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this ruling was prosecuted in the district court. the lessee 'binds himself and his security, but The latter court affirmed the order of the com- no name of a surety is mentioned in the lease and mon pleas. This judgment of affirmance is now the lease is signed in the presence of others who before us for review.

sign it as witnesses, the party who signs between LONGWORTH, J.

the signature of the lessor and lessee, will be The undertaking in question is unsealed, and held as surety on the lease. So where a lease the name of L. Maxwell, the surety, is omitted had been signed by the lessor and lessees, and D., in the body of the instrument. Do these omis- whose name was not mentioned in the lease, sions affect its validity? We think not.

'signed his name to it after the names of the lesAlthough often erroneously called a bond, the sees, adding to his name the word 'surety,' it undertaking provided for by section 193 of the was held that it sufficiently appeared that D. Code (2 S. & Ĉ. 1004), is in no sense a bond, nor was the surety of the lessees and that he was is there any law which requires it to be exc- originally and not collaterally liable.” Brandt cuted with the formalities of a specialty. It is on Sureties § 15. not required to be under seal.

With respect to the second ground of alleged Doubtless cases might arise when such a total error, suffice it to say that, after a careful examomission of description of the parties existed as ination of the evidence, we do not feel warranted would render it uncertain whether the names in disturbing the findings of fact made by the were signed to the instrument as evidence of an court below. obligation assumed or merely as an attestation, Judgment affirmed. But such is not the case here. The language in [This case will appear in 37 0. S.] the instrument before us is—“We, B. W. Simington and hereby undertake

SUPREME COURT OF OHIO. &c.” The pronoun we, in this connection can only refer to the persons whose names are sub

JANUARY TERM, 1888. scribed.

Plaintiff in error relies upon the case of Ste- Hon. John W. OKEY, Chief Justice; Hon. phens v. Allmen et al., 19. Ohio St. 485, and we WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. are constrained to say that the language of GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Brinkerhoff, J., in delivering the opinion of the Judges. court, seems to bear him out. In that case the writing in controversy was the official bond of

Tuesday, February 7, 1882. a Justice of the peace and was unsealed.

GENERAL DOCKET. properly held by the court that this defect was fatal and this is all that can be reasonably

No. 8. Union Central Life Insurance Co, v. Einma A.

Cheever. Error to the Superior Court of Cincinnati. gathered from the judgment and the syllabus of Judgment affirmed. Okey, c. J., dissented on the the case. The learned judge however, in his ground that the verdict is against the evidence, There

will be no further report. opinion, seems to base his decision upon the statement that “ The additional names sub- 15. James P. Kilbreth v, Adelaide Bates et al. Execuscribed to the official bond not appearing in the

tors. Error to the Superior Court of Cincinnati, Judg;

ment affirmed. An opinion in the case will be prepared body of that instrument, there are no words of hereafter. obligation to bind them, and they are of no sig

25. David W. Cross v. Tisdale Winslow. Error to the nificance whatever."

District Court of Cuyahoga County. Petition in error We cannot find from the report of the case dismissed on the ground that there is a defect of parties. cited, what was the language used in the bond

181. _Lake Shore and Michigan Southern Railroad Co. referred to; but we have no hesitation in saying v. W. T. & A. K. West. Error to the District Court of that if it was substantially the same as that of

Erie County. Dismissed on motion of plaintiff in er. the undertaking before us, the reasoning of the judge was erroneous. It is directly opposed to

MOTION DOCKET. the decision in State for the use &c. v. Boring

No. 20. John Hanes v. E. H. Munger, administrator et al., 15 Ohio R. 507–517, and numerous other &c. Motion to dismiss No. 854 on the General Docket cases.

for want of printing, and counter motion for leave to file Brandt in his work on Sureties, cites author

printed record. Motion to dismiss overruled, and coun

ter motion granted. itative decisions in support of the following

28. Franklin Hubbard v. propositions which do not seem to have been

North Western Savinge

Bank. Motion to dispense with printed record in case seriously disputed:

No. 1003 on the General Docket, and to advance the case “Although the name of a surety is not men- to be heard with No. 237 on same docket. Motions tioned in any part of the body of a bond, but blank intended for it is left unfilled, yet if he

29. Daniel Bills et al. v. Myron Bills. Motion to dis

pense with printed record in cause No. 1024, on the Gensign, seal and deliver it as his bond, he is bound. oral Docket. Motion Granted. So where the name of the surety is not men- 30. Jobn W. Tweed v. Goorge Sbew. Motion to extend tioned in the obligation part of a bond, but is time for printing record in cause No. 977, on the General mentioned in the recital of the condition, if he

Docket. "Motion granted. sign, seat and deliver it he is bound. Where

The court called, under the rule, 75 cases, from 76 to 150

înclusive. one signs 'a lease between the signature of the The court will take a recess from Thursday the 9th unlessor and lessee, in which lease it is said that

til Thursday the 16th inst. at 9 o'clock.

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Ohio law Journal.





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: FEB. 16, 1882.



Feb. 10, 1882.

This is an application for a mandamus against EDITORS LAW JOURNAL:

A. J. Frame, Auditor of Athens County, on the Your correspondent,“ a subscriber," has done petition of the Trustees of the Athens Asylum a service in calling attention to the fact that

for the Insane, to compel the Auditor to draw an Section 7245, Rev. Stat. was amended, and re

order to pay an account for clothing and certain

incidental expenses of inmates of the Asylum pealed March 11, 1880, 77 0. L. 59.

from said county. The application sets out that The force to be given to the repeal of the stat- the county of Athens is indebted to the relator ute, it seems to me reflects upon the present in this action in the sum of $427.70 for certain

incidental expenses, and for necessary clothing state of the law; as the statute stood before that

furnished the inmates from this county, which repeal“nor shall the partner of the Prosecuting have been charged to its account by the StewAttorney assist in the prosecution of a criminal

ard of the Asylum, which account is counteract, unless assigned to such prosecution by the signed by the Superintendent and sealed with court &c.” One year later the General Assem

the seal of the Institution. It avers that this bly amended that section by eliminating the re

account was presented to the Auditor of the

county for his allowance; that he was requested striction above in quotation. The rule is, that

to draw an order on the Treasurer for the paythe act of the Legislature in changing the terms ment of same; that he refused to comply with of a statute must be construed to have been done this request, and that this is the only relief the with the legislative intent to change its meaning plaintiff has in order to procure the payment of

said sun, to wit: By writ of mandamus comand operation, 8 Blackfords Reports 275. The

pelling him to comply with the request of the State on Complaint &c., v. Gray. When the Trustees of the Asylum. Legislature, therefore, amended this section so The avernents in this application are that as to leave out the enactment that the partner of

between the 14th day of February, 1880, and the a Prosecuting Attorney should not prosecute

14th day of January, 1882, the Steward of said "unless assigned &c.,” the change in phraseology Asylum, at various times, paid incidental ex

penses of lunatics admitted into said Asylum changed the law.

from said Athens county, and for necessary clothIt will be borne in mind that it was not ing for them, furnished by the Steward and paid claimed, originally, that any one had a right to for out of the appropriation made by the State appear and assist the prosecution, and hence very

for current expenses of said Asylum the aggre

gate sum of $427.76, of which disbursements much of the argument made in the Law JOUR

said Steward, duly kept a separate account duly NAL has been upon a question not made. It was attested and on the 14th of January, 1881, fornot claimed that counsel retained by outside warded and presented to A. J. Frame, Auditor parties might demand to appear. It was, and is of said county, who refused to pay the same. only claimed that the court might in its dis

To this application there is a demurrer inter

posed by the defendant, the Auditor, in two cretion permit such counsel to appear.

counts: The first is, that the application does The practice in Ohio for three-fourths of a cen- not as a whole, state facts sufficient to constitute tury has been thus. There is no law which de- a cause of action against the Auditor; and the nies such discretion to the court. No rule of law second, by dividing up the claim of the relator,

claims if the relator is entitled to recover anyis set aside by the practice; and no good reason

thing in this proceeding then only such charges can be found to condemn it.

as accrued prior to the 18th of March, 1881. This I forbear to comment on the admirable temper, question is presented to the court for the purand judicial spirit manifested by the distin- pose of procuring the construction of certain guished judge who made this decision, in his statutes now and heretofore in force, relating to

the Benevolent Institutions of the State, and recent able defense of his opinion. The animus

especially the Lunatic Asylums of the State, as of the one relates back to, and gives color and

to the liability of the different counties of the explanation to the other.

G. State to

pay for certain expenses named in the statutes and designated as traveling, incidentals Probate Judge. And so, too, of the clothingand necessary clothing, for the insane subjects “they shall be neatly and comfortably clothed.” in said asylums.

When and by whom? In the language of the An examination of the accounts as presented statute when they apply for admission, and in the application shows that it is an account of traveling and incidental expenses paid by the said relator against said county of Athens run- party having them in charge, or themselves, not ning through a series of months from February the Asylum, for up to that time the Asylum 14th, 1880, the date of the first charge, to Janu- has no charge over them. Had the legislature ary 11th, 1882, for traveling and incidental ex- intended to have put a further limitation on penses, and necessary clothing furnished to in- the word maintained as regards clothing they mates of said Asylum from Athe'ns county dur- would have so enacted then and there, but if ing said time.

there should be any question as to the true inIt is claimed by the counsel for defendant that terpretation or construction of this section in rethe county is only liable for the payment of said gard to this point all we have to do is to call account, especially clothing, up to March 18th, into requisition section 632--and it is plain1881, and no more.

which provides that if there be a failure in any And by counsel for the relator that the county case to pay incidental and traveling expenses or is liable for all traveling and incidental expenses furnish the necessary clothing, then the Stewand for all necessary clothing furnished such in- ard or other financial officers of said institution mates during their stay in the institution. is authorized to pay such expenses and furnish

This brings me to what I consider the proper the requisite clothing and pay for the same out construction of the legislation called in question, of the current'expense fund of the institution; upon the issue of law raised in this case.

he keeping a separate account of such expenses, The legislation upon the subject of the Benevo- and report the same back to the Auditor of the lent Institutions of the State is general and re- county from which such patients came and for fers to all of the benevolent institutions of the whom such expenses have been paid, and the State. Sections 631 and 632 of Revised Statutes Auditor is required to pay the same. of Ohio, are found in this general legislation, So far then, if the county or the friends of a subject to any exceptions or limitations therein con- patient have complied with the provisions of tained, or modifications therein referred to, in the statutes, relating to insane persons,. as to subsequent legislation and the general legisla- have paid traveling and incidental expenses tion with exceptions or limitations therein con- and furnished the patient with neat and comforttained, with legislation referred to by said gen- able clothing, then such patient on application eral legislation as limitations are to be taken is entitled to admission into the Asylum and to and construed together, and, if possible, so con- be maintained therein at the expense of the strued (if in conflict) as to be reconcilable and State and without further charge upon the consistent with each other, and as a whole, sec- county from which such patient came. Any tion 631 of the general act provides “that all per- other construction would put a limitation upon sons admitted into any institution (except as

the wotd maintained used in the statutes, which otherwise provided in chapters relating to par- would destroy the force and effect of the word and ticular institutiony) shall be maintained by the unauthorized by the legislation under considerState subject only to the requirement, that they ation. But to go a step further. Let us see if shall be neatly and comfortably clothed and their the particular legislation which we are called traveling and incidental expenses paid by those upon to examine by reading Sec. 631 is such as having them in charge."

to interfere with the above views. Sec. 700, reIt will be seen that there are two exceptions vised statutes under head Lunatic Asylum (paror limitations in the above section to the gen- ticular) as to this class of institutions upon the eral provision: 1st as to any modifications subject of maintenance enacts as follows: "All found in chapters relating to particular insti- persons who have been or may hereafter be adtutions of the State, and 2d “subject to the re- mitted into either of the Asylums for the Insane quirement that such inmates shall have paid belonging to the State shall be maintained theretraveling and incidental expenses and shall be in at the expense of the State.” This section neatly and comfortably clothed by those having (or the part above quoted) provides that when a them in charge.” What traveling and inci- patient is admitted and the conditions of Sec. 631 dental expenses are here referred to ? Clearly have been complied with he shall be maintained such as have accrued prior to the admission of therein by the state. There is no uncertainty the patient to the asylum, for there are none af- or conflict in these provisions--they are in my ter they are admitted that would be a limitation judgment and in the view I have taken, with on tie word maintained.

the reasons given therefor, consistent and plain. And if so, who is to pay such traveling and It seems, however, that doubts had arisen in incidental expenses? Not the Asylum, for the regard to the meaning of this legislation, and Asylum has as yet no control of them; they have that to settle any uncertainty that might arise not yet been admitted, and the exception is, in the construction of these statutes, the legissuch expenses are to be paid by the party bav- lature on the 18th day of March, 1881, amended ing them in charge, the officer or friend depu- Sec. 700 by inserting in the original Sec. 700 tised to take them to the Asylum by order of the the following language: “Except as provided




in section 631 of this title of the Revised Statutes be paid by the State out of the current exof Ohio." Reading then as Sec. 700, amended, penses provided by the State therefor. And a so far as applicable to this point, as follows: "All demurrer to an application seeking to recover persons who have been or may hereafter be ad- for maintenance or other expenses, after the mitted into either of the Asylums for the Insane patient has been properly admitted and while belonging to the State shall be maintained so in the Asylum, will be sustained. therein at the expense of the State, except as provided in section 631 of this title of the Revised Statutes of Ohio."

WILL-CONSTRUCTION. In other words, the legislature said if there

SUPREME COURT OF OHIO. was any doubt in the minds of any person traveling the road as to who should pay the expense of maintaining the patient after he entered the

WILLIAM B. MILLIKIN, ADMINISTRATOR, institution (with traveling and incidental expenses paid-and being neatly and comfortably

P.J. B. WELLIVER, ADMINISTRATOR. clothed) in the original Section 700 this amend

ENOCH D. CRACRAFT ET AL. ment to Section 700 is a guide board to direct us back to section 631 and 632 to let us know what

JOSEPH SMITH ET AL, it thought was plain then and which make it more plain, if need be, by this amendment. If any additional reasons are needed in sup

January 24, 1882. port of the above construction a brief reference to A testator, after directing that his debts and funeral some of the particular legislation in regard to

expenses be paid, gave all the residue of his estate, both Lunatic Asylums, as showing more clearly the

real and personal, to his wife duriig her life, she to have

full possession, management and control of the same, intention of the Legislature, will be found in with the privilege of disposing of all or any of the perSections 705 and 706 of this particular legisla

sonal property for her use, together with the proceeds of

the real estate. tion, which provides that upon examination of a

The estate consisted of lands, farming utensils, houseperson presented to a Probate Judge on an inqui- hold goods, live stock and money. The residuary clause sition for insanity and the finding by such Judge

is as follows: "The residue of my estate is to be disthat the party is insane he shall order such per

tributed to the heirs on my side of the house in such

proportions as she may direct by will or otherwise." son sent to the Asylum, order the person or offi- No personal representative was appointed until after cer conveying the person to the Asylum to see the death of the widow. She took possession of the perthat the patient shall be so conveyed at the ex

sonal property, paid the debts and funeral expenses, and

deposited the balance of the money in bank in her own pense of the county and supplied with proper name, and died within tive months after her husband's clothing to be paid for by the county, and

death, without making her election as required by stat

ute to take under the will and without having disposed while the Superintendent may refuse to accept

of any of the personal property or money, and without such person without such clothing or non-pay- distributing any of said'estate by will or otherwise. ment of expenses-preliminary to their admis

Neither the testator nor his wife left any children or sion-yet Sec. 632 of the general act provides

their legal representatives. Each left brothers and sis

ters of the whole blood, and their legal representatives. that upon failure the Steward or other finan- Held: 1. The right of a widow to elect to take the cial officer of the institution is authorized to provision made for her in the will of her husband, is a pay the same and charge it back to the county,

right to be exercised by her iu person. If she dies with

out having made her election, those who claim under rather than the insane person should be con- her, can only claim so much of her husband's personal fined in a poor house or prison or turned loose

estate as she was entitled to under the law.

2. In order to bar a widow of her right to dower'and upon the community.

to such share of the personal estate of her husband as And again, should the other rule of construc- if he had died intestate leaving children, her election tion prevail it would leave the officers of the must be made, either by matter of record in the proper Asylum, especially the insane, to be the judges court as required by statute, or actually and in fact under

such circumstances as would create against her an estopfel of the amount and kind of clothing furnished of her right to claim under the law. to each patient, the incidental expenses paid, 3. Where it does not appear that a widow has acted and then com pel the county from which the

with a full knowledge of the condition of her husband's

estate and of ber rights under the will and under the lunatic came, to refund the same without any law, her acts in paying the debts of the husband out of check upon the officers of the Asylum, or rem- his money, receiving and holding the balance, and havedy in the event of gross or extravagant charges,

ing possession and control of the real and personal es

tate for five months after her husband's death, do not conwhich clearly was never intended by the legis- stitute such an election, in fact, to take under the will, as lature.

estops her from claimning, under the law, within the time Under the view. I have taken in the construc


4. If the husband devise his real estate to his wife for tion of these statutes I have reached the follow

life, with remainder to his heirs, and the wife elects to ing conclusions:

take her dower, or fails to make her election, the remain1st. That the counties are liable for neat and

der vests in fee in the heirs, subject to the dower estate

of the wife. comfortable clothing as provided by statute, 5. Where the residue of an estate is, by will, directed and for all traveling and incidental expenses to be distributed among testator's heirs, in such portions up to the time of the admission of the patient

as his wife may direct by will or otherwise, and sho' dies into the Asylum.

without having exercised the power conferred upon ber,

each of the heirs of the testator, or his legal representa2d. That all expenses incurred after the ad- tive, takes an equal share under the will. missson of the patient into the Asylum are to Error to the District Court of Butler County. The first above case relates to the rights of whom, by verbal agreement, before his death, the parties in the personal estate of John D. Smith, John D. Smith had rented the farm for 1877 on deceased. The second case relates to the rights the shares. The plowing was done by the tenof the parties to the real estate.

ant before John D. Smith's death. The facts relating to each will be stated as if The above are all the facts material to the conthere was but one case. The first case was sub- troversy between the above named parties, and mitted in the trial court, upon an agreed state- upon the above facts, it is by agreement of all ment of facts, which is substantially as fol. the above parties submitted to the court to de lows:

cide the following questions, and to enter judg. John D. Smith died April 30, 1877, tes- ment accordingly : tate; his will was probated May 10, 1877; I. Is P.J. B. Welliver administrator with the John D. Smith left no issue, but left Eliza- will annexed of John D. Smith, deceased, or is beth Smith, as his lawful wife, to whom William B. Millikin, administrator of Elizabeth he was married in 1839. Elizabeth Smith (the Smith, deceased, entitled to have possession of widow) died August 1, 1877, intestate and with- said personal estate, and to administer upon the out sue. She never atteinpted to divide or dis- same? tribute the real or personal estate of John D. II. Is William B. Millikin, administrator of Smith, in any way. William B. Millikin is the Elizabeth Smith, entitled to have paid to him administrator of Elizabeth Smith, and Enoch out of said'estate the sum of five hundred dollars D. Cracraft and the other plaintiffs are her legal for said year's support of said Elizabeth Smith? heirs and distributees. P.J. B. Welliver is the III.. In what manner and proportion and to administrator of John D. Smith, and Joseph whom ought said money, proceeds of sale of perSmith and the other defendants are the brothers

sonal property and other personal estate, be dis and sisters and representatives of deceased tributed and paid after the expenses of adminbrother and sister) of John D. Smith.

istration have been first paid, and after payment No administration was taken out on John D. of taxes ? Smith's estate, until August 10, 1877, (after The will of John D. Smith, dated April 24, Elizabeth's death), when Welliver was appointed 1875, is as follows: his administrator, with the will annexed. Millikin was appointed administrator of Elizabeth

I, John D. Smith, of Reily Township, Butler

County, Ohio, make and publish this my last Smith, August 22, 1877. The debts of John D.

, Smith and his funeral expenses were all paid will and testament as follows to wit: I direct by Elizabeth Smith out of his estate. No year's

that my funeral expenses, and all just debts be

paid as soon after my decease as possible. The support was set off to her,-but $500.00 would have been a reasonable sum for a year's support, | I may possess at my decease, I give

and bequeath

residue of my estate, both real and personal, that if she was entitled to have same set off. Besides paying his debts and funeral expenses,

to my beloved wife, Elizabeth Smith during her

lifetime; she to have full possession, manageJohn D. Smith left $8,750 in money, which at his death was taken possession of by Elizabeth

ment and control of the same, with the privilege (his widow), and by her on May 10, 1877, de pos- for her use, together with all the proceeds of the

of disposing of any or all the personal property ited to her individual credit, in Second National Bank of Hamilton, where it remained at her

real estate; she to have the privilege of dispos

ing of six hundred and fifty dollars at her death death. It is agreed that $650.00 of said sum was her separate estate (being referred to in the

to whomsoever she may see fit [being the

amount received from her father's estate]; the will), and it is withdrawn from controversy, leaving balance of $8,100 in bank in contro

residue of my estate is to be distributed to the

heirs of my side of the house in such portions as versy. The balance of John D. Smith's personal es

she may direct by will or otherwise. tate, consisting of horses, cattle, hogs, farming

In witness, whereof, I, John D. Smith, the utensils, household furniture, grain etc., was, at

testator, have hereunto set my hand and seal John D. Smith's death, taken possession of by

this 24th day of April, A. D. 1875. the widow (Elizabeth), and retained by her un

JOHN D. X SMITH. [SEAL.] til her death.

mark. Welliver, when appointed administrator of John D. Smith, took possession of the same, and

Signed, sealed and acknowledged in the preshad the same appraised and sold as the property

ence of us, who subscribe our names as witnesses of John D. Smith, the entire proceeds being

in the presence of the testator and in the pres

ence of each other. $2,359.89, (which was the reasonable value

HENRY A. CUBBERLEY, thereof), and now in hands of said Welliver as

JOSEPH WELSR. administrator. Said appraisement and sale was made against the protest of William B. Millikin, The second case, relating to the real estate, administrator of Elizabeth Smith.

was submitted on an agreed statement of facts, Of the said grain sold was 715 bushels of corn showing, also, that John D. Smith, at his death, (sold for $250.25) which was planted after the was seized of certain parcels of real estate, all of death of John D.Smith, on the real estate owned which, except 35 acres came not by descent, de by him, and devised in his will, by, a tenant to vise or deed of gift, and that Elizabeth Smith



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