Ohio Law Journal.

COLUMBUS, OHIO, :: AUGUST 25, 1881.

PERSONAL.

-Hon. R. A. Harrison has returned from several weeks sojourn in Canada, looking rugged and hearty, after a much needed rest.

—Hon. G. G. Collins left for New York City Monday last, to be gone about two weeks.

-Secretary of State Townsend has our thanks for a copy of the last annual report from his office, just received.

-Counselor Ferd. Siegel, of the Columbus bar, is back again from a beneficial trip among the northern lakes.

-Amos Denison, Esq., Secretary of the Cleveland Bar Association, will be supported by the Cuyahoga Republicans this fall for State Senatorial honors. Mr. D. is a young lawyer of fine ability, sterling integrity and good habits, and will do good service as a Senator, if elected.

-The law firm of Fraze & Welsh, of Akron, O., is presented to the readers of the LAW JOURNAL, in our advertising columns, this week. We can recommend them as correspondents of undoubted reliability, and that business entrusted to them will be promptly attended to and faithfully accounted for.

-The newly-formed legal firm of Norris & Howdon, of Kent, Ohio, place their card in our advertising columns this week. Mr. Norris has been, for several years, one of the leading lawyers of Portage county, while Mr. Howdon is a graduate of the Cincinnati Law School, admitted with the class of June, 1881. These gentlemen will be safely entrusted with legal business, and will bring amply sufficient ability to its transaction.

THE vacation season is drawing to a close, and members of the bench and bar will soon

be back at work again, hearing and trying the knotty questions of the law. The Law JOURNAL will endeavor to keep apace with the work and progress of the profession, and with all due haste diffuse the Ohio law as soon as

the Judges of the Supreme Court read their opinions and hand them down for promulgation.

RECORDS AND BRIEFS.-Attention is called to the facilities of the OHIO LAW JOURNAL printing department for executing promptly orders for Records, Briefs, Book and Commercial printing generally. Our type being new and of approved styles, we are enabled to execute all orders in first-class manner and in the shortest time possible. We will take pleasure in filing Records, Briefs, and other papers, with the Supreme Court, for our pa

trons.

In the Supreme Court of Iowa it was recently held (in State v. Schultz,) that one who, though not a graduate in medicine is a specialist in the treatment of diseases, and administers medicine pectation of a cure, is not liable criminally for to a patient with the honest intention and exdeath caused thereby.

JOURNALISTIC ADVANCEMENT.

Legal journalism has received a wonderful impetus within the past decade. For years it shared the conservatism of the profession and seemed to abhor what is commonly called enterprise as thoroughly as did the lawyer of the olden days, who armed himself cap a pie.with the etiquette of a lofty calling. We used to contemn that gross characteristic of common men, styled energy, as wholly as did Mortimer Lightwood, through whom Dickens has made the briefless

barrister immortal. But of late the most sensitive of us must admit that the tendency of lawyers and lawyers' literature is in the other direction. One publishing house now sends us all the opinions of the courts of last resort, of some dozen States, and for good measure adds those of the Circuit Court of the United States. The South, too, is not behind the North in this field, as witness McGloin's Reports of all the Louisiana cases, and the new departure of the Kentucky Law Journal. We may well expect a new regime in law when a learned and honored judge of New York, lumbia Law School, boldly espouses and defends, in an address to the graduating class of the Coon high moral grounds, the practice of taking cases on contingent compensation. Without now explaining our views on this question, it is not too much to say that it denotes a radical change, either for good or evil; for if it is right it is far better that, after such discussion as it will now receive, it be openly acknowledged as a sound rule of professional procedure, than that it shall continue under the ban of professional ethics, and. yet secretly adopted and practiced by almost every member of the profession. But

whether lawyers shall or shall not still be hedged about by a time-honored conception of morals, we see with unalloyed satisfaction the improvement of Law Journals. The latest and most comprehensive advance in this particular of the year, or indeed of any year, is the proposed extension and enlargement of the OHIO LAW JOURNAL. It is but fair to say that no paper has improved more rapidly in the last few months than it; but the announcement it makes in its issue of the 7th of July almost takes one's breath away. It proposes to publish all the opinions of the courts of last resort of all the States as soon as possible after being delivered. This certainly marks the high tide of enterprise in this department, and while we yield in advance our hearty admiration for the plucky spirit that prompts the venture, we withhold our further judgment until we see it before us in tangible shape.-The Western Jurist.

[The proprietors of the OHIO LAW JOURNAL propose to publish, monthly, the NATIONAL REPORTER, which is to contain all the decisions of the courts of last resort of all the States, as soon as they can be obtained from the courts. The OHIO LAW JOURNAL will continue as a weekly publication.]

SUPREME COURT OF OHIO.

JAMES BARNETT

v.

ANGELINE WARD.

1. Words charging a woman with sleeping with a man not her husband, impute to her a want of chastity, and therefore are actionable per se.

2. The fact that a woman bears a different name from

a person with whom she is charged to have been intimate, tends to prove that she is not the latter's wile.

3. The defendant, in an action of slander, was charged with saying of the plaintiff that she slept with a man, not her husband. The proof showed the statement to be that such person was in bed with her. Held, the want of correspondence between the allegation and proof raises a mere question of variance, and is not a failure of proof within the meaning of section 133 of the code of civil procedure.

Error to the District Court of Warren County. The action below was brought by Angeline Ward against James Barnett, upon a petition in the following words and figures:

The plaintiff, at the time of the committing by the said defendant of the grievances hereinafter named, was, and still is, an unmarried woman, and did then sustain a good name and character among her neighbors and acquaintances for virtue and chastity, and was never suspected of the crime of fornication. Yet the said defendant, well knowing the premises, and maliciously intending to injure the good name and character of the said plaintiff, and to cause it to be believed that she had been unchaste and guilty of fornication, on, to wit, October 20, A. D. 1873, at Warren county, Ohio, in a certain discourse which he there had, of and concerning the plaintiff, and in the presence and hearing of divers good people, falsely and maliciously spoke

and published, of and concerning the said plaintiff, the false, scandalous and malicious words following:

1. That is to say, "She" (meaning the plaintiff), "slept with John Fox."

2.

แ "Angeline Ward" (meaning the plaintift), "was sleeping with John Fox" (meaning an unmarried man), "when her watch was stolen."

3. "Fox" (meaning an unmarried man, as aforesaid), "said he was sleeping with Angeline" (meaning the plaintiff), "when her watch was stolen."

4. "She" (meaning the plaintiff), "was sleeping with John Fox" (a man having that name), "when her watch was stolen."

5.

'Angeline Ward" (meaning the plaintiff) "was sleeping with John Fox" (meaning a man who had before that time stolen the plaintiff's watch) "when her watch was stolen."

was

6. "She" (meaning the plaintiff), sleeping with Fox" (meaning a man by the name of John Fox), "the night her" (the plaintiff" s) "watch was stolen."

7. "John Fox" (meaning a man who had stolen plaintiff's watch) "was sleeping with Angeline" (meaning the plaintiff) "when her

watch was stolen."

And by means of the speaking of said defamatory words the said plaintiff hath been greatly injured in her good name and character, to the damage of the plaintiff $10,000.

To this the defendant demurred.

First-For the reason that the words set forth did not import the crime of fornication.

Second-Petition did not state facts sufficient to constitute a cause of action.

The demurrer was overruled, and the following answer was filed by defendant:

First-He denies that he spoke the words in the petition set forth by plaintiff as spoken by him, and denies that he spoke either of the sets of words in the petition set forth, and charged in manner and form as therein set forth; and he denies any and all malice therein charged.

Second-He denies that the plaintiff sustained damages or was injured, as in the petition set forth; and he denies each and every material allegation in said petition set forth.

The case went to trial upon the following testimony:

Lewis Hurst testified: That the defendant stated, in his hearing, the following words of and concerning the plaintiff: "How in the devil did he come to get it without he had been sleeping with her?"

Ann Turney testified: That the defendant stated in her hearing, "That is how he came to find the watch; he was in bed with her."

Thomas Turney testified: That the defendant stated in his hearing, of and concerning the plaintiff, "I said, 'how did he ever think of going to look for the watch in the bed?' He said, 'he was in bed with her, and that is how he found the watch. A few days after defendant was at my

William Buts testified: The defendant was going to Franklin and asked him to ride with him, and he (witness) got in defendant's wagon, and defendant said: "He had heard that the fellow was sleeping with her, and he wondered how he had got the watch."

And this being all the testimony offered by the plaintiff, she rested.

And thereupon defendant, by his counsel, moved the court to arrest the testimony from the jury, and to direct a nonsuit, for the reason that the testimony of the plaintiff did not sustain the allegations in the petition, and because the words proved are not the words, nor the substance of the words, alleged in the petition. And the court sustained the motion, and the plaintiff excepted to the ruling of the court, and thereupon moved to amend her petition by alleging the words as proved by the witness Turney. And it appearing that the words so proven by Turney were spoken before the filing of the petition, and more than one year before said motion, the court overruled said motion to amend, and to which ruling the plaintiff excepted, and judgment was rendered for the defendant; whereupon the plaintiff tendered her bill of exceptions, which was signed and sealed by the court, and contained the proceedings, evidence and rulings of the court, as herein above set forth.

On petition in error the district court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. It is here sought to reverse the judgment of the district court.

BOYNTON, J.

It has long been the settled law of this state, that words uttered in the presence and hearing of others, imputing to a woman a want of chastity, are, in themselves, actionable. It being their immediate and direct tendency to exclude her from society, and to bring her into disgrace among those who may credit the charge imputed, thereby producing an injury from which damage necessarily results, a presumption of damage is made to supply the place of actual proof. The plaintiff in error, not doubting the rule thus stated, claims, nevertheless, that the judgment of the district court ought to be reversed upon each of three grounds. First. That the charge laid in the petition does not impute a want of chastity to the defendant in error. Secondly. That it was not made to appear that she was an unmarried woman; and fastly, that there is a fatal variance between the words laid and the proof received to sustain them. Both courts below were of the opinion that the facts stated in the petition constituted a cause of action, and in that opinion we fully concur. The plain and obvious import of the language, charging the defendant in error with sleeping with John Fox, during the night her watch was stolen, was to impute to her illicit intercourse with Fox. No one could hear the

that the person uttering it intended to charge that such intercourse had, in fact, taken place. As was said in Shields v. Cunningham, 1 Blackf. 86, a phraseology more indecent might have been used, but no set of words, however plain and explicit, would have conveyed the idea with more certainty. See Townshend on Slander, Libel, $ 172; Guard v. Risk, 11 Ind. 156.

The objection that no testimony was offered, showing, or tending to show, that the plaintiff was an unmarried woman is equally untenable. It is quite immaterial whether she was married or single. It is only important to know that she was not the wife of Fox, and this presumptively appeared from the circumstances that she did not bear his name. If, in the face of this presumption, and notwithstanding it, it was claimed that she was the wife of Fox, the burden was on the defendant below to establish the fact by proof.

It is finally objected, that there is a fatal variance between the words laid in the petition, and those proved to have been spoken.

If the validity of this objection were to be determined by the rules governing the practice before the adoption of the code, a more difficult question would perhaps arise. The rule at common law required the words to be proved substantially as laid. Numerous cases held, that the same meaning, in different words, would not support the charge. However this may have been under the former practice, the question arising under the objection here made is to be determined by the rules established by the code. Thomas Turney testified, that the defendant below stated in his hearing, of and concerning the plaintiff, that "the way he, Fox, found the watch, he was in bed with her."

Without looking into other parts of the testimony, we think the variance between this language and the words alleged to have been spoken was not such as to justify the court in arresting the case from the jury, and in directing a nonsuit. The code provides, that no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense on the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as may be just. Code, § 131.

The court is not authorized, in view of this provision, to determine from hearing the testimony of the witnesses given at the trial, whether the variance is so far material as to have misled the defendant to his prejudice, unless the allegation to which the proof is directed is so far unproved in its general scope and meaning, as to amount to a failure of proof. Code, 133. Where there is not such failure of proof, in order to invoke the action of the court, it must be

shown, not only that the party has been misled to his prejudice, by the variance, but the respect in which he has been misled must also be made to appear to the satisfaction of the court.

The court then determines whether it will grant leave to amend or not. If leave is granted the trial proceeds, unless a continuance becomes necessary by reason of the amendment. In the present case, it not only was not shown that the defendant below was misled to his prejudice by the supposed variance, but, that he was so misled was not even suggested. Indeed, it is not easily seen how he could have been misled by a variance so slight. The words proved, as well as those in which the charge was laid, imputed to the plaintiff below a want of chastity. The words proved were slightly variant from those alleged, but they were clearly of the same import and meaning. That the defendant below could have been misled by a difference in phraseology apparently so immaterial, is hardly to be believed.

At all events, in the absence of any claim, or showing, that the defendant below was misled to his prejudice by the variance, the court was not authorized to dismiss the action.

It follows, therefore, that there was no error in the judgment of reversal.

Judgment affirmed.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

MARIA COLLIER

V.

JOHN GRIMESEY ET AL.

A testator by his will gave to his widow the use of certain real estate during widowhood, and provided, that when she ceased to be his widow "the profits and benefits" of the land should be equally divided between his children and a grandson. He then directed that when his son Samuel should arrive at the age of twenty-one years, the land should be sold, provided his wife's widowhood should have ceased before that time, and directed the proceeds of the sale to be divided, to two of his sons and his grandson two shares each, and to the rest of his children one share each. He appointed executors "to act and see the accomplishment of" his will, according to its true intent and meaning. Held:

1. That by the terms "profits and benefits" the testator did not intend to devise the fee.

2. That the direction to sell the land was not contingent upon the termination of the estate of the widow before Samuel became of age; but that the direction to sell was imperative, and that the time of the sale was to be after Samuel became of age, and after the widow's

estate ceased.

3. That under the di-ection to sell, the land is to be regarded, for the purposes of distribution, as converted into money; and that the children and grandchildren took, at the death of the testator, a vested interest in the proceeds of the sale.

4. The duty of making the sale and dividing the proceeds is imposed by the will on the executors, and as one of them declined to qualify, the duty of executing the trust devolved, under the statute, upon the other. 5. The grandson having died, his personal representative, in an action to enforce the trust, ought to be made a party.

Appeal-Reserved in the District Court of Columbiana County.

The plaintiff, Maria Collier, is the half sister,

on the part of her mother, of Oris M. Painter, deceased, and as such is the sole distributee of his personal estate. The object of the petition is to enforce a trust alleged to arise under the fourth item of the will of Samuel Painter, deceased.

The following is a copy of the will:

"Whereas, I, Samuel Painter, of Perry township, in the County of Columbiana, and State of Ohio, being of a sound and disposing mind and memory, do make this my will, hearby revoking all other will or wills heartofore by me made, this onely to be and remain my last will and testimoney in manner, as follows:

"1st. I direct my funeral expenses and and all my just depts to be paid.

"2d. I bequeath to my two sons and grandson, nameley, Seth Painter, Samuel Painter, and Oris M. Painter, a certain tract of land, being and lying in Vanwart County, in the State of Ohio, containing three hundred and thirty two acres and seventy six hundredths, wich land I hold by patent from under the hand of Martin Van Buren, president of the United States, dated twenty-first day of August, eighteen hundred and thirty seven, to them and their hairs, for ever to be equeley divided between them, one hundred and eleven acres each.

"3d. I bequeath to my three daughters, namley, Louise Thomson, wife of John Thomson, Lucinda Grimesey, wife of John Grimesey, and Lydia Ann Painter, a certain tract of land lying in Goshen township, Mahoing County, State of Ohio, containing thirty-two acres, to be equeley devided between them according to value.

"4th. I will and bequeath to my wife Mary, the hold and soald use of all my reail estate not heartojore bequeth, so long as she remains my widow, and at the time she seseth to be my widdino, the proffets and benefits of the above said reael estate shall be equeley devided between my six children and my grandson Oris Painter, share and share alike.

"I direct that when my son Samuel Painter shall arive at the age of twenty-one years, that the above mention real estate shall be soald, (provided that my wife's widdow-hood shall have secth before that time,) and to be devided between them as follows: Seth, Samuel and Oris two shares each, and the rest of my children one share each.

"And lastley, I constitute, nomonate, and apoint my son Seth Painter, and my son-in-law John Grimesey, my executors, to act and see the accomplishment of this, my last will and testimoney, acording to the true intent and meening thereof. In witness thareof, I hearunto set my hand and seail this thirty-first day of August, in the year one thousand eight hundred and fourty eight.'

The testator at the date of his will was in the 60th year of his age, and he died July 29, 1851. His will was duly admitted to probate in the same year, and letters testamentary were granted to John Grimesey-the other executor named, Seth Painter, declining to accept the trust. widow elected to take under the will. At the date of the will she was fifty-five years of age;

The

and the testator's son, Samuel, was, at that time, in the 9th year of his age.

The widow's estate determined on May 18, 1874, by her death. The testator left six children surviving him, and his grandson, Oris M. Painter, who was a son of a deceased son of the testator. Oris died September 17, 1864, intestate, and without issue, leaving the plaintiff his halfsister, as before stated.

The petition states that all of the legatees named in the fourth item of the will, except Oris, "conveyed away their interests in said premises, under said will, by deeds in fee, and that the defendant, John Pow, holds said interests, and is now in the possession of the same."

The petition also avers, "that said real estate was devised to be sold by said will, and the proceeds to be divided among the legatees, and thereby became personal property, and that on the death of said Oris M. Painter, all his personal estate descended to plaintiff as his sister of the half blood, including his interest of one-fifth in the real estate aforesaid, and that she, the plaintiff, is the owner of all said Oris M. Painter's interest in said lands."

The plaintiff prays, in substance, for the sale of the premises by the executor, and for general relief.

John Grimesey, the acting executor, and John Pow, are made defendants.

In the court of common pleas the case was heard on petition, answer and reply, and a decree was rendered for the plaintiff.

On appeal, the defendants on leave withdrew their answer, and each filed a demurrer to the petition on the ground that there was a defect of parties, and also on the ground that the facts stated did not constitute a cause of action.

On the motion of the defendants the cause was reserved for decision by this court. Clarke & McVicker, for plaintiff. Kennett & Ambler, for defendants. WHITE, J.

The main controversy depends upon the construction of the fourth item of the will. The question is whether the sale of the lands therein provided for, is directed to be made on the arrival of Samuel at the age of twenty-one years, and after the termination of the estate of the widow; or, whether the direction to sell is made contingent on the widow's estate terminating before Samuel's arriving at age. The claim of the defendants is that the power of sale is thus contingent; and, hence, that as Samuel became of age before the determination of the estate of the widow, the provision directing a sale and the division of the proceeds ceased, on his arriving at age, to be operative. They further claim that on the determination of the estate of the widow, the fee of the land passed to the children and grandson of the testator, under the devise of the "profits and benefits" of the real estate. We do not question that a devise of the rents and profits, or of the "profits and benefits" of lands, without qualification or limitation, will impliedly carry the fee. But in order to determine whether

there is such qualification or limitation, we must look into the whole will, with the view of ascertaining the sense in which the terms were used by the testator; and when such sense is ascertained to give it the effect intended. Such terms cannot be held to carry the fee when it appears from other parts of the will that the fee is otherwise disposed of.

Whether the fee is otherwise disposed of, in the present case, depends upon the clause in item four, already referred to, directing the land to be sold.

The clause not only directs a sale, but it makes a disposition of the proceeds of the sale. It provides that the proceeds of the sale shall be divided between the children and the grandchild as follows: To Seth, Samuel, and Oris, two shares each, and to the rest of the children one share each. According to the claim of the defendants, the bequests of tico shares each to Seth, Samuel, and Oris, are made contingent upon the estate of the widow terminating before Samuel became of age. If her estate ceased a day before he became of age, the land was to be sold, and Seth, Samuel, and Oris, were each to have two shares of the proceeds. But if the widow's estate should cease a day after Samuel became of age, there was to be no sale, and these bequests were not to take effect.

That such was not the intention of the testator seems to us to be clear. The object of the testator in postponing the sale until his wife's widowhood should cease, was, it seems to us, to preserve to her, during her widowhood, the use of the land; and that the following is the true reading of the clause: "I direct that when my son Samuel Painter shall arrive at the age of twenty-one years, that the above-mentioned real estate shall be sold, provided that my wife's widowhood shall have ceased before that time," that is, before the making of such sale.

The provision in the preceding clause, directing "the profits and benefits" of the land to be divided equally between his children and grandson, is not without effect upon the construction we give to the subsequent clause. That provision was intended to dispose of the use or annual rents and profits of the land for the period that might intervene between the termination of the widow's estate and the sale, whether her estate ceased before or after Samuel became of age.

The direction to sell the land is imperative, and, it seems to us, the duty of making the sale is imposed on the executors. There is ro discretion vested in them whether the lands shall be sold or not. The direction is that the real estate shall be sold, and the proceeds of the sale divided among the persons designated.

The bequest is of money, the proceeds of the sale of the land, and not of the land. The beneficiaries under the will take the property with the character impressed upon it by the testator. In the present case they take it as money, and in the character of pecuniary legatees; and the fact that Oris died before the time arrived for making the sale did not change the nature of