allen, by reason of said levy, was included by him in his February, 1878,. settlement with said auditor ; and, further, that no part of said road tax so by them levied, was set apart by said county commissioners for the purpose of building and repairing bridges in said county, and that no other or further proceedings were had by them in relation thereto.
    And, further, that no roads known as turnpike roads have ever been located or constructed in the county of Allen.
    And, further, that a large amount of money, the exact amount of which is unknown to the court, but which the court is informed amounts to the sum of three thousand seven hundred dollars ($3,700), was collected by the treasurer of said county of Allen, by virtue of said tax levy aforesaid, from the property assessed for taxation in said city of Lima, and was included in said February, 1878, settlement of said treasurer of Alleu county with said auditor of Allen county.
    And, further, that said Nelson ' McBride, auditor as aforesaid, and the treasurer of said county of Alleu, had a settlement in February, 1878, as required by law, and that it was the duty of said Nelson McBride, auditor as aforesaid, immediately after said settlement, to credit said city of Lima, along with other proper items which he did credit, in the account required by law to be kept by him, and which is kept by him, with the net amount of taxes so collected by said treasurer of Alleu county, Ohio, by virtue of said levy, from the property assessed for taxation in the «aid city of Lima, and that said Nelson McBride, auditor as aforesaid, neglected and refused to credit said net amount of taxes to said city of Lima, and still neglects and refuses so to do.
    And that after said settlement so had between said Nelson McBride,-auditor as aforesaid, and said treasurer of Allen county, in February, 1878, and after said Nelson McBride, auditor as aforesaid, had stated the account of the net amount of taxes from all sources due to said city of Lima from the treasurer of said county of Allen, as ascertained and determined at said settlement in February, 1878, the treasurer of said city of Lima duly demanded from said Nelson McBride, auditor as aforesaid, an order on said treasurer of Allen county, for the net amount of taxes then due to said city of Lima, and said Nelson McBride, auditor as aforesaid, issued and delivered to said treasurer of said city an order for all the taxes then due to it from said county treasurer, except the net amount of taxes collected by virtue of said levy on the property assessed for taxation in said city of Lima, Ohio, and that said Nelson McBride, as such auditor, neglected and refused to include in the order then issued by him as such auditor the said net amount of taxes so collected from the property assessed for taxation in said city of Lima, by virtue of said levy, and still neglects and refuses so to do, and asserts his intention to continue to refuse to make said credit and issue said order.
    Now, we command you that immediately after the receipt of this writ, you ascertain and credit the city of'Lima, Allen county, Ohio, in the account required by law to be kept by you with said city of Lima, with the net amount of taxes collected by the treasurer of Allen county, Ohio, from all the property, both chattel and real, assessed for •taxation in said city of Lima, by reason of the said levy made by the board of commissioners of Allen county, Ohio, ■on June 7, 1877, and hereinbefore set out, as appears by the settlement had between you and the treasurer of said -county of Allen, in February, 1878, and thereupon that having ascertained and credited said net amount of taxes1 as aforesaid, you, as such auditor, execute and deliver to-the treasurer of said city of Lima an order on the treasurer of said county of Allen for the net amount of taxes so ascertained and credited, or that you show cause before the-judges of our supreme court, on the 13th day of July, 1878, at 9 o’clock A. m. of said day, why you have not. done so.
    Answer. — That the levy of four mills on the dollar on all taxable property in said Allen county, Ohio, which, in-.the year 1877, was ten millions four hundred and sixty-five-thousand two hundred and ninety-six ($10,465,296) dollars-■of taxable property, was made by said board of commissioners for the purposes and uses provided for in the act of April 30, 1869, and for no other purpose. That said levy was made and intended to be made by said commissioners1 under the authority conferred upon them by said act.
    That the commissioners, acting and intending to act, under the statute of April 30, 1869, and as they had done-in the years 1875 and 1876, proceeded on the 9th day of May, 1878, to advertise for bids for the reconstruction and repair of certain of the principal highways of said county,, and did on the 30th day of May, 1878, award contracts for said reconstructing and repairing said highways to the amount, at the contract price thereof, of $26,500. That the total tax collected at December collection, 1877, and included in the February settlement, 1878, of money under said levy, amounted to but the sum of $22,477.41. That -no portion of said tax so collected and included in said. February settlement, 1878, now remains in the treasury of said county, which is not already appropriated to the purposes contemplated by said act of April 30, 1869.'
    That said commissioners claim the right to control the-fund arising from said levy for the purposes named in said act of April 30,1869, and the act supplemental thereto, of April 9, 1873 (70 Ohio L., 118), and deny the right of the-defendant to, in any manner, interfere with the same, except upon the order of said commissioners.

      That no portion of- said fund has remained in the treasury of said county unexpended and unappropriated for six months after the annual September settlement for the fiscal year during which said road tax was collected. And he says that said September settlement has not yet been made, and said fiscal year has not yet ended.
    Agreement. — dt is hereby agreed by and between the plaintiff and defendant:

      First. That all allegations of fact contained in the alternative writ of mandamus issued in this case, upon which proof would be required of the plaintiff by the court, shall be taken and held by the court as proved by the plaintiff.

      Second. That all allegations of fact contained in the answer of the defendant herein, upon which the court would require proof, shall be taken and held by the court as proved by the defendant.

      Third. That the above agreements shall not relate to any allegation of a conclusion of law, or any other matter to which proof is not required.

      Fourth. That this cause shall be submitted upon the motion for a peremptory writ, and this agreement^ as upon final trial of this cause.
    On March 9, 1868, an act was passed “ relating to roads and highways.” 65 Ohio L. 14; 2 Sayler, 1428. It contains thirty sections. In the 17th section, provision was made for the levy of a road and bridge tax by the county commissioners. That section was amended in 1871 (68 Ohio L. 116; 3 Sayler, 2250); in 1872 (69 Ohio L. 114; 3 Sayler, 2692); in 1876 (73 Ohio L. 149); in 1877 (74 Ohio L, 93) ; and in 1878 (75 Ohio L. 436, 474, 507) ; the latter act being in force. The section, as amended in 1877, was in force when the taxes in controversy were leviedand collected, and provided, among other things, as follows: “ That the commissioners of the respective counties in the state are hereby authorized, at a special session in May, 1877, to levy a tax for road and bridge purposes, as follows, . . in counties where the taxable property is less than twenty , millions of dollars and over ten millions, not more than three mills ; . . . and the auditor- of the county shall place the same-on the tax duplicate for the year 1877, and divide the same equally; one-half to be collected in the installment of taxes due December 20,1877, and the other half to be collected in the installment due June 20, 1878. The county commissioners shall set apart such portions of the road tax by them levied as they may deem proper, to be applied to the building or repairing of bridges in their respective counties, which portiou so set apart shall be called a bridge fund, and shall be entered on the duplicate of taxes for the county by the auditor of the county, in a separate column from the other levies for road purposes, and shall be collected in money and expended, except as may be otherwise provided by any local law heretofore enacted, under the direction of the commissioners of the county, in the building or repairing of bridges and culverts, or both, in their respective counties; provided, that in case an important bridge belonging to or maintained by any county, has been or may hereafter become dangerous to public travel, by decay, or otherwise, and the restoration thereof may be necessary for the-public accommodation, the commissioners of such county may levy a special tax for that purpose not exceeding one and one-half mills on the dollar of the taxable property of such county, the proceeds of which tax shall be applied solely to restoration of such bridge or bi’idges ; and the commissioners may anticipate the collection of such tax by borrowing any sum not exceeding the amount so levied, or to be levied, at any fate of interest not exceeding eight per cent., and issue notes or bonds therefor, payable upon the collection of such tax; provided further, that nothing herein contained shall affect the right of city councils to receive and expend the proportion of levies herein, as authorized by the six hundred and forty-first section of the municipal code.”
    Section 641 of the municipal code, as then in force, was in 68 Ohio L. 133.
    Section 21 of the above-mentioned act of March 9, 1868, provided how the tax might be paid, and where it should Re expended. The section was amended by an act passed the same year (65 Ohio L. 78; 2 Sayler, 1537); by the act of April 24, 1869 (66 Ohio L. 51); by the above-mentioned act of 1877 (74 Ohio L. 97): and again by the above-mentioned act of 1878. 75 Ohio L. 436, 478, 507. The amendment of 1877, which, as we have seen, was in force when the taxes in controversy were levied, provided, as- the amendment of April 24, 1869 (66 Ohio L. 51), hád provided, among other things, as follows :
    “All road taxes collected by the county treasurer shall be paid over to the treasurer of the township or municipal corporation from which the same were collected, and shall be expended on the public roads, and in building and repairing bridges, as hereinbefore provided, in the township and municipal corporation from which the said taxes wTere •collected, under the direction of the trustees of the proper township or council of such municipal corporation; and all funds heretofore levied for road pimposes, an<^ not expended, shall be expended by the trustees of the township or council of the municipal corporation from which the .same were collected, as other taxes collected under the provisions of this act.”
    Section 487 of the municipal code (66 Ohio L. 149, 231, now repealed; 75 Ohio L. 161, 392), provided as follows :
    “ Sec. 487. No tax assessed upon property within the territory attached to any corporation as aforesaid, shall be applied otherwise than within the territory in which the same is assessed ; and all taxes charged for road purposes ■on the property within the limits of the corporation, or the territory so attached, and collected by the county treasurer, shall be paid over to the corporation treasurer, to be specially appropriated by the council to street and road purposes within the corporate limits and territory so attached ; and the trustees of the township in which said territory is located and the council may agree upon a different distribution or division of said funds.”
    The act of April 30,1869 (66 Ohio L. 60; 3 Sayler, 1795), :is as follows:

      ' u Sec. 1. That whenever any one or more of the principal highways of any county have been so damaged br destroyed by freshet, land-slides, wear or watercourses,’ or by any other casualty, neglect, or inattention, as to render the same unfit for travel, and hinder free- and ■ necessary transportation, and the commissioners of •such county shall be satisfied that the ordinary levies authorized by law, for said purposes, will be inadequate to provide money necessary to repair such damages, or to remove' obstructions from, or make such changes in, such road or roads, rendered necessary by the aforesaid cause or causes, they shall be and. are hereby authorized, annually thereafter, to levy a tax at their June session [of] in the year one thousand eight hundred and seventy, and each year, of any sum not exceeding five mills upon the dollar, 'upon all taxable property of any such county, to be expended under their directions, in such manner as may seém tc^ them most advantageous to the interest of any such county, for the construction, reconstruction, or repair of such road or roads.
    - -'“ Sec.' 2. To anticipate the receipts which may come into the county treasury by virtue of the tax levied under authority of the provisions of this act, the said commissioners are hereby authorized to borrow, from time to time, such sums of money as shall not exceed, in the aggregate, fouf-fifths of the tax levied by this act; provided, that the money so borrowed in any one year shall not exceed four-fifths of the tax levied in any such year ; and the money 'so borrowed shall be paid with lawful interest at the county treasury out of the taxes so levied.
    ■ “ Sec. 3. During such years as the commissioners of any -county shall avail themselves of the piro visions - of this act, they shall levy no tax for road purposes other thau that whi h is prescribed by the provisions of this act.”
    ■ An act supplementary to the last-mentioned statute was passed in 1873 (70 Ohio L. 118; 4 Sayler,'2939). It is as follows-: ■ '

      “ Sec. 1. That all moneys, assessed and collected by, the commissioners of any county in the state, as authorized by the above-named act, and .remaining in the hands of the-county treasurer, unexpended and unappropriated, for a period of six months after the annual September settlement for the fiscal year.during which said road tax was. collected, shall be paid over to tbe treasurer of the township or municipal corporation from which thg same was-collected, and shall be.expended on the public roads, under the direction of the trustees of the proper township or municipal corporation, in such manner as may seem to them most advantageous to tbe interest of said township or corporation, for the construction, reconstruction, or repair of roads, and in building or repairing bridges.”
    - Irvine $ Briee, for the relator:
    The levy was not made under the act of April 30, 1869.. That act must be strictly construed. Cooley on Taxation, 209; Cincinnati v. Bryson, 15 Ohio, 625; Reed, v. Toledo, 18. Ohio, 161; Jonas v. Cincinnati, 18 Ohio, 318; Mays v. Cincinnati, 1 Ohio St. 268. The record can not be supported by presumption that the board discharged its duty. Cooley on Taxation, 234, 247, 332; Burroughs on Taxation, 398. Even if the levy was under the act of April 30, 1869, the-tax levied on property in Lima, and collected, must be paid to the city treasurer. Municipal Code, §§ 152, 155, 439, 487, 641, 644, 650, 651; Ridenour v. Saffin, 1 Handy, 464; Steubenville v. King, 23 Ohio St. 610. If no part of the tax can be expended in Lima, the act under which it was levied would be unconstitutional. Cooley on Taxation, 104; Burroughs on Taxation, 71.
    J. E. Richie, for defendant:
    The levy was made under the act of April 30, 1869. The tax having been levied, the presumption is that the commissioners performed their duty. Coombs v. Lane, 4 Ohio St. 112; Scovern v. The State, 6 Ohio St. 293; Broom’s Leg. Max. 729; Westerhaven v. Clive, 5 Ohio, 136; Radcliff v. Teters, 27 Ohio St. 66; King v. Kenny, 4 Ohio, 9; Thevenin v. Slocum, 16 Ohio, 519; Bank of U. S. v. Dandridge, 12 Wheat. 64; Ward v. Burrows, 2 Ohio St. 241; Williams v. E. Ind. Co., 3 East, 192; Kelly v. Connell, 3 Dana, 532; Wheelock v. Hall, 3 N. H. 310; Brown v. Connelly, 5 Blackf. 390; Hartwell v. Root, 19 John. 513. Section 487 of the municipal code did not affect the act of April 30, 1869. Repeals by implication are not favored. Dodge v. Gridley, 10 Ohio, 174; Ruffner v. Comm’rs, 1 Disney, 39. As to the power of the commissioners in the highways of a municipal corporation. Wells v. McLaughlin, Butman v. Fowler, 17 Ohio, 99, 101.
   Okey, J.

A fair construction of the legislation set forth in the statement of the case, requires us to say that the road funds, which by the act of 1877 (74 Ohio L. 92), and ¡section 487 of the municipal code (66 Ohio L. 231), were required to be expended in the municipal corporation, were taxes levied by the corporation, or the county commissioners under the act of 1877. The act of April 30,1869 (66 Ohio L. 60), and the supplementary act of 1873 (70 ■Ohio L. 118), are independent statutes, still in force, and unaffected by the act of 1877 or the legislation with respect to municipal corporations. The purpose for which the extraordinary levy is made, under the act of 1869, might be defeated by a division of the fund; and it clearly .appeal’s, from the supplementary act of 1873, that a municipal corporation can in no way control a tax levied under the act of 1869, until it can have the benefit of the supplementary act. As no case is presented for the operation of the supplementary act, the question before us is whether the tax in question was levied under the act of 1877 or the act of April 30, 1869.

Beside the claim, which we hold to he untenable, that ■even if the taxes were levied under the act of April 30, 1869, they must, under the act of 1877 and section 487 of the municipal code, be expended in the municipal corporation, the city further claims that the act of 1877 is general; that the levy, in the general form set forth in the record, is a-substantial compliance with that act; that the time specified for making the levy, that is, at a special session in May, 1877, was directory; that if the amount levied and collected was in excess of that authorized by the act, the-county auditor could not interpose the objection in this-case; that the act of April 30, 1869, has relation to a special condition of things, of the existence of which nothing appears in the record; and, therefore, that it necessarily follows the levy was made under the act of 1877.

Admitting the premises, does the conclusion follow that this was a levy under the act of 1877, and not under the-act of April 30, 1869 ? Possibly it is true that naming the time for making the levy was not a limitation on the authority of the commissioners, and it may also be true that the auditor could not avail himself of the defense that the-amount levied is in excess of that authorized by law (31 Ohio St. 432); but in the construction of these acts, in determining whether the levy was made under the act of 187T or that of 1869, the fact that the levy was made at the time,, and for an amount expressly authorized by the act of 1869, while it -was not made at the time directed in the act of 1877, and was in excess of the levy authorized thereby, is-of great importance. “ When an instrument is susceptible of two conflicting probable constructions, the court will adopt the construction which is most consistent with good faith, and will hold that such construction was intended by the parties; and this rule of construction applies to cases where an act or fact is fairly susceptible of two interpretations, one lawful and the other unlawful.” 2 Whart. Ev. §• 1249.

The commissioners of the county constitute aboard, and the county auditor is their secretary, who is required to “ keep- an accurate record of all their corporate proceedings.” 67 Ohio L. 104. The proceedings of the board are, in many respects, those of a court of special and inferior jurisdiction. In Anderson v. Commissioners, etc., 12. Ohio St. 685-648, it was' said : “ The lihaited record they ■direct to be made is to be considered evidence of the establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of the jurisdiction conferred.” The same principle is recognized in Beebe v. Scheidt, 13 Ohio St. 406; Corry v. Gaynor, 22 Ohio St. 584; McClellan v. Miller, 28 Ohio St. 488; Frevert v. Finfrock, 31 Ohio St. 621.

In this case it appears the commissioners were clothed with authority to levy taxes for road and bridge purposes. 'They met as a board, at the time directed in the "act of April 30, 1869, took the subject of a levy for road purposes under that act into consideration, and made a .levy for the purpose, general in terms, in excess of that authorized by the act of 1877, but within the act of 1869, which was the .statute upon which they intended to base their action. ■Consequently, it appears the matter was within the juris■diction of the board. The authorities above mentioned, though referring to judicial action, are applicable; and, moreover, they are in accordance with the general rule. “Judicial officers, though of special and limited jurisdiction, will be presumed to have acted regularly as to all matters within their jurisdiction, unless the record shows to the contrary.” 2 Whart. Ev. § 1308; 2 Best’s Ev. § 360.

While the levying of taxes is a legislative power (Cooley -on Taxation, 33), the record of the officers making the levy will receive at least as favorable consideration as the records of an inferior judicial tribunal. In the well-conisidered case of West School District v. Merrills, 12 Conn. 437, it was said: “ There is no rule of law which requires any formal technical statement of the objects for which the -money is to be raised. All that can be required, in respect to such statement, to render the vote prima facie legal, is that it should appear from the vote, with reasonable cer■tainty, that the tax is laid for a purpose authorized by ■law.” The same view is strongly enforced in Adams v. Hyde, 27 Vt. 231; Blodgett v. Holbrook, 39 Vt. 336 ; West v. Whitaker, 37 Iowa, 598. And see, as supporting it, Gear hart v. Dixon, 1 Penn. St. 224; Swift v. Poughkeepsie, 37 N. Y. 511; Cooley on Taxation, 249; Burroughs on Taxation, 397.

We need not determine whether the commissioners are required or permitted to expend any portion of the tax in Lima. They have exclusive power over the fund, and it is to be expended under their directions, in such manner as may seem to them most advantageous to the interest of any such county, for the construction, reconstruction, or repair of any such road or roads.” 66 Ohio L. 60. The people of the whole county are supposed to have an interest in the public highways. The particular condition of things which called for the imposition of the tax is unknown to us, but we are bound to assume it justified a levy on all the taxable property of the county; and we are not warranted in saying that it would be a violation of the constitution to tax the citizens of Lima, in common with the people throughout the county, for the repair of roads on which the prosperity of the corporation may largely depend; and this does not conflict in any way with the authorities l’elied on by the counsel for the city. Burroughs on Taxation, 61; Cooley on Taxation, 104.

In holding that no case is made for relief, we do not mean to decide that the record of the county commissioners, in levying a tax, is conclusive. That the record of the board may be contradicted in some respects, even collaterally, and the action of the commissioners restrained, seems to be clear. 4 Curwen, 2819; Anderson v. Comm'r, supra; Carry v. Gaynor, supra; Hays v. Jones, 27 Ohio St. 218-230; Stephan v. Daniels, Ib. 527. Perhaps it may be difficult to reconcile Beebe v. Scheidt with these cases, in this respect, but it is unnecessary to undertake the task in. this case.

Peremptory writ refused.


author: Boynton, J.

text:
    Gillen et al. v. Kimball et al.
    A testator devised to his wife, daring life or widowhood, all his real estate, accompanied by a bequest of personalty as follows: “And all my personal property, household goods, and provisions, including moneys and credits of every description which may be thereon at the time of my decease, during hei' natural life; she, however, selling so much thereof as may be sufficient to pay my just debts.” He devised the remainder in said real estate to his three daughters in unequal portions. He bequeathed to one of his daughters, $1,500, to another, $1,000, to a. daughter of a deceased son, $500,. and to her mother, $5 ; said legacies to be paid at the death of his widow; and declared that the legacy to-the granddaughter and the one to her mother, together with a tract of land conveyed to the son before his decease, made for them an equitable share of his estate. He also declared that if “ at the death of my said wife, there should be any of my said personal property or money hereby devised to my said wife and heirs, left unconsumed,” it should be divided between his three daughters and their heirs; and concluded as-follows: “ It is my will that all my money, deposited or otherwise, is to-be left on deposit, at interest, during the natural lifetime of my said wife, except the interest to be drawn and used by her as she may need.” He appointed his wife executrix of his will. Held, that the interest accruing during the life of the widow, on moneys and United States bonds, deposited in bank or otherwise existing, belonging to the testator at the time of his death, is, by said will, bequeathed to the widow absosolut.ely; and what remains at her death of the personal estate left by . the testator at the time of his decease, including the principal of said, moneys and bonds, is to be applied to the payment of said legacies, and the residue divided equally among the testator’s three daughters.
    Error to the District Court of Lawrence county.
    The origiual action was brought under the eighth section-of the act of April 17,1857 (1 S. & C. 621), by Julia Kimball,, as executrix of the last will and testament of Asa Kimball, deceased, to obtain the construction of the will of the testator. She made her three daughters and their respective husbands, together with Laura A. Kimball, parties defendant. The said daughters and said Laura were the only heirs at law of the testator, and together with Alice L» Stewart and said widow, are the sole devisees and legatees, under the will.
    The will reads as follows :
    “ In the name of the benevolent Father of all, I, As;v. Kimball, of the county of Lawrence, Ohio, make and publish this my last will and testament.
    “Item 1st. I give and devise to my beloved wife Julia,, in lieu of ber dower, the house and lot on which we now reside, in Union township, Lawrence county, near the-mouth of Symmes creek, in section (33) thirty-three, range-(16) sixteen, township (1) one, containing about (5) five acres. I also give and devise to my beloved wife all my land in sections (29) twenty-nine and (30) thirty, township (1) one, of range (16) sixteen ; containing (90) ninety acres,, during her natural life, as long as she may remain my widow, and all my personal property, household goods and provisions, including moneys and credits of every description, which may be thereon at the time of my decease, during her natural life as aforesaid; she, however, selling-so much thereof as may be sufficient to pay my just debts. At the death of my said wife, the real estate aforesaid at the mouth of Symmes creek, in section, (33) thirty-three, T give and devise to my daughter, Amy Gillen, and her heirs, one acre off the west side of said tract of land. I also give- and devise to my daughter, Amanda D. Noble, and her heirs, one acre off the west side of said remaining tract of laud. I also give and devise to my daughter, Roxana. Suiter and her heirs, all the remaining part of land in section (33) thirty-three, and if the said Roxana Suiter shall1 die leaving no heirs, then said land is to be equally divided between my daughters Amy Gillen and Amanda Noble, and their heirs, at the death of my said wife. I also give- and devise to my said daughter, Amanda D. Noble, and her heirs, all my land in sections (29) twenty-nine and (30) thirty, containing ninety acres. If I shall sell said land before my death, then the said Amanda D. Noble and her heirs is to have two thousand dollars in lieu of said land at the death of my said wife. I give and devise to my ■daughter, Amanda D. Noble, and her heirs, fifteen hundred ■dollars in money. I also, at the death of my said wife, .give and devise to my daughter, Roxana Suiter, and her heirs, one thousand dollars in money. If she shall die, ¡said money shall go to Amy and Amanda and their heirs. .It is also considered by me that the said moneys last men■tioned to my daughters, Amanda I). Noble and Roxana ■Suiter and their heirs, now devised to them in this will, unake for them an equitable share of my estate, with Amy Gillen and her heirs. I also, at the death of my said wife, give and devise to Laura A. Kimball, an heir of Asa Kim-ball Jr., deceased, fiye hundred dollars; if the said Laura .Kimball shall die before receiving said money, it is to be •divided equally among my said heirs. I also, at the death ■of my said wife, give and devise to Alice L. Stewart, widow ■of Asa Kimball Jr., five dollars. It is also considered by ■me that the five hundred dollars devised to Laura A. Kim-ball, and five dollars to Alice L. Stewart, in this will, and ■the tract of land conveyed to my son, Asa Kimball, deceased, and his heirs, make for them an equitable share of my estate. I also, at the death of my said wife, if there ¡should be any of my said personal property or money hereby -devised to my said wife Julia and her heirs left unconsumed, then it is my will that it shall be equally divided amongst Amy Gillen and her heirs, Roxana Suiter and her heirs, Amanda L>. Noble and her heirs. It is my will that all my money deposited or otherwise, is to be left on deposit, at ■'interest, during the natural lifetime of my said wife, except the interest to be drawn and used by her as she may need. I hereby nominate and appoint my beloved wife, •Julia, executrix of this my last will and testament, whereof I herewith set my hand and seal, this 6th day of April, a. d. 1870. [seal.] Asa Kimball.
    The widow elected to take under the will.
    At the testator’s death there were $200 in cash on the ■premises, and sundry promissory notes against individuals amounting to about $3,563; also, personal property consisting of horses, cows, hogs, grain, farming utensils, provisions, household goods, and furniture, etc., to a considerable amount. He also had on deposit at the First and Second National Banks of Ironton, $1,467.50; and at the same place, $17,400 in bonds of the United States.
    The executrix propounded the following questions : '
    1st. What interest does the said plaintiff take in the personal property, moneys, and credits upon the said real estate at the time of the death of said Asa Kimball, deceased ?
    ' 2d. What interest does she take of the moneys on deposit ?
    3d. What interest does she take in the bonds aforesaid, of the United States ?
    4th. If it should be the opinion of this court that she only takes a life interest in the said personal property and bonds, is she not absolutely entitled to all the interest which may accrue thereon ?
    5th. Are the said bonds devised at all ? if to her for life, is the residue devised after her decease?
    6th. Is the word heirs limited to the heirs of the body, or is it used in the general sense, unlimited ?
    7th. In the event of the death of either said Amy Gillen, Roxana Suiter, or Amanda D. Noble, without heirs of their bodies, to whom does the interest of any such deceased person descend ?
    Other facts were stated, not material to be noticed.
    The plaintiffs in error demurred to the petition — First, for want of jurisdiction by the court of the subject of the action. And, secondly, for want of facts sufficient to constitute a cause of action. The demurrer was overruled, judgment given in the court of common pleas, from which the cause was appealed to the district court, where the same judgment was rendered, to which the plaintiffs in error excepted. The judgment of the district court was as follows :
    “ First. That there is devised to the said Julia Kimball, and under said will she takes and is entitled to hold all the personal property, moneys, and credits, including the said notes and accounts particularly mentioned in said petition, and all other, except the money deposited in banks and said government bonds, belonging to the said Asa Kim-ball, deceased, at the time of his decease, during her natural' lifetime, and while she may remain unmarried.
    “ Second. That the said Julia Kimball is entitled to the-interest accrued and accruing on said money deposited in said bank, during her natural life, to be drawn and used by her as she may need the same ; but has no other or further interest in, or title to, the said money so deposited.
    “ Third. That by the provisions of said will the said Julia Kimball takes no interest in, and has no title to, said United States bonds, or in any interest that has accrued or that may accrue thereon.
    “ Fourth. That the said United States bonds are in noway devised or disposed of by said will, nor is the interest that has accrued or may accrue thereon devised to any one,, but said bonds and the interest accrued and accruing thereon are to be disposed of and distributed by said executrix according to the laws of descent and distribution of personal property, and as if said Asa Kimball died intestate; and that as between said Amy Gillen, Roxana Suiter, .Amanda I). Noble, and Laura A. Kimball, only heir at law of Asa Kimball, Jr., deceased, they are entitled to share alike in the distribution of said bonds, according to the statute of descent and distribution.”
    This construction of the will is assigned as error.

      W. II. Enochs for plaintiff in error:
    The intention of the testator must govern in the construction of a will, and that intention is to be gathered from the whole will.
    Guided by this rule, the clause of the will under consideration, “All my personal property, household goods, and provisions, including moneys of every description, which may be thereon at the time of my decease,” passed the whole of the personal estate, including the United 'States bonds, nndevised by special devises. 2 Jarman on Wills, 605, ch. 24; 4 Kent’s Com. 634, 635; Doe v. Morgan, 6 Barn. & Cress. 512 ; Kendall v. Kendall, 4 Russ. Ch. 300; Arnold v. Arnold, 2 My. & K. 365; Grover v. Davis, 7 Jur. N. S. 339 ; Collier v. Collier, 3 Ohio St. 374; 7 Cranch, 173; 3 Wheat. 573; 4 Kent’s Com. 54.
    The rule that a man is not presumed to die intestate as to any of his property to which his attention seems to have been called, applies here. Cushing v. Aylwin, 12 Met. 169 ; Pray v. Watterson, 12 Met. 262.

      P. C. Hoffman, for defendant in error, claimed:
    1. That the petition in error should be dismissed for want ■of proper parties plaintiff. These sons-in-law and husbands have no such interest in the controversy as warrants their meddling in the matter. Nothing was devised to them by will, and no order is made against them in the judgment. Whatever came to their wives was the separate property of the wives, and under their sole control. S. & S. 389 ; 68 Ohio L. 48; Sec. 28 of the Code (71 Ohio L. 47); 1 Handy, 537; 8 How. Pr. 395 ; 9 How. Pr. 466; 13 Ohio St. 72; 1 Beavan, 288; 2 Kem. 59; 1 Kern. 7; Mitford’s PI. 30, note 1; 1 Sim. 239 ; Story Eq. PL § 63; 2 Yes., Sr., «66.
    2. By the terms of the will, the United States bonds are undevised, and the interest only of “ the money on deposits at interest,” is devised to the widow, “if it is needed.”

      (a) In construing this will, and in determining whether the principal of this money on deposit, and the bonds are ■devised, it is of the highest significance to note that there is no residuary clause in this will nor any words implying an intention to make a complete disposition of all testator’s property. ^
    ^ It is claimed to be a rule of construction, that a testator is never presumed to die intestate, as to any part of his •estate, to which his attention has been called, and a court •of equity will put such a construction on equivocal words as to prevent such a result.

      The eases cited by counsel in support of this are all cases where there was an expressed effort, by residuary words, to dispose of the whole estate — we believe no case can be found where this rule is applied, when there is no such clause or words. See Needles v. Needles, 7 Ohio St. 432; 19 Ohio, 328.

      (b) Where there is no such intention shown by the will,, and the mere fact that a will is made, is not expressive of such intent, the rule has no application.
    Again, in this will, there are no “ equivocal wordsand in Gilpin v. Williams, 17 Ohio St., 396, where this rule was-invoked, Judge Welch says, “But when there are no equivocal words, this rale can have no application.” Again, there is nothing in this will to show that the attention of the testator was called to the United States bonds.

      (c) But the conclusive answer to this is : that courts will not give such a construction to equivocal words as to clisinherit an heir.

    Laura A. Kimball was the only child of his son Asa, and the heir to his share.

      (d) The devise of personality on the farm and choses inaction, such as notes $4,563, and cash $299, is made in connection with the disposal of the real estate to the widow,, during her natural life, or widowhood, and is in these words: “ And all my personal property, household goods, and provisions, including moneys and credits, of every description, which may be thereon at the time of my decease, during her natural life.”
    This gift of the personalty on the farm, unlike the devise-of the real estate, is not defeated by her marriage, the terms “ as long as she may remain my widow,” being omitted here.

    In this part of the will nothing is said about the estate in remainder in the real estate, nor in the personalty, but-after disposing of the estate in remainder in the real estate, the will goes on to say: “ I also at the death of my said wife, if there should be any of said personal property,, hereby devised to my said wife, Julia, left unconsumed,. then it is my will that it shall be equally divided amongst,” etc.
    This is a clear and unmistakable description of the personalty described in the first clause quoted and described as “ said personal property ” which was on the real estate, and can not be so enlarged as to embrace money and bonds, not devised for life, nor described, under the name of “ all my personal property,” etc., “ which may be thereon,” that is, on the devised real estate.
    After thus making a complete disposition of this class of personalty, the testator then speaks of money on deposit.
    By an independent clause he says: “ It is my will that all money on deposit or otherwise, is to be left on deposit at interest, during the natural life time of my said wife, except the interest to be drawn and used by her as she may need.”
    Here is a clear line of demarkation drawn. All the personalty, including moneys and credits, that may be on the real estate, is devised to the widow, during life; charged, with the payment of debts and with her right to consume the whole, if needed, and only that part left unconsumed at her death goes to the legatees; but the money on deposit is so fixed that it is not charged with the debts, neither has she the general power to consume it.
    To construe the general devise of personalty in the first clause, so as to embrace this money or bonds in banks, would give the widow the right to consume it, and thus defeat the positive language that this money on deposit was to be left at interest, the widow only having the right to draw the interest if needed.
    As to the former, the right to consume the whole is only vested in the widow; as to the latter, the right to draw the interest if needed, only is given.
    Any construction which blends two classes defeats the intention of the will.

      (e) A devise of “ all the remainder of my moneys ” will not embrace money in the funds. Willis v. Plasset, 4 Beaver, 208.

      The word “ money ” in a will means that and nothing else. 9 Beav. 324.
    It means gold and silver and the lawful circulating medium of the country. Coke Litt. 20, 7 A.
    As to the meaning of the word “ money ” and what passes under the term, see Mann v. Mann (1 John, Cla. 231 and § 14; Johnson, 9), in Redfield’s Am. Cases or Wills, p. 528, where most of the cases are cited.

      W. W. Johnson, also for defendant in error:
   Boynton, J.

The construction given to the will of the-testator by the district court, we believe to be erroneous. Where' a will is executed, making a disposition of property of the testator, both real and personal, a presumption arises that he intended thereby to dispose of his whole estate, unless the contrary appears. And, although the will in the present instance was evidently drawn with little attention to accuracy of language, enough appears to satisfy us that no part of the propei’ty of the testator was left undisposed of. The clause giving to the wife ■“ all my personal property, household goods, and provisions, including moneys and credits of every description which may be thereon at the time of my decease, during her natural life,” standing alone, and its meaning ascertained without regard to other provisions of the will, would seem to lead to the conclusion contended for by counsel for the defendant ; although, in such case, giving to the word “credits” a locality or abiding place, would involve a somewhat singular use of language. But nothing is more clearly settled, or of more frequent application in the construction of a will, than the rule Requiring the intention of the testator to be gathered from all its parts, and not from isolated passages; and when this clause is considered in conjunction with the remaining provisions, such intention is readily ascertained. The words “ which may be thereon ” evidently relate to the personal estate previously mentioned, other than money or credits, which might, at the testator’s death, be on tbe premises; for, in tbe very next line, he directs the sale of so much thereof, referring to the property “ which may be thereon,” as may be sufficient to pay his just debts, —a direction that will hardly be claimed to refer to moneys or credits.

But we find, further on, that he gave, to be paid out of the personal estate, at the death of the widow, legacies amounting to $3,005. It is by no means clear, that what remains after payment of the debts of the estate by the executrix, and the consumption by her of what she is entitled to consume or expend during life, will be sufficient to pay off and discharge the legacies thus created, unless the money on deposit, or the United States bonds, are available for the purpose; and if the legacies are not paid, that ■equality of participation in the testator’s estate, which the payment of the legacy to Mrs. Noble, and the one to Mrs. ■Suiter, was designed to effect among the three daughters, will be entirely defeated.

Again, what the testator says of the provision made for his granddaughter, Laura A. Kimball, and the one for her mother, Mrs. Stewart, in conjunction with what is said re•specting the gift to the son before his decease, would seem to show quite clearly, that he did not intend Laura to have •any other or further portion of his estate, than that provided by the will. He says, “ It is also considered by me, that the $500 devised to Laura A. Kimball, and $5 to Alice L. Stewart, and the tract of land conveyed to my son, Asa Kimball, deceased, and his heirs, make for them an equitable share of my estate.” It is a mistake to suppose that this language is the same in import as that used in respect to the legacies of Mrs. Noble and Mrs. Suiter. The testator declared that he considered their legacies to make for them an equitable share of his estate with Amy Gillen and her heirs. Here, manifestly, is an implied reference to a previous advancement to Mrs. Gillen, which, in the distribution of his •estate, she is required, to account for. This advancement .and the devise to her by the will, with the legacy and devise to each of her sisters, placed the three upon a footing of equality; and this is what the expression of the testator, in effect, declared, and in our judgment, is all that it meant. But when he declared that the legacy to the granddaughter, and the one to her mother, in connection with the tract of land conveyed to the son before his decease, made for them an equitable share of his estate, he evidently intended to convey the meaning that this language implies, for he divides what remains unconsumed at the widow’s death, of the “personal property or money” bequeathed to her and “ his heirs ” among his three daughters, excluding the granddaughter from any share or participation therein. 'Why deny her a share in this residue, and permit her to receive, as heir, one-fourth of the bank deposit, and of the United States bonds, which constituted much the larger part of his estate ? It is also to be observed, that the property to be divided among his three daughters at the widow’s-death, is what remains of the “ personal property or money hereby devised to my said wife, Julia, and heirs, left unconsumed.” No money or personal estate of any kind had been bequeathed to the “ heirs ” which they could avail themselves-of, or consume, during the life of the widow, as the legacies-to them were not payable until the widow’s death. The testator, therefore, must have intended by this language to direct to be divided among the three daughters, the remainder left unconsumed by the widow, after deducting the-$3,005 required to pay the legacies.

It is, however, claimed, that the last clause of the will by which the testator expressed the desire that his money remain “ on deposit,” at interest, during the life of the widow, is inconsistent -with an intention to give the principal sum to the widow for life; and, inasmuch as the fund to be equally divided among the three daughters, at her death, was what remained unconsumed of the bequest to her for life, after paying the legacies created by the will, that such fund so at interest, could not, within the intention of the-testator, have been included in the sum to be so divided.

That there is some apparent force in this claim can not be denied. But the same thing may be urged, and with the same propriety, in respect to money not in bank, but loaned ont to individuals, notes for which were found at the testator’s residence at the time of his decease. The languageis: “It is my will that all my money, deposited or otherwise, is to be left on deposit, at interest, during the natural life-time of said wife, except the interest to be drawn and used by her as she may need.” The words “ or otherwise,” refer to money not in bank, and include money that may have been in the house of the testator when he died, as also that at interest elsewhere than in bank.

The argument, therefore, that because the widow was not authorized to use any portion of the principal of the money on deposit in bank, or of the United States bonds, the same was not disposed of by the will, would reach, and subject to the same consequences, all money that was on the premises, or loaned out to any and all persons at the death of the testator; a result which no one contends for and which is manifestly opposed to the clearly expressed purpose of the testator. All “ moneys and credits of every description,” having, by a previous provision, been given to the widow, during life or widowhood, wre think the latter clause was designed to make the use of the same of some value to her, by requiring the principal sum to remain at interest for her benefit.

Nor does it seem to us that the testator intended to restrict his wife to such sum to be drawn from the accumulating interest, as would merely meet her needs and necessities. He had previously given her, for life or widowhood, all his property of every kind. His subsequent direction, to keep the money at interest, “ the interest to be drawn and used by her as she may need,” could not have been intended as a restriction or limitation upon the bequest of the use of the money previously given.

That this direction is susceptible of this restricted construction is very true; but we think it better comports with the intention of the testator to be drawn from the whole context of the will, to regard the expression “ as she may need,” as equivalent to “ as she may desire.” This involves the right to use and dispose of all the interest to accrue on money loaned during the life of the widow, without reference to her personal wants or necessities.

Whether the phrase “ moneys and credits of every description ” includes the money on deposit and the United States bonds, depends also on the intention of the testator. In Boys v. Morgan, 3 My. & Cr. 661, a clause in the following language came before the court for interpretation, viz.: “ I guess there will be found sufficient in my bankers’ hands to defray and discharge my debts, which I hereby desire E. M. to do, and keep the residue for her own use and pleasure.” This was held, under the circumstances, and upon the whole context of the will, to amount to a gift of the general residuary personal estate to E. M.

A testator directed the income arising from his “principal money ” to be paid to his wife, while unmarried, for the support of herself and the education of his children, and at her death or marriage to be divided among the children. The testator had but little money, strictly so called, but he had a large personal estate and some freehold property. It was held thatathe whole personal property passed, including leaseholds. The Vice-Chancellor, speaking of the testator’s intention, said: “In using the term ‘principal money,’ I think he intended to signify all his capital — that is, he meant a universal disposition of all his money’s worth.” Prichard v. Prichard, L. R. 11 Eq. Cas. 232.

In Manning v. Purcell, 7 DeGex. M. & G. 55, a bequest of “ all my moneys ” was held to include the balance standing to the credit of the testator at his banker’s, one upon an ordinary current account, the other secured by deposit notes bearing interest. See also, Dowson v. Gaskoin, 2 Keen, 14. A testator gave to his son "William and two others all the money left at his decease. Erom the condition of his property, this was held to include money due on promissory notes. Morton v. Perry’s ex’rs, 1 Met. 446.

In Fulkerson v. Chitty, 4 Jones’ Eq., 244, the word “ money,” or “ moneys,” used in a will, was held to include bank stock and bonds, the context favoring such construction ; and In the matter of the estate of Miller, 48 Cal. 165, tbe word “ money,” as used in the will of the testator, was held to include both personal and real estate. See Smith v. Davis, 1 Grant, 158 ; Kendall v. Kendall, 4 Russ. Ch. 860.

Cases of a similar character might be multiplied to a great extent. They all rest on the familiar principle that such construction must be given to the terms of a will as will effectuate the intention of the testator, to whatever consequences such construction may lead.

Our conclusion is, that the widow took, and is entitled to all the personal estate, including the deposit in bank and the United States bonds, during her natural life.

But, as respects the money on deposit or at interest, and the United States bonds, she is not authorized to expend or reduce the principal, but is entitled to the interest accruing thereon absolutely; and -what remains at the death of the widow, of the entire personal estate, exclusive of said interest, constitutes the fund from which the legacies are to be paid, the residue to be equally divided among the three daughters.

The objection that the respective husbands of the testator’s three daughters were improperly united as parties to the action is not well taken. Reinheimer v. Carter, 31 Ohio St. 579.

The judgment of the district court is reversed, and judgment rendered in accordance with the conclusion above stated.