source: Caselaw Access Project

author: Longworth, J.

license: Public Domain

text:
    Hamilton v. Rodgers.
    By his will, R. devised his whole estate, consisting principally of personal property, to trustees with directions to pay certain annuities out of the income of the estate, and after the “ final cessation ” of said annuities, to distribute the estate among certain children and grandchildren of the testatox-, then living, and the heirs of the body of those deceased, and, in default of such heirs, their brothers and sisters. Held: 1st. That no estate vests in the beneficiaries under the will, until the time for distribution as fixed by the terms of the will. 2nd. The “final cessation ” of annuities mentioned in the will takes place either upon the death of all the annuitants, or upon the surrender or release of their annuities. 3rd. The trustees have no power under the will to purchase in the annuities, and the mere fact that the annuitants declare that they are willing to x-elease their annuities (but not having done so), upon payment to them of a sum in gross, will not authorize the court to order a distribution of the estate, and to decree the payment of such gross sums out of the funds of the estate.
    Error to the District Court of Lawrence county.
    This action was originally brought in the Court of Common Pleas of Lawrence county by Robert R. Hamilton, minor child of Rosalie Rogers Hamilton, by William Means his guardian and next friend; Ellen I. Parkinson, who intermarried with James Spriggs, Allen R. Parkinson, Rosalie R. Parkinson, Anna Olivia Parkinson, Mary M. Parkinson, minor children of Catherine M. Parkinson,' deceased, by William Parkinson, their guardian and next friend; James C. Rodgers and William P. Rodgers, Rosalie Rodgers, minor children of Henry C. Rodgers, deceased, who sue by James C. Rodgers, their next friend, plaintiffs, against James S. Rodgers, Oliver Rodgers, aged sixteen years, minor child of James Rodgers, deceased, Harry O. Rodgers, aged eighteen years, Minnie Hamilton Rodgers, aged sixteen years, Eleanor Matilda Rodgers, aged fourteen years, Clarence Frederick Rogers, aged nine years, minor children of Robert Edwin Rodgers, deceased; Clara R. Rodgers, Nancy Rodgers, Matilda Rodgers, as guardian of Anna Olivia Rodgers, and George Willard, trustee under the last will and testament of James Rodgers, deceased, defendants, to obtain a construction of the last will and testament of James Rodgers, deceased, and to obtain a distribution of his estate thereby devised.
    The testator died in the year 1860, leaving a large estate, consisting principally of personal property. After various bequests and annuities, he devised the whole of his residuary estate as follows:
    . “Sixteenth. I do hereby devise and bequeath to said George Willard and Henry S. Neal all my property, real and personal, wheresoever situate and of whatever character (including the lands in Kentucky opposite Ironton, with the appurtenances, also my dwelling-house in which I now live, and the lands in Hamilton township, bequeathed as aforesaid to my beloved wife, and the dwelling-house, with the lots in Ironton, bequeathed as aforesaid to my daughters-in-law Mary F. Rodgers and Clara Rodgers, upon the determination of the particular estates in said several premises by this will created) which may remain after the payment of my debts, the aforesaid -legacies and the first year annuities herein granted in trust for the following purpose, to wit: First, to sell said real estate whenever they may deem it advantageous for my estate so to do upon such terms either by public or private sale, as they may think best, and in the mean time to rent or lease the same and execute proper conveyances of the same to the'purchaser thereof, to invest the proceeds of said sales and all other funds coming into their hands, either from collections by them made, dividends of stocks owned by me’ or in any other manner or from any other source whatever in such manner as they may conceive most beneficial for my estate, and I further authorize and empower them to change the investments I have hitherto made whenever they may deem it advisable to do so. Second, To pay the expenses of this trust including a yearly compensation to themselves for their services in executing this trust to be allowed by the probate judge. Third, To pay the annuities herein granted, as herein provided, so long as the income of my estate be sufficient, and should it ever at any time prove insufficient, then said annuities shall be paid pro rata, except the one to my beloved wife, which shall be paid in full. And in the execution of this trust I authorize and empower the said trustees to take charge of, manage and control my said property in all things as fully as I now have the right to do, and they shall be held responsible in the execution of this trust only for fraudulent conduct, but said trustees shall make an exhibit yearly to the probate court of Lawrence county of their doings in the premises which I desire to be filed with their accounts as executors.

      “Seventeenth. Upon the complete determination of the particular estate herein created, and upon the final cessation of all the aforementioned annuities, 1 direct and require my said trustees to make a final distribution of my estate then remaining, as follows:
    “ To my son James and the heirs of his body, one-sixth;— To my son Thomas and the heirs of his body, one-sixth ; — To my son Oliver and the heirs of his body, one-sixth; — To the children of my son Henry O. Rodgers, and if any of them be deceased, to the heirs of their bodies, one-ninth-To the children of my son Robert Edwin, and if any of them be deceased, to heirs of their bodies, one-ninth; to the children of my daughter Catharine M. Parkinson, and if any of them be deceased, to the heirs of their bodies, one-ninth ; to the children of my daughter Rosalie Hamilton, and if any of them be deceased to the heirs of their bodies, one-sixth; And it is hereby declared to be the true intent and meaning of this direction of distribution, that the children only of deceased children shall inherit, and in case that any of said above-mentioned persons die without heirs of their bodies, that the interest which he would be entitled to shall go to their brothers and sisters.
    “ Eighteenth. Upon the arrival at the age of maturity of either or all my said minor children, to wit: James, Thomas and Oliver, if the same happen before the determination of the aforesaid particular estates and the creation of said annuities, I direct and empower my said trustees to pay to any such son the sum of $2,000, to enable such son to enter- into business, provided if said trustees shall be of opinion that the giving of said sum to said son would be an injury to him, and that he would not expend it in a suitable manner, then I authorize them in their discretion to spend said sum as they may- deem for the well-being of said son, and any sum so going to or expended for such son shall be taken into consideration, and with annual interest thereon shall be charged against such son’s distributive share. Not desiring that any of my grandchildren should become destitute, I hereby authorize and empower my said trustees upon the death of the parents of any such grandchild, or their inability to support them, to provide for a prudent and economical support of any such grandchild, provided, however, that the annuities granted to any parent of such child shall be no longer payable, if the said trustees shall be of opinion that such destitution arises from the bad conduct of any such annuitant.”
    The widow refused to take under the will, and, at the time of commencing this action, the only annuitants living were Clara Creighton, then aged thirty-six years, and Nancy Rodgers, aged sixty years, to whom annuities amounting to $250 and $100 respectively, had been granted, Willard, the sole trustee, Neal having resigned, had converted the whole estate into personal property, consisting of bills receivable, stocks and other securities. All debts had been paid. Of the seven children of the testator, living at the time of his death, his sons James S. and Oliver alone survived ; Thomas died in 1867, unmarried and childless; the others all left children, who have been named as plaintiffs and defendants, and who united in asking for a distribution of the estate under the provisions of item 17 of the will. Clara Creighton and Nancy Rodgers filed answers setting up their light to annuities but offering to release the same upon receipt of a sum in gross. The trustee resisted a distribution, claiming that, by the terms of item 18 of the will, it was made his duty to provide for any of the testator’s grandchildren who might at any time become destitute, and that this was a continuing trust. It was shown at the hearing that for many years prior to the testator’s death his sons Henry and Robert had been unsuccessful in business and were in embarrassed circumstances. Upon appeal the district court .decided that neither the plaintiffs nor any of the devisees were entitled to either a general or partial distribution under the will, and that no such distribution could be had until the death of all the annuitants or all of said annuities should be otherwise terminated. We are now asked to review this decision.

      W. H. Enochs, for distributees :
    The object sought by all parties is to have a- partial or final distribution of this estate.
    If the court should find that these annuitants have the right to surrender their annuities, then a final distribution can be made : but if not, then we claim a partial distribution can be made retaining a sufficient amount of the money at interest in the hands of the trustee to pay the annuities and the expenses of the execution of the trust. The intention of the testator should be ascertained and carried out unless contrary to law. This rule is so familiar in Ohio, that I deem it unnecessary to refer the court to authorities. The testator, in using the words “ complete determination ” and “ final cessation ” of all the aforementioned annuities, certainly did not intend thereby to fix the time for final distribution of said estate, to be at the death of all said annuitants. Upon the death of the testator, said annuitants or any of them could have sold or otherwise disposed of their annuities, and upon such sale a complete determination and final cessation of such annuity ceased. Suppose Mrs. Clara Rodgers since the death of the testator had sold her annuity and lost or squandered every cent realized therefrom, and her annuity had been for years and is now drawn by an entire stranger to the testator. It is not unreasonable to claim that the testator fixed the death of said annuitant, with all others as the period and only period at which a distribution of said estate could be made ? I maintain this annuitant or any other created by this will can sell her annuity at any time. If so, upon equitable principles, through, and with the aid of a court of equity, why can she not surrender to this estate her annuity for its value ? If she surrenders it, she is paid from the general fund of the estate. If she retains it she is paid from the sáme source. If all distributees of this estate were of age, is there any doubt of their right to buy out these annuitants and pay for the same out of the general fund of this estate in proportion to their respective interests therein, thereby terminating said annuities ? The same results are attained by a surrender of these annuities for their value, and the only reason they are not so purchased by the distributees is, there are remaining two minor distributees, and the aid of a court of equity is thus sought to accomplish said surrenders and fully protect the interests of said infants. All the distributees now of age and said minors through their guardians, parents and attorneys, are ashing this court to aid said minors in so purchasing said annuities. The will does not say at the death of the annuitants, but upon the complete determination or final cessation of the annuities, then a final distribution shall be made. The words “final distribution” used in this clause would seem to mdicate that partial distributions had been or could be made from time to time according to the necessities of the case. The will creates and classifies distributees and each is independent of the other further than an incumbrance to pay ' annuities. "Why should the share to any one set of distributees be tied up to pay the annuity to another ? The right to a distribution of the entire estate depends on the vesting of the estates created by the will. There being a distinction between the vesting of estates in real and personal property, the rule governing the latter I claim is to be applied in this ease. The will converts the entire property “out and out” into personal property. 36 Ohio St. 17-23, 506 ; Redfield on Wills, 140, §§ 7, 8, 9, 3d edition ; Ilawhins on Wills, American’ notes, 46; Davour v. Matteux, 1 Ves. Sen. 397. These estates became vested on the death of the testator. Hawkins on Wills, American notes, 225, 226, 231, 232, and numerous cases there cited. Linton v. Laycock, 33 Ohio St. 128; Jefferson v. Lawson, 10 Ohio St. 101; Gibson v. McNeely, 11 Ohio St. 101; Brashier v. Marsh, 15 Ohio St. 103; Jarman on Wills, old ed. 733, 734, 735; 36 Ohio St. 506. For a full discussion of the vesting of estates, the court is referred to 2 Redfield on Wills, 3d edition, from page 213 to 260. Also, Jarman on Wills, last edition, by Randolph & Talcott, vol. 2, pp. 406, 450, 453, 482. If the rights of parties are fixed and the estates vested, then the annuitants have the right to sell or dispose of their annuities as they may elect and a final distribution be made. 33 Ohio St. 128, and cases there cited. 36 Ohio St. 506. The language of the will is the “ complete determination,” “ final cessation,” not the death of the parties if the estate was tied up to keep it from the control of creditors of any of the children ; this has been terminated by their deaths. The - testator certainly did not intend to keep the estate from his grandchildren, for that reason. Another objection to the construction given, it makes the devises remote, indefinite and uncertain. 1 Jarman, 259, 260, 261, and cases there cited.
    Another question is, to whom the share of Thomas goes upon distribution — whether to his brothers of the whole blood, or to his brothers and sisters of the whole and half blood alike, or their «heirs ? The court will see that they are all of equal kin .to «the .testator, from whom the estate came to Thomas, and the will,gives .the .share of a child dying without heirs of his body to those wflio would inherit it under the statute of Ohio, S. & C. 501, clause 3 ; S. & S. 304, clause 3. Laws in force at death-of testator. I have been unable to find a case where the term brothers, and sisters, in a will is used, it did not include the half as well as the whole bloods, when all are of the same relation to the testator from whom the estate came. Hawkins i on Wills, 86, and cases there cited; 3 Redfield on Wills, 3d edition, 423, § 7, and cases there cited; Oliver v. Sanders, 8 Ohio St. 501, Without the will the half brothers ■-and -sisters ,of Thomas would inherit his share of the estate. & ,S. ‘304, clause 3; S, Si C. 105, clause 3. An heir is not to be disinherited unless the intention of the testator is clear to that effect. 2 Jarman, 5th rule, 525 (old edition) ; Crane v. Doty, 1 Ohio St. 248. The presumptions are all against disinheriting an heir, and a clear case must be made to warrant such a construction.
    Still another rule of construction gives Thomas’s share to his brothers and sisters and their heirs of the whole and half blood equally. In this regard the will speaks from the death of the testator, and when he refers to classes or fluctuating bodies of persons to whom devises are made, all answering the description at his death, are entitled to take. 1 Redfield on Wills, 3 ed. 385, 386, § 12; 1 Jarman, old ed. 306, 307; Campbell v. Roden, 18 N. Y. 412; Knight v. Knight, 3 Jones Eq. 167. The language of the will is, the interest which he -syould be entitled to shall go to their brothers and sisters. The class here spoken of by the testator, was brothers and sisters, and, as before claimed, this has uniformly been held to inckide the half bloods.
    As to the claim of the trustee that he is liable to be called upon at any time in- the future to furnish support to the grandchildren of the testator to prevent destitution, we say that to so furnish or not is made clearly a discretionary power- in the trustee, and courts of equity never undertake to compel a trustee to act, when to act or not, is a discretionary power. Greenough v. Wells, 10 Cush. 576; Eldridge v. Heard, 106 Mass. 582. Besides, the testator*evidently meant minor children or children of tender years.

      Taft & Lloyd, for James and Oliver Rodgers:
    1. Since the case has come to this court on a petition in error, the two remaining annuitants have agreed to accept in full satisfaction .of their claims the sums which the Carlisle tables show to be their present value, which is satisfactory to all parties. They therefore agree to an immediate distribution of the whole fund, and there is no opposition to a distribution unless it be on the part of the trustee, who, however, declares that he has no objection to it, if the court holds it to be safe. He does, however, in his answer, express the opinion that it is necessary that his trust should be continued as long as there shall be any grandchildren who are liable to become destitute; at the same time expressing entire willingness to distribute the estate, if the court shall find that it can be safely done. The construction which Mr. Willard and his counsel — according to his answer — gave this clause, would make it necessary for the trustee to hold this property away from, the children and heirs, until the last grandchild of the testator should expire. That would postpone the distribution unreasonably, a construction which the court never favors. Grandchildren might be born more than twenty-one years after the death of the testator, and this construction would require this trust to be preserved throughout the life of the longest liver of them. But the testator did not by this clause in his will, intend any such thing. By the seventeenth item, the testator provides expressly when the distribution is to take place, viz.: “Upon the complete determination of the particular estates herein created, and upon the final cessation of all the aforementioned annuities, I direct and require my said trustees to make a final distribution of my estate then remaining, as follows,” giving specifically the manner of the distribution to be then made. The clause in the eighteenth item did not intend or purport to contradict or change that positive provision which precedes it, in any manner. The two clauses must be construed together. The intention was, that while the trust continued, and before the estate was divided, the trustees should be at liberty to aid prudently any of his grandchildren who should become destitute. This destitution might happen for the want of this very distribution. There is no expression qualifying the direct, definite, and positive requirement, that the distribution shall be made at the time indicated in item seventeen. If this construction needed corroboration, it could be found in the language of the clause on which the objection turns. It “ provides, that the annuities granted to any parent of such child shall be no longer payable, if the said trustees shall be of opinion that such destitution arises from the bad conduct of any such annuitant;” showing that the support of destitute grandchildren was to be given before the annuities were extinguished.
    2. There is one question which will arise in the making of the distribution, to which we must call the attention of the court. Thomas, a son of the second marriage, died without issue, and unmarried, after the death of his father, viz., on the 18th day of April, 1867. The question is, to whom will his share go in the distribution under the will ?
    The first clause of item seventeen fixes the time of distribution, as we have seen, positively and irrevocably, viz., “ Upon the complete determination of the particular estates herein created, and upon the final cessation of all the annuities.” That is the time when the distribution was to be made, and it was with reference to that time that he designated the distribution. The language is precise, “to eacli of the three sons of the last marriage, and the heirs of their bodies respectively, he gave one-sixth. To the children of each of the children of his fii-st marriage, “ and if any of them be deceased, to the heirs of their bodies, one-ninth.” “ Be deceased ?” When ? Clearly, at the time of said distribution. All these provisions point to that time, and to no other. •
    Some of the children of the first marriage were living, and some were dead, at the time of the making of the will. But the will clearly gives only to his grandchildren, and not to his children, of the first family. He had his reasons. He knew how much he had already given them, and what prospect there was of their making good use of what should be given them. His meaning was clearly expressed; but, by its language, the particular course of distribution was made to depend upon the question, who was living when the distribution should be made? and not upon the question, who was alive when the will was made and proved ? *

    He goes on to say that his meaning is, “ that the children only of deceased children shall inherit,” “ and in case that any of said above-mentioned persons die without heirs of their bodies, then the interest which he would be entitled to shall go to their brothers and sisters.” That is, to the surviving brothers and sisters of the person who shall so die without heirs of his or her body. If, for instance, one of the children of Henry should be dead without heirs of his or her body at the time of said distribution, the share of that child would go to its own brothers and sisters, and not to the children of Robert Edwin, or to any other grandchildren of the first marriage; or to James, or to Oliver, of the second marriage, who could not be included among its brothers and sisters. So here, as Thomas is dead without heirs of his body, his share must go to his brothers, as there is no sister surviving.
    No question as to the half-blood arises in the case. If brothers or sisters of the first marriage were alive, the question would arise, whether the share of Thomas, under that clause, would go to the brothers or sisters of the half-blood. But as all the half-brothers and sisters of Thomas will be dead at the time of the distribution, his share goes equally to James and Oliver, his only brothers. This construction is not more literal than it is reasonable, and according to the general plan of division which the testator has laid out in his will.
    As to the period of division and the persons to take, see Andrews v. Partington, 3 Bro. C. C. 401, 404; 1 Roper on Legacies, 71; Leake v. Robinson, 2 Merivale, 382, 3; Jenkins v. Feyer, 4 Paige, 53; Crooke v. Brookling, 2 Vern. 106; 2 Williams on Ex’rs, 1312 and cases cited; Stires v. Van Rensselaer, 2 Bradf, sec. 172; Bain v. Lescher, 11 Linn. 397; Havergal v. Harrison, 7 Beav. 49; Wms. v. Neff, 52 Pa. 333; Todd v. Trott, 64 N. C. 280; Hane's Trust, 2 Sim. N. S. 106; Drakeford v. Drakeford, 33 Beav. 43; Provenchire's Appeal, 67 Pa. 463; Morse v. Mason, 11 Ala. 36; Sterling v. Price, 16 Ohio St. 32; Hoppock v. Tucker, 59 N. Y. 202; Coltman v. Priest, 103 Mass. 296; Jackson v. Roberts, 14 Gray, 551; Shaffer v. Kettell, 14 Al. 528, 530, 531; Balcom v. Haynes, 14 Al. 204; Springer v. Coughton, 30 Geo. 977; Aspinwell v. Duckworth, 35 Beav. 301; Steadman v. Priest, 103 Mass. 293, 296; Bolles v. Smith, 39 Conn. 218; Rickey v. Johnson, 30 Ohio St. 288.

      Sage & Hinkle, for the children of Robert E. Rodgers:
    There remain now but two questions to be considered by the court: first, whether the estate shall now be distributed; and, second, if so, who shall have the share given to Thomas. As to the first question, we desire to add nothing to the considerations presented by Taft & Lloyd in their brief. The distribution of the share given to Thomas must be in one of three ways: 1st. to his surviving brothers, and to the children of his deceased brothers and sisters. 2d. To the three brothers, Robert Edwin, James S., and Oliver, who were living at the time of his death; or, 3d. To James S. and Oliver who still survive. The estate'is to be treated as personal property. The sixteenth item of the will empowers and directs the trustees to sell the-real estate and invest the proceeds as they shall deem most beneficial for the estate. The avails of the land therefore go, to all intents, in the same direction as if it had never been land. 3 Redfield on Wills, 140. Though the distribution is deferred, that does not prevent the interest vesting at the death of the testator. 1 Redfield on Wills, 414; Kingsbury v. Scovill, 26 Conn. 349; Doe v. Lawson, 3 East, 278; Raynor v. Mowbray, 3 Bro. C. C. 234; Harrington v. Harte, 1 Cox Ch. Ca. 131; Masters v. Hooper, 4 Bro. C. C. 207.
    We claim, therefore, that the interest of the distributees vested at the death of the testator, and that the executors held in trust for them. It results that upon the death of Thomas his interest vested at once in some or all of the remaining distributees. This disposes of the claim that only the brothers now living, James S. and Oliver, are entitled. The remaining question is, whether Thomas’ share, vested upon his death in his three brothers, James S., Oliver, and Robert Edwin, then living, or in them and the children of the then deceased brothers and sisters. Williams on Executors, 6 Am. ed. foot page 1123, top page 1211; Latchwood’s Appeal, 30 Pa. St. 175; Brent v. Washington's Adm’rs, 18 Gratt. 526. Now, if the devise over to brother and sister, in the eighteenth item of the will, is to the brothers and sisters living at the death of any son or daughter without children, it follows that James S., Oliver, and Robert Edwin became vested with Thomas’ interest upon his death. But we do not think the proper construction of the will leads to this conclusion. Section 56 of the wills act,- then in force (S. & O. 1627), provides that: “When a devise of real or personal estate is made to any child oi other relative of the testator, if such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate devised, in the same manner as the devisee would have done, if he had survived the testator, unless a different disposition shall be made or required by the will.” This applies as well to the devise over to brother and sisters as to the original devises, and there is nothing in the will making or requiring a different disposition. It is to be borne in mind that every one of the testator’s children was alive when he made his will, and until after his decease. »
    The eighteenth item of the will, the one containing the distributive provision, gives four shares out of seven to the children of children, and in the case of every other child directs the’ distribution to him and the heirs of his body. These provisions do not imply an intent to create a limitation against the testator’s grandchildren, but the contrary. Then the testator declares it to be the true intent and meaning of his direction of distribution, “ that the children only of deceased children shall inherit,” or paraphrasing, without changing the meaning, “ children shall inherit from their deceased parents.” This can have no less meaning than that the grandchildren should take all the interest of their deceased parents. It is impossible to read the eighteenth item of the will and not be impressed that the testator was as mindful of his grandchildren as of children. Finally, he says that if “ any of said above-mentioned persons die without heirs of their bodies, then the interest which he would be entitled to shall go to their brothers and sisters.” Were these words, “brothers and sis.ters,” words of limitation in the mind of the testator, referring to brothers and sisters only who might be living when the contingency should happen, or were they in his mind words of description referring to all his children 2 Cleai’ly the latter. His children were all living; for the three youngest, all minors, he provides directly, for them and the heirs of their bodies. His elder sons, Henry and Robert Edwin, had been unsuccessful in business and were in embarrassed circumstances. To give to them would be only to give to their creditors ; therefore he gives to their children. His two daughters were married, therefore he gives to their children. To each of the younger children, then minors, and to the children of his youngest daughter, Rosalie Hamilton, he gives on'e sixth. To the elder children he had doubtless made advancements, and in simple justice, equalizing his bounty among all, he gives to the children of each, one-ninth. Then he explains, after first saying that grandchildren shall inherit their parents’ shares, that if any child dies without children, his share shall go to his brothers and sisters, meaning, without the shadow of a doubt, in our opinion, all the brothers and sisters, and not those only who might at some uncertain time in the future be surviving.
   Longworth, J.

The first question which arises in the construction of this will is whether an estate vested in the distributees at the time of the testator’s death, or not until the happening of the events upon which a distribution was to take place.

Although conceding that in the interpretation of-wills, courts in general favor that construction under which estates will vest at the time of testator’s death, yet this, like every other rule of construction, will be controlled by the intention of the testator as gathered from the whole will. As was said by Scott, J., in Richey v. Johnson, 30 Ohio St. 288-292: “We are to read the whole will and ascertain not only what the testator has said, but what he has forborne to say ; .and the construction given to any part of the will should conform to its general scope and purpose as collected from the whole document. It is to be observed that the testator gives no interest in the farm in question, or in its proceeds, to his brothers and sisters, or to the children of any of them by way of direct devise or bequest. The gift is to be found only in the direction to distribute the proceeds of its sale and in the designation of the persons among whom distribution is to be made.”

These remarks apply with equal force to the case before us. The only words of gift in the will are to be found in the devise of the whole estate to trustees, and in the direction to distribute the estate, after the determination of the particular estates and the final cessation of the. annuities, among persons, some of whom, perhaps, were yet to be born. Color is given to a contrary construction by the provision directing the trustees to make certain payments to, or provision for the minor sons, when they should become of age, to be thereafter charged against their distributive shares; but, taking the will as a whole, we are persuaded that the real intention of the testator was that no estate should vest in any of the objects of his bounty until the time for distribution should arrive, and then in those persons only who should answer the description at that time. Speaking for myself only I wish to say that it is after much hesitation, and still not without some embarrassing doubts, that I have arrived at this conclusion. These doubts arise from the vague and uncertain language in which the intention of the testator is expressed, and from which no thoroughly satisfactory conclusion can be drawn. Still I am satisfied that the most reasonable and probable interpretation is that given by my brethren.

Has the time then arrived for a distribution of the estate, either final or partial % Clearly not. No partial distribution could be made until it is ascertained who the parties may be who are entitled to take, and this cannot be ascertained until the time arrives for final distribution. And here we may say that we think it clear that but one distribution was ever contemplated by the testator, and that his object in calling it a final ” distribution, was simply to distinguish it from what might be called the partial distribution of $2,000 each to his minor sons when they should come of age.

On the one hand it is contended that the time arrives only upon the death of all of the annuitants ; on the other, that it depends upon the cessation of the annuities as a charge upon the estate by release or otherwise by operation of law. That the latter is the proper interpretation we entertain no doubt. The testator does not speak of the death of the annuitants, but of the “final cessation ” of the annuities; and surely it is but fair to take him to have intended just what he has said. Had he intended to postpone the division of his estate to such time as all of tlie annuitants (one of whom, at least, was at his death little more than a child), should die,- we think he would have taken pains to make such intention appear in plain language. So long as these annuities were outstanding it is evident that no distribution could take place, seeing that these were to be paid only from the income of the estate; but upon their “ final cessation,” as charges upon the estate, no valid reason could exist against a final distribution, unless it should appear that the testator intended a further postponement, and such intention is not to be found either in the words used or in the surrounding circumstances of the case. We are unanimously of opinion that upon the “ final cessation ” of these annuities, either by death or release or surrender to the estate, it will become the duty of the trustee to distribute the estate in accordance with the provisions of the will. True, the trustee alleges in his answer that he knows from conversations held with the deceased that he contemplated a remote period as the time of distribution, but we aye not to regard any such averment. We are to find the intention of the testator in the will itself, and are not at liberty to allow its terms to be varied or contradicted by conversations or parol statements made either before or after its execution. Under neither interpretation, however, has the time for distribution yet arrived; the annuities of Clara Creighton and Nancy Rodgers being still outstanding valid charges upon the income of the whole estate. The widow’s annuity ceased by operation of law when she refused to take under the will, and the others, except the two mentioned, have ceased by the death of their owners; but these two are still in full force. It does not remove this obstacle to say that these ladies are ready and willing to release them to the estate, for they have not yet done so, nor can the court compel them to do so. The trustee clearly has no power under the will to purchase them;' but should their owners see fit to release them to the estate, then, and not until then, will the time arrive for a distribution.

We regard as wholly untenable the claim of the trustee that no distribution can be made so long as there may be grand-children, now living, or hereafter to be born, who may, by possibility, at some time become destitute. Such construction would postpone tbe vesting of tbe estate and its enjoyment beyond tbe lives of all tbe beneficiaries now in being, and for more than twenty-one years thereafter. It is clear to our minds that this provision as to the support of destitute grandchildren was intended to apply only during such time as the estate should remain in the hands of the trustee and pending its distribution, and was not intended to control or limit the time fixed for such distribution by item 17 of the will.

We are asked to decide to whom shall pass upon distribution the share which Thomas Rodgers would have received had he lived. It is stated in argument, although it is not disclosed in the record, that the testator was twice married, and that his younger sons Janies 8., Thomas and Oliver were children of the second marriage. If this be true we are clearly of opinion that the testator, in providing that if any of the persons mentioned as distributees should die without issue “ then the interest which he would be entitled to shall go to theii brothers and sisters,” referred to brothers of the whole bloot, only as respects his own children. This is rendered manifesl from the care taken to exclude his other children from an\ share whatever in his estate. The sons had been uni or tunal ( in business, and were insolvent, and it is evident that the testator believed that a gift to them would have been a gift to their creditors, from which neither his sons nor their children would reap the benefit. The provision in question could apply only to the grandchildren and to these younger sons, seeing that no share could come to the older sons and daughters. We are therefore of opinion that, at the time of distribution, Thomas’ share will pass to his brothers J ames S. and Oliver if they be then living, and to their children if deceased. This conclusion also follows of necessity from our previous holding concerning the vesting of the estate only in the persons answering the description of the will at the time of distribution.

Judgment affirmed.

Johnson, J., did not sit in this case.


author: McIlvaine, J.

text:
    The State v. Staley.
    1. Proceedings hy mandamus, on the relation of the treasurer of state, will lie to compel the treasurer of a county to transfer to the state treasury the state’s proportion of taxes collected by such county treasurer.
    2. A petition for a writ of mandamus in such case, which shows the collection of such taxes by the county treasurer, is not defective for want of an averment that the taxes so collected remain in the county treasury subject to the command of the writ.
    3. Under section 1043 of Revised Statutes, as amended April 19, 1881 (78 Ohio L. 226), the amount of taxes for which the treasurer stands charged, is the whole amount of taxes levied on the duplicate, less the amount returned delinquent and the collection fees allowed the treasurer.
    4 The amount of money in the treasury, for which the treasurer stands charged, cannot be increased or diminished by the exercise of the authority conferred on the auditor by said section to correct “ any error which may have occurred in the apportionment of taxes at any previous settlement.”
    5. In obedience to a writ commanding a county treasurer to pay into the state treasury a balance due the state on its portion of taxes collected by the county treasurer, and for which no provision has been made by the county auditor in his apportionment of taxes, any excess of money in the treasury over the sruns apportioned to other funds for which taxes were levied, may be used by the treasurer in making such payment.
    Mandamus.
    The relator, Joseph Turney, state treasurer, in his petition, represents that on October 25, 1881, the auditor of state examined the certificate and abstract of the semi-annual settlement between the auditor and Luke A. Staley, treasurer of Hamilton county, made on September 23, 1881, which certificate and abstract were returned by said auditor of Hamilton county to said state auditor on October 3, 1881, as required by law.
    That upon such examination, the auditor of state ascertained the exact sum of money payable by the treasurer of Hamilton county to the state treasurer to be $291,698.19, and also ascertained that the amount of Hamilton county’s proportion of the state common school fund was $73,183.60; whereupon the auditor of state certified his findings to the treasurer of -state as required by law, and issued his draft upon the treasurer of Hamilton county in favor of the relator for $218,511.59, the same being the difference between the amount so found due to the state treasury from the treasurer of Hamilton county and the amount of school funds due to said Hamilton county from the state treasury. That prior to said October 28, 1881, the treasurer of Hamilton county had paid into the state treasury on account of the amount so found due from the treasurer of Hamilton county to said state treasury, the sum of $206,979.99, at the last semi-annual settlement in the year 1881, leaving a balance due of $11,531.60. That said draft had been duly presented for payment by the relator to the defendant, the treasurer of Hamilton county, and payment of said balance of $11,531,60 demanded, which was, and ever since has been refused.
    Wherefore said relator prays for a writ of mandamus to compel the defendant, the treasurer of Hamilton county, to pay and deliver to the state treasury the said sum of $1-1,531.60, and other relief.
    Upon this petition an alternative writ of mandamus was issued as prayed for, and thereupon the defendant filed an answer containing several alleged defenses, to the first and fourth of which the relator demurs,
    The first defense is as follows: “ That the plaintiff ought not to have its writ of mandamus herein for the reason that plaintiff has a plain, adequate and specific remedy at law for the grievance of which he complains.”
    The fourth defense is as follows : “ This defendant, in further answer to said petition and writ issued herein says, that the auditor of Hamilton county, Ohio, on September 23,1881, at his office, made settlement with defendant and ascertained the amount of taxes with which he, as treasurer, was to be charged, and, after making the deductions to which he was entitled, distributed in just and ratable proportion upon the several taxes charged on the duplicate, ascertained the balance for which said treasurer was to be held liable, aud to whom, in their several amounts, he was liable for such balance, and also ascertained the amount remaining in the treasurer’s hands belonging to each fund; and. thereupon the said auditor on said day did issue to the treasurer, this defendant, a certificate and abstract of such settlement, and of the balance of the amount of taxes received and charged to him as due to the state, the balance thereof due to the county, the balance due for road purposes, and the balance due to the townships and the other bodies and purposes to which said aggregate in his hands was found to belong, a copy of which certificate and abstract of settlement, and account with the state, is hereto attached, and made a part of this answer.

      “ In pursuance of this settlement, and of the provisions of law in that. behalf, the said treasurer forthwith proceeded to transfer, and did transfer and enter into their several accounts, the sums with which he was charged in said settlement, in favor of the state, the county, the townships, corporations, and the said several funds as shown in said certificate of settlement ; and said several amounts became theréafter subject to draft upon said treasurer in favor of the several persons or corporations authorized to receive the same. And the said treasurer further says that he fortliwitji upon said transfers of said several sums to their respective funds, proceeded to pay them out upon the proper drafts or warrants of the county auditor to the corporations or uses to which they became payable upon said settlement, and thereafter continued to pay them, up to the service of the writ herein, and has ever since continued to pay them as by law and his obligation he is bound to do.

      “ This defendant further says, that by said settlement he became charged in favor of the state of Ohio with the sum of $280,163.59, ascertained and certified by said auditor as aforesaid to be the amount and balance of taxes due the state of the moneys collected by said treasurer, which said balance so certified to be due the state he caused to be remitted to the treasurer of state as alleged in petition of plaintiff. All the balance .of moneys in his hands as treasurer of said county he held — and in part holds, on accounts and subject to the claims of others than the state of Ohio, ascertained and determined by the said county auditor in the settlement and certificate aforesaid, and credited and transferred to them, and he is not authorized or permitted to apply said funds to other uses, and is liable to the corporations and uses to which such funds have been transferred for the amount thereof remaining in his hands. Defendant holds no funds in his possession for the use of the state of Ohio or to its credit.”
    The contents of the certificate and abstract of settlement referred to and made part of the answer, are sufficiently stated in the opinion. The grounds of demurer to these defenses are that the facts stated are not sufficient to constitute a defense to the action.

      George K. Nash, Attorney-General, for plaintiff:
    I. The state is not bound by the provisions of section 6744. The rule, that “the state is not bound by the general provisions of a statute, unless it be so expressly enacted,” has been frequently approved by this court. Ohio ex rel. v. Board of Public Works, 36 Ohio St. 409; Ohio ex rel. v. Cincinnati Central Railway Co., 37 Ohio St. 176. This rule of construction is applicable to section 6744.
    II. The fourth defense is not good because it' is the defendant’s duty to meet the demand which the state auditor, makes upon him through the state treasurer, and it is his duty to keep money enough to do so. See sections 1115, 1043 as amended, 78 Ohio Laws 226, 1044, 1045, 181, 1120, 1125 of Revised Statutes. The treasurer, in his answer, says that he has credited each fund, state, county and local, with the amounts due it, as shown by the settlement sheet, and has paid out the funds in that manner. If the settlement sheet be true, the treasurer still has the $73,413.09, deducted for errors, in his possession, for upon the settlement sheet it has not been given or apportioned to any other fund. The defendant claims that the state auditor cannot review the settlement between the county auditor and treasurer. The condition of this settlement sheet shows that it needs reviewing by some one, and that the rule the defendant seeks to establish is a bad one.

      Bateman & Harper and Charles Evans, for defendant:
    I. Mandamus is not the proper remedy. The plaintiff has ample and specific remedy at law. State v. Nuily, 22 Ohio St. 534; Shelley v. Hoffman, 7 Ohio St. 455; High on Ex. L. Rem. § 15. It does not appear from the petition that there is money in the treasury of Hamilton county, under the control of the treasurer, out of which he could lawfully pay this money. It does not appear, in fact, that there is a dollar of money in the treasury for any purpose. This court certainly will not issue a mandamus against the treasurer of Hamilton county, unless it appears that he will be able lawfully, or at least, in fact, to comply with the command of the court.
    II. The semi-annual settlements of the county auditor with the county treasurer are conclusive and imperative upon the latter as to the distribution, transfer and disposition of the tax collections with which he is chargeable. Sections 1043, 1044, 1047, 1122, 1129, 1084, 10S5, 1022, 1024, 1105, 1023, Revised Statutes; Freeman on Judg’ts, § 531; Brown v. Otoe Co., 6 Neb. 111; State v. Buffalo Co., Id. 454. The state auditor has no authority to revise or review the settlement of the county auditor. Section 181, Rev. Stat. It is apparent that with the disposition of the fund made by the county treasurer, in pursuance of the settlement, he only held in the treasury for the use of the state $206,979.99, and that in fact he holds no fund as county treasurer out of which he can pay the amount claimed to the state. He holds probably in the treasury a sufficient fund to pay it; but if he does, it is held by him for the use of other bodies, and it is charged against him on their account. He will be compelled to pay it to them upon warrants drawn in their favor by the county auditor. Mark v. Trustees, etc., 56 Ind. 288. He therefore cannot comply with the command of the court if issued to him. 6 Ohio, 445; 2 Ohio, 109.
   McIlvaine, J.

The demurrer to the answer brings under review the sufficiency of the petition, and the defendant claims that the facts stated in the petition do not entitle the plaintiff to the writ of mandamus, for the feason, that there is a plain and adequate remedy for the grievance complained of in the ordinary course of the law.

Section 6744 of the Revised Statutes provides that: The writ must not be issued in a case where there is a plain and adequate remedy in the' ordinary course of the law,” and, it is claimed, that such a remedy is furnished by an action on the treasurer’s bond.

It would seem that an action on the bond might be maintained under authority of section 168 of Revised Statutes, which provides: “ If any county treasurer or other officer concerned in the collection of the public revenues, or authorized to collect and pay into the state treasury money due or accruing to the state, fails to pay over all moneys by him received and belonging to the state, at the time and in the manner required by law, the auditor of state shall immediately inform the attorney-general thereof, who shall forthwith institute and prosecute the proper suit against such officer and his sureties.” The question therefore arises, would such suit afford “a plain and adequate remedy” within the meaning of section 6744? The object of the present action is to compel the transfer of certain funds belonging to the public revenues of the state, from the treasury of Hamilton county to the state treasury. A suit on the treasurer’s bond would not accomplish that object. Although the state in an action on the bond might recover the full amount of damages sustained, it would leave in the county •treasury the fund to which it is entitled, and to which the county treasury is not entitled.

In deciding the question now before us, it is worthy of remark, that section 6744 above referred to, is merely declaratory of the rule of the common law, which refused relief by ■the extraordinary writ of mandamus in cases where an adequate remedy was afforded by the usual and accustomed modes of procedure at law, and also, that section 168 does not declare a breach of an official bond that would not have existed without the section, and for which an action on the bond is the exclusive remedy. Hence no new rule has been established by this legislation, and it cannot be doubted that the jurisdiction by mandamus to compel payment from the public treasury, when such payment is a mere ministerial act, is a common and acknowledged right. See High on Ex. Legal Bern. § 112, and cases cited;

The defendant relies on the case of The State v. Meily, 22 Ohio St. 534, in which it was held that when money is wrongfully retained by a probate judge from the party entitled thereto, such party has a plain and adequate remedy by action on the official bond of the judge, or by an ordinary action against him for the money, and therefore mandamus will not be allowed to compel payment, until such ordinary remedy has been resorted to and proved ineffectual. In that case it was said that the retention of the money by the probate judge was his individual act — a conversion of it to his own use, and, no doubt, the identical money might be applied to the payment of a judgment recovered against him ; but on the facts before us, the money in the county treasury could not be withdrawn for the payment of a judgment on the treasurer’s bond at the option- of the treasurer. Such judgment and its payment would not transfer public funds from the county to the state treasury, and any remedy, which will not accomplish such transfer, is not adequate within the.meaning of this rule. There is no suspicion that the defendant is a defaulter or that he has embezzled public funds. To which treasury does this money belong is the only question in the ease, a mere question of law. If to the state treasury, it should be transferred, and mandamus is the only specific and appropriate remedy under the particular circumstances of the case.

It is also contended that the petition and writ are defective in not alleging that the money claimed is, in fact, in the .county treasury.

No doubt, a writ of mandamus should not be issued unless it appears that the thing commanded to be done is capable of being performed. The question, therefore, whether the funds sought to be transferred from the county treasury to the state-treasury, are,’ in fact, in the county treasury, is material. It appears plainly enough that these funds, before the semi-annual settlement in September, 1881, had been received intp the county treasury, and we think it must be presumed that they remain there until the contrary is shown. In view of this presumption, the petition in this respect is not defective. If the issuance of the writ be resisted on the ground that the funds claimed are not in the treasury of the county, and under the control of the defendant, such state of facts must be shown by the defendant in his answer.

Are the facts stated in the fourth defense sufficient? The object of the pleader was to show that the defendant as treasurer of Hamilton county had no funds in his possession or under his control that were legally subject to the payment of relator’s claim. The answer contains such specific averment; but we understand this averment to be a mere conclusion based on facts set forth in the answer, and especially in the certificate and abstract made by the county auditor upon the last semi-annual statement on account of the taxes of 1880, which are fully set.forth and made a part of the answer. This certificate and abstract, which nre required and controlled by sections 1043, as amended April 19, 1881 (78 Ohio L. 226), and 1044 of the Revised Statutes, contain the controlling facts of the case in so far as they are made in conformity to law. Section 1043 provides that “the auditor shall attend at his office, on or before the 15th day of February, and also on or before the 10th day of August annually, to make settlement, with the treasurer of his county, and ascertain the amount of taxes with which such treasurer is to stand charged; and the auditor shall, at the August settlement, take from the duplicate, previously put into the hands of the treasurer for collection, a list of all such taxes as such treasurer has been unable to collect . . . . ; and after deducting the amount of taxes as returned delinquent, and the collection fees allowed the treasurer, from the several taxes charged on the duplicate, in a just and ratable proportion, the treasurer shall be held liable for the balance of such taxes; and the auditor after first correcting any error which may have occurred in the apportionment of taxes at any previous settlement, shall certify the balance due to the state, the balance due to the county, the balance due for road purposes, and the balance due to the townships,” &c. And section 1044, after giving more specific directions as to the manner of making the settlement, requires that “ the auditor shall also make out and deliver to the treasurer a certificate specifying the amount charged on the tax duplicate of the county for each of the several purposes for which taxes have been levied; and also a certificate or an abstract of the taxes which have become due and payable and which remain unpaid,” &c.

Now it appears from the certificate and abstract of this settlement, as made by the auditor of the county, that after all proper deductions, to wit: the amount of delinquent taxes and the collection fees allowed the treasurer, had been made from the amount of the duplicate, the auditor found the balance, for which the treasurer should be held liable, to be $2,811,649.74, and that the proportion thereof due to the state for the sinking fund, general revenue and common school fund, was $291,658.63. But the certificate also shows that from this aggregate of the treasurer’s liability, the auditor further deducted the sum of $73,413.09 (thus reducing the liability of the treasurer to the sum of $2,738,236.65), on account of “net balance of errors corrected,” and thus reducing the amount due the state by the sum of $11,534.60, being its proportion of said deduction of $73,413.09, leaving a balance due the state of $280,124.03, from which balance, the sum $73,183.60, being the proportion of the common school fund to which Hamilton county was entitled, was retained by the treasurer, and deducted from $280,124.03, so found due to the state, and the remainder, plus $39.56 for special licenses, to wit: $206,979.99, was duly paid into the state treasury by the defendant in full, as is claimed, of the state’s proportion of the amount for which the treasurer of Hamilton county is held liable on account of the duplicate for the year 1880.

The auditor of Hamilton county having transmitted to the auditor of state a duplicate of said certificate and abstract as required by section 1045 of Revised Statutes, the auditor of state proceeded to examine the same as required by section 181 of Revised Statutes, which provides, “ the auditor of state, immediately on the receipt of the certificates and abstracts of each semi-annual'settlement between the auditor and treasurer of each county, forwarded to him by the county auditor, shall proceed to examine the same, and ascertain the exact sum or sums payable by each county treasurer into the state treasury, and shall certify the same to the state treasurer, specifying in the certificate or certificates the amount belonging to each fund and the total amount to be paid into the state treasury; he shall also ascertain and certify to the state treasurer the amount of such county’s proportion of the state common school fund, and of school, ministerial and other trust funds, if any, due and payable to such county; and at the same time he shall issue his draft or drafts upon the county treasurer in favor of the state treasurer, for the sum or sums so found due and payable, after deducting the amount of the several sums found due to the county on account of school, trust, or other funds.”

On such examination the auditor of state ascertained the exact sum” due to the state to be $291,658.63, and after deducting therefrom the sum of $73,183.60, the county’s proportion of the state common school fund, drew his draft on the county treasurer in favor of the state treasurer for the remainder, plus the sum of $39.56 for special licenses, to wit: for the sum of $218,514.59. The treasurer of state, having given a credit, on his draft, of the money theretofore paid into the state treasury by the defendant, prosecutes this suit for the balance, to wit: $11,534.60, the same being the exact amount deducted from the state’s proportion of taxes on account of net balance of errors corrected ” as above stated.

1 The right of the state to this balance is not now submitted for our decision, but, we are clear, that if this right is.hereafter determined to be in the state, there are funds in the county treasury and under the control of the defendant, that should be subjected to its payment. The county auditor had no warrant or authority of law for deducting, from the amount for which the treasurer should be held liable, any sum whatever on account of “ errors corrected.” The only sums authorized to be deducted from the. full amount of the duplicate are two: 1st. The amount of delinquent taxes. 2d. The amount of the treasurer’s fees. The remainder is the amount for which the treasurer is' held liable, and the whole amount of this liability-should have been apportioned among the different funds for which the taxes were levied. This amount is $2,811,649.74. The amount actually apportioned by the auditor to the several funds was only $2,738,236.65, leaving a balance in the treasury of $73,413.09, no part of which has been apportioned to any fund. True, in making the apportionment the auditor is authorized to correct any error which may have occurred in the apportionment of taxes at any previous settlement.” But, by correcting such errors, the amount to be apportioned is neither increased nor diminished. Whatever sum may thus be taken from one fund must be added to another. This has not been done in this case. The $73,413.09 of “ net balance of errors corrected” were ratably deducted from the several funds for which taxes were levied. Hence, the whole of this sum remains in the treasury of the county unappropriated, and may be made subject to any judgment which may be rendered in this cause.

Demurrers to first md fourth defenses sustained.

Johnson, J., dissented.


author: White, J.

text:
    Rowland v. Meader Furniture Company.
    1. Where a corporation defacto, in a proceeding in quo warranto, lias been. ousted from the franchise of being a corporation, such ouster is no defense to a suit by a creditor against stockholders, to enforce payment of their stock subscriptions. Gaff v. Flesher, decided by the Commission (33 Ohio St. 115, 453), approved and followed.
    2. The act of February 2'7, 1846, “regulating suits by and against companies and partners ” (S. & C. 1138), applies only to unincorporated companies. Neither corporations dcjnre nor de facto are within its provisions ; and an action cannot be maintained under the act, to charge the stockholders with the payment of a judgment against the corporation.

      8. Corporations defacto and de jure stand on the same footing as respects their liability to creditors ; and the liability of the stockholders of the former, whether arising by statute or on stock-subscription, may be enforced for the benefit of creditors, the same as1 the liability of the latter.
    Error to the Superior Court of Cincinnati.
    The facts are stated in the opinion.

      JEoadly, Johnson <& Colston and Stover & Ha/rrison, for plaintiff in error :
    The plaintiffs in error were not liable as partners. In re Mendenhall, 9 Nat. Bank Reg. 497; Medill v. Collies, 16 Ohio St. 599; Fay v. Noble, 7 Cush. 188; Bigelow on Corp. 194; Trowbridge v. Scudder, 11 Cush. 83; Blanchard v. Kaull, 44 Cal. 440. And the action was improperly brought under section 632. S. & C. 1139.

      J. JR. Challen, for defendant in error, claimed that the plaintiffs in error were liable as partners, and cited Redenour v. Mayso, 29 Ohio St. 138; Wells v. Gutes, 18 Barb. 554; Keasley v. Codd, 2 Carr. & Payne, 409; Fuller v. Rowe, 57 N. Y. 23; Cutler v. Thomas, 25 Vt. 73.
   White, J.

The Southwestern Transportation and Wharf-■Boat Company was organized in May, 1871, and engaged in business as a corporation, under the act of May 6, 1869. 66 Ohio L. 127.

On December 11, 1873, in a proceeding in quo warranto in this court, the company was ousted from the franchise of being a corporation.

On March 12, 1873, the company in its corporate name executed its promissory note to one of its officers in payment of salary, which the payee endorsed to the defendant in error, the Meader Furniture Company. Prior to the judgment of ouster, the Meader Furniture Company recovered judgment on the note against the maker, in its corporate name of the Southwestern Transportation and Wharf-Boat Company. ■ The assets of the company proving insufficient to satisfy the judgment, the present action was instituted by the judgment creditor, in the superior court, against Charles W. Rowland and others, plaintiffs in error, who were stockholders in the company, to charge them, as partners, with the payment of the balance due on the judgment.

The action was brought under the act of February 27, 1846, “regulating suits by and against companies and partners.” S. & C. 1138. The first section is as follows : “ That any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property within the state of Ohio, and not-incorporated as such, may sue or be sued in any of the courts of this state, by such usual or ordinary name as such company, partnership, or association may have assumed to itself or be known by ; and it shall not be necessary in such case to set forth in the process and pleadings, or to prove at the trial, the names of the persons composing such company.”

The fourth section, provides: “ that if the plaintiff, in any judgment so recovered against a company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a petition against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same; and to have a decree for the debt, and an award of execution against all such persons, or any of them, as may appear to have been members of such company, association or firm.”

This statute applies only to unincorporated companies. Neither corporations de jitre, nor de facto are within its provisions. That the Southwestern Transportation and Wharf-Boat Company was, prior to the judgment of ouster, a corporation de facto was held by the commission in Gaff v. Flesher, 33 Ohio St. 115, 453.

The facts in relation to the organization of the company, and of the proceedings in quo warranto whereby it was ousted' from being a corporation, are fully stated in the opinions in that case. Hence they need not here be re-stated. It is sufficient to say that we are satisfied with the judgment rendered in that case.

The rights of the creditors of the company, and the liabilities of the stockholders in respect to the payment of the creditors were not affected by the judgment of ouster. These rights and liabilities would have been the same, if the proceedings in quo warranto had not been instituted. The fact that their enforcement is sought after, instead of before, the judgment of ouster, does not affect their adjudication on the merits.

Corporations de fado and de jure stand on the same footing as respects their liability to creditors, and the liability of the stockholders of the former, whether arising by statute or on stock subscription, may be enforced for the benefit of creditors, the same as the liability of the stockholders of the latter. McCarthy v. Lavasche, 89 Ill. 270.

Judgment reversed and petition (dismissed.


text:
    Ridenour v. The State.
    1. An indictment for shooting with intent to maim is not defective for want of averment as to what member or members of the body the accused intended to injure or disable. If in the words of the statute it is sufficient.
    3. Where one shot another in the trunk of the body, and the result was to produce paralysis of a leg, causing a permanent disabling of that member, a verdict of guilty of shooting with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act.
    3. An indictment contained three counts; the first and second did not charge the ojíense to have been committed “against the peace and dignity of the state of Ohio,” but the third did so charge. The accused was acquitted under the first two counts and convicted under the third.

      Held: That, where it did not appear from the record that evidence had been introduced against the prisoner under the first two counts which would have been incompetent under the third, and prejudicial, there was no error in refusing to grant a motion for a new trial.

      Error to the Court of Common Pleas of Butler county.

      Thomas Millikin, O. H. Blackburn, and J. D. ZFrmston, for plaintiff in error.

      J. IF JVeilan, prosecuting attorney, for defendant in error.
   Longworth, J.

Plaintiff in error was convicted and sentenced in the Common Pleas Court of Butler county, of shooting one Samuel Montgomery with intent to maim. The indictment under which he was tried contained three counts, charging the shooting to have been with intent, first, to kill; second, to wound, and third, to maim. Under the first two counts the prisoner was acquitted. These two counts closed without alleging that the offense charged was committed “ against the peace and dignity of the State of Ohio.” The third count, however, was not defective in this respect. What would have been the effect of a conviction and sentence under either of these defective counts it is not necessary for us now to determine. The prisoner was not prejudiced by his acquittal'; and such acquittal cured any previous errors which may have intervened in the action of the court touching this objection. We can understand that, where evidence has been introduced against the prisoner upon counts, under which no conviction could be had, and such evidence is incompetent against him upon the valid charge under which he is convicted, the prejudice may be such as to warrant a reversal of the judgment. But it is enough to say that no such case is disclosed by the record before us.

II. It is objected further that the third court of the indictment is insufficient for the reason that it simply charges' an intent to maim, without setting forth what member of the body the prisoner intended to injure, disable or destroy. In this-respect we do not consider it defective. Although both at common law and under our present more liberal practice if is-necessary in charging the offense of mayhem ” or maiming,” to set forth what member of the body was actually injured or destroyed, yet under a charge of assault with intent to-wound- or to maim it was never necessary to do more than to allege the intent in the words of the statute, without setting forth particularly the manner in which it was intended to inflict the injury. Any other rule would lead to absurd results. Suppose a case where one shoots at another, but, not wishing to kill, aims low, so that the ball may probably strike and disable the leg, it would result, from the argument of prisoner’s counsel, that no indictment would be valid or conviction legal unless it should be alleged and proved that the intention was to hit one leg and not the other.

III. The evidence showed that the accused shot Montgomery in the trunk of the body, near the navel, and from this it is argued that the intent, though possibly to kill or to wound, could not have been to maim.

It farther appeared, however, that a nerve was destroyed by the bullet in its course, and that although, the patient has recovered, his right leg is disabled by paralysis, from which it is said he will never, in all probability, recover. From this it seems that the result of the shooting was actually to maim. Can it be said that the verdict finding that the accused intended the result of his criminal act was not warranted % ~We think not. The law presumes all persons to contemplate the natural and probable results of their actions; and we cannot .say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body.

Unquestionably, upon this state of the evidence, the .•accused might have been properly convicted, under section '6319 of the Revised Statutes, of disabling the limb, or in other words of the offense of actually maiming ” the injured man ; nor could he be heard for a moment to say that he did not intend to do the very thing he did.

Numerous other errors in the proceedings are alleged, which we do not think it desirable to consider in detail, or notice further than to say that we are unanimously of opinion that no errors intervened at the trial to the prejudice of the accused.

Judgment affirmed.


text:
    Coppin v. Greenlees & Ransom Co.
    An executory agreement between a manufacturing corporation of tbis state and one of its stockholders, for the purchase of the stock of such corporation, by the former from the latter, cannot be enforced either by action for specific performance or for damages.
    Error to the District Court of Hamilton County.
    The original action was brought by William Coppin, plain-in error, against The Greenlees & Ransom Company, defendant in error, in the court of common pleas'of Hamilton county, and the cause of action was thus stated in the petition:
    „ “ The plaintiff states that the defendant is and for several years past has been a corporation, duly incorporated under the laws of the state of Ohio, for manufacturing purposes.
    “ That it has been'the custom of said corporation that its officers and others, actively engaged in its service, should be holders of shares of its stock, and upon ceasing to be connected with said company, such persons have been accustomed to sell,, and said company to buy their said stock.
    “That the plaintiff was formerly in the employ of said company as a workman, and that while so engaged he became the holder of shares of the capital stock of said company to the amount, at its par value, of $3300.
    “ That having eeased to work for said company, he sought a purchaser for said stock, and offered to sell the same to the defendant for two lots of land, hereinafter described, valued respectively at $1100 and $700, and the balance of $1500 in manufactured work to be made by the defendant, at ten per cent, off their bill of prices, to which the defendant assented and agreed, and to carry the same into effect the plaintiff on May 28, 1875, caused to be prepared a written contract, which the defendant then duly executed and delivered to the plaintiff, of which the following is a copy:

      “ ‘ Cincinnati, May 28 1875.
    “ ‘ Eor and in consideration of thirty-three shares of the capital stock in the Greenlees & Ransom Company, the receipt whereof is hereby acknowledged, said Greenlees & Ransom Company promise to pay, or cause to be paid, to William Coppin the sum of three thousand three hundred dollars, payable, viz: said Coppen to take a lot of ground, No. 16 on the plat of the Wyoming Land and Building Co.’s subdivision of the Burn’s farm, Wyoming, Ohio, in part payment, amounting to $1100.00; also a lot of ground on the north side of Wyoming avenue owned by--Oaruthers, and next to Mr. Beeson’s house, fifty feet front by two hundred and fortyrfive feet deep, more or less, for the sum of $700.00; leaving a balance of $1500.00 to be paid in manufactured work, joist, scantling, etc., the manufactured work at ten per cent, off their bill of prices; the other'material at the usual rates; the work and material to be delivered from time to time to him as said Coppin may order it.
    “ ‘ Greenlees & Ransom Company.
    “ ‘ By E. P. Ransom, President.’
    “ And the plaintiff says that afterwards, in the month of June, 1875, he tendered said shares of stock to the defendant, and offered to transfer the same to it, and demanded performance of said contract; but the defendant refused to accept the same, and refused to convey said lots, or either of them, or to deliver said manufactured goods, although the plaintiff then demanded the same.
    “ Wherefore he now brings said stock into court, and offers to transfer the same to the defendant, and prays that the defendant may be compelled to convey said lots by a perfect title, and to deliver said goods, and for such other and further relief as in equity and good conscience he may prove to be entitled to.”
    To this petition an amendment was afterwards allowed and filed as follows:
    “And now comes the plaintiff, William Coppin, and by leave of court files this amendment to his petition herein, and for such amendment says that the value of said land, and of said building material, was thirty-three hundred dollars.
    “ That said lots were worth respectively $1100 and $700, and re-affirming all the allegations of his petition except such as may be inconsistent herewith, prays a judgment for said value of said land and building material, to wit: the sum of $3300, with interest from the 28th day of May, A.D. 1875, against the said defendant, and withdraws his prayer for specific performance.”
    After an issue of fact joined by answer the cause was tried, and verdict and judgment rendered in favor of the plaintiff for $3,817.00.
    On petition in error, the district court reversed the judgment of the common pleas, and caused it to be certified on the record, “ that the judgment of the court of common pleas was reversed by this court on the ground that the petition and amendment to the petition failed to show a sufficient cause of action, and on the ground that the verdict was contrary to law,” and not on the ground that the verdict was contrary to the evidence.
    This proceeding is now prosecuted to reverse the judgment of the district court.

      Hoadly, Johnson do Colston, for plaintiff in error:
    The question is, the corporation having made the contract is the same enforceable ? Numerous American cases hold that a corporation has the right to purchase its stock, within limits, none of which are transcended by the present case. See Hartridge v. Rockwell, R. M. Charlton, 260; Robinson v. Beal, 26 Geo. 28; 84 Ill. 145; s. c., 84 Ill. 643; Leland v. Hayden, 102 Mass. 551; Am. R. F. Co. v. Haven, 101 Mass. 308; Bank v. Bruce, 17 N. Y. 507; Jones v. King, 86 Ill. 20; Iowa Lumber Co. v. Foster, 49 Iowa, 25; Dupee v. Boston W. P. Co., 114 Mass. 37; Taylor v. Miami Ex. Co., 6 Ohio, 176; State v. Building, Asst'n., 35 Ohio St. 258; Pierce on Railroads, 505; Bank v. Champlain Trans. Co., 18 Vt. 131.

      Stmimel do Ravis, for defendant in error:

      An executory contract made by a manufacturing company with one of its stockholders to buy the stock of such stockholder cannot be enforced. Cooley on Const. Lim. 394; Bartholemew v. Bently, 1 Ohio St. 42; Strauss v. Ins. Co., 5 Ohio St. 59; Bank Ins. Co., 12 Ohio St. 601; 5 Wis. 173; Hays v. Galion, 29 Ohio St. 338; Green’s Brice’s Ultra Wires, 81; 17 Barb. 397; Currier v. Lebanon S. Co., 56 N. H. 262; Savings Bank v. Wulfekuhler, 19 Kans. 60.
   McIlvaine, J.

Whether the defendant corporation was bound by its executory agreement with the plaintiff to purchase shares of its own stock, under the circumstances detailed in the petition, was, undoubtedly, the question upon which the case turned in the district court.

The power of a trading corporation to traffic in its own stock, where no authority to do so is conferred upon it by the terms of its charter, has been a subject of much discussion in the courts; and the conclusions reached by different courts have been conflicting. Of course, cases, wherein the power is found to exist by express or implied grant in the charter, furnish no aid in the solution of the question before us; unless the claim of the plaintiff can be sustained, that such power was conferred on the defendant by section 63 of the corporation act of 1852 (S. & O. 301), as amended, which confers on manufacturing corporations the powers enumerated in section 3 of the act, and, among others, the power “ to acquire and convey, at pleasure, all such real and personal estate as may be necessary or convenient to carry into effect the objects of the corporation.” We think, however, that this claim cannot be maintainéd. The sole object of the defendant organization was “ for manufacturing purposes ;” and it cannot be said, in any just sense, that the power to acquire or convey its own stock was either necessary or convenient “ for manufacturing purposes.”

The doctrine that corporations, when not prohibited by their charters, may buy and sell their own stocks, is supported by a line of authorities ; and, prominent among them, may be mentioned the cases of Dupee v. Boston Water Power Co., 114 Mass. 37, and C. P. and S. R. R. Co. v. Marsailles, 84 Ill. 145. But nevertheless, we think the decided weight of authority both in England and in the United States, is against the existence of the power unless conferred by express grant or clear implication. The foundation principle, upon which these latter cases rest, is that a corporation possesses no powers except such as .are conferred upon it by its charter, either by express grant or necessary implication; and this principle has been frequently declared by the supreme court of this state ; and by no court more emphatically than by this court. It is tine, however, that in most jurisdictions, where the right of a corporation to traffic in its own stock has been denied, an exception to the rule has been admitted to exist, whereby a- corporation has been allowed to take its own stock in satisfaction of a debt due to it. This exception is supposed to rest on a necessity which arises in order to avoid loss; and was recognized in this state as early as Taylor v. Miami Exporting Co., 6 Ohio, 176, and has been incidentally referred to as an existing right since the adoption of our present constitution. State v. Building Association, 35 Ohio St. 258.

But, however that may be, the right of a corporation to traffic in its own stock, at pleasure, appears to us to be inconsistent with the principle of the provisions of the present constitution, article 13, section 3, which reads as follows : Dues from corporations shall be secured by such individual liability of stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.” Now, it is just as plain, that a business or trading corporation cannot exist without stock and stockholders, as it is that the creditors of such corporations are entitled to the security named in the constitution. State ex rel. Att'y-Gen. v. Sherman, 22 Ohio St. 411. The corporation itself cannot be a stockholder of its own stock within the meaning of this provision of the constitution. Nobody will deny this proposition. And if a corporation can buy one share of its stock at. pleasure, why may it not buy every share ? If the right of a corporation to purchase its own stock at pleasure, exists and is unlimited, where is the provision intended for the benefit of creditors? This is not the security to which the constitution invites the creditors of corporations. I am aware, that the amount of stock required to be issued is not fixed by the constitution or by statute, and also that provision is made by statute for the reduction of the capital stock of corporations; but of these matters, creditors are bound to take notice. They have a right, however, to assume that stock once issued, and not called back in the manner provided by law, remains outstanding in the hands of stockholders liable to respond to creditors to the extent of the individual liability prescribed. In this view it matters not whether the stock purchased by the corporation that issued it, becomes extinct, or is held subject to be re-issued. It is enough to know that the corporation, as purchaser of its own stock, does not afford to creditors the security intended. And surely, if the law forbids the organization of a corporation without stock, because the required security is not furnished, it cannot be, that having brought the corporation into existence, it invests it with power to assume, at pleasure, the identical character or relation to the public, that was an insurmountable objection to the giving of corporate existence in the first place.

Plaintiff in error lays much stress on the averments in the petition, that it had been the custom of the corporation that its officers and others, actively engaged in its service, should be holders of shares of its stock, and upon ceasing to be connected with the company, such persons had been accustomed to sell, and the company to buy such stock; and that the plaintiff had purchased the stock for the price of which suit was brought while in the employment of defendant.

We cannot see why these averments should take the case out of the general rule.

If it were averred that the plaintiff had purchased this stock from the defendant, or from others, under an agreement with the company that it buy the same from him when he quit its employment, or if the contract of purchase by the defendant had been executed, very different questions would arise.

It is not even averred, that the plaintiff relied upon such custom either in making the purchase, or the sale, of the stock; so that, in fact, he is unaffected by the alleged custom. But if such custom had been relied on by the plaintiff when he purchased the stock, it would not- have made the executory contract of the defendant to buy the stock binding, which, without such custom, would be void. The usage of a corporation does not become the law of its existence, or the measure of its powers. The general law of the state, of which all persons are presumed to have knowledge, is the source and limit of all its powers and duties; and these cannot be varied either by usage or contract. The doctrine of estoppel has no application in the case. Nor is there any such equity in the case, as would have arisen between the parties in case the contract had been executed.

Judgment affirmed.