was married to him in 1839, and continued his lawful wife until his death. The court of common pleas adjudged: 1st. That the personal estate should be administered and distributed by the personal representative of John D. Smith. 2d. That he should pay to the personal representative of the widow $300, which it was agreed, is a reasonable allowance for her year's support. 3d. That he should, after paying to the administrator of the widow said sum of $650, and taxes &c., distribute the residue to the brothers and sisters, and their legal representatives, of John D. Smith. 4th. That the real estate vests in the brothers and sisters and their legal representatives. The district court affirmed these judgments, except as to the amount allowed for the year's support of the widow. Thomas Millikin, for plaintiff in error. Much of the argument of counsel, as well as the judgment of the courts below, is on the assumption that Elizabeth Smith, the widow, took under the will of her husband, John D. Smith. This, necessarily involves a construction of the will, to determine the widow's rights thereunder, and the rights of her representatives. If, however, the widow did not take under the will, expressly, as prescribed by the statute or impliedly, by such acts as would have estopped her from denying such election, then she takes under the law. If the latter is the case, it becomes immaterial to enquire what the will would have given her, had she taken under it. If she did not take under the will, the law fixes her rights. If any provision is made by will, for a widow of the testator, it is the duty of the probate court, forthwith after the probate of the will, to issue a citation to the widow, to appear and make her election, whether she will take such provision, or be endowed of the lands of her husband. This election is to be made within one year from the date of service of the citation upon her. It must be made in person, and in the probate court, except when a commission is authorized to take such election. It is to be made after an explanation of her rights under the will, and by law in the event of her refusal, and is to be made a matter of record. "If the widow shall fail to make such election, she shall retain her dower, and such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate leaving children." To determine the matters in controversy, we must first ascertain whether Elizabeth Smith took under the will, or under the law. That she was not cited before the probate court, nor her election made a matter of record, is conceded. .She died before the time had expired in which she could have elected. She The facts relied on for this purpose are, that during the time she survived her husband, some five months, no administrator was appointed, nor was any claim made for dower; that she paid the debts and funeral expenses; that there was left some $8,000 in cash, which she deposited in bank, in her own name, and that she took and retained possession of the personal property of her husband, consisting of stock on the farm, farming utensils and other chattels. She did not attempt to convert any of this property to her own use, nor place it beyond the reach of an administrator of her husband's estate, when one should be appointed. Indeed, every dollar of the assets, as appears by the agreed statement, which remained after the payment of debts and funeral expenses, remained at her death, within the reach of the representatives of her husband. The will gave her a power of sale of the personal property, and the right to the proceeds of the farm, and an absolute disposal of $650, the amount received from her father's estate, yet she exercised none of these rights. The acts relied on are by no means conclusive. They are not inconsistent with an intention to elect, when cited, to take under the law. They are such acts as would preserve the estate. intact for that purpose. This may have been the intention of the widow. While they tend to prove that she was acting under the will, they are not so inconsistent with her rights under the law as to estop her from claiming under the law, especially when only a few months had elapsed since her husband's death, and there was no personal representative of the estate. It can hardly be claimed, that had she been cited to appear before the court to make her election after doing these acts, she would have been denied her election. In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended by her acts to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights, and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be an election. 1 Lead Eq. Cas. Title Election. Reynard v. Spence, 4 Beav. 103. It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow's rights under the law, unless they are of such a marked character and of such long duration, as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower. Thus, where real estate was devised to a widow for life, remainder in fee to her sons, and she in fact, took under the will and occupied the premises for more than sixteen years, she was estopped to deny her election. Thompson v. Hoop, 6 Ohio St. 480. So in Bradford v. Kent, 43 Penn. St. 473, it was held, that where a widow, with full knowledge of the value and character of her husband's estate, receives the provision made for her in his will, she cannot after seventeen years, claim that she did not intend to relinquish her dower. In Stilley v. Folger, 14 Ohio, 610, it was held: that the act of taking possession of the property within the time limited for making the election was not an election under the will. Indeed, it is said in that case, that the only mode of proving an election. is by the record, unless the record is lost or destroyed. This decision seems at variance with Thompson v. Hook, supra, and numerous other cases, where an estoppel in pais was proven and held effectual; but as applied to the facts of the case then before the court, where the acts relied on to create an estoppel, were within the time limited by law for an election before the court, and when such acts did not amount to an actual conversion of the property, there is no inconsistency. In all the cases in which it is held that an implied election bars dower, the acts relied on are long continued, unequivocal, and inconsistent with the claim for dower. Reed v. Dickerman, 12 Pick. 146. Upshaw v. Upshaw, 2 Hen. & M. 381. Craig v. Walthall, 14 Grattan, 518. We conclude, therefore, that the acts relied on as an election, are not such as would have estopped her, had she been cited as the law requires, from making her election in court after a full explanation of her rights under the will. These acts were within the time the statute gave her to choose, and they are not such as in equity create an estoppel. The widow must therefore be deemed to have failed to make her election to take under the will. In such a case the statute says she shall retain her dower and such share of the personal estate of her husband as she would be entitled to, had her husband died intestate, leaving children. The judgments of the courts below must therefore be reversed, and a judgment rendered in accordance with the foregoing decision. As to the real estate: The failure of the widow to take under the will, left the real estate to vest in the devisees of the estate in remainder, subject to the widow's dower. Her death terminated her right to have dower assigned, or to claim any share of the accruing rents or profits. The will directs that the residue of the estate be distributed to the testator's heirs, in such portions as his wife may direct by will or otherwise. She died without exercising this power. Having failed to make such distribution, the devise takes effect in favor of each of the heirs, or his legal representatives in equal shares. As the real estate vested in the residuary devisees, the rents and profits accruing after the testator's death vest in them also. This settles the right to the proceeds of the sale of the crop of corn. As between the personal and legal representatives of John D. Smith, it belongs to the latter, but as the plaintiffs in error have no interest in this claim, the judgment of the court below, in regard to this item, is left undisturbed. These heirs are the defendants in error in the second above case. This judgment is therefore affirmed. [This case will appear in 37 O. S.] CORPORATION-LOCATION-TAXATION. SUPREME COURT OF OHIO. FREDERICK W. PELTON, TREASURER OF CUYAHOGA COUNTY, v. NORTHERN TRANSPORTATION COMPANY OF OHIO. January 24, 1881. 1. A certificate of incorporation which, under the statute, specifies the place where the principal office of the company is to be located, is conclusive as to the location of such office. 2. Such office is to be regarded as the residence of the corporation within the meaning of the 4th section of the tax law of April 5, 1859, as amended April 8, 1865 (S. & S. 756), which provides that certain personal property "shall be entered for taxation in the township or town in which the person to be charged with taxes thereon. resides at the time of listing the same by the assessor." 3. A corporation whose principal office is located in a specified township and without the limits of a city, may, if the city limits be so extended as to include the site of the office, remove the same to some other part of the township and thus avoid municipal taxation. 4. Steamboats, and articles of furniture are not enumerated in the seventh section of the tax law of April 5, 1859 (S. & C. 1442), within the meaning of section 4 of said act as amended April 8, 1865. 5. Personal property other than merchants' and manufacturers' stock, or articles enumerated in the 7th section of said act of April 5, 1859, or personal property upon farms and real property not in towns, subject to taxation in the county where the owner or person chargeable with taxes thereon resides, must be returned and taxed in the town or township where the owner resides. 6. Steamboats, whose home part is in the county where the owner resides, are subject to taxation in the township where the owner resides whether such owner be natural person or a corporation. Error to the Court of Common Pleas of Cuyahoga County. Reserved in the district court. The Northern Transportation Company, a corporation organized under the laws of this State, to wit: the statute of April 2, 1859, entitled "an act to authorize associations of persons for carrying freight on any of the navigable waters of the State of Ohio and the lakes and rivers bordering thereon," brought the original action against the plaintiff in error, as Treasurer of Cuyahoga County, to restrain the collection of certain taxes then upon the duplicate in his hands for collection. The plaintiff, for the year 1874, had listed, in Brooklyn Township, Cuyahoga County, its property, consisting of sixteen steamboats employed in navigating in waters between Ogdensburgh, in the State of New York, and Chicago, in the State of Illinois, and certain other personal property situate in the city of Cleveland in Cuyahoga County, and the same was returned for taxation by the assessor of said township at the valuation of $310,000. The property so returned was placed by the auditor of the county upon the duplicate and assesssed as property subject to taxation in the city of Cleveland, a taxing district in said county other than said Township of Brooklyn. The amount of taxes so assessed upon said property was $8,680.00; whereas the amount, according to the rate of taxation in Brooklyn Township, would have been $3.255.00. The latter sum was tendered, but the treasurer refusing to accept the same, in full payment of the taxes on said property, and being about to compel the payment of the former sum, the original action was brought to restrain the collection of the excess over the sum tendered and admitted to be due. In the court of common pleas, the injunction as prayed for was decreed; whereupon, on the overruling of a motion for a new trial, all the evidence was embodied in a bill of exceptions; and on error, the district court reserved the cause for decision in this court. A further statement of the case will be found in the opinion. Heisley, Weh & Wallace, for plaintiff in er ror. F. J. Dickman, for defendant in error. MCILVAINE, J. Was the property of the Northern Transportation Company, which was listed for taxation in the Township of Brooklyn, subject to be taxed in the adjoining district of the city of Cleveland, or only in the Township of Brooklyn, both taxing districts being in the County of Cuyahoga? The listed property consisted chiefly of sixteen. chiefly of sixteen steamboats, owned by the Transportation Company and employed in navigation on waters between Ogdensburgh, New York, and Chicago, Illinois, and intermediate ports, including the port of Cleveland, the home port of the vesselsbeing the one nearest to the residence of the owner, and where the same where enrolled and licensed in conformity to the laws of Congress, in such case made and provided. In addition to the vessel property there were also included among the listed property, the office furniture and other articles in the office of the company's agency, in the city of Cleveland. The Transportation Company was duly organized in the year 1860, under the act of April 2d, 1859, (56 Ohio L. 115), which authorized any number of natural persons, not less than five, to become a body corporate for the purposes named in the act, by making and acknowledging a certificate to be recorded by the Secretary of State, specifying, among other things, "the name of the county or place where the principal office of such company is situate." In compliance with this requirement, the certificate of incorporation was as follows: "That the place where the principal office of said company is situated is Brooklyn, in the County of Cuyahoga and State of Ohio." The office so designated was established in said Brooklyn (Township) at the residence of one Pelton, where it remained until January, 1874. In the meantime, the limits of the city of Cleveland were so extended as to include the residence of Pelton, whereupon, the stockholders of the company, at their annual meeting in January, 1874, ordered that the principal office of the company should be removed to the house of one D. W. Hoyt, situate in said Brooklyn Township, but without the limits of the city of Cleveland, which was done accordingly; since which time, the annual meetings of the stockholders and the election of officers have taken place at the residence of said Hoyt, who, at the date of listing the property for taxation, was vice-president of the company, and who, as the specially authorized agent of the company, returned its personal property for taxation to the assessor of said township. Aside from the holding of the annual stockholders' meetings, the election of officers of the corporation and the listing of property for taxation from year to year, the record does not show any other business done at the office in Brooklyn. It does appear, however, that the affairs and business of the company are managed chiefly by agents in the cities of Chicago, Ögdensburgh, Cleveland and at other ports where its steamboats are accustomed to enter, and that its principal accounting office is at St. Albans, in the State of Vermont, where the president of the company resides, and the office of its directors is located. Upon this state of facts, several questions, involved in the determination of the case, arise. For many purposes, a corporation is regarded as having a residence-a certain and fixed domicil. In this State, where corporations are required to designate, in their certificates of incorporation, the place of the principal office, such office is the domicil or residence of the corporation. The principal office of a corporation, which constitutes its residence or domicil, is not to be determined by the amount of business transacted here or there, but by the place designated in the certificate. True, several offices may be established at the place specified in the certificate, as it is sufficient, under this statute, to specify the "county or place." But where a single office is established in the county or township, or city, or other place designated, no further inquiry, as to the identity of the principal section which prescribes the township and town where property shall be entered and taxed. "And all real property, and merchants and man office, is admissible. And as the statute does not require the office building to be specified, it is competent for the corporation to transfer its principal office from one building to another,ufacturers stock, and all the articles enumerated within the specified county or place, whenever its own convenience or advantage may be subserved. No doubt the exact location of the office should be open and notorious, so that a secret or fraudulent removal would not avail any purpose, yet the particular motive in making the change is not material, as for instance, whether it was done to avoid taxation. If a natural person may change his residence for such purpose, (and of this there can be no doubt), we see no reason why a corporation may not do the same. Such removal is not a fraud against tax laws unless so declared by express legislation. In the case of Western Transportation Company v. Shea, 19 N. Y. 408, which was similar to the present in many of its facts, it was held, that the organic certificate of a corporation, in which it was required to designate the city or town and county in which the principal office for the management of the affairs of the company was to be situated, was conclusive as to the location therein designated as that of the principal office of the company. In that case, the question arose under a statute which provided that "all the personal estate of every incorporated company, liable to taxation on its capital, shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be," and in the opinion, Judge Selden well said, "It is not important that a corporation should be taxed where it does the greatest amount of its business; but it is important that the place where it is liable to be taxed should be known." In that case, Tonawanda, a small village in the vicinity of the city of Buffalo, was designated as the place of the principal office. The fact was that several places, especially Buffalo, had priority over Tonawanda as principal localities for the business of the company, and it seems to have been conceded, that the office was located at Tonawanda to avoid taxation in Buffalo. In relation to this fact, the court said. "But it is no more inequitable or immoral for corporation to do this, than for an individual to do substantially the same. A person may keep his office in Buffalo and transact business there to an unlimited amount, enjoying all the facilities and advantages which the enterprise and the expenditures of the city have afforded, and yet by residing without the city-bounds avoid all municipal taxation. When this shall be practiced, either by individuals or corporations to an extent which renders it a serious evil, it will be for the legislature to interfere." The statutory provisions governing this case are found in section four of the act of April 5, 1859, as amended April 8, 1865. (S. & S. 756). The first part of this section designates the persons who shall list property for taxation; but as no question is made as to the listing of the property of the Northern Transportation Company, we will quote only the latter part of the in the seventh section of this act, and all personal property upon farms and real property not in towns, shall be returned for taxation, and taxed in the township and town in which it is situated; all shares of stock in any national bank located within this State, whether held or owned by residents or non-residents of this State, shall be listed for taxation and taxed in the city, town and township in which the bank is located; and all other personal property, moneys, credits or effects, shall be entered for taxation in the township and town in which the person to be charged with taxes thereon resided at the time of listing the same by the assessor, if such person reside within the county in which such property, moneys or effects were listed, if not, then such property, moneys and effects shall be entered for taxation, and taxed in the town and township where it was situated when listed." Section 7, to which reference is made, is as follows: "Section VII. Such statement shall truly and distinctly set forth, First-The number of horses, and the value thereof. Second-The number of neat cattle, and the value thereof. Third-The number of mules and asses, and the value thereof. Fourth-The number of sheep, and the value thereof. Fifth-The numer of hogs, and the value thereof. Sixth-Every pleasure carriage of whatsoever kind, and the value thereof. Seventh-The total value of all other articles of personal property which such person is, by this act, required to list; provided, that if such person shall exhibit to the assessor the animals or other articles of personal property above enumerated, the value of such property so exhibited may be omitted in such statement, and the assessor shall, in such cases, determine their value without requiring the oath of the person making such statement as to the value thereof, and such person shall in that case be required only to make oath or affirmation to the value of the remainder of the personal property which he is required to list. Eighth-Every gold and silver watch, and the value thereof. Ninth-Every pianoforte, and the value thereof. Tenth-The value of the goods and merchandise which such person is required to list as a merchant. Eleventh-The value of the property of which such person is required to list as a banker, broker, or stock jobber. Twelfth-The value of the materials and man ufactured articles which such person is required to list as a manufacturer. Thirteenth-The value of moneys and credits required to be listed, including all balances of book accounts. Fourteenth-The value of the moneys invested in bonds, stocks, joint-stock companies, or otherwise, which such person is by this act required to list." (S. & C. 1442.) The property of the Transportation Company was properly listed and included in the statement under the 7th clause or sub-division of section seven. It is very clear, that steamboats and office furniture are articles not enumerated in the 7th section, although embraced within the general description of property contained in the 7th clause. It therefore follows, that inasmuch as this property was not "merchants or manufacturers stock," or "personal property on farms and real property not in towns," it was not required to be returned or taxed in the township or town in which it was situated, as provided in first part of 4th section above quoted. On the other hand, if it be conceded, as is claimed by plaintiff in error, that the situs of this property was in the city of Cleveland, still, being other personal property thar merchants and manufacturing stock, or articles enumerated in the 7th section of said act, or personal property on farms or real property not in towns, it is clear, under the last clause of said section four, that it was properly returned by the assessor and should have been taxed in the township, "in which the person to be charged with taxes thereon resided," namely in the Township of Brooklyn-it being uncontroverted, that the Transportation Company was the person to be charged with taxes thereon, and as was above shown, the residence of the company was in the same county where the property was listed for taxation. In thus deciding this case, we have been guided solely by the statute, without calling to aid the familiar doctrine of the common law, that the situs of personal property follows that of the owner; for we admit, that if the owner had not resided in Cuyahoga County, the result would have been different. And on the other hand, if the situs of the property had been in another county, subject to be listed and taxed there under the statute, the residence of the owner in Cuyahoga County would not have given the latter county any right whatever to tax it. The residence of the owner in any particular taxing district fixes the place where its personal property is subject to taxation only in case the property is required to be listed in the same county; in which case, if the property be other than merchants or manufacturers stock, articles enumerated in said seventh section, or personal property on farms or on real property not in towns, it must be taxed in the district of the owner's residence, otherwise it must be taxed where it is situated. We fully agree with counsel for plaintiff in error, and the authorities cited by them, that the situs of personal property, for the purposes of taxation, does not follow the domicil of the owner, unless so provided by local law. And we further agree with them, that the situs of steamboats, navigating waters within and bordering upon different States, is that of the home port, which is ascertained by the residence of the owners, and is the port of enrollment and registration. And, of course, if personal property, by local laws, be made subject to taxation in the district of its situs, steamboats would be taxed in the district of the home port. But, by our statute, if the home port be in the same county where the owner resides, then they are subject to taxation in the township or town of the owner's domicil. Judgment affirmed. [This case will appear in 37 O. S.] PRACTICE-AVERMENT OF VIOLATION OF STATUTE. SUPREME COURT OF OHIO. OSHE V. THE STATE. CAIN V. THE STATE. JANUARY 31, 1882. 1. The Act to revise and consolidate the general statutes of the State, embodied in the Revised Statutes, is not void as being in conflict with Section 16, Article 2, of the constitution. 2. The offense defined in Section 6942, of the Revised Statutes, consists in the keeping of a place, where the business of the unlawful sale of liquor is carried on; and the section is not unconstitutional in not requiring such place to be one of public resort. 3. In an indictment under said section, it is a sufficient description of the unlawful sales to aver that they were made "in violation of Section sixty-nine hundred and forty-one, of the Revised Statutes of Ohio;" and the reference to the section must be understood as referring to the section then in force. Motion for leave to file petitions in error to reverse the judgments of the District Court of Muskingum County. The plaintiffs in error, Charles Oshe and Terrence Cain, were severally indicted, under section 6942 of the Revised Statutes, as keepers of places where intoxicating liquors were sold in violation of law. The indictments were severoverruled, Oshe pleaded guilty and was ally demurred to. The demurrers having been tenced by the court; and Cain on a plea of not guilty was convicted and sentenced. sen On error, the district court affirmed the sentence in each case. Leave is now asked to file petitions in error in this court, to reverse the judgments of the court below. The cases are submitted together. G. L. Phillips and Hollingsworth & McDermott, for Cain. Southard & Southard and C. A. Beard, for Oshe. A. W. Train, for the State. |