Volume 1 — Goebel's Probate Reports

On the first day of January, 1879, Gano Martin, now deceased, executed and delivered to W. R. McGill and others, his mortgage deed for the property now ordered to be sold to secure the payment of eight notes, amounting in the aggregate to $16,113.69. Among the notes so executed and delivered, was a note payable to the order of W. R, McGill, for $7,602.72.

This cause cameon for hearing on the application of C. H. Moore for an order to compel the administrator of Wm. Wakefield to pay his claim.

<p>Conviction and sentence tinder unconstitutional law — last sentence to to take effect after expiration of first.</p> <p>Where a prisoner was convicted and sentenced for two offenses, the second sentence to take effect after the expiration of the first, and the law under which he was convicted and sentenced for the first offense was declared unconstitutional while he was serving his first sentence. Held, That the prisoner was entitled to a discharge, for the first sentence was a nullity, and as the second was to take effecj after the expiration of the first, it was void for uncertainty.</p>

<p>On motion for a distribution.</p>

This is an application to admit to probate the last will and testament of Eva S. Blymeyer, deceased, as provided by Section 5944 of the Revised Statutes. It appears from the testimony that Mrs. Blymeyer was an old lady who, having children living at Mansfield, Ohio, and in Cincinnati, was in the habit of visiting and staying for a short period of time with her children at Mansfield, and at times with her children in Cincinnati.

William Wiswell, Jr., represents that he is the son of Wm. Wiswell, who departed this life on the 29th day of May, 1885 5 that said William Wiswell left three children, to wit: Sarah M. Lewis, George W. Wiswell, and the petitioner, who would be his only heirs at law if he had died intestate; that William Wiswell did not die intestate, but, on the contrary, left a will which was duly executed by him on the first day of January, 1879, a copy of which is attached to the…

<p>Misfeasance and malfeasance defined — Proof required to convict.</p> <p>Misfeasance is a default - in an officer in not doing a lawful act in a proper manner, omitting to do it as it should be done.</p> <p>Where it was the duty of an officer, as a member of a public board, to approve any lawful bills, and in the performance of that duty he should approve a bill which, by the exercise of ordinary care and diligence, he would have discovered when presented, not to be a proper bill, he would be guilty of misfeasance in office.</p> <p>Malfeasance is the doing of an act wholly unlawful and wrongful.</p> <p>Where it was the duty of an officer to approve any lawful bills, and in the performance of that duty he should approve a bill which he knew to be fraudulent, he would be guilty of malfeasance in office.</p> <p>To convict one of malfeasance the jury must be satisfied beyond a reasonable doubt of the guilt of the accused; to convict of misfeasance, by a preponderance of evidence.</p>

At the dates of the assignments John B. Purcell was Archbishop of the Roman Catholic Church for the diocese of Cincinnati, and his brother, Edward… Held: and thereafter the trusts provided for in that instrument were abandoned. Subsequently questions arose as to the validity of*this deed from John to Edward; and on further consideration it was thought that other property, in the name of John than that described in said deed, might be subjected to the payment of his debts.

<p>Foreign will— When copy of admitted to prohate.</p> <p>To admit a copy of a will from another State to record in this State, the original will must have been admitted to probate and record in the former State.</p>

The plaintiff alleges that it is a corporation organized and doing business under the laws of Ohio, and owning a railroad running from the city of Cincinnati to the city of Springfield ,• that the defendant, The Spring Grove Avenue Company, is a corporation owning and controlling Spring Grove Avenue; that that part of the property described in the petition adjoins and abuts on said Avenue: that by reason of the increase of business at and near this point, it has not…

The case was submitted on an agreed statement of facts ; from which it appears that on January 26th, 1886, A. L. Plobelman assigned his property to John K. Love, for the benefit of his creditors, without preferences. Among other debts Hobelman owed George Fagan and Lawrence Kirk for services rendered during the three months next preceding the assignment.

Prior to the 19th day of May, 1874, Leopold Rosenfeld was the guardian of Samuel, Benjamin, Milton, and Rose Kaufman, minors, duly appointed by this court, and acted as such until recently, when he resigned.

<p>On motion for an order of distribution of the proceeds of sale of certain real estate.</p>

On the 10th day of August, 1877, a jury, having been impaneled in this court to assess the compensation for property belonging to this defendant, for the use and benefit of the city of Cincinnati in constructing the Cincinnati Southern Railroad, returned a verdict assessing the compensation to David Banning in the sum of $9,000, and subsequently an order was made by the court directing plaintiff to pay to the defendant the amount so found due, and ordering, on the payment of…

On the 30th day of July, 1886, this court on the evidence found Harry R. Dickson an imbecile, and that it was necessary to appoint a guardian for the person and estate of the said Harry R. Dickson, and thereupon did appoint a guardian, all of which appears of record.

<p> Claims of administrators for moneys paid for taxes, repairs, etc. </p> <p>Claims of administrators for moneys paid for taxes and repairs of real estate of intestate, and for labor in gathering crops after liis death, are valid debts of the estate, and they are entitled to a credit therefor.</p> <p>A claim for money deposited with intestate for safe keeping in his life time, held under the circumstances of the case a valid debt of the estate.</p>

This case-was submitted upon an agreed statement of facts, from which it appears that John Duddy in his lifetime was the owner of two certificates of stock in the Metropolitan National Bank, one for ■$io,ooo and one for $5,000, par value. This stock passed into the hands of the administrator, and remained there until the final distribution, when the two certificates were turned over to the widow, she being the sole legatee.

Robert Barr and others, in the January terra, 1886, of the Probate Court of this county, presented for record, under section 5937 Revised Statutes, a paper writing purporting to be an authenticated copy of the last will and testament of Robert Barr, deceased, maintaining that the same had been admitted to probate and record in Westmoreland County, Pennsylvania.

The plaintiff, as administratrix de bonis non with the will annexed of Mary M. Gerhold, deceased, filed her petition in this court alleging that there are debts of said estate • that there is no personal property to pay the same, and that it is therefore necessary to sell the real estate, of which Mary M. Gerhold died seized, to satisfy such debts. To this petition, among other defendants, Henry J. Gerhold, the surviving husband of Mary M. Ger-hold, was made a defendant.

<p> Compensation of administrator de bonis non. </p> <p>Where an administrator has charged the statutory allowance of six per cent., on the first thousand dollars collected by him, and four per cent., on the next four thousand, an administrator de bonis non, who succeeds him, can only charge the percentage his predecessor could have charged upon money subsequently collected, viz., two per cent.</p>

<p>The facts are stated in the opinion.</p>

This case was submitted on an agreed statement of facts, from which it appears that the assignor, who was engaged in business, and being indebted to Charles Luhrman, John B. Doogan, and William T. White, executed and delivered on November 26, 1887, to Charles Luhrman, a chattel mortgage upon the stock and goods contained in his store, and on December 3, 1887, executed and delivered to John B. Doogan a chattel mortgage upon the same stock, and on December 16, 1887, executed…

The plaintiff is the executrix of the estate of W. ITart Cameron, deceased. As such executrix she filed a petition in this court to sell the real estate of the decedent to pay debts. She also filed an answer alleging that she is the widow of the decedent and entitled to dower in the real estate described in the petition, and asks that the same be sold free of her dower, and that out of the proceeds she be allowed her interest.

Santio Bacciocco, late of this county, made his will and died.

<p>This was an application made on behalf of Isaac J. Miller and Gustav Tafel for an allowance of $20,000 for extraordinary services as trustees.</p>

Joseph P. Cloud died in 1872, leaving a last will by which he devised to his wife, Martha A. Cloud, in lieu of dower, $27,000, and devised the residue of his estate to his two children, William and Ellen, equally William F. Converse was appointed the executor. Martha A. Cloud subsequently became insane, and Charles Simonson was duly appointed guardian, and acted as such until the 8th day of September, 1877, when John H. Tebbwas appointed.

This case was submitted' on an agreed statement of facts, from which it appears that Ernst Sattler was the' owner, at the time of his death, of twenty-two (22) bonds of the par value of five hundred dollars ($500.00) each. At the time of the death of Ernst Sattler, these bonds were in his room ; after his death, they were taken by his daughter Anna to the residence of Alvena Wagelin, also a daughter.

C. Crane & Co., represented to the court that they were the holders of a note executed by Elias Ehler for $12,769, secured by a chattel mortgage conveying to them among other property “ all the accounts due Elias Ehler on book account.’’ The assignee has disposed of all the property which came into his hands, except the accounts due to Elias Ehler, and has distributed the proceeds and has collected a large amount of said accounts.

Dr. Joseph Garrettson died intestate, leaving a widow, Julia A., and a son, Dr. George C. Garrett-son. On the 20th day of June, 1879, Dr. Joseph Garrettson and his wife entered into an agreement by which, in consideration of $2,500, paid to her, they agreed to live separate and ¡apart from each other during their natural lives, and that said Julia A. was in no event to make any claim on the property of Dr. Joseph Garrettson.

W. J. M. Gordon purchased a tract of land upon which were a number of buildings. These buildings were united by him in a manufactory, and for more than seventeen years he carried on the business of manufacturing glycerine and other chemicals. Upon grounds outside the building, he erected in permanent brickwork his boilers, arid connected them by openings in the wall, with the distilling apparatus used on the inside.

<p>Fixtures — Machinery, etc., of brewery.</p> <p>An ice machine, boiler, engine and machinery, all connected with a brewery and removable without injury to themselves or the building, held as between mortgagor and mortgagee fixtures.</p>

<p> Testamentary capacity affected by habit of using cocaine. </p> <p>Under the facts in this case the court finds that by a long and continued use of cocaine, testator’s mental capacity became so impaired that at the time of the execution of the paper purporting to be his last will, he Avas of unsound mind.</p>

<p>'Guardian for imbecile— What must appear to justify appointment.</p> <p>To .justify the appointment of a guardian for an alleged imbecile, it must appear that the person is an imbecile and a resident of the county.</p> <p>Where the infirmity complained of does not render the person incompetent to have charge of her affairs or transact business, and the evidence shows that she has exercised in relation to her affairs judgment, economy and prudence, such person is not the subject of guardianship on the ground of imbecility.</p>

The Board of County Commissioners, on the nth da}*- of April 1888, approved the report of the viewers appointed by it, to establish what is known as the “Langdon Road.” The report also contained an award for compensation and damages to Perrin, Eunice M., and Catherine Langdon, and ordered the payment of the same out of the county treasury.

E. L. Mehner, late guardian of Albert W. Mehner, filed an account to which exceptions are filed, and it is claimed that he failed to change himself with a large amount of money belonging to his ward.

The questions here presented are based upon an agreed statement of facts, from which it appears that George K. Pollard was married to Mrs. Pollard in July, 1886, and died November 3, 1886; that he left a child thirteen j'ears of age by a former marriage, and died inestate leaving an estate of about six thousand dollars, which may be increased within the next five years by virtue of a contract entered into by him in his life with his surviving partners.

Emma Koch the widow of Phillip Koch, and the administratrix of his estate, presented a claim in the sum of $2,574.70, and asked that the same be allowed as a valid claim against said estate.

PIenry Grotenkemper prior to his assignment was engaged in business in this city, and requiring money from time to time, he prevailed upon his friend J. H. Temmen to assist him. They had numerous transactions.

Amaneus Ebert was engaged in business at the time of his assignment on the 19th day of December 1888. At this time he was indebted to his wife in the sum of $14,773. There is no dispute as to this indebtedness. In order to secure the same he executed a chattel mortgage to his wife, Martha Ebert, on the 19th day of December 1888, which was duly filed before the deed of assignment.

J. A. Jordan alleges, that he is the administrator de bonis non of the estate of James Dair, deceased; that on the 19th day of April, 1875, George W. Keen was duly appointed and qualified as the administrator of the estate of the said James Dair, deceased, and acted as such until the 12th day of May, 1885, when he resigned; that the said Keen is indebted to the estate of the said James.

Adam Beyer, in his life-time, was a member of Concordia Lodge of Cincinnati, a subordinate lodge of the Order of Knights of Honor, a corporation existing under the laws of Kentucky. Under the general laws of the association, every member was entitled to a benefit certificate, payable after his death, stipulating the payment of a sum, not to exceed two thousand dollars, to be paid to his family or as he might direct.

This is an action brought by the executor in this court, to sell the real estate in the petition described for the payment of debts. It is claimed in the petition, that Enoch Hayes died seized in fee simple of the real estate in the petition described, subject to the life estate of his mother, Mary Ann Sj'kes ; and that it is necessary to sell the same for the payment of the debts of said decedent.

<p>Railroad in highway — A “ taking” of property — Compensation— Market value — Pleading.</p> <p>No pleadings, after the petition, are necessary in condemnation proceedings.</p> <p>The construction and operation of a steam railroad in a public highwa}^ impairing access to an abutting owners’ property, obstructing the free passage of light and air, and subjecting him to inconvenience, annoyance and danger by the emission of smoke and sparks from its locomotive engines, the ringing of bells and blowing of steam whistles, and the jarring of buildings by passing trains, is a “taking” of property within the meaning of the constitution, entitling him to compensation.</p> <p>In estimating the amount of compensation to which the owner is entitled, the jury may consider whether the market value of the property will be affected by the construction and operation of the railroad.</p> <p>The difference between the market value of the property before and after the location of the railroad, will be the damages which the owner is entitled to recover.</p> <p>The market value of property is the price which it will bring when it is offered for sale by one who desires but is not obliged to sell it, and is bought by one who is under no 'necessity of buying it.</p>

The Simpson and Gault Manufacturing Company, a corporation doing business in Cincinnati, on the 23d of May, 1885, executed separate chattel mortgages to Mary S. J. McGroarty, Mary T. Fitch, Lucy D. Gault, Robert Simpson and Richard B. Charles, to secure certain indebtedness due them respectivelju These mortgages were on the same day deposited and filed in the proper office, in the order named.

On May 15th, 1885, A. A. Clerke being indebted to J. B. Davidson gave him his promissory note for $2,000 payable six months after date. Before the maturity of the note Clerke died. ' Among his papers were found, enclosed in an envelope certain certificates of stock in the Jones Publishing Company, dated July, 1885, and of the face value of $4,000. They bore Clerke’s indorsement in blank and were witnessed by J. H. C. Smith.

Louisa Ehrgott petitions to foreclose a chattel mortgage executed by The George Weber Brewing Company to secure its promissory note, dated September, 19, 1887, payable to the order of the said Louisa Ehrgott for $48,481.24. From the evidence, it appears that this note was given to cover an open account of $17,000, six checks amounting to $3,681.24, one note dated June 13, I887 for $5,000, and one note dated September 16, 1887, f°r $22,500.

This is a proceeding by the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a corporation existing under the general railroad law, against the city of Cincinnati, under Section 3283 R. S., for authority to appropriate so much of west Sixth street as is necessary to lay a track along and upon the same, between Price Hill Road and State Avenue in this city. Sixth street runs east and west and parallel with with the main tracks of the plaintiff company.

This cause is submitted upon the application of August Teisman, Stenger, Boyd & Co., Herman Buehr and Joseph Heilman, to determine the validity and to fix the priorities of several liens. From the exhibits and proofs the following facts appear: John Pund was engaged in the shoe trade in this city and became indebted to Teisman in the sum of $500, for money borrowed.

<p>Administrator’s claim against his intestate’s estate — Evidence.</p> <p>Under sections 6100 — 1R. S., prescribing tbe mode of procedure on tbe presentation of an administrator’s claim against bis intestate’s estate,'no pleadings are necessary.</p> <p>Tbe same rules of evidence apply in sucb cases as in other proceedings at law.</p>

Louisa J. Dunn, the administratrix of the estate of Catherine Dunn, deceased, presents a claim against said estate for $525, for personal services rendered the decedent in her life time, in nursing and taking care of her for thirty-five weeks at fifteen dollars a week, and prays that the same may be allowed as a valid claim against said estate.

The plaintiff alleges that it is a corporation duly organized under the laws of the State of New York ; that it is doing business in Ohio and other states of the Union, and that it has an agency and office in the city of Cincinnati ; that its business is to supply public and private buildings, manufacturing establishments, streets, alleys, lanes, lands, parks, squares and public places with electric light, heat and power, and to buy, sell and otherwise handle all kinds of…