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534.60, the same being the exact amount (le- ment to them of a sum in gross, will not authorize the ducted from the state's proportion of taxes on
court to order a distribution of the estate, and to clecreo account of “net balance of errors corrected," as
the payment of sich gross sums out of tho funds of the
estate. above stated.
Error to the District Court of Lawrence The right of the state to this balance is not
County. now submitted for our decision, but, we are clear, that if this right is hereafter determined to be
This action was originally brought in the
Court of Common Pleas of Lawrence County by in the state, there are funds in the county treas
Robert R. Hamilton, minor child of Rosalie ury and under the control of the clefendant, that should be subjected to its payment.
Rodgers Hamilton, by William Means his guarThe
dian and next friend; Ellen I. Parkinson, who county auditor hiul no warrent or authority of law for deducting from the amount for which
intermarried with James Spriggs, Allen R. the treasurer should be held liable any sum
Parkinson, Rosalie R. Parkinson, Anna Olivia
Parkinson, Milly M. Parkinson, minor children whatever on account of “errors correcteri” the
of Catherine M. Parkinson deceased, by William only sums authorized to be deducted from the
Parkinson, their guardian and next friend; full amount of the duplicate are two : 1st. the amount of dilinquent tixes. 2d. the amount of Rosalie Rolgers, minor children of Henry C.
Jaines C. Rolgers and William P. Rodgers, the treasurer's fees. The remainder is the Rogers deceased, who sue by James C. Rodgers, amount for which the treasurer is helil liable, and the whole amount of this liability should
their next friend, plaintiffs, against Jaines S.
Rodgers, Oliver Rodgers, age sixteen years, have been apportional among the different funds
minor child of James Rolgers deceased, Harry for which the taxes were levied. This amount is $2,811,619.74. The amount actually apportioned
0. Rodgers, aged cighteen years, Minnie Ilanilby the auclitor to the several funds was only | Rolgers aged fourteen years, Clarence Frederick
ton Rodgers aged sixteen years, Eleanor Matilda 82,738,236.65 leaving a balance in the treasury Rodgers aged nine years, minor children of of $73,413.09, no part of which has been apportionedí to any fund. True, in making the appor
Robert Edwin Rolgers (leceased; Clara R. Rodtionment the auditor is authorized to correct any
gers, Nancy Rodgers, Matilda Rolgers as guarderror
ian of Anna Olivia Rodgers, and George Willari, which have occurred in the apporinily
trustee unier the last will and testament of tionment of taxes at any previous settlement".
James Rolgers deceasel, defendants, to obtain a But by correcting such crrors, the amount to be
construction of the last will and testament of apportioned is neither increased nor climinished. Whatever sum may thus be taken froin one fund
James Rolgers, deceased, and to obtain a dismust be added to another.
This has not been tri
tribution of his estate thereby devised. The donc in this case.
testator died in the year 1860 leaving a large The $73,413.09 of "net balance of errors corrected” were ratably dle
estate consisting principally of personal propducted from the several funds for which taxes
crty. After various bequests and annuities he were levied. Hence the whole of this sum re.
(levised the whole of his residuary estate as fol
lows: mains in the treasury of the county unappropriatel,and may be maile subject to any judgment
“Sixtecn. I do hereby devise and bequeath which may be renerel in this cause.
to said Gcorge Willard and Henry S. Neal all Demurrers to 1st and 4th defenses sustained. my property, real and personal, wheresoever
situate and of whatever character (including
the lanıls in Kentucky opposite Ironton with CONSTRUCTION OF WILL.
the appurtenance, also my dwelling house in
which I now live, and the lands in Hamilton SUPREME COURT OF OHIO.
Township, bequeathed as aforesaid to my be
loved wife, and the dwelling house, with the ROBERT R. HAMILTON ET AL.
lots in Ironton bequeathed as aforesaid to my V.
daughters-in-law Mary F. Rodgers and Clara JAMES S. RONERS ET AL.
Rougers upon the determination of the particu
lar estates in said several premises by this will
June 13, 1882. created) which may remain after the payment By his will, R. devised his whole ostate, consisting of my debts, the aforesaid legacies and the first principally of personal property, to trustees with direc- year annuities herein granted in trust for the tions in pay cortain annuities out of the income of the estate and after the “ final cessation " of said annuities,
following purpose. to-wit: First, to sell said to distribute the estato among cortain children and real estate whenever they may deem it advangrandchildren of tho testator, then living, and the hoirs
tageous for my estate so to do upon such terms of the body of thoso deceased, and, in lefault of such heirs, thoir brothers and sisters. Hekel: Ist. That no
either by public or private sale, as they may ostato vests in the boneficiarios uudor the will, until the think best, and in the mean time to rent or lease time for distribution as fixol by the terms of the the same and execute proper conveyances of the will, 2nd. The “simal cossation of annuities mentioned in the will takes place eithor upon the death of
same to the purchaser thereof, to invest the proall the annuitants, or upon tho surrender or release of ceeds of said sales and all other funds coming their annuities. Bril. The trusteos have no power under into their hands, either from collections by the will to purchase in the annuities, and the mere fact that the annuitants declare that they are willing to re
them made, dividends of stocks owned by me or lease their annuitios (but not having done so), upon pay. in any other manner or from any other source
whatever in such manner as they may conceive for such son shall be taken into consideration, most beneficial for my estate, and I further and with annual interest thereon shall be authorize and empower them to change the in-charged against sucu son's distributive share. vestments I have hitherto made whenever they Not desiring that any of my grandchildren may dech it advisable to do so. Second, To'pay should become destitute, I hereby authorize and the expenses of this trust including a yearly empower my said Trustees upon the death of compensation to themselves for their services in the parents of any such grand-child, or their executing this trust to be allowed by the Pro- inability to support them, to provide for a prubate Judge. Third, To pay the annuities herein dent and economical support of any such grand granted, as herein provided, so long as the in child, provided however, that the annuities come of my estate be sufficient, and should it granted to any parent of such child shall be no ever at any time prove insufficient, then said longer payable, if the said Trustees shall be of annuities shall be puid pro rata, except the one opinion that such destitution arises from the to be paid
bad of . And in the execution of this trurit authorize The widow refused to take under the will, and, and ein power the said Trustees to take charge at the time of commencing this action, the only of, manage and control my suid property in all annuitants living were Clara Creighton, then things as fully as I now have the right to do, uged 36 years and Nancy Rogers, aged 60 years, and they shall be held responsible in the execu
to whom annuities amounting to $250 and $300, tion of this trust only for fraudulent conduct, respectively, had been granted. but said Trustees shall make an exhibit yearly Willard, the sole trustee, Neal having resigned, to the Probate Court of Lawrence County of had converted the whole estate into personal their doings in the premises, which I desire to property, consisting of bills receivable, stocks be filed with their accounts as Executors. and other securities. All debts had been paid.
“ Seventeenth: Upon the complete determi- Of the seven children of the testator, living at nation of the particular estate herein created, the time of his death, his sons James S. and Oland upon the final cessation of all the afore- iver alone survived ; Thomas died in 1867, unmentioned annuities, I direct and require my married and childless; the others all left chilsaid Trustees to make a final distribution of my dren, who have been named as plaintiffs and de estate then remaining, as follows:
fendants, and who united in asking for a distri"To my son James and the heirs of his body, bution of the estate under the provisions of item One sixth ;—To my son Thomas and the heirs 17 of the will. of his body, One sixth ;-To my son Oliver and Clara Creighton and Nancy Rodgers filed anthe heirs of his body, One sixth ; To the child- swers setting up their right to annuities but ren of my son Henry C. Rodgers and if any of offering to release the same upon receipt of a sum them be deceased, to the heirs of their bodies,
The trustee resisted & distribution, One ninth; To the children of my son Robert claiming that, by the terms of item 18 of the will Edwin, and if any of them be deceased, to heirs it was made his duty to provide for any of the of their boaies One ninth ; To the children of testator's grandchildren who might at any time my daughter Catharine M. Parkinson and if any become destitute, and that this was a continuof them be deceased to the heirs of their bodies, ing trust. It was shown at the hearing that One ninth ;-To the children of my daughter for many years prior to the testators death his Rosalie Hamilton, and if any of them be de- sons Henry and Robert had been unsuccessful ceased to the heirs of their bodies, One sixth ; in business and were in embarrassed circumAnd it is hereby declared to be the true intent stances. Upon appeal the district court deand meaning of this direction of distribution cided that neither the plaintiffs nor any of the that the children only of deceased children shall de visees were entitled to either a general or inherit, and in case that any of said above partial distribution under the will, and that no mentioned persons die without heirs of their such distribution could be had until the death bodies, then the interest which he would be en- of all the annuitants or all of said annuities titled to shall go to their brothers and sisters. should be otherwise terminated. We
“Eighteenth: Upon the arrival at the age asked to review this decision. of maturity of either or all my said minor chil- LONGWORTH, J. The first question which adren, to-wit; James, Thomas and Oliver if the rises in the construction of this will is whether sume happen before the determination of the an estate vested in the distributees at the time aforesaid particular estates and the creation of of the testator's death, or not until the happensaid annuities, I direct and empower my saiding of the events upon which a distribution was Trustees to pay to any such son the sum of two to take place. thousand dollars, to enable such son to enter Although conceded that in the interpretation into business, provided if said Trustees shall be of wills, courts in general favor that constructof opinion that the giving of suid sum to said ion under which estates will vest at the time of son would be an injury to him, and that he testator's death, yet this, like every other rule of would not expend it in a suitable manner then construction, will be controlled by the intention I authorize thein in their discretion to spend of the testator as gathered from the whole will. said sum as they may deem for the well being As was said by Scutt J. in Richey v. Johnson, of said son, and any sum so going wor expended 30. O. S. 288-292 : “ We are to read the whole
e are NOW
will and ascertain not only what the testator the annuitants, (one of whom at least was at has said, but what he has forborne to say; and his death little more than a child), should die, the construction given to any part of the will we think he would have taken pains to make should conform to its general scope and purpose such intention appear in plain language. So as collected from the whole locument. It is to long as these annuities were outstanding it is be observed that the testator gives no interest evident that no distribution could take place, in the farm in question, or in its proceeds, to seeing that these were to be paid only from the his brothers and sisters, or to the children of any income of the estate; but upon their “final cessaof them by way of direct devise or bequest. The tion," ils charges upon the estate, no valid reason gift is to be found only in the direction to dis- could exist against a final distribution, unless it tribute the proceeds of its sale and in the des- should appear that the testator intended a ignation of the persons among whom distribu
further postponement, and such intention is tion is to be made."
not to be found either in the words used or in These remarks apply with equal force to the the surrounding circumstances of the case. We case before us. The only words of gift in the are unanimously of opinion that upon the "final will are to be found in the devise of the whole cessation" of these annuities, either by death or estate to trustees, and in the direction to dis- release or surrender to the estate, it will become tribute the estate, after the determination of the the duty of the trustee to distribute the estate in particular estates and the final cessation of the accordance with the provisions of the will. True annuities, among persons, some of whom per- the trustee alleges in his answer that he knows haps were yet to be born. Color is given to a from conversations held with the deceased that contrary construction by the provision directing he contemplated a remote period as the time of the trustees to make certain payments to, or distribution, but we are not to regard any such provision for the minor sons, when they should avernment. We are to find the intention of the become of age, to be thereafter charged against testator in the will itself and are not at liberty their distrib'itive shares, but, taking the will to allow its terms to be varied or contradicted as a whole, we are persuaded that the real in by conversations or parol statements made tention of the testator was that no estate should either before or after its execution. Under vest in any of the objects of his bounty until the neither interpretation, however, has the time time for distribution should arrive, and then in
for distribution yet arrived; the annuities of those persons only who should answer the de- Clara Creighton and Nancy Rodgers being still scription at that time. Speaking for myself outstanding valid charges upon the income of only I wish to say that it is after much hesita- the whole estate. The widow's annuity ceased tion and still not without some embarrassing by operation of law when she refused to take doubts that I have arrived at this conclusion. under the will, and the others, except the two These doubts arise from the vague and uncertain mentioned, have ceased by the death of their language in which the intention of the testator owners; but these two are still in full force. It is expressed, and from which no thoroughly sat- does not remove this obstacle to say that these isfactory, conclusion can be drawn. Still I am ladies are ready and willing to release them to satisfied that the most reasonable and probable the estate, for they have not yet done so, nor interpretation is that given by my brethren. can the court com pel them to do so. The Has the time then arrived for a distribution of trustee clearly has no power under the will to the estate, either final or partial? Clearly not. No purchase them; but should their owners see fit partial distribution could be made until it is as- to release them to the estate, then, and not certained who the parties may be who are en- until then, will the time arrive for a distributitled to take, and this cannot be ascertained tion. until the time arrives for final distribution. We regard as wholly untenable the claim of And here we may say that we think it clear the trustee that no distribution can be made 80 that but one distribution was ever contemplated long as there may be grandchildren, now living, by the testator and that his object in calling it or hereafter to be born, who may, by possibility, a "final distribution", was simply to distin- at some time become destitute. Such constructquish it from what might be called the partialion would postpone the vesting of the estate and distribution of $2,000 each to his minor sons its enjoyment beyond the lives of all the benefiwhen they should come of age.
ciaries now in being and for more than 21 years On the one hand it is contended that the time thereafter. It is clear to our mind that this proarrives only upon the death of all of the annui- vision as to the support of destitute grandchildtants; on the other, that it depends upon the ren was intended to apply only during such time cessation of the annuities as a charge upon the as the estate should remain in the hands of the estate by release or otherwise by operation of trustee and pending its distribution, and was law. That the latter is the proper interpretu- not intended to control or limit the time fixed tion we entertain no doubt. The testator does for such distribution by item 17 of the will. not speak of the death of the annuitants; but of We are asked to decide to whom shall pass the "final cessation" of the annuities; and surely upon distribution the share which Thomas Rodgit is but fair to take him to have intended just
ers would have received had he lived. It is what he has said. Had he intended to postpone stated in argument, although it is not disclosed the division of his estate to such time as all of in the record, that the testator was twice marrieri, and that liis younger sons, James S.,'i homas the liabilities that minst necessarily arise from and Olivor, were children of the second mar- the medical treatment of the injured boy. He ringe. If this be true, we are clearly of opinion took him in his boat to Brandenburg and had that the testator, in providing that if any of the him carried to the office af Dr. Sherrill, the phypersons mentioneel as destributees should die sician of the young man's family, and the doctor without issue, then the interest which he would being absent he was carried by the appellant be entitled to shall go to their brothers and sist- and others to the oslice of Dr. Puscy, the appellee. crs," referred to brothers of the whole blood only This surgeon being also absent, and the appelas respects his own children. This is rendered lant being desirous of pursuing his journey with manifest from the care taken to exclude his other the boat, had the young man left at the office of children from any share whatever in his estate. the appollee, with instructions to have every The sons had been unfortunate in business, and necessary attention given him, and have him were insolvent, and it is evident that the testir- ready to be sent home on the boat going down tor believed that a gift to them would have been that night. The appellant leaving for his boat, a gift to their creditors, from which neither his the appellee came to his office, and finding the sons nor their children would reap the benefit. young man there, carefully and skilfully dressed The provision in question could apply only to his mangled limb, and had him in such a condithe grandchildren and to these younger sons, tion as to enable him to go back to his house on seeing that no share could come to the oliler song the same evening in accordance with appellant's and daughters. We are therefore of opinion request, on the return boat. This was the subthat, at the time of distribution, Thomas' share stance of the testimony introduced by the appelwill pass to his brothers James S. and Oliver, if loc, and the principle error complained of, is the
refusal of the court to instruct the jury to find for coase. This conclusion also follows of necessity the defendent. We think this motion was propfrom our previous holding concerning the vest- erly overrulcı, as the facts of this case, although ing of the estatı only in the persons answering Pusey may never have seen or ever known the the description of the will at the time of distri- appellant, authorized the verdict against him. dution.
The young man occupicil no such relation, by Judgment aflirmed.
blood or employment to the appellant as would [This case will appear in 38 O. S.]
create an implied promise to pay, but he did
bring the young man to the office of the surgeon, PIIYSICIAN AND SURGEON-CONTRACT. have his wound examined and dressed by him, FOR CHARGES-THIRD L'ARTIES. that had originated, as was supposed at the time,
from some negligence of those in charge of the COURT OF API'EALS OF KENTUCKY.
boat. Ilaving carried the young man to the ollice of the surgeon, the appellant left instruc
tions to have him attended to so that he might BERRY v. PUSEY.
return on the evening boat. This was done, and March, 1882.
the surgeon should be paid, and upon the facts of
this case the jury had the right to say that the A person, having been injured through accident on a boat or whichi 1. was captain, was brought ly him to B.,
employment was inade by the appellant. a surgeon, then absent from his ottico, and was left there Judgment aflirined. with instructions to give the injured person cvery ittenition. The words were crossed by 13. on lois return. lielil, that A. was liable to B. for the value of such ser
LAY OPINIONS OF A BANKRUPT LAW vices,
Action brought by appeller, a surgeon, to At a meeting of the Milwaukee Merchants' recover fees for services rendered. The facts Association, recently held, a memorial to Consufficiently appear in the opinion.
gress on the Ingalls bankrupt bill was adopted Pryor, J.,
and forwarded to Congress. It points out nuIt is evident from the history of this case, as merous defects in the bill, but is decidedly in detailed by the witnesses, that the appellant; favor of a national law on the subject. From either for himself or those he was representing their memorial we quote the following: uniertook to have young Bogarıd taken care of, “The punishment by imprisonment conand treated by medical skill, on account of the tained in the former law is an unfortunate injury he hall received by reason of the accident omission in the proposed law, Fraud is crime, occurring on the boat of which the appellant was and crime should be adequately punished. It is culptain. This injury seems to have been the re- the experience of thousands that great frauds sult of negligence on the part of the owners of were prevented by the threatened punishment the bort, or its employees, and the claim of Bog- contained in the late law against the acts of atrol for damages afterwards compromiscal; but fraud. The composition feature of the former whether so or not, the young man was taken to law appears in the Ingalls bill. In practice it Brandenburg at the instance of the appellant, was the worst of all its provisions. It was that and, from what transpired at the time, both the which caused the-well nigh universal demand young man and his parents had the right to be- for the total repeal of the law. Under it the most lieve that the appellant, either for himself or the gross, outrageous and shamefaced frauds were company for which he was acting, was assuming perpetrated.
perpetrated. Slonesty and honor in business were nearly destroyed. The honest merchant intent to maim is supported by sufficient evi, was at the mercy of the knave, and was com
dence. The accused might fairly be presumed pelled to retire from business, being unable to to have intended the actual and natural recompete with those whose frauds everywhere
sult of his unlawful act. surrounded him. The instances were nuinerous
3. An indictment contained three counts, within our own knowledge where men of integ- the first and second did not charge the offense to rity retired from business and abandoned all fur- have been committed "against the peace and ther attempts to compete with the rascality and dignity of the State of Ohio,” but the third did frauds committed under the protection of this so charge. The accused was acquitted under the provision of law. Adventurers and dishonest, first two counts and convicted under the third. men had only to become possessed of the largest pos
Held: "That, where it did not appear from sible amount of property their
credit and honest
the record that evidence had been introduced pretensions could command from all the confid-against the prisoner under the first two counts ing creditors they could reach, and then turn which would have been incompetent under the and convert the property into money at 80 to 90
third and prejudicial, there was no error in cents on the dollar of the co t, to the ruin of all refusing to grant a motion for a new trial. honest con petition, and then again turn upon Judgment affirmed. the betrayed creditors and offer 10 cents on the 124. William Coppin v. The Greenlees and dollar, as high as 20 cents being rarely offered, Ransom Company. Error to the District Court and threaten nothing unless that sum was in. of Hamilton County. stantly accepted, and so through threats and fears and other causes obtain the required
McILVAINE, J. Held: amount and number of his creditors to agree to
An executory agreement between a manufachis terins.”
turing corporation of this State and one of its The memorial argues at length in favor of stockholders, for the purchase of the stock of having the law national.
such corporation, by the former from the latter,
cannot be enforced either by action for specific SUPREME COURT RECORD.
performance or for damages.
Judgment affirmed. (New cases file: since last report, up to June 20, 1882.] 1220. Jacob Counterman et al v. Trustees of The Standard Life Association of America..
1047. Ohio ex. rel. the Attorney General v. Dublin Township. Error to the District Court
Quo warranto. of Mercer County. Isaiah Pillars for plaintiffs; I. N. Alexander for defendants.
JOHNSON, J. Held: 1221. Warren Wilder v. Commissioners of 1. Corporations organized under the laws of Hamilton County. Error to the District Court Ohio, are of two classes : 1st. Those organized of Hamilton County. H. C. Whitman for for profit, which must have a capitai stock plaintiff; Charles Evans for defendant.
owned by stock holders. 2nd. Those organized 1222. Laura W. Hillard et al v. The New York for purposes other than for profit, consisting of Gas and Coal Company. Error to the District
members associated together for a lawful purCourt of Cuyahoga County. Henderson & Kline
pose. To the second class belong corporations and W. H. Gaylord for plaintiffs ; A. J. Marvin formed under the provisions of Section 3630 of for defendant.
the Revised Statutes for the mutual protection
and relief of its members, and for the payment SUPREME COURT OF OHIO.
of stipulated sums of money to the family or
heirs of deceased members. JANUARY TERM, 1888.
2. Corporations formed for this purpose, Hon. John W. Okey, Chief Justice; Hon.
though not subject to the provisions of Chap. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon.
10, Title II of the Revised Statutes, relating to GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH,
Life Insurance Companies, on the mutual or
stock plan, are subject to all the general provisJudges. Tuesday, June, 20, 1882.
ions of Chap. 1 Title II, which apply to corpo
rations formed for purposes other than profit. GENERAL DOCKET.
3. After such a company or association has No. 1118. Ridenour v. State. Error to the been organized and incorporated, the members Court of Common Pleas of Butler County. thereof are those mutually engaged in promoting LONG WORTH, J. Held:
the purposes of the organization, and who, by 1. An indictment for shooting with intent virtue of their relation to the corporation are to maim is not defective for want of averment entitled to the mutual protection and relief pro as to what member or meinbers of the body the vided, or whose fanıily or heirs are, in case of accused intended to injure or disable. If in the his death, entitled to the specific relief provided words of the statute it is sufficient.
for them. 2. Where one shot another in the trunk of 4. The members of such a corporation are the the body and the result was to produce paralysis
eleotive and controlling body, authorized to elect of a leg, causing a permanent disabling of that trustees and presoribe regulations for the govmember, a verdict of guilty of shooting with ernment of the same, nat inconsistent with the