Slike stranica
PDF
ePub

(158 N.E.)

The errors complained of as to the judg- ceptance of the note was in payment of the ment of the common pleas court with regard face thereof, and, consequently, in the abto the judgment of the probate court sustain-sence of such special stipulation and agreeing the exceptions to the final account are ment, she is not bound by the acceptance and that the judgment is clearly and manifestly possession of the note for a credit representagainst the weight of the evidence and con- ed by the face of the note. trary to law, and that there was error in overruling the motion of plaintiff in error for a new trial.

It appears from the evidence and statement of counsel that the note for $800, mentioned in the excerpts from the account above set forth, has never been paid, and there is no evidence in the record complying with the trend of authorities to the effect that a note is full payment of the amount of its face only when there is an agreement or a stipulation to such effect. Thus it appears as a naked fact that the amount of its face was money due her as an heir at law of the decedent, which the $2,800 in the estate for distribution should have satisfied, had not the administrator apparently relied upon the statement of the brother that he was the only heir.

[ocr errors]

[2] It is a well-settled proposition of law that the administrator at his peril pays out money before the expiration of a year from his appointment, unless by an order of court or by the execution and delivery of an indemnity bond. The authority of the probate court would be of no avail under the law, and hence the necessity of an indemnity bond, otherwise the administrator imperils himself.

[3] It is also equally well settled that a final account must be approved, and in addition to approval it is not only customary, but necessary, to secure the consent of the court for an order of distribution, for, thereafter, when distribution is made, it is necessary for the administrator to produce the receipts and represent to the court that the distribution has been made in conformity to the order of the court, as based upon the apThe administrator made payments of $2,-proval of his final account. This is com600 to the brother on account of his distribu-pulsory and mandatory, and to disregard it tive share, whereas $1,300 of it belonged to is against public policy, as well as in violahis sister, the coheir at law. In the settle- tion of the statutes, for a strict observance ment, the check for $200 was given to the of the statutes is the main protection which defendant in error, the sister, by the admin-heirs and legatees have as against the loss of istrator, and delivered to her as hereinbefore what in law belongs to them from deceased stated, with a promissory note for $800, persons. signed by the brother, George J. Busch, and afterwards indorsed by Lydia Busch, wife of George J. Busch. This note, as before stated, has never been paid. It is clear, there fore, that the sister has suffered to the extent of one-half of the $2,800, but, after cred-cases is Mitchell v. Dunlap, 10 Ohio, 118. iting the administrator with $200 cash paid at the time of the assessment, if the note for $800 had been paid the sum paid her would amount only to $1,000 and there would still be $400 that she is entitled to as a coheir at law in a net estate of $2,800. Therefore, it follows that she has only received the sum of $200 from an estate that owed her a total of $1,400, and thus there remains a balance of $1,200 which would be due her if the estate had been administered as the statute contemplated. The result of the transaction is a loss of $1,200 to the coheir at law, the sister.

In counsel for plaintiff in error's able brief authorities are cited on principle to show that an administrator may settle with an heir, and that such transaction is not void, but simply voidable. Notable amongst these

The instant case we do not think comes under the authority of that citation, for the reason that there is not that degree of proof as to mutuality of consent that would be sufficient, in our judgment, to hold the transaction valid in the face of the entire record in this case.

In the case of Lindsay v. Lindsay, 28 Ohio St. 157, the right of a guardian to contract and make private settlement of an estate with his ward, after the ward becomes of age, is laid down. We again advert to the record in this case which shows an insufficiency of evidence to the degree necessary to support a contract of the nature asserted.

[1] Now, then, the real question to be deAs has been before stated, the real question cided is whether the exceptions to the ac- back of all error in this case is whether the count were well taken, for the judgment of the exceptions to the account should have been common pleas court must apply to that status sustained or overruled, and it is impossible of the case in probate court in order for us for us, under the record, to come to any other to determine whether its judgment was er- conclusion than that the probate court and roneous. We think the proof regarding the the common pleas court both acted in rerelationship existing, and all the other cir-sponse to the record and the law in sustaincumstances in the case, are insufficient in law ing the exceptions to the final account of the to establish the fact that the settlement al- administrator. leged to have been made with the defendant in error received her voluntary assent and approval. It does not appear that the ac

[4] It must be borne in mind that under Raab's Estate, 16 Ohio St. 273, the burden of proof rests upon the administrator.

dicial error in the record. Holding these It is our judgment that there is no prejuviews, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Upon the question as to whether the agree- | against the verdict is strong." Higgins v. ment of July 14th was a settlement in full Drucker, 22 Ohio Cir. Ct. R. 112, 12 O. C. D. with the defendant in error, the law required, 220. in our judgment, that the plaintiff in error show by a preponderance of the evidence that the contract and payments thereunder were in full settlement of all claims which the sister had against the estate on account of coheirship with her brother. A transaction of this sort is examined by the court with extreme scrutiny, for the reason that the authorities regard such transactions as peculiarly under the eye of the court. Upon this point we quote from Berkmeyer v. Kellerman, 32 Ohio St. 239, at page 245, 30 Am. Rep. 577:

VICKERY and LEVINE, JJ., concur.

BILLMAN v. BILLMAN et al.

Jan. 31, 1927.

1. Wills 506(1)—Term "heirs" in will should be construed to give effect to testator's intention.

Term "heirs" in will is a flexible one and should be construed so as to give effect to intention of testator as it appears from four corners of will itself, interpreted in light of circumstances which testator knew at time.

“The burden of proof is on the defendants, to Court of Appeals of Ohio, Sandusky County. show that the acts, which they claim to be confirmation of the deed, were attended with all the circumstances necessary to give them the effect to confirm it. It is not enough to prove some fact which might amount to confirmation. It must, as we have just seen, be shown that the persons performing the act did so with full information of all the facts bearing on the matter, and of all their rights with regard to them; with the knowledge that the acts they are about to perform will confirm an impeachable transaction; and the acts must have been done freely and voluntarily; with the intention to confirm, with entire freedom from the influence of the former transaction, and without the exercise of any undue pressure to obtain such confirmation."

[5] We have examined the assignment of error that the judgment of the court below is clearly and manifestly against the weight of the evidence, and the record bearing upon this question, under the rules of our Supreme Court and other courts, does not warrant the conclusion that as a matter of law the judgment below is clearly and manifestly against the weight of the evidence. We are therefore bound by the authorities which hold that no matter what the opinion of the reviewing court may be the judgment below cannot be disturbed unless there projects from the record some evidence that shows a mistaken judgment to the extent that it shocks the senses. We find no such status in the record, and, as a matter of law, it is our judgment that under the record in the case we cannot reverse the judgment below on this ground. We cite the following authorities to bear out this conclusion:

"A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony." Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340.

"The court should not set aside the verdict upon mere difference of opinion with the jury." Remington v. Harrington, 8 Ohio, 508.

"When the evidence is conflicting, a verdict will not be reversed because the evidence

2. Wills 506(1)-Term "heirs" will be given legal meaning where no intention of testator to otherwise use it appears in will.

Term "heirs" in will will be given its legal and technical meaning where no intention of testator to otherwise use it appears from will, when interpreted in light of circumstances testator knew at time.

3. Wills 506(1)—Will devising use of property to son, title to vest 20 years after testator's death, remainder during that time to pass to son's heirs, showed testator's intention to use word "heirs" in legal sense with reference to ancestral property.

Will devising use of land to son, title to be vested in son in fee simple 20 years after testator's death, remainder during said 20 years to pass to son's heirs, held to show intention to use word "heirs" in legal sense with reference to ancestral property, in view of circumstances which testator knew at time.

4. Wills 602, 603(1)-Under will devising land to son in fee, subject to be divested on happening of certain event, son took qualified, determinable, or base fee.

Under will devising to son use of land which should become his in fee simple after 20 years after testator's death, remainder during said 20 years to pass to his heirs, land was devised to son in fee, subject to be divested on happening of certain event, and son took qualified, determinable, or base fee.

5. Wills 481-Character of estate devised to. son was fixed at death of testator.

Character of estate devised to son, which son's widow claimed as heir, whether ancestral or nonancestral, was fixed at death of testator and could not depend upon date of death of son.

6. Wills

(158 N.E.)

614(16)-Under will devising to son use of land which should become his in 20 years, with remainder during 20 years to "heirs," son's widow was entitled to life estate (Gen. Code, § 8573).

Under will devising to son use of land which 20 years after testator's death should become his in fee simple, remainder during said 20 years to pass to son's "heirs," upon son's death, within the 20 years, his widow was entitled to life estate in premises, and at her death title to pass to heirs of ancestor from whom it came, under Gen. Code, § 8573.

way and being the south half of the east half of the southeast quarter of section eleven, in said township and county, subject, however, to all the provisions in item third following the word subject, in the fourth line, made applicable to George Billman, my son.

"Fifth. I give, devise and bequeath to my son, Claude Billman, the use of the forty acres of land fronting on the county line road, being the northeast quarter of section thirteen in said township and county, the east end thereof, subject to the conditions and reservations of items third and fourth.

"Eighth. All the rest, remainder and residue Action by Irene Billman against James of my estate, real, personal and mixed, I give, Billman and others to quiet title and for con-Claude and Frank and their heirs share and devise and bequeath to my sons, James, George, struction of a will. From a decree for plain- share alike, subject to the one-third income to tiff, defendants appeal. Decree in accordance Mary Ann Billman, named in item third." with opinion.-[By Editorial Staff.]

Metzger & Bracy, of Clyde, for plaintiff.
Young & Young, of Norwalk, for defend-

ants.

CULBERT, J. Irene Billman instituted this action in the court of common pleas of Sandusky county against James Billman, George Billman, and Frank Billman for the purpose of having her title quieted to 40 acres of land in the northeast quarter of section 13, in York township, Sandusky county, Ohio, and for construing the will of George Billman, deceased. An answer and cross-petition was filed by the defendants, denying the material allegations of the petition. They, too, asked for a construction of the will of George Billman, deceased, that they be decreed the title to said premises, and that the The petition of the plaintiff be dismissed. case was heard in the court of common pleas, and that court construed the will to mean that plaintiff be given a fee-simple title to the premises described in the petition, and a decree was entered quieting her title to the same. The case is now in this court on appeal, prosecuted by the defendants to secure a decree in their behalf. The controversy arises over the proper construction of items 3. 4, 5, and 8 of the will of George Billman,

deceased, which read as follows:

"Third. I give, devise and bequeath to my son, James Billman, the use of the forty acres of land on which he now resides, being the north half of the east half of the northeast quarter of section fourteen in said township and county, subject to the payment of one-third of the aggregate proceeds thereof, free from all farming expenses, to be paid to my wife, Mary Ann Billman, in money annually, as long as she shall live; such proceeds being determined as the aggregate after a tenant's half share is deducted. And at twenty years after the date of my death said land shall become his, absolutely, in fee simple. The remainder during said twenty years shall pass to the heirs of James Billman.

"Fourth. I give, devise and bequeath to my son George Billman, the use of the forty acres of land (less the schoolhouse ground) across

Certain stipulations were agreed to by the parties, as follows:

"It is agreed that the will of George Billman, the testator, was executed July 26, 1901, and he died July, 1909.

George Billman the testator had four sons, "That at the time of the making of the will of James Billman, George Billman, Claude Billman and Frank Billman. That these sons were all living at the time of his death.

"That at the time that he made the will his son James Billman was married and had chiled at the date of the death of the testator. At dren. That as to him the same situation existthe date that the will was made and also at the date of the death of the testator, his son George Billman was married and had children living.

"That his son Frank Billman was not married at the date of the making of said will nor at the date of the death of said testator.

"That his son Claude Billman, at the date of the making of the will was married but had no children. At the date of the death of the testator the said Claude Billman was unmarried, his first wife having secured a divorce from him, and there were no children. That he was married to his second wife March 1, '20, and that there were no children of this marriage.

"That the said Claude Billman never attempted to sell or dispose of the estate granted to him under the terms of the said testator's will. That the widow of the testator, Mary Ann Bill

man, is dead."

The proper construction of item fifth of the testator's last will and testament, which concludes with this clause, "subject to the conditions and reservations of items third and fourth," if we interpolate into it the conditions and reservations of item third, incorporated therein by the testator by reference,

would read as follows:

"I give, devise and bequeath to my son, Claude Billman, the use of the forty acres of land fronting on the county line road, being the northeast quarter of section thirteen in said township and county, the east end thereof, subject to the payment of one-third of the aggregate proceeds thereof free from all farming expenses, to be paid to my wife, Mary Ann Billman, in money annually, as long as she shall live; such pro

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]
[ocr errors]

ceeds being determined as the aggregate after | married. He was married to the plaintiff in a tenant's half share is deducted. And at twen- March, 1920. James Billman and George ty years after the date of my death said land Billman had children living. Frank Billman shall become his, absolutely, in fee simple. The remainder during said twenty years shall pass to the heirs of Claude Billman."

[blocks in formation]

[1, 2] In what sense did the testator use the words "heirs of Claude Billman?" The

term "heirs" is a flexible one and should be so construed as to give effect to the intention of the testator as it appears from the four corners of the will itself, interpreted in the light of the circumstances which the testator knew at the time, and the term will be given its legal and technical meaning where no intention of the testator to otherwise use it appears from the will, when so interpreted.

was unmarried.

[3, 4] By the terms of the will, title to the property described in item fifth vested in Claude Billman, subject to being divested and passing to his heirs if he died within the 20in that period, it would go to his heirs under year period, and, while, upon his death withthe last will and testament of the testator, yet we think that it follows that the testator used the word "heirs" with reference to ancestral property, the property in question being such in the hands of Claude Billman. The case of Miller v. Miller, 9 Ohio Cir. Ct. R. (N. S.) 242, 19 O. C. D. 451, affirmed without report in 77 Ohio St. 643, 84 N. E. 1130. which is commented upon in Cultice v. Mills, 97 Ohio St. 112 at page 120, 119 N. E. 200, is relied upon by the plaintiff. We think that case is distinguished from the instant case by the fact that in the former the land was devised to the son for life, with the remainder to his lawful heirs, while in the instant case it was devised to the son in fee, subject to bring divested on the happening of a certain event. In the former case, the son took a life estate. In the latter or instant case, he took a qualified, determinable, or base fee.

[5] It was not the intention of the testator

that the premises involved in this suit should immediately pass in fee simple to strangers, or others than relatives by blood, upon the death of the son Claude. This is manifest from each and every of the disposal clauses set out in the five items of the will herein re

Heath v. City of Cleveland, 114 Ohio St. 535, 151 N. E. 649; Larkins v. Routson, 115 Ohio St. 639, 155 N. E. 227. Examining the instrument in the light of these rules, it does not appear that the testator used the word “heirs" in other than its legal sense, but the difficulty of interpretation in the instant case arises from the fact, that, as the question is present-ferred to, wherein the entire estate of the tesed, the word "heirs" is susceptible of two meanings, depending upon whether it was applied to ancestral or nonancestral property. As to the ancestral property of which Claude Billman died seized in fee, his relict would receive a life estate, and at the death of such relict, his parents being dead, the property would pass to his brothers. Section 8573, General Code. As to nonancestral property, the sole heir of Claude Billman would be his relict, the plaintiff. It therefore becomes necessary to examine the instrument to discover In which of these two senses the testator used the word "heirs." The circumstances of which the testator knew are an important element in determining this question. At the time he made the will Claude Billman was married, but had no children, while at the date of the death of the testator he was un

tator is disposed of. It being apparent that the widow would have received only a life estate, if the husband, Claude, had survived the 20-year period, it certainly could not have been the intent of the testator that the widow of Claude should receive any greater estate merely because her husband died before the 20-year period expired. The character of the estate, whether ancestral or nonancestral, was fixed at the death of the testator, and could not depend upon the date of the death of Claude.

[6] It therefore follows that the plaintiff is entitled to a life estate in said premises, and at her death the title thereto will pass to the heirs of the ancestor from whom it came. Decree accordingly.

RICHARDS and WILLIAMS, JJ., concur.

(158 N.E.)

LEE LASH CO. v. TOLEDO TRANSFER CO.
Court of Appeals of Ohio, Lucas County.
Jan. 24, 1927.

Contracts 274-Where defendant canceled
advertising contract, plaintiff cannot recover
on account for advertising service thereafter
rendered in disregard of cancellation.

Where defendant by letter canceled a contract under which plaintiff was placing theater advertising for defendant, plaintiff cannot recover in an action on an account for advertising furnished after the direction for cancellation had become effective.

Action by the Lee Lash Company against the Toledo Transfer Company. Judgment for defendant in the municipal and common pleas courts, and plaintiff brings error. Affirmed. [By Editorial Staff.]

Fritsche, Kruse & Winchester, of Winchester, for plaintiff in error.

John C. Cochrane and J. E. Farber, both of Toledo, for defendant in error.

vertisement for the defendant on the act or street drop of Keith's Theater, and one on the act or street drop of the Rivoli Theater, in the city of Toledo, "for any or all of 104 weeks," beginning at certain times mentioned therein. A reply was filed in which the plaintiff admitted the execution of the contracts and that the copies thereof attached to the answer are correct copies. The issue is made by the pleadings, primarily, whether defendant, under the facts and circumstances, was entitled to terminate the contract and thus be relieved from further liability. The evidence disclosed by the record shows that on July 10, 1923, and after one year's service had been rendered, the defendant canceled the contracts by letter, that letter containing instructions to cancel the contracts, which the plaintiff refused to do. Several letters passed between the parties, but the plaintiff refused to cancel and continued the service up until the end of the period for which it claims the contracts provided. This action is based upon executory contracts and is for services rendered and advertising furnished after the direction for

cancellation by defendant had become effec

tive.

CULBERT, J. This case was originally started in the municipal court of the city of Toledo, where a judgment was rendered in "It is a general rule that where a contract is favor of the defendant, the Toledo Transfer executory, a party has the power to stop the perCompany. Thereupon an appeal was performance on the one side by an explicit direction fected to the court of common pleas of Lucas to that effect, subjecting himself to such damcounty, where the case was tried to a jury ages as will compensate the other party for beand a verdict rendered in favor of the de-ing stopped in the performance on his part at fendant. A motion for a new trial was filed and overruled by the trial court and judgment entered on the verdict. Proceedings in error are now prosecuted here to reverse the judgment so rendered by the court of common pleas.

The petition is one on an account, and alleges, among other things, that there is due plaintiff from the defendant the sum of $487.50, on an account, being for advertising material and services furnished and rendered under and pursuant to two certain contracts in writing, dated, respectively, June 16, 1922, and September 21, 1922, and attached to the petition is an itemized statement of account. An answer was filed by the defendant denying certain allegations of the petition and setting up copies of the contracts between the parties, which provide, among other things, that the plaintiff was to place an ad

that point or stage in the execution of the contract. The party thus forbidden, cannot thereafter go on and thereby increase the damages and recover such increase from the other party." 23 Ruling Case Law, 1411, § 235.

Hence it follows that when notice not to proceed with the work under the contracts was given the only remedy plaintiff in this case would have would be an action for what damages it might have suffered by reason of the cancellation of the contracts on the part of the defendant, which is not an action on an account. Whether an action can now be maintained for damages, we need not determine.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

RICHARDS and WILLIAMS, JJ., concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« PrethodnaNastavi »