Peck v. Weddell.

was intended to qualify it, and should be read as though it were added to the 2d section by way of proviso. Reading both these sections together, it is very clear that the legislature has provided that the 1st section, which enacts the removal, shall only take partial effect upon its adoption by the electors; that is to say, it shall take effect so far as to settle the question of removal, and determine the site of the permanent seat of justice, but shall not operate, or take effect, so as to remove the de facto seat of justice 287] from its *present location, "until such time as new buildings shall be erected at the proposed new seat of justice, as provided by law;" when the 1st section shall take full effect and accomplish the actual removal.

It is conceded by counsel that the legislature might, at its discretion, pass an act for the removal of a county-seat, to take effect immediately upon its adoption by the electors, or to take effect when public buildings are erected at the new seat of justice; and that either form of enactment would be valid, when submitted to and adopted by a mojority of the electors. But it is said that the first section only was submitted, by the terms of the act, to the vote of the electors, and that that section imports an immediate removal. We do not so understand it. The second and fifth sections prescribe, as we have seen, when, and upon what contingencies, the first shall take effect. And the language of the first is, that the seat of justice shall be removed from Perrysburg and permanently fixed at Bowling Green, "from and after the taking effect of this section of this act as hereinafter provided." These words "as hereinafter provided," clearly refer to the provisions of the second and fifth sections, and thus, by reference, incorporate those provisions into the first, so that its adoption necessarily implies an approval and acceptance of the terms and conditions to which it refers.

In voting to adopt the first section, the electors necessarily voted to give that section effect as provided in the second and fifth sections; for its own terms are, substantially, that it shall operate only after it shall take effect as provided in the subsequent parts of the act.

We are clearly of the opinion, therefore, that the submission of the first section of the act to a vote of the electors of Wood county, was a submission of the whole scheme of removal contemplated in the act, and was substantially a full compliance with the requirements of the constitution.

It is, therefore, not necessary to consider whether the fifth sec

Fuller v. McEwen.

tion would not be valid, as an enactment of the legislature, independent of any sanction by the electors of the county.

It is further objected to this act, that it purports to effect a removal of the county-seat at an indefinite time, upon a *con- [288 tingency uncertain, and depending upon the discretion of the county commissioners. But we do not see the force of this objection. Many laws can only operate upon the happening of certain contingencies; yet they are nevertheless valid. We think it is clearly competent for the legislature to provide that a county-seat shall not be removed till suitable buildings shall have been provided for the public offices at the new county-seat. Such a provision has been contained in many prior laws in similar cases: as in the act of 1851, to remove the county seat of Perry county from Somerset to New Lexington (5 Ohio St. 498), and in the act to remove the county seat of Noble county (5 Ohio St. 524). But in none of these cases has a provision, so reasonable in itself, and conducive to the interests and convenience of the public, been held to vitiate the law. The electors of Wood county have it in their power to secure the erection of suitable public buildings at Bowling Green within a reasonable time, if they so desire. The same majority which ordains a removal, can give full effect to the act, if in no other way, by the election of county commissioners who will respect the will of their constituents.

No other points have been made in argument, which require special notice.

The demurrer to the petition will be sustained, the injunction originally allowed in the case be dissolved, and the petition dismissed at plaintiff's costs.

DAY, C. J., and WHITE, WELCH, and BRINKERHOFF, JJ., concurred.

ALEXANDER FULLER V. JAMES MCEWEN.

1. Where a devisee or legatee accepts a devise or bequest charged by the will with the payment of the debts of the testator, the law imposes on the devisee or legatee a personal obligation to pay such debts; and in an action to

Fuller v. McEwen.

enforce such personal obligation, the fact that the devisee or legatee is o is not also executor of the will, makes no difference in the case.

2. In such a case, the statute limiting actions against executors and administrators to four years, does not apply.

3 The action in the case being founded on an implied personal promise of the devisee or legatee, the statute of limitations would begin to run in his favor only upon his acceptance of the devise or bequest.

289] *ERROR to the district court of Trumbull county.

November 6, 1862, McEwen filed his petition against Alexander Fuller, in the court of common pleas, to recover the balance due o a note executed May 18, 1854, by Davis Fuller, at Youngstown, Ohio, for $195.42, at ninety days, to the order of James McEwen & Co., at the Mahoning County Bank, indorsed with a payment of $100, May 3, 1855.

In his petition, McEwen states that he is the owner and holder of the note; that it was not paid at maturity, though duly pre sented; that the maker, Davis Fuller, died testate; that his will was duly admitted to probate (a copy of the will is made a part of the petition); that Alexander Fuller was made sole executor of the will, and received letters executory June 1, 1855, and entered upon and continues to discharge the duties of executor; that previous to the settlement of the estate, and the payment of the legacies in the will, the executor was notified of the existence of the note by the plaintiff, as a debt and claim against the estate. That the will gives the residue of the estate and property of the testator, after the other legacies and costs of administration and debts are paid, to the said Alexander Fuller, and that such residue was specially charged, by the will, with the payment of the testator's debts, which were thereby made a lien and charge upon such residue. That the said residue, which the defendant, Alexander Fuller, took and retains possession of as his own, is more than sufficient, after paying all the legacies, costs, and other debts, and which have been paid, to pay the debt due the plaintiff. But that the defendant refuses to pay, etc.

The first item of the will reads thus: "It is my will, and I direct, that all my just and lawful debts and liabilities be first paid."

Item ten reads thus: "I give and bequeath to my son, Alexander Fuller, all the residue of my property, both real and personal, out of which it is my will that he pay all my just debts," etc. This is all the will says about the payment of debts.

Fuller v. McEwen.

The answer of Alexander Fuller sets up the probate of the *will, the filing of his bond as executor on June 6, 1855, and [290 the publication, on the 13th, of due notice of his appointment; and that, within four years after the date of the bond, he collected all the assets of the estate; that the plaintiff did not bring this suit within that four years; that defendant had no notice of any such note or debt as set up in the petition, until the fall of 1861, more than six years from the date of the bond; that the claim was never presented to the defendant, and that he was never requested to pay

the same.

The plaintiff demurred to the answer on the ground that it does not state facts sufficient to constitute a defense to the action.

The demurrer was sustained and judgment entered on the petition for plaintiff.

The district court affirmed this judgment on proceedings in

error.

To reverse this judgment of affirmance, the present petition in error was filed.

Geo. M. Tuttle, for plaintiff in error:

As a debt against the executor, as executor, it is clear that the claim sued upon was barred by the lapse of four years. 1 S. & C. Stat. 585, 586, secs. 103-105.

This statute applies to the executor as devisee. Ang. on Lim. (3 ed.), secs. 169, 170; Clyde v. Simpson, 4 Ohio St. 445, 455, 456; Id. 512 et seq.; Id. 519.

The provisions in question are borrowed from Massachusetts. Per Brinkerhoff, J., in Paine v. Mason, 7 Ohio St. 198, 207.

The authorities of that state, therefore, have a peculiar importSee Brown v. Anderson, 13 Mass. 201, 203; Thompson v. Brown, 16 Ib. 172, 180; Davis v. Shedd, 15 Ib. 6.

The liability of the devisee is but the incident to the liability of the estate, and is collateral to it. Such being the case, it can last no longer than the principal liability. Ohio v. Blake, 2 Ohio St. 147, 149; 18 Ohio, 234.

This result is a necessary inference from the further provisions of the statute. Part 9, secs. 1 and 2 (1 Curwen, 753).

*The limitation of suits against executors to four years is [291 intended for the benefit of those interested in the estate; and he needs the protection most, who, by accepting a supposed bounty

Fuller v. McEwen.

of the testator, becomes liable, when liable at all, not for the mere amount of property received, but for all the debts of the estate.

F. E. Hutchins, for defendant in error:

The question presented is whether, upon the facts, the plaintiff in error was liable, at the commencement of this action, to pay the debts of the testator, either as executor or as residuary legatee.

Without admitting that he was not liable as executor, notwithstanding the expiration of four years from the date of the bond, yet this action is predicated upon his liability under the will, as residuary legatee.

The defense set up in the answer, if it be a defense at all, is so only as to the liability of plaintiff in error as executor. It is simply a plea of the statute of limitations applicable to actions against executors, as such. It does not attempt any defense to his alleged personal liability.

By the terms of the will, and by his acceptance and enjoyment of the property, the plaintiff in error was personally charged, and the property given to him was also charged with the payment of all the debts of the testator, including that due to the defendant in error.

My proposition is this: Where a testator devises the residuum. of his estate, directing the devisee to pay his debts or legacies, and the devisce accepts and takes and enjoys' the property, he is personally bound for the payment of the debts or legacies, and the same are also a charge upon the property devised. The devisee in such case takes the property cum onere, and his acceptance is an implied promise to pay as directed. He can not enjoy the benefits and repudiate the obligations of the devise. Williard's Eq.

487-489; 7 Paige, 421; 11 Id. 334; 15 Conn. 534; 22 Id. 602; 27 Id. 530; 24 N. Y. 130; 9 Mass. 510; 2 Comst. 501; 3 Gray, 516; 4 Ohio St. 445; 3 N. Y. Dig. (Abbot's), 693; 6 Id. 201, 588.

The plaintiff in error having thus become personally bound 292] *for the payment of the debt, there is nothing in his answer to show that his liability has ceased.

There is no plea of the general statute of limitations; only that relating to executors as such.

There is neither authority nor reason for the assumption that this personal liability of the devisee, is but the incident to the liability of the estate, and collateral to it.