Pelton v. Bemis.

judgment of the court of common pleas upon the demurrer of the defendent below to the first, second and third causes of action contained in the petition, should be and is affirmed, the action not having been commenced within a year from the payment in either case.

It remains to be considered whether the judgment rendered against the plaintiff in error upon the fourth cause of action should be reversed. We are of the opinion that it should, for the principal reason that it does not appear as a matter of fact, that the assessment, an installment of which is sought to be recovered back, was illegal. The averment as to this, in the pleading, is simply that it was illegal and void. But this is a legal conclusion, and does not present an issue of fact. The facts from which it is claimed the illegality arises, should be stated, that the court may judge whether the assessment was illegal

or not.

There are certain cases in which legal conclusions, stated in connection with certain averments of fact, have been held sufficient at least after verdict; as, for instance, an averment of indebtedness on account of goods sold and delivered, or of work and labor performed, at the request of the defendant; for the facts stated import an indebtedness. But we know of no case, and certainly none has been cited, that has gone to the length of holding that an averment that the defendant is indebted to the plaintiff, would support a recovery in any instance; and yet such an averment is no more purely a question of law, than an averment that an assessment is illegal and void. The rule of pleading with its distinctions in this regard, is treated by Bliss in his work on Code Pleading, at § 213 and § 334, which see with the cases cited by the author; also Pom. Rem., § 530, and the cases cited in the note thereto.

defendant in error that However this may be,

It is claimed by counsel for the this question was not made below. it is made by the demurrer to the cause of action on which the judgment was rendered against the plaintiff in error;

Wagner v. Ziegler.

is now insisted on by his counsel, and, being an error apparent on the record and assigned for error, can not be disregarded by this court on the statement of counsel that it was not insisted on below. Judgment must be given upon and not against the record.

As to the point that the petition does not show an involuntary payment, there is an unresolved doubt in the minds of the court. Whether the only compulsion to which the plaintiff was subjected, was that unless he paid his taxes proper, his lots would be returned delinquent and sold, and thereby, and for no other reason, he was compelled to pay the assessment, is not clear. If it were clear that this is the proper construction of the pleading, then a doubt arises as to whether a payment made under such circumstances only would amount to an involuntary one. But inasmuch as the judgment must be reversed and cause remanded for further proceedings for the reason already given, it is not deemed advisable to pass on the question in the form presented.

Judgment affirmed upon the first three causes of action; and reversed upon the fourth, and cause remanded to the court of common pleas for further proceedings

WAGNER V. Ziegler.

Bill of Exceptions-Signed by but one of three judges- When court may direct verdict in contest of will.

1. A paper purporting to be a bill of exceptions, signed by one judge only of the three judges holding the district court, will not be considered as part of the record, although the journal entry in the case recites that a bill of exceptions is presented, which, being found by the court to be true, is allowed, signed, sealed, and made part of the record, and no other paper purporting to be a bill of exceptions appears in the files in the case. Shillito v. Thacker, 43 Ohio St. 63, approved and followed.

Wagner v. Ziegler.

2. In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiffs' testimony, to direct the jury to find a verdict sustaining the will.

ERROR to the District Court of Auglaize county.

The action below was to contest the will of Frederick W. Ziegler, and was commenced by the filing by the plaintiffs in error of a petition, as follows:

"Sophia Wagner and William Ziegler, plaintiffs, against Charlotte Ziegler, Margareta Ziegler, Ricka Ziegler, Mary Ziegler, Freddie Ziegler, Louisa Vossler, Mollie Ziegler, Emma Ziegler, William Steinkamp, Christian Steinkamp, Sr., Dr. Christian Steinkamp, Jr., William Cordis (or Kores), Louis Cordis (or Kores), and Edward Purpus, executor of F.W. Ziegler, deceased, defendants. State of Ohio, Auglaize county, ss. Court of common pleas. Court of common pleas. Civil action. Petition. Said Sophia Wagner, one of said plaintiffs, says that she is a married woman, wife of Peter Wagner, and that this action concerns her separate estate.

"Said plaintiffs, Sophia Wagner and William Ziegler, respectfully represent that on or about the 13th day of April, 1880, one Fred. W. Ziegler, then a resident of New Bremen, in said county of Auglaize, died testate, leaving a last will and testament of that date, which will was, on the 19th day of May, 1880, duly probated in the probate court of Auglaize county, Ohio; a copy of said will, etc., is hereto attached, marked "A," and made a part hereof.

"Said F. W. Ziegler died, leaving the following named persons, his widow and heirs at law, to wit: Charlotte Ziegler, widow, residing at New Bremen, Auglaize county, Ohio. Heirs at law, said plaintiffs and Margaret Ziegler, widow, and Ricka Ziegler, Mary Ziegler and Freddie Ziegler, heirs of Henry Ziegler, deceased, residing in the state of Alabama; Louisa Vossler, wife of Michael Vossler, residing in Auglaize county, Ohio, and Mollie Ziegler and Emma Ziegler, of the same place. The following named persons are the legatees of said will, to wit: Wilhelmina

Wagner v. Ziegler.

Steinkamp, Christian Steinkamp, Sr., Christian Steinkamp, Jr., William Cordis (or Kores), and Louis Cordis (or Kores), all residing in Hamilton county, Ohio. Said Edward Purpus, of Auglaize county, Ohio, is the duly qualified and acting executor of said deceased Fred. W. Ziegler. Said F. W. Ziegler died seized in fee of considerable real estate and the owner of some personal estate, all of which is described in said pretended will. Said plaintiffs further represent that said will so probated as aforesaid is not the last will and testament of said deceased, because at the time of execution thereof said F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will. Said plaintiff's further say that said executor, notwithstanding the facts aforesaid, is threatening to settle and distribute the estate of said deceased in accordance with the terms of said will so as aforesaid probated. Said plaintiffs therefore pray that said pretended will and the probate thereof may be set aside and held for naught, and that until the final hearing hereof said executor may be restrained from proceeding under said will, and for all proper relief."

The will referred to in the petition is as follows:

"The last will and testament of Frederick W. Ziegler, of New Bremen, Auglaize county, Ohio. In the name of the benevolent Father of all: I, the said Frederick W. Ziegler, being of sound and disposing mind and memory, considering the uncertainty of continuance in life, and desiring to make such disposition of my worldly estate as I deem best, do make, publish and declare this to be my last will and testament, hereby revoking and annulling any and all former will or wills, whatsoever, by me made. First. I desire all my just debts and funeral expenses to be paid as soon as possible after my decease. Second. I give and bequeath to my daughter Louisa, married to M. Vossler, my two lots lying in Vogalsangstown and owned at present by me, to be hers forever. Third. I desire that my sister, Wilhelmina Steinkamp, shall have my house and lot in Piqua, to be hers forever. Fourth. I give and be

Wagner v. Ziegler.

queath to Christ. Steinkamp the sum of two hundred dollars. Fifth. I give and bequeath to William Kores the sum of two hundred dollars. Sixth. I give and bequeath to Louis Kores the sum of two hundred dollars. I nominate and appoint Edward Purpus to be the executor of this will. In witness whereof, I have hereunto set my hand and seal, this 13th day of April, in the year eighteen hundred and eighty. F. W. ZIEGLER. [SEAL.]"

Issue was joined by the filing by some of the defendants of an answer containing the following averments:

"Defendants admit each and every allegation set forth in plaintiffs' petition, except the allegation that said will, as probated, is not the last will and testament of said decedent, because at the time of the execution thereof said. F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will,' which allegation the said defendants deny. The above-named defendants, further answering said petition, aver that said will, as probated, is the last will and testament of the said F. W. Ziegler, and that said F. W. Ziegler, at the time of the execution thereof, was of sound mind and disposing memory, and had sufficient mental capacity to make and execute a will."

A trial was had in the court of common pleas, which resulted in a verdict for the plaintiffs. From the judgment thereon rendered some of the defendants appealed to the district court, and filed in that court an appeal bond, the condition of which is as follows:

"The condition of the above obligation is such, that whereas, Wilhelmina Steinkamp, C. Steinkamp, Jr., C. F. Steinkamp, and William Cordes, have taken an appeal from a certain judgment setting aside a will of F. W. Ziegler, rendered against them in favor of the said Sophia Wagner and William Ziegler in the court of common pleas within and for the county of Auglaize, in the State of Ohio, at the February term, A. D. 1882, thereof, for setting aside the will of Frederick W. Ziegler, deceased, to the district court within and for said county of Auglaize. Now, if the