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.

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 warrent 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 dilinquent 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 be rendered in this cause. may Demurrers to 1st and 4th defenses sustained.

By his will, R. devised his whole estate, consisting principally of personal property, to trustees with direc tions to pay certain annuities out of the income of the estate and after the "final cessation " of said annuities, to distribute the ostato among cortain children and grandchildren of tho tostator, 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 boneficiarios under the will, until the time for distribution as fixed by the terms of the will. 2nd. The "final cossation" 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 trusteos have no power under the will to purchase in the annuities, and the mere fact that the annuitants declare that they are willing to release their annuities (but not having done so), upon pay

ment 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 Rodgers 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 Rodgers 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:

"Sixteen. 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 appurtenance, 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, I 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 C. 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 boaies 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, then 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 two thousand dollars, 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 suc 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 grand-child, or their inability to support them, to provide for a prudent and economical support of any such grand child, 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 36 years and Nancy Rogers, aged 60 years, to whom annuities amounting to $250 and $300, 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 right 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 testators 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.

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 conceded 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. O. S. 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 distinquish 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

the 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 are 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 grandchildren, now living, or hereafter to be born, who may, by possibility, at some time become destitute. Such construction would postpone the vesting of the estate and its enjoyment beyond the lives of all the beneficiaries now in being and for more than 21 years thereafter. It is clear to our mind 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 mar

ried, and that his younger sons, James S.,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 destributees should die without issue, "then the interest which he would be entitled to shall go to their brothers and sisters," referred to brothers of the whole blood only as respects his own children. This is rendered manifest from the care taken to exclude his other children from any share whatever in his estate. The sons had been unfortunate 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 James 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 distri

dution.

Judgment affirmed.

[This case will appear in 38 O. S.]

PHYSICIAN AND SURGEON-CONTRACT FOR CHARGES—THIRD PARTIES.

COURT OF APPEALS OF KENTUCKY.

BERRY V. PUSEY.

March, 1882.

A person, having been injured through accident on a boat of which A. was captain, was brought by him to B., a surgeon, then absent from his office, and was left there with instructions to give the injured person every attention. The wounds were dressed by B. on his return. Held, that A. was able to B. for the value of such services.

Action brought by appellee, a surgeon, to recover fees for services rendered. The facts sufficiently appear in the opinion. PRYOR, J.,

It is evident from the history of this case, as detailed by the witnesses, that the appellant, either for himself or those he was representing, undertook to have young Bogard taken care of, and treated by medical skill, on account of the injury he had received by reason of the accident occurring on the boat of which the appellant was captain. This injury seems to have been the result of negligence on the part of the owners of the boat, or its employees, and the claim of Bogard for damages afterwards compromised; but whether so or not, the young man was taken to Brandenburg at the instance of the appellant, and, from what transpired at the time, both the young man and his parents had the right to believe that the appellant, either for himself or the company for which he was acting, was assuming

the liabilities that minst necessarily arise from the medical treatment of the injured boy. He took him in his boat to Brandenburg and had him carried to the office af Dr. Sherrill, the phy sician of the young man's family, and the doctor being absent he was carried by the appellant and others to the office of Dr. Pusey, the appellee. This surgeon being also absent, and the appellant being desirous of pursuing his journey with the boat, had the young man left at the office of the appellee, with instructions to have every necessary attention given him, and have him ready to be sent home on the boat going down that night. The appellant leaving for his boat, the appellee came to his office, and finding the young man there, carefully and skilfully dressed his mangled limb, and had him in such a condition as to enable him to go back to his house on the same evening in accordance with appellant's request, on the return boat. This was the substance of the testimony introduced by the appellee, and the principle error complained of, is the refusal of the court to instruct the jury to find for the defendent. We think this motion was prop erly overruled, as the facts of this case, although Pusey may never have seen or ever known the appellant, authorized the verdict against him. The young man occupied no such relation, by blood or employment, to the appellant as would create an implied promise to pay, but he did bring the young man to the office of the surgeon, have his wound examined and dressed by him, that had originated, as was supposed at the time, from some negligence of those in charge of the boat. Having carried the young man to the office of the surgeon, the appellant left instructions to have him attended to so that he might return on the evening boat. This was done, and the surgeon should be paid, and upon the facts of this case the jury had the right to say that the employment was made by the appellant. Judgment affirmed.

LAY OPINIONS OF A BANKRUPT LAW

At a meeting of the Milwaukee Merchants' Association, recently held, a memorial to Congress on the Ingall's bankrupt bill was adopted and forwarded to Congress. It points out numerous defects in the bill, but is decidedly in favor of a national law on the subject. From their memorial we quote the following:

"The punishment by imprisonment contained in the former law is an unfortunate omission in the proposed law, Fraud is crime, and crime should be adequately punished. It is the experience of thousands that great frauds were prevented by the threatened punishment contained in the late law against the acts of fraud. The composition feature of the former law appears in the Ingalls bill. In practice it was the worst of all its provisions. It was that which caused the-well nigh universal demand for the total repeal of the law. Under it the most gross, outrageous and shamefaced frauds were perpetrated. Honesty and honor in business

were nearly destroyed.

The honest merchant was at the mercy of the knave, and was compelled to retire from business, being unable to compete with those whose frauds everywhere surrounded him. The instances were numerous within our own knowledge where men of integrity retired from business and abandoned all further attempts to compete with the rascality and frauds committed under the protection of this provision of law. Adventurers and dishonest. men had only to become possessed of the largest possible amount of property their credit and honest pretensions could command from all the confiding creditors they could reach, and then turn and convert the property into money at 80 to 90 cents on the dollar of the co t, to the ruin of all honest conpetition, and then again turn upon the betrayed creditors and offer 10 cents on the dollar, as high as 20 cents being rarely offered, and threaten nothing unless that sum was instantly accepted, and so through threats and fears and other causes obtain the required amount and number of his creditors to agree to his terms."

The memorial argues at length in favor of having the law national.

SUPREME COURT RECORD.

[New cases filed since last report, up to June 20, 1882.]

1220. Jacob Counterman et al v. Trustees of Dublin Township. Error to the District Court. of Mercer County. Isaiah Pillars for plaintiffs; I. N. Alexander for defendants.

1221. Warren Wilder v. Commissioners of Hamilton County. Error to the District Court of Hamilton County. H. C. Whitman for plaintiff; Charles Evans for defendant.

1222. Laura W. Hillard et al v. The New York Gas and Coal Company. Error to the District Court of Cuyahoga County. Henderson & Kline and W. H. Gaylord for plaintiffs; A. J. Marvin for defendant.

SUPREME COURT OF OHIO.

JANUARY TERM, 1882.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges. Tuesday, June, 20, 1882.

GENERAL DOCKET.

No. 1118. Ridenour v. State. Error to the Court of Common Pleas of Butler County. LONGWORTH, J. Held:

1. An indictment for shooting with intent to maim is not defective for want of averment as to what member or meinbers of the body the accused intended to injure or disable. If in the words of the statute it is sufficient.

2. 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 offense 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. Judgment affirmed.

124. William Coppin v. The Greenlees and Ransom Company. Ransom Company. Error to the District Court of Hamilton County.

MCILVAINE, J. Held:

An executory agreement between a manufacturing corporation of this 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.

Judgment affirmed.

1047. Ohio ex. rel. the Attorney General v. The Standard Life Association of America.. Quo warranto.

JOHNSON, J. Held:

1. Corporations organized under the laws of Ohio, are of two classes: 1st. Those organized for profit, which must have a capital stock owned by stockholders. 2nd. Those organized for purposes other than for profit, consisting of members associated together for a lawful purpose. To the second class belong corporations formed under the provisions of Section 3630 of the Revised Statutes for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the family or heirs of deceased members.

2. Corporations formed for this purpose, though not subject to the provisions of Chap. 10, Title II of the Revised Statutes, relating to Life Insurance Companies, on the mutual or stock plan, are subject to all the general provisions of Chap. 1 Title II, which apply to corporations formed for purposes other than profit.

3. After such a company or association has been organized and incorporated, the members thereof are those mutually engaged in promoting the purposes of the organization, and who, by virtue of their relation to the corporation are entitled to the mutual protection and relief provided, or whose family or heirs are, in case of his death, entitled to the specific relief provided for them.

4. The members of such a corporation are the elective and controlling body, authorized to elect trustees and presoribe regulations for the government of the same, not inconsistent with the