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(162 N.E.)

Error to Court of Appeals, Medina County. diction, the probate court of Medina counAction by the Medina County National ty, Ohio, having jurisdiction of the parties Bank and others against Jessie Foreman, and the subject of the action, admitted this administratrix of the estate of William J. will to probate, and no exception has ever Wall, deceased. Judgment for plaintiffs was been taken to its probation and no action has affirmed by the Court of Appeals (161 N. E. ever been brought to contest its validity. 366), and defendant brings error. Affirmed.[By Editorial Staff.]

This is a proceeding to reverse the Court of Appeals of Medina county. The facts incident to the same are well stated in the brief of plaintiff in error and may be summarized as follows:

Dorothy M. Wall died April 3, 1923, without issue, and left surviving her a husband, William J. Wall, and an only married sister, Dora M, Baughman, the essential defendant in error. William J. Wall, the husband of the said Dorothy M. Wall, deceased, died February 20, 1926, without issue, and left surviving him an only married sister, Jessie Foreman, necessarily the one important plaintiff in error.

During the time Dorothy M. Wall and William J. Wall were living together as husband and wife, the Wall home, the real estate in the pleadings described, was purchased and the title recorded in the name of Dorothy M. Wall, and was thus of record at the time of her death. After her death and during the lifetime of the surviving husband, April 10, 1923, the title to this real estate was transferred to William J. Wall by affidavit, as permitted by statute, and was thus of record at the time of his death.

During his lifetime and after the title to this real estate was transferred to him, William J. Wall, in April, 1923, conveyed this real estate by mortgage to F. L. Harding for $3,000; and in May of 1925 further incumbered this real estate for $1,210, by mortgage conveyance to the Medina County National Bank.

The equity of redemption in neither of these mortgage conveyances was ever taken advantage of during the lifetime of the said William J. Wall, nor by any one for him or his estate after his death for more than one full passing year before this litigation was started. Then in an original action in a court of competent jurisdiction as plaintiff, the said the Medina County Bank sought foreclosure of the equity of redemption contained in the conveyance to it by William J. Wall, and, as a cross-petitioning defendant, F. L. Harding prayed for the same relief, and both these original parties are now defendants in error. William J. Wall, during his lifetime and during the lifetime of his wife, Dorothy M. Wall, January 9, 1914, made a will in which he devised all his property to his wife, Dorothy M. Wall. After the death of Dorothy M. Wall, the sole beneficiary under the provisions of said will, and five days after the death of said testator, William J. Wall, February 25, 1926, a court of competent juris

The probate court, after admitting this last will and testament of William J. Wall, deceased, to probate, duly appointed Jessie Foreman as administratrix of the estate of said William J. Wall, deceased, with this, his last will and testament, annexed.

Immediately Jessie Foreman qualified and entered upon her duties as the properly ap pointed, duly qualified, and acting adminis tratrix of the estate of her deceased brother, William J. Wall, with this, his last will and testament attached to her letter of appointment, and as such administratrix she paid all his debts from his personal property, except the two notes held by Harding and the Medina County National Bank and secured by the mortgage conveyances made and delivered by William J. Wall during his life

time.

Jessie Foreman, as administratrix of the estate of William J. Wall, deceased, next entered into a contract with William Jacque, defendant in error, wherein she agreed to sell and convey to him the real estate owned by William J. Wall at the time of his death, subject, however, to the mortgages of Harding and the Medina County National Bank.

Jessie Foreman, as an individual, and as the only heir at law of her dead brother, ratified and approved her contract to sell this real estate as administratrix of the estate of the said William J. Wall, deceased, with the will annexed.

This succinctly states the facts upon which are founded the four important propositions of law involved in the litigation. The common pleas court of Medina county, in deciding this case, refused:

(1) To foreclose the past-due mortgages of Harding and the Medina County National Bank.

(2) To enforce specific performance of the contract for the sale of this real estate between Jessie Foreman, as administratrix of the estate of William J. Wall, deceased, and William Jacque, subject to these mortgages, though sought by Jacque and approved by Jessie Foreman as an individual.

It decreed:

(3) That Jessie Foreman, as administratrix of the estate of William J. Wall, must sell personal property of William J. Wall, deceased, and use the proceeds to pay the mortgage claims of Harding and the Medina County National Bank.

(4) In conclusion announced that Dora Baughman was entitled to a one-half interest in the real estate of William J. Wall, de ceased, in the pleadings described, free and clear of these mortgage liens, though created

and established by Wall during his lifetime, and of all taxes and expenses, though valid and subsisting liens against this real property.

On appeal, these propositions were unqualifiedly and without modification approved by the Court of Appeals of the Ninth Appellate District of Ohio in session at Medina, Ohio. A petition in error is now filed in this court to reverse such judgment.

Beatty & Albietz, of Columbus, and A. D. Davis, of Eaton, for plaintiff in error.

Frank Spellman, John A. Weber, and Frank Heath, all of Medina, and Edward Blythin and Walter D. Meals, both of Cleveland, for defendants in error.

DAY, J. Two questions are presented by this record: (1) Did William J. Wall die intestate? (2) Shall the personal property in the estate of William J. Wall be subject to pay the debts secured by mortgages on the real estate before selling the real estate to pay such claims?

As to the first proposition, William J. Wall made his will on January 9, 1914, several years prior to the death of himself or wife. Dorothy M. Wall, his wife, died April 23, 1923. He succeeded to all her property, including the real estate in question, by virtue of section 8574, General Code. He died in February, 1926. At the time of his death, when the will took effect, the sole beneficiary under the will had previously died. Such will therefore did not become effective so as to invest title to his property in such deceased beneficiary, the record disclosing that she left no living issue or heirs of issue.

[1, 2] It is a general rule that if a legatee or devisee dies before the testator, the legacy or devise lapses. 28 Ruling Case Law, 336; 40 Cyc. 1941; 2 Page on Wills (2d Ed.) 2068, § 1242. From the sequence of dates above set forth, William J. Wall must have known the result of the lapsing of this legacy, as he made no effort to change his will after his wife's death, and there is nothing in the will to disclose that the testator intended to prevent a lapse. There is no residuary clause in the will; nor does the will show a devise or legacy to a child or relative of the testator, who, dying before or after the making of the will, leaving issue surviving the testator, as provided in section 10581, General Code, might have prevented a lapse. William J.

Wall died intestate as to the property that he inherited from his wife. We therefore find that the real estate in question passes, under section 8577, General Code, one-half to the sister of the deceased wife of William J. Wall, and one-half to his own sister, Jessie Foreman.

The second question is whether or not the notes secured by the mortgages on the real estate should be paid out of the personal estate of William J. Wall, the same being sufficient to pay all his debts.

[3] We are of opinion that the personal estate of a deceased person is primarily liable for his personal debts, whether they be secured or not. The law contemplates that the debts of the deceased shall be paid by his executor or his administrator out of the personal estate, and as soon as he "ascertains that the personal estate in his hands will not pay all the debts of the deceased, * he must apply to the probate court or court of common pleas for authority to sell the decedent's real estate." Section 10774, General Code. In the case of Andrews, Assignee, v. Johns, 59 Ohio St. 65, 51 N. E. 880, in the opinion by Spear, J., at p. 76 (51 N. E. 883), it is said:

"It is further contended that in the case of an assignee the sale of real estate is peremptory, while with an administrator it is optional. We know of no such distinction. The statute, section 6136 [Revised Statutes], does not seem to countenance it, and no decision is cited in its support. We do not believe any can be found. The administrator has no occasion to resort to the real estate unless he ascertains that the personal estate will be insufficient to pay the debts, but if he does ascertain that fact his duty to proceed to sell appears to be just as imperative as in the case of an assignee."

Until it is ascertained that the personal estate of the deceased is insufficient to pay his debts, the real estate belonging to the deceased may not be sold. Wood, Adm'r, v. Butler, 23 Ohio St. 520.

A decision upon the foregoing two points is determinative of the issues in this case, and the finding and judgment of the Court of Appeals is therefore affirmed. Judgment affirmed.

MARSHALL, C. J., and ALLEN, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur.

(162 N.E.)

(119 Ohio St. 12) JONAS v. SWETLAND CO. (No. 20921.) Supreme Court of Ohio. May 31, 1928.

(Syllabus by Editorial Staff.)

1. Electricity 11-Company furnishing elec tricity to tenants and employees, but not dedicating property to public or selling current to public, held not "public utility."

Realty company not shown to have dedicated its property to public service nor willing to sell electric current to public, but merely confining services to tenants and employees, held not a "public utility."

[Ed. Note. For other definitions, see Words and Phrases, Second Series, Public Utility.] 2. Electricity 11-Court cannot fix rate at which electricity is to be furnished by company not constituting a public utility.

Realty company furnishing electricity to tenants, but not selling electricity to public generally, and not a public utility, cannot be compelled by tenant, except pursuant to terms of its voluntary contract, to furnish electricity at price fixed by court which is less than price voluntarily agreed on under terms of lease with tenant.

This provision was in substance repeated in another part of the lease, an additional provision also being inserted therein to the effect that the lessor should not be liable for damages, nor the rental abated, for failure to furnish water, heat, electric current, gas, or other service when such failure to furnish or delay in furnishing is occasioned by needful repairs, renewals, or improvements, inability to secure coal, or by any accident or casualty, or by any cause or causes beyond the reasonable control of the lessor.

Under this lease, the price charged by the lessor to Jonas for electric current was seven cents per unit. Subsequently to the execution of this lease between the parties, a controversy arose over the price to be paid for electric current. This controversy was settled after certain negotiations between the parties; the settlement being evidenced by a letter, a copy of which is as follows: "The Swetland Company, Swetland Building, Cleveland.

"September 15th, 1924. "Jonas Millinery Co., Swetland Building, Cleveland, Ohio-Gentlemen: In accordance with the understanding and agreement had be

Error to Court of Appeals, Cuyahoga tween your Mr. Murray Jonas and the writer, County.

Action by Samuel Jonas against the Swetland Company, in which defendant filed a cross-petition. Judgment for defendant on its cross-petition was affirmed by the Court of Appeals, and plaintiff brings error. Affirmed. -[By Editorial Staff.]

This action was instituted in the court of common pleas of Cuyahoga county by Samuel Jonas against the Swetland Company. The petition averred that the plaintiff below was the lessee of the defendant under a lease which demised to the plaintiff a certain part of the defendant's premises in Cleveland, to be used as a store, in consideration of certain rent therein specified. The lease also contained the following provision:

"The lessee is to keep the show windows of said premises well lighted from dusk until 11 p. m. each day during the term of this lease whether said premises are open for business or not, and hereby agrees and binds himself to light said premises with electricity only, and to heat said premises with steam only, and to buy electric current and steam for the same during the period of this lease from said lessor at the usual rate charged to tenants of its building generally therefor, payment for such electric current and steam heat to be made immediately on presentation of bills therefor by the lessor, the lessor reserving and it is hereby covenanted and agreed by the parties hereto that it is to have the right to cut off and discontinue without notice to the lessee said electric current and heat or any other service whenever and during any period for which bills for rent or electric current or other service are not promptly paid by said lessee."

we have passed a credit to your account in the amount of one cent for each unit of electric service used by you to September 1st, as shown by our records, this credit being in the amount of $296.86, making a net amount due us of $1,676.02, which amount is to be paid to us at once.

"In consideration of such payment, it is agreed between us that the rate to be charged for electric service under your lease and paid to us by you is to be six cents per unit beginning September 1st and continuing as long as the present schedule of the Cleveland Electric Illuminating Company for service to us may be in effect. If there is a schedule filed by the Cleveland Electric Illuminating Company in the future either decreasing or increasing their present schedule or rate effective as against us, the rate of six cents as billed to you is to be adjusted either downward or upward as the case may be.

"Further, it is agreed that all future electric service bills rendered you are to be paid in accordance with the terms of the lease and in any event not later than the 10th of any month; and, further, that you are to immediately dissolve the injunction or restraining order which you have obtained against this company preventing the turning off of your electric service and furnish us copy of court order showing such dissolving of such restraining order.

"Your signing copy of this letter will evidence our understanding of the matter. "We are glad to have same adjusted and remain,

"Very truly yours,

"The Swetland Company,

"RHS-FEC.

"By R. H. Swetland.

"Agreed to: The Jonas Millinery Co., by Sam Jonas."

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

The petition claimed in substance that the defendant, although not authorized or qualified as a public utility company, was nevertheless vending the electric current used by plaintiff, and should be subject to the regulation of the public utility statute; that it was charging excessive and discriminatory rates to plaintiff, which plaintiff was refusing to pay, and that the defendant was about to cut off the plaintiff's supply of current and to forfeit plaintiff's lease as a means of exacting payment of such excessive charges and of prohibiting plaintiff from buying its current from the Cleveland Electric Illuminating Company, a qualified public utility. The petition prayed for injunction against cutting off the electric current and against forfeiture of the lease, as well as for accounting and general relief.

. The answer admitted the execution of the lease and the formal allegations of the petition, but in general constituted a general denial, and set up the letter above quoted as evidence of a settlement entered into between the parties. The defendant also filed a counterclaim for amounts averred to be due from the plaintiff for electric current furnished under the contract.

A reply was filed to the answer and the cross-petition. The reply did not deny the furnishing of the current, nor the amount alleged to have been furnished, but denied that the contract was to be taken as the measure of such price, and that the amount claimed to be due was the correct amount.

Upon final hearing the court of common pleas found on the issues joined in favor of the defendant, dissolved the temporary restraining order, found for the defendant upon its cross-petition, and entered judgment for the Swetland Company in the sum of $4,853.97, which is the amount agreed to be due if Jonas is liable under the contract.

Upon appeal to the Court of Appeals, that court found on the issues joined in favor of the Swetland Company, both upon the petition and the cross-petition, and entered judgment in a similar sum.

The case comes into this court upon allowance of motion to certify the record.

Stanley & Horwitz and James E. Mathews, all of Cleveland, for plaintiff in error.

Thompson, Hine & Flory and Jerome C. Fisher, all of Cleveland, for defendant in er

ror.

PER CURIAM. [1, 2] There being no evidence in the record that the realty company had dedicated its property to the public service, nor had been willing to sell current to the public, under the holding of this court in Hissem v. Guran, 112 Ohio St. 59, 146 N. E. 808, the Swetland Company is not a public utility. The cases cited on behalf of plaintiff in error were cases in which the com

panies in question furnished service to the public generally, not confining their services to their tenants and employees-an entirely different situation from that disclosed by this record. Not being a public utility, the Swetland Company cannot be compelled to furnish electricity except pursuant to the terms of its voluntary contract. The petition asks that the Swetland Company be forced to furnish electric current at a price to be fixed by the court, which is less than the price voluntarily agreed upon by Jonas and the Swetland Company as one of the terms of the lease and as part of the consideration thereof. To state this proposition is to state that the judgment of the Court of Appeals must necessarily be affirmed. Judgment affirmed.

MARSHALL, C. J., and DAY, ALLEN, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur.

(119 Ohio St. 1)

GUEAR et al. v. STECHSCHULTE et al. (No. 20884.)

Supreme Court of Ohio. May 31, 1928.

(Syllabus by the Court.)

1. Descent and distribution I-Personalty inherited by wife as sole heiress of husband dying intestate descended, on wife's death intestate, equally to next of kin of both husband and wife (Gen. Code, §§ 8574, 8578).

W. died intestate November 29, 1920, without issue, and leaving his widow C. as his only heir at law. C. died intestate January 21, from her husband's estate. Held, such prop1926, possessing personal property which came erty descended to the widow under the provisions of section 8574, General Code. 2. Descent and distribution erty coming to intestate from former deceased spouse is subject to equal division between next of kin of both deceased spouses; property acquired with proceeds of property inherited from deceased spouse is not distributable equally between next of kin of both deceased spouses (Gen. Code, § 8577).

I-Only prop

The provisions of section 8577, General such property as had come to an intestate from Code, govern and control the disposition of only a former deceased husband or wife. Property thereafter acquired by purchase, though with the proceeds of property which had come from the former deceased husband or wife, is not within the terms of that section or distributable in accordance with its provisions.

Error to Court of Appeals, Putnam County. Action by A. Stechschulte, administrator of Clara B. French, deceased, and others against Ralph Guear and others. Judgment for plaintiffs was affirmed in part by the Court of Appeals, and defendants bring error. Modified and affirmed.-[By Editorial Staff.}

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

(162 N.E.)

This action was instituted in the court of common pleas of Putnam county, Ohio, by A. Stechschulte, the administrator of Clara B. French, deceased, to procure the instruc

tion of the court as to the manner of distribution of the property of which the said Clara B. French died seized.

William French died November 29, 1920, intestate and without issue, leaving Clara B. French, his widow. Pursuant to a final distribution ordered by the probate court of above county, the administratix of the estate of William French, deceased, delivered to said Clara B. French personal property of said estate in kind as follows: Government bonds aggregating $4,100; also the undivided half of nine certain promissory notes, secured by first mortgage on real estate, the face value thereof being $8,500. Said notes were payable jointly to William French and Clara B. French, and aggregated $17,000. Thereafter Clara B. French collected said notes and invested the proceeds thereof in government bonds.

On January 31, 1926, said Clara B. French died intestate, without issue, leaving certain brothers and sisters, or their representatives, as her only heirs at law. The inventory of her estate, in addition to other property, included the $4,100 in government bonds received by her from the estate of William French, deceased, and $13,200 in securities, $8,500 whereof were purchased from the proceeds of the mortgage notes which came to her from the estate of her husband, William French, deceased.

The court of common pleas directed that $12,600 of the personal property in the possession of said Clara B. French at her death should be paid one-half to the brother and sister of William French, deceased, husband of Clara B. French, and the other half to the brothers and sisters of said Clara B. French, deceased, or their representatives.

The Court of Appeals affirmed the judgment of the court of common pleas in all respects except as to the payment of the costs of administration of the estate of Clara B. French, deceased.

Upon motion, the record was ordered to be certified to this court for review.

A. A. Slaybaugh, of Leipsic, for plaintiffs

in error.

Charles E. Jordan and E. V. Bope, both of Findlay, and James P. Leasure, of Ottawa, for defendants in error.

MATTHIAS, J. If the personal property in question came to Clara B. French by virtue of the provisions of section 8574, General Code, then upon her death its disposition is governed and controlled by section 8577, General Code. At the time of the death of William French, November 29, 1920, section 8578, General Code, provided that:

"When a person dies intestate and leaves personal property, it shall be distributed in the manner prescribed in section eighty-five hundred and seventy-four, as to real property which came not by descent, devise or deed of gift from an ancestor."

Section 8574, General Code, provides as follows:

"If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows: 1. To the children of the intestate and their legal representatives. 2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate."

[1] In view of the definite and specific provisions applicable to the facts here presented, it must be held that the personal property owned by William French at the time of his death descended to his relict, Clara B. French, under and by virtue of the provisions of section 8574, General Code. Such was the effect of the decision of this court in Stembel v. Martin, 50 Ohio St. 495, 35 N. E. 208, the syllabus of which is as follows:

"1. Where a husband or wife dies intestate and without issue, seized of nonancestral real estate, or personal property, it descends to the relict of such husband or wife, under section $574, General Code]; and such property, so de4159, of the Revised Statutes [now section scended, under section 2 of the act of April 17, 1857 (S. & C. p. 501), and amendments thereto, when the supplemental act of April 11, 1877 (volume 74, Ohio Laws, 81), was adopted.

"2. Upon the death of the relict without issue and intestate, seized of the property, it descends, under section 4162, of the Revised Statutes [now section 8577, General Code], one-half to the brothers and sisters of the whole blood of the former deceased husband or wife, or their representatives, if there be such, and if not, then to those of the half blood, and their representatives, and the other half to the brothers and sisters of the deceased relict, and their representatives, in the like order. And such property has descended in the same way, since the passage of the supplemental act of April 11, 1877."

It follows therefore that, Clara B. French having died intestate and without issue, the personal property of which she was seized at the time of her death, which had come to her from her husband, William French, descended pursuant to section 8577, General Code.

The further question then presented is: What property set forth in the inventory of the estate of Clara B. French did come to her from the estate of William French, deceased?

[2] It is conceded that $4,100 in government bonds possessed by her at the time of her death came from the estate of William French, deceased, and that, of the $13,200

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