Volume 68 — Ohio State Reports, New Series

<p>Action Against Incorporated Village — For Injuries Because of Icy Sidewalk — Village Not Charged with Constructive Notice, When — Error to Submit to fury -Question of Diligence — Recovery of Damages — Municipal Law.</p> <p>In an action against an incorporated village to recover for inj uries sustained by slipping and fálling on an icy sidewalk, where it appears that the accident occurred about eight o’clock in the morning, and that the icy condition at the place where such accident occurred was caused by ice which had formed thereon only the night before, the village can not be charged with constructive notice of the condition of such walk; and it is error to submit to the jury whether the village might by the exercise of reasonable care and diligence have had knowledge of the defect in time to have remedied it.</p>

The plaintiff in error filed in the Circuit Court of Franklin County,'a petition in quo warranto against-the railway company, now defendant in error, in which petition it is alleged that, on or… Held: Such contract is not interdicted by the act of April 2, 1890, 87 O. L., 149, “for the protection and relief of railroad emplojres, etc.;” (2) The contract is not contrary to public policy; (3) The contract does not lack mutuality; (4) It is based upon a valid consideration.

<p>Indorser of Promissory Note— Warrants Gemdneness of Prior Indorsers— Jtidgment in Favor of Indorsee — Conclusive as to Liability of Pi'ior In-dorser— With Timely Notice — Forgery—Evidence.</p> <p>1. One who indorses and delivers a negotiable promissory note in the usual course of business, thereby undertakes that the signatures of all prior indorsers are genuine.</p> <p>2. In an action brought upon that undertaking by an indorsee to recover the amount which he has been adjudged to pay in consequence of the forgery of the signature of a prior indorser, the plaintiff having given to the defendant timely notice of the pendency of the suit in which such judgment was recovered and an opportunity to defend, such former judgment is conclusive with respect to the forgery.</p>

EbeoR to the Circuit Court of Stark County. The defendant in error brought suit' against the plaintiff in error in the Court of Common Pleas of Stark County, to recover damages for alleged injuries to her health and her property, which she alleges resulted from noise 'and vibration occasioned by certain steam 'hammers, or as they turned out to be, drop hammers, which are used in the manufactory of the plaintiff in error On a lot adjoining the lot of the defendant in error.

<p>Error to the Circuit Court of Lucas County.</p> <p>The controversy arose in the courts below upon exceptions to the account of 'William R. Stafford, executor of Mabel Crawford, deceased, filed in the Probate ’Court of Lucas County. The record is long and much involved, but’ the facts following, gathered from it, are sufficient to show the grounds of error and the questions disposed of. The testatrix, a resident of Toledo, deceased May 20, 1891, leaving a will which was duly probated and letters testamentary issued to Clay Crawford and William R. Stafford, executors therein .named, who accepted the trust. The substance of the will follows: After giving, by item two, certain specific articles of personal property to an aunt, and after creating trusts in favor of other beneficiaries, the testatrix then gives $10,500 In trust for the benefit .of the following parties, viz.: $2,000 to the American Missionary Association; $2,000 to the Methodist Episcopal Church of Caseville, Michigan; $2,000 to the Washington Street’ Congregational Church, of Toledo, Ohio; $2,000 to the American Board of Commissioners of Eoreign Missions; and $2,500 to the Protestant Orphans’ Home, of Toledo, Ohio, and then provides:</p> <p>“Item IX. I hereby nominate and appoint said William R. Stafford and Clay Crawford executors of this, my last will and testament; and I hereby give, devise and bequeath all my real and personal property of every kind and nature (save and except as is specified in item two herein), to said above named executors, in trust for the execution of my will, with power and full authority to sell and dispose of the same, at public or private sale at such times (within three (3) years after the date of my death), and upon such terms and in such parts as to them shall seem best, and I hereby authorize said executors or éither of them, who shall qualifjq to sell as above or lease or mortgage any part of my propertjq if in their opinion it is advisable so to do, and to execute and deliver any instruments or writings necessary or proper to carry into effect any powers granted in this will, and to sell and convey any or all my real estate in fee simple without being required to obtain any orders of court therefor, and with-full power to settle, compromise, arbitrate or adjust any claim due cither to or from my estate on such terms as they may deem best. I request' that no bond be required of said executors or either of them.</p> <p>“Item X. After said executors have converted the property heroin conveyed to them into money, and after they have paid the costs and expenses of the administration hereof and the debts as provided in item one (1) herein, and after they have put at interest' the full amount of the two funds specified in items six (6) and eight (8) herein, and after paying as provided in item seven (7) herein, then out of the entire balance remaining I desire the bequests mentioned in items three (3), four (4) and five'(5) herein, to be fully paid. If from any cause there be a deficiency and there be not enough to pay in full each bequest in said last three items mentioned, then each bequest in said last three items shall bear its part of such deficiency, in the proportion which each bequest bears to the total sum of all bequests specified in said items numbered three (3), four (4) and five (5) herein; but if, as I expect, there be a surplus, and the balance remaining shall be -greater than is needed to pay the full amount of each bequest specified in said items three, four and five herein, then after paying the full amount of each bequest in said items three, four and five heroin, I give and bequeath all such surplus (intending to thereby dispose of all the balance of my property) to the parties named in bequests specified in items numbered three (3), four (4), five (5) and eight (8) herein. Such surplus to be divided between and added to each bequest specified in said last mentioned four items, in the proportion which each bequest bears to the total sum of all bequests specified in said last mentioned four items.”</p> <p>' A large portion of the estate, being real estate, was situated in Huron county, in the state of Michigan. The personal estate in Ohio was more than sufficient to pay funeral expenses, and there were no other debts. Shortly after the will was probated an action was commenced in Lucas county by tire mother of the deceased to contest' the will, which suit was pending until March 10, 1893, when trial was had and final judgment entered validating the will.</p> <p>July 9, 1891, William R. Stafford was appointed special a-danin-istrator of the estate by the Probate Court of Huron County, Michigan, and May 17, 1893, the will was probated in that court and letters testamentary issued to Stafford. These letters required Stafford to render a just and true 'account of his administration to that' court. The bond was to like effect. Upon so qualifying as executor, Stafford, as required by the statute of Michigan, forthwith delivered to himself as executor all assets in his hands as special administrator. August 4, 1896, he presented his final account as such special administrator. Exceptions were at' once filed to a portion of the items by Clay Crawford, executor, and especially representing the Protestant Orphans’ Home of Toledo, Ohio, and the Washington Street Congregational Church of Toledo Ohio, (legatees under the will), several of the exceptions being founded on the claim that the items were solely cognizable by the Probate Court of Luc'as County, Ohio. Due notice, as shown by the record and found by the court, was given to all persons interested in accordanee with the Michigan statute, and on hearing the exceptions were in part sustained and in part overruled. Prom this judgment Clay Crawford took an appeal to the Circuit Court for the County of Huron, Michigan. March 30, 1897, the account and. exceptions were tried on the .appeal in the circuit court, and by that court the account, as stated by the probate court, was approved. December 6, following, the probate court duly discharged, exonerated and acquitted said Stafford ,as special administrator, from all liability concerning the estate, and canceled the bond 'and revoked the letters.</p> <p>On August 4, 1896, Stafford also presented in the Probate Court of Huron County his first account as executor. To this account Clay Crawford, as executor and‘residuary legatee, and especially representing the Protestant Orphans’ Home of Toledo,, Ohio, and the Washington Street Congregational Church, of Toledo, Ohio, (lied exceptions to 'all the items of the account, alleging among other things that they were not properly cognizable for allowance in the Probate Court for the County of Huron, but were solely cognizable by -the Probate Court of Lucas County, Ohio. A time for- the hearing was fixed, due notice given to all persons interested, and a hearing duly had, resulting in an order and judgment of that court allowing part of the account and disallowing part, Prom this 'judgment Stafford took an appeal to the Circuit Court of -Huron County. At the March Term, 1897, of that court, the cause was tried on appeal resulting in a reversal of the judgment of the probate- court save as to one.item and a, judgment otherwise allowing the account' -of the- -executor entered. The cause was then removed by writ of error sued out by Clay Crawford to the Supreme. Court of Michigan, by which court, at its October Term, 1898, the judgment of the circuit court' was affirmed.</p> <p>November 10, 1896, Stafford filed his first account as executor in the Probate Court of Lucas- County, Ohio, purporting to exhibit his transactions as executor -arising out of that part of the estate situated within the state' of Ohio. Hearing as to this account was postponed owing to the pendency of exceptions to his Michigan accounts. Excejotions to this account filed in the Probate Court of Lucas Oounty were interposed by the Protestant Orphans’ Home, of Toledo, by which it was sought to have the Ohio Probate Court review the items of account relating to the Michigan assets and embraced in the Michigan accounts. These exceptions Stafford moved to have stricken from, the files, averring: “1. That this executor has never filed in this court any account containing items to which the said the Protestant' Orphans’ Home does or pretends to except. That the paper wifiting against which said exceptions are directed (except the items above set forth, which related to the Ohio estate), was and is solely a copy of an account filed by this executor in the Probate Court of Huron Oounty, Michigan, and relates to that portion of said estate situate in said Huron county, and was filed in this court for the purpose only of advising this court of the progress of -the administration granted on said estate by the Probate Court of said Huron Oounty, and which is and was entirely distinct and separate from any administration granted by this court. 2. That said account has been fully heard, determined and confirmed by the courts of the state of Michigan, having jurisdiction thereof, and such hearing was had on said account and upon exceptions filed thereto by Clay Crawford, one of the executors of said estate, representing himself as such executor, and also representing said the Protestant Orphans’ Home of Toledo, Ohio; and that all said matters covered by said exceptions hied in this court by said the Protestant Orphans’ Home are res judicata between the parties.”</p> <p>Pending the hearing the prob'ate court ordered Stafford to file a complete account of all moneys received and paid out by him to February 1, 1899. This he failed to do except that he filed copies of his Michigan accounts. February i-; 1899, a re-statement of the account was filed in the Lucas Probate Court and appended to it an affidavit setting up the fact's respecting his settlements in the Probate Court of Huron County, Michigan, and the action of that court and of the Circuit and Supreme Courts thereon, as hereinbefore given. Setting up, also, “that by reason of the premises, all said matters contained in his said account's as special administrator, and also in his account as executor, so appointed by the Probate Court for the County of Huron and state of Mich-man, have been fully and finally determined and adjudicated by the courts having full jurisdiction of the subject matter and persons concerned: that on or before January 11, 1899, he duly filed in this court certified copies of his said account as said special administrator, and as such executor, together ■with duly certified copies of the findings and orders and judgments of said Probate and Circuit Courts of said County of Huron, and state of Michigan, and also of the judgment of the Supreme Court of the state of Michigan therein, to which he now refers and makes the same a part of this -affidavit.”</p> <p>On hearing, the Probate Court of Lucas County overruled the motion of Stafford to strike off the exceptions to the Protestant Orphans’ Home, sustained all the exceptions to Stafford’s account, and restated and settled the account, embracing therein the items or most of them, contained in the Michigan accounts, and thus formed an indebtedness against the executor of $22,526.12. Prom this judgment Stafford appealed to the Court of Common Pleas of Lucas County, in which court he interposed the same motion to strike from the files the exceptions of the Protestant Orphans’ Home, with this additional paragraph, viz.: “That by reason of the facts hereinbefore set forth this court has no jurisdiction tp hear and determine the several matters contained in said alleged account nor any of the same, except those herein above specifically set forth.” This motion was sustained so far as the exceptions related to that portion of the estate situated in the state of Michigan, -and which had been accounted for in the courts of that state, and the exceptions -were all overruled save as to one item. The Protestant Orphans’ Home thereupon took a bill of exceptions. Later, an order was entered., on motion of the American Missionary Society, and the American Board of Commissioners for Foreign Missions, and the Washington Street Congregational Church of Toledo, legatees under the will, by which they became parties (the causo having thus far been prosecuted, as the court found, in the name of the Protestant Orphans’ Home as one of the class, and for the benefit of all the legatees under the will), with full right to contest all issues still undetermined in this action, and with full right to institute proceedings in error founded on the bill of exceptions hereinbefore' signed and filed March 12, 1900, and to do any act in relation thereto which either could have done bad such bill been taken, signed and filed by ’these' parties respectively. Thereupon, on further hearing, the exceptions of the Orphans’ Home were overruled except 'as to one item of $355, which was found well taken. Judgment accordingly was entered, to which the exceptors excepted, and carried the'cause to the Circuit Court of Lucas County, where, at the January Term, 1901, of said court, the judgment of the court of common pleas was in all. respects affirmed. -The Orphans’ Home, the Missionary Association, the Board of Commissioners for Foreign Missions, and-the Congregational Church bring this error, proceeding to obtain a reversal of the judgments of the circuit' and common pleas courts,. and an affirmance of that of the probate court.</p> <p>1. The laws providing for the administration of-estates primarily affect, reach and deal only with personal property; and neither an administrator nor an executor is, by virtue of his office, entitled to the possession or control of the real estate of a decedent, unless it be necessary for the payment of debts to sequester th# rents, issues and profits arising therefrom, ox sell the corpus thereof.</p> <p>(а) At .common law. Woerner Am. Law Adm., Sec. 355; 2 Am. & Eng. Enc. Law (2d Ed.), 741, 830; Crosswell on Exis. & Admrs., 280; Williams on Exrs., 710, et seq.</p> <p>(б) Under the statutes and decisions of the state of Ohio. Section 6136, Rev. Stat.; Overturf, Admr., v. Dugan, 29 Ohio St., 230; Piatt v. St. Claw's Heirs, 6 Ohio, 227; Sec. 6146, Rev. Stat.</p> <p>(c) Under the statutes and decisions of the state of Michigan. Section 5875, How. Ann. Stat.; Streeter v. Patón, 7 Mich., 341; Campan v. Campan, 19 Mich., 124; Holbrodh v. Campan,, 22 Mich., 288; Ruff v. Womer, 76 Mich., 375.</p> <p>II. Hence it follows as a logical conclusion that any right to the real estate of the decedent which Mr. Stafford or Mr. Crawford may have, or to the rents, issues and profits thereof, was acquired!, not by virtue of 'any office or appointment as executors, but solely from the will of the decedent; and this is the general rule of law. Judson v. Gibbons, 5 Wend., 224; Newton v. Bronson, 13 N. Y., 587; Lessee of Lewis v. McFarland, 9 Cranch, 151: Wills v. Coiuper, 2 Ohio, 124,</p> <p>■III. A devise of lauds is considered not as in the nature of a testament, but as a conveyance by the testator; and the devisee takes his title directly from the testator, not through the medium of the personal representative; and the title vests in him instanfer upon the death of the testator.</p> <p>(a) A devise is a conveyance. 2 Cooley’s Bl., 378; 4 Kent’s Com., 510; 13 Am. & Eng. Enc. Law, (1st Ed.), 9, and cases there cited; Williams on Exrs., 6; Gonldinsr. Bgerlon, 21 Wend., 430.</p> <p>(&) Title vests in devisee at once upon death of testator. Richards v. Pierce, 44 Mich., 444; Van Vleet v. Blaclcwood, 39 Mich., 728; Rood v. PLovey, 50 Mich., 395; Hall v. Ashby, 9 Ohio, 96; Jones v. Robinson, 17 Ohio St., 171; 2 Cooley’s Bl., 201, 243; 13 Am. & Eng. Enc. Law (1st Ed.), 350; Woerner Am. Law Adm., Sec. 185.</p> <p>IY. The requiring of the probate of the will, or the recording of a certified copy of such will and its probate, in case of a will made in another state, is simply to 'put on record proper and sufficient evidence of the devisee’s title. Ca/rpenter v. Denoon, 29 Ohio St., 379; Richards v. Pierce, 44 Mich., 444.</p> <p>lienee we hold that—</p> <p>Y. When, at the probate of the will in Lucas county, Ohio, Crawford and Stafford accepted the devised property with the trusts thereon imposed, this real property vested in them as a conveyance direct from the testator. It' never became assets in their hands as executors, nor had they, as execidors (there being no debts), any right to any part thereof. But this property then vested in them as devisees charged with the execution of the trusts named by the devisor. The fact that the same men are also named as executors in no way operates to lessen or impair the fee simple estate which they took under the will directly from the testator as a devise .in trust. Nor does this fact serve to change or modify in the least the propositions and conclusions heretofore reached.</p> <p>It has been distinctly held by this Supreme Court of Ohio that a trust separate and apart from the executorship is vested in the persons named as executors, when- — ■</p> <p>(a) There is a devise of real property direct to them, as in this ease.’</p> <p>(b) When from the assets of the estate they are directed to set' off certain sums, or property, or a residue.</p> <p>In the first case the property Tests directly in them as trustees. In the second case it vests in them as executors, and remains in their hands as executors till it is set apart to themselves as trustees and some definite act is-done to change the character of the holding. This position is clearly pointed out in Gandálfo v. Walker, 15 Ohio St., 251.</p> <p>1. There is -a devise ox bequest to the 'executor in trust, or where</p> <p>2. Part of the assets are specifically set apart, and directed to be invested as a trust fund. In the 'former case the executor receives them at once as trustee, and they never become assets.</p> <p>The reasoning of this ease and the analysis therein made are (as to real property) so universally recognized as the law on the subject that scarcely a case will be found that does not conform thereto. And where land is devised in fee to the person named as executor he is held to take it as trustee directly from the devisor and not through himself as executor.</p> <p>1. In Ohio. 'Gilpin v. Williams, 17 Ohio St., 397; Mathews, Admr., v. Meek, 23 Ohio St., 272;.Veazie v. McGugin, 40 Ohio St., 305; Foster, Admr., v. Wise, Admr., 46 Ohio St., 20; Bailway Go. v. Schmidt, Admr., 4 Circ. Dec., 535; 8 C. C. K., 355; Wills v. Gowper, 2 Ohio, 124; In re Estate of Gallagher, 7 Dec., 548; 5 N. P., 518. '</p> <p>. 2. The Michigan decisions on this point are to the same effect as those in Ohio. Gramon v. Wilsey, 71 Mich., 356’; Wooden v. Kerr, 91 Mich., 188; In re Sanborn’s Esl., 109 Mich., 191.</p> <p>Further: In-Michigan, by express provisions of -the statutes, such a conveyance of lands to be sold to pay legacies or other charges is held to be 'an express trust and to vest the 'entire estate in the trustée for the' purposes of the trust. Howard Ann. Shat., Sec. 5533.</p> <p>Express trusts may be created for ’any or either of the follow-ihg purposes: (.1) To sell lands for the benefit of creditors. (2) To sell, mortgage or lease lands for the benefit of legatees, or -for the purpose of satisfying any charge thereon. And other purposes.</p> <p>3. In other jurisdictions. Dix v. Burford, 19 T3ev., 409; Newton v. Bronson, 13 N. Y., 587; Judson v. Gibbons,.5 Wend., 224; Green v. Alelen, 42 Atl. Rep.) 358; Gonhlin v. Fg'erton, 21 Wend.. 4-30; Lessee of Lewis v. McFarland, 9 Cranch, 151; Wheatley v. Badger, 7 Pa. St., 459; Simpson v. Cdolc, 24 Minn., 187.</p> <p>The provisions of Section 5981, Ohio Statutes, requiring a testamentary trustee to execute bond under certain circumstances, have no application to the case at bar, because the testator requested that no bond be required.</p> <p>Because their not giving bond, even had it been required, would not' have prevented the vesting of the devise in them as trustees, nor have relieved them from any obligation to account for trust property. Mitchell v. Albright, 10 Re., 301; 20 Bull., 101; Martin v. Falconer, 10 Re., 771; 23 Bull., 333.</p> <p>VI. Rights thus vested could not be divested by any action of the Probate Court of Huron County, Michigan, which is a court whose jurisdiction is limited to strictly probate matters, having, over such a trust as this, no jurisdiction whatever, and powerless by any decree or order it could make to settle any accounts as to this trust property. Bescancon v. Brownson, 39 Mich., 388.</p> <p>(a) The jurisdiction of the Probate Court of Huron County, Michigan, may be inquired into here, and, if that court was without jurisdiction over the subject matter of this trust, any decree or order it may have made with reference thereto is void and of no force to bind this court. Pennywit v. Foote, 27 Ohio St., 600; Spier v. Corll, 33 Ohio St., 236; Scóbey v. Gano, 35 Ohio St., 550; Gross v. Armstrong, 44 Ohio St., 613.'</p> <p>(b) Courts of probate are limited as to jurisdiction to strictly probate matters, and are without authority over trusts and their execution unless such power is expressly given them by statute.</p> <p>The original jurisdiction over the personal property of a decedent was in the fecclesiastical court. But in this country, and in England since 1857, this jurisdiction has been vested in special courts variously called courts of probate, surrogates’ courts, orphans or county courts. 19 Am. & Eng. Enc. Law, (1st Ed.), 162; Perry on Trusts, Sec. 182.</p> <p>But the entire subject of trusts 'and their enforcement has always been and now is exclusively under the control of courts having equity.jurisdiction and power. Pomeroy’s Equity Jurisprudence, Sec. 1128; 27 Am. & Eng. Enc. of Law, (1st Ed.), 271; Gonlclin v. Fgerion, 21 Wend., 430.</p> <p>• The jurisdiction of the probate court of Michigan has not been enlarged by statute to include any jurisdiction over trusts, but.on the contrary, the exclusive jurisdiction of chancery in such matters has been repeatedly affirmed, both by statute and decisions. Hodman v. Nathan, 45 Mich., 607; Weaver v. Van Akin, 77 Mich., 588; Ledyard’s Appeal, 51 Mich., 625; Wooden v. Kerr, 91 Mich., 188; McBride v. McIntyre, 91 Mich., 408; nor could the probate court of Michigan by any grant of letters of special administration obtain any authority over this trust property.</p> <p>At common law the power of a special administrator, pendente lite, were strictly limited to the collection of assets. Woerner’s Am. Law Adm., 401; 11 Am. & Eng. Enc. Law, (2d Ed.), 1339.</p> <p>VII. Upon the probate of the will here, the Probate Court of Lucas County, Ohio, acquired jurisdiction over this trust and its execution, and over these trustees. That jurisdiction then acquired has not in any way been divested and is exclusive. Sections 6328 and 6330.</p> <p>In their reply brief counsel for plaintiffs in error cited and commented upon the following additional authorities:</p> <p>Tainter v. Clark, 13 Mete., 220; Dunning -v. .Bank, 61 N, Y., 497; Creamer v. Holbrook, 99 Ala., 52; Marx v. McGlynn, 88 N. Y., 357; Donovan v. Van DeMarlc, 78 N. Y., 244; Tobias v. Ketchum, 32 N. Y., 319; Hubbard v. Housley, 59 N. Y. S., 392; Iloddon v. Hemingway, 39 Mich., 615; Morse v. Morse, 85 N. Y., 53.</p> <p>I. William R. Stafford, by virtue of his appointment as executor of the estate of Mabel Crawford, deceased, by the Probate Court of Lucas County, Ohio, had no 'authority to administer that portion of said estate, personal .or real, that was situate in the state of Michigan. Vaughan v. Northup, 15 Pet., 5; Story on Conflict of Laws, 876, 877, 878.</p> <p>This is the uniform doctrine of the courts, -both state and federal. Stacy v. Thrasher, 6 How., 44; Aspden v. Nixon, 4 How., 467; McLean v. Meek, 18 How., 16; Porter v. Hey dock, 6 Ver., 374; Parsons v, Lyman, 20 N. Y., 103; Grant v. Reese, 94 N. C., 720; Plummer v. Bmnclon, 5 Ired. Eq., 190; Dent’s Appeal, 22 Pa. St., 514.</p> <p>•This is the rule both in Ohio and Michigan. Wills v. Cowper, 2 Ohio, 124; Reynolds v. McMullen, 55 Mich., 568; Mclntire v. Conrad, 93 Mich., 526.</p> <p>Where there are two administrators of an estafe, one of the domicile of the deceased, and'-one in another state, the latter, or ancillary administration, as it is.called, is not subservient or dependent upon the administration of the domicile, but is entirely separate, distinct -and independent. Assurance Society v. Vogel’s Bxr., 76 Ala., 441; Hencterspn, Admr., v. Clarice, 4 Littell, 277 ;■ Burbmlc v. Payne, 17 La. Ann., 15; Banin v. Moore, 15 N. J. Ch., 97; Storj- on Conflict -of Laws, 893, Sec. 521; 1 Woerner Am. Law Adm., 720.</p> <p>Where the same person is -ajojiointed executor or administrator, for the same estate, both in the state of the domicile of the deceased, and in another state where there are assets of the estate, he nevertheless acts in different capacities and in law is regarded as two different persons; Emery v. Batcheldor, 132 Mass., 452; Grave-ley v. Graveley, 25 S. C., 1; Parle’s Appeal, 61 Pa. St., 478.</p> <p>This separate and distinct character of the domiciliary and ancillary administration, is so complete, that a judgment rendered against the one, within the jurisdiction of his appointment, is not even prima facie evidence of a claim.as against the other, within the jurisdiction of his appointment. Story on Conflict of Laws, 894, Sec. 5.22; 1 Woerner Am. Law. Adm., 260, Sec. 158.</p> <p>From the foregoing cases we conclude that the appointment of Mr. Stafford in Michigan, as special administrator, and executor, was, on general principles, both proper and necessary.</p> <p>II. Under the statutes .of the .state of Michigan, the will of Mabel Crawford, deceased, did not vest in Stafford the title to either the personal or real property of said estate, situate in Michigan-, until the will was duly probated or allowed in that state.</p> <p>■Whatever may be the law of Ohio, or the general rule of law in the United States, ’as to the rights of Stafford un.ler -the will of Mabel Crawford, whether as executor or as trustee, the fact remains, that almost all of this estate was. situate in the state of Michigan, ‘and consisted mostly of real estate. Therefore, if the statutes or decisions of Michigan, have proscribed the rule of law in such cases, that rule must control</p> <p>¡Wo call attention to Section 5804 oi FT. > wolds Revised Statutes of Michigan. This being the statute law in Michigan on this subject, it was not only proper, but necessary, that Mr. Stafford should cause this will to be allowed and recorded in Huron county, Michigan, where the Tjullc of this estate was situated.</p> <p>We have the same statutory provisions in Ohiv;, .Section 594-2, Revised Statutes.</p> <p>This is the exact language of Section 33 of the act relating to wills found in 1 Curwen’s Statutes, 689; Vining v.- Bricker, 14 Ohio St., 331.</p> <p>III. Upon the allowance of the will of Mabel Crawford in Huron county, Michigan, which was necessary, as we have seen, in order to pass title thereunder, it became mandatory under the statutes of Michigan, upon the Probate Court of said Huron County, to grant letters testamentary, or letters .with the will' annexed.</p> <p>All the sections relating to the allowance of foreign wills in Michigan, are Sections 5805, 5806, 5807 and 5808, Howell’s Statutes.</p> <p>In some states, the granting, or not granting, of ancillary administration, depends upon the existence, or non-existence of debt's due in such state. Under the sections -above quoted, the only question is: Did the testator have real and personal property in said Huron county, on which the will of Mabel Crawford operated?</p> <p>IV. Under the statutes of Michigan, it was necessary that Mr. Stafford, or some one else, should be appointed special administrator for the care and preservation of the Michigan assets, during the contest of the will of Mabel Crawford in' Ohio, which lasted from June, 1891, t'o January, 1893.</p> <p>V. The Probate Court of Huron County, Michigan, having jurisdiction of this ancillary administration, had authority to require an accounting from Stafford, its appointee. In fact it was its duty to- require such an accounting, and consequently, it had full jurisdiction to pass upon all 'accounts filed in pursuance there-•of, and to allow or disallow the same.</p> <p>Nor would it make any difference in this regard, that such appointee is what is designated as an 'ancillary administrator or executor.</p> <p>There is a good deal more imagination than substance in the difference between a domiciliary and an ancillary administrator. TIarvey v. Richards, 1 Mass., 381. Applying this doctrine to the case at bar, the Michigan administration would be the principal administration.</p> <p>The authorities are abundant that the auxiliary administrator or executor must account to the tribunal from which he obtained his appointment. Stray on Conflict of Laws, 876, See. 513; Vaughan v. Norlhup, 15 Pet., 1; Parsons v. Lyman, 20 N. Y., 103; Campbell v. Sheldon, 13 Pick., 8.</p> <p>While this exact poinb' has not been decided in Ohio, it is embraced within the decision of the court in Williams’ Admrs., v. Wellon’s Admr., 28 Ohio St., 451; Diclcinson v. Leaver, 44 Mich., 624; Sections 5835, 5854 and 5,957, Howells Statutes.</p> <p>YI. It follows, therefore, from this jurisdiction to require an accounting, th'at when exercised, and when such account's had been adjudicated, in the proper courts in Michigan, under Section 1, Article IY, of the Constitution of the United States, full faith and credit should be given to such adjudication by the courts of Ohio, and that the same would be conclusive as to all matters therein involved.</p> <p>YII. If the testator intended to create a separate and distinct office of trustee, nevertheless, under the will of Mabel Crawford, deceased, it was necessary that the executor should first qualify, reduce the estate to money, account to the proper court for the proper administration' of his trust as executor, and then pay over to the trustee, dll sums of money which were the subjects of the several trusts provided for in the will.</p> <p>• Most authorities hold the doctrine that when real and personal property Is devised to an executor in trust, with power to sell the same, and to pay over or invest the proceeds as trust funds, the person named in the will as trustee can not' take such property, although the s'ame person be named both as executor and trustee, until such will is probated, letters of administration taken out, said property converted into money, and such executor has fully discharged his duties as executor, and not then until such fund has been distinctly set apart as trust property. Woerner’s Am. Law Adm., 391, Sec. 177; Newcomb, -Judge, v. Williams, 9 Mete., 525; In re Higgins Esiaie, 15 Mont., 474; Crocker V. Dillon,.133 Mass., 91; While v. Ditson, 140 Mass., 351; Esiaie of Hood, 98 N. Y., 363; Wall v. Bissell, 125 U. S., 382; Everson- Vi Pitney, 40 N. J. Eq., 539; Hood v. Hood, 85 N. Y., 561; Williams v. Cushing, 34 Md, 371; In re Sanborn Esiaie, 109 Mich.,'191.</p> <p>YIÍI. That 'under the will of Mabel Crawford', deceased, as construed by the rules laid down by the Supreme Court of Ohio, said Stafford took title to both the real and personal property of Said’estate as “executor” and not "as “trustee,”' and the trusts ere-atecl by the will attached to his office of executor and were not separate a-nd distinct therefrom. Gandolfo v. Walker, 15 Ohio St.. 251; Mathews, Admr., v. Meek, 23 Ohio St., 272.</p> <p>Every state, has the exclusive right t'o regulate the transfer of all property, both real and personal, within its limits, either by last will or inter vivos, and such transfer must be made in accordance with the laws of the state where it' is situated. Wharton’s Conflict of Laws, Par. 571, 573; Smith v. Bank, 5 Pet., 518; Green v. Van Buskirk, 5 Wall., 307; Green v. Van Buskirk, 7 Wall., 139; Investment Go. v. Caldwell, 152 TJ. S., 6G; Be Vaughn v. Hutchinson, 165 TJ. S., 566; Heydock’s Appeal, 7 N. H., 496; Mahorner v. Hooe, 9 Smed & Mar., 247.</p> <p>The probate of the will in Ohio would not give the executors any authority to act' in Michigan, or take charge of and sell or in any manner intermeddle with the property of the estate situated in Michigan; but in order to authorize them to settle up the estate in Michigan the will must be probated there and letters testamentary issued to the executors, and the estate settled under the probate laws of Michigan. Howell’s Sfat., Secs. 5801, 5804-OS, 5834-35, 5837-38; Dickinson v. Seaver, 44 Mich., 624; Gib--son v. Van Syckle, 47 Mich., 439; Mower’s Appeal, 48 Mich., 441; Reyndlds v. McMidlen, 55 Mich., 56S; Melntire v. Conrad, '93 Mich., 526; Kerr v. Moon, 9_ Wheat., 565; McCormick v. Sulli-vant, 10 Wheat., 192; Armstrong v. Lear, 12 Wheat., 169; Cabanne v. Skinker, 56 Mo., 357.</p> <p>While the will devises this property to the executors in trust, to carry out the provisions of the mil, and directs them To sell the lands and distribute the proceeds among the legatees, thus converting the lands into personalty, still the trust imposed by the will devolves upon the executors in their official capacity as such, and they can not take possession of this property and dispose of it as trustees under the will without the probate-of the will and the issuing of letters testamentary, and until the will has been probated and letters testamentary have been issued, ’as required by the law's of the state of Michigan, -where the property is situated, they have no authority whatever over the property. Howell’s Stat., Secs. 5801, 5804-5808, 5834-35, 5837-38, 5869; In re Sanborn Estate, 109 Mich., 191; Woerner’s Am. Law' Adm., Sec. 186; Wharton’s Conflict of Laws, Sec. 604; Melntire v. Conrad, 93 Mich., 526; Wall v. Bissel, 125 TJ. S., 382; Colt v. Colt, 111 H. S., 566; McArthur v. Scolt, 5 0. F. I)., 357; 113 IT. S., 34-0; Newcomb v. Williams, 9 Mote., 525; Drury v. Inhabitants of- NcmiicTc, 10 Allen, 1G9; Crocker v. Dillon, 133 Mass., 91; In re Iliggins Estate, 39 Pac. Rep., 506; Bellinger v. Thompson, 37 Pac. Rep., 714; SLagg v. Jackson, 1 N. Y., 206; Hood v. Hood, 85 N. Y., 561; Matter of Hood, 98 N. Y., 363; Everson v. Pitney, 40 N. J. Eq., 539.</p> <p>The laws of Michigan require the executors and administrators to account to the probate court' of tire county in which they are appointed, and as each state has exclusive authority over the disposition of all the property within its limits, it' follows that an executor or administrator appointed in one state is exclusively bound to account for all the assets which he receives under and in virtue of his administration, to the proper tribunal of the state from which he derives his authority, and the tribunals of other states have no right to interfere with or to control the application of those asset's according, to the laws of the situs. Howell’s Stat., Secs. 5813, 5957-59, 5962, 6809-GS11; Normand v. Gvognard, 17 N. J. Eq., 425; Duffy v. Smith, 1 Dem., 202; Ilolcdmb v. Phelps, 16 Conn., 127; Jenmsonr. Hapgood, 10 Peck., 77; Morrill v. Mor-rill, 1 Allen, 132; Clark v. Blackington, 110 Mass., 369.</p> <p>The account of the executor or administrator, whether partial or final, when allowed by the probate court or the circuit court or Supreme Court on appeal, is, under the laws of Michigan, a final adjudication of all the items contained therein, and is not subject to review either in a subsequent accounting or a collateral proceeding. Hall v. Grovier, 25 Mich., 428.</p> <p>The settlement of the accounts of William R. Stafford as special administrator and executor of the Mabel Crawford estate, situate in Michigan, made by the Probate and Circuit Courts of Huron County, Michigan, 'and affirmed by the Supreme Court of Michigan, being under the laws of Michigan a final adjudication of such accounts, the courts of Ohio are concluded by such decisions, and are bound to give them full force and effect as to such accounts. Const, of H. S., Art. IV, See. 1.</p> <p>After the estate is fully settled in Michigan, the court may, in its discretion, distribute the balance among the persons entitled to it under the will, or it may remit the balance t'o the Probate Court of Lucas County, Ohio, for final distribution. How. Stat., Sec. 5808; Woorncr’s Law Adm., 67; Dickinson v. Searner, 44 Mich., 624; Ilarvey v. Richards, 1 Mass., 381; Welch v. Adams, 152 Mass., 74; Fretweü v. McLemore, 52 Ala., 124; Carr v. Lowe, 7 Heisk., 84; .Re Hughes, 95 N. T., 55.</p>

The plaintiff below, plaintiff in error here, is a practicing physician located at the village of Delphos, Ohio. The defendants below, defendants in error here, were members of the board of health of that village.

<p>Error to the Circuit' Court of Hamilton County.</p> <p>The plaintiff in error, the Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Co., is the owner of an interurban electric street railroad, .extending from Cincinnati to Lawrenceburg and Aurora, with a branch extending from Cleves to Harrison. The road is constructed with heavy rails laid on cross ties, and equipped with large coaches with seats on each side of the aisle, two compartments, one smoker, a vestibule at each end, with steps leading to the ground, and propelled in the ordinary manner by electricity.</p> <p>On July 4, 1900, William Loire was received as a passenger at Cleves to be carried to Harrison, paid his fare and took a position on the rear platform or vestibule where he remained smoking a cigar until the car became derailed and fell on its side, and he was killed.</p> <p>It was a rule of the company that passengers were not allowed on the platform, and a notice was posted on the platform where lie stood: “Passengers not allowed on the platform.” His attention was called to this notice by the conductor, and he .was ordered to go into the car, as there were empty seats there for his accommodation.- He refused, and said that he did not care about going in as he was smoking a cigar. Shortly thereafter the assistant conductor requested him to step inside the car, but he remained on the platform until the car became derailed in going around a curve and he was killed. Those in the car were not injured, except one man whose leg was slightly injured.</p> <p>The -petition of the plaintiff below avers, that in consideration of the fare so paid, the railroad company undertook to safely carry the deceased as a passenger-from Cleves to Harrison, and that by the negligence of the company, the ear was thrown from the track, and without- any fault on his part, he was thereby killed.</p> <p>The railroad company answered, and denied all negligence on its part, and denied that his death was caused without any fault on his part.</p> <p>Upon a trial before the court and a jury, a Verdict was returned in favor of the administrator, and against the company. A motion for a new trial was overruled, and judgment entered on the verdict, to 'all of which proper exceptions were saved. The circuit court affirmed the judgment; and thereupon a petition in error was filed here by the railroad company, seeking to reverse the judgments of the lower courts. The errors complained of arise upon the charge as given, and upon refusal to charge as requested, and these will be noted in the opinion.</p> <p>Apart from the contract of carriage no obligation rested upon the company to exercise the highest degree of care to the end that he might be carried safely to his destination. Yet by the action of the court below all the obligations of the contract were enforced against the company, while the intestate was excused for the violation of the very provision which would have prevented the injury.</p> <p>In order to avail himself of his rights as a passenger it was his duty to go into the place provided for the carriage of passengers, which the platform was not. The same claim could be made if he had been injured while riding on top or beneath the ear that is now made, viz.: That he was not' bound to anticipate an injury from derailment, and that his riding in such a position would have no tendency to cause the ear to become derailed.</p> <p>The question is, what was the nature of the duty the company owed to Lohe while he was in the 'act of’violating a reasonable regulation ?</p> <p>We contend that by reason of such violation he ceased to be entitled to the protection due a passenger, and was only entitled to the exercise of that’ degree of care which would protect him against willful or reckless injuries. Thane v. Scranton Trac. Co., 191 Pa. St., 249 (43 Atl. Rep., 136); Bard v. Penna. Tmc. Co., 176 Pa. St., 97; Niebtircr v. Detroit Blec. By. Co., 87 Y. W. Rep., 626; Booth on St. Railways, par. 339; 3 Thompson on Reg. (2d Ed.), par. 2956; Kellis Surface St. Railroads, 473.</p> <p>The general rule with reference to steam railroad cars is that if a passenger elects to ride upon the platform without any necessity, real or apparent,- for taking that position, and-while so riding is injured under such circumstances that he would not have been injured if he had not taken that position, he -cannot recover damages from the railroad company; further, that when such an exposed position is taken in violation of a known regulation of th< company the contributory negligence of the passenger is more clear It is negligence per se. And this rule has been applied universally without reference to the negligence of the carrier. Thompson oi Neg. (5th Ed.), par. 2671; Railway Co. v. Miles, 40 Ark., 298 Jleazel v. Railway Go., 76 Ill., 501; Railway Go. v. Moneyhun 146 Ind., 147; Blake v. Railway Go., 78 la., 57; Railway Go. v Thomas, Admr., 79 I\y., 160; Wills, Admr., v. Railway Go\, 12! Mass., 351; Hickey v. Railway Go., 96 Mass., 429; Palmer v. Penn sylvania Go., Ill N. Y., 488; Mitchell v. Railway Go., 87 Cal. 72; 11 L. R. A.; 130, note.</p> <p>With reference to standing on the platform of the ordinary stree railroad car the general rule is as follows: Standing or riding oj the platform of a street car, when there is room inside, is no negligence per se, hut is a question for the jury under prope instructions of the court. Upham v. Railway Go., 85 Mich., 12 Nolan v. Railway Go., 87 H. Y., 63; Cincinnati Omnibus Go. \ Kuhnell, 9 Re., 197; 11 W. L. B., 189; Booth on St. Railway par. 339; Upham v. Railway Co., 12 L. R. A., 129, note.</p> <p>The street railroad company, plaintiff in error, in asking th reversal of the judgments below, plants itself upon a single propi sition:</p> <p>That it has a legal right negligently to kill a passenger ridin on the rear platform of its car, provided he has been ordered to g inside.</p> <p>The proposition is, that if I am standing on the platform c a street car after I have been directed to go inside, the compan may negligently poke me in the back with a pole and break m spine, that this may be done with impunity, that no legal wron is done me.' The proposition not only shocks one’s common sens but is one at which the moral sense of a boa constrictor wou] revolt.</p> <p>That a negligent plaintiff may recover of a negligent defendan is a rule of law well settled on both sides of the Atlantic an nowhere better settled than in Ohio. In such cases the question i whose negligence is the proximate cause of the accident, the plaintiff’s or the defendant’s? The proximate cause of the accident in this case was the company’s negligently taking its ear off the track and turning it upside down. . If the company had kept its car on the track, where it had contracted with the passenger to keep it, where William Lohe, as a reasonable and prudent man had a right to expect it would be kept, he would 'have ridden to his destination in perfect safety. His standing where he did. did not cause the car to go off the trade. What happened was not the natural or probable consequence of his position on the platform.</p> <p>This court, so recently as March 5, 1895, ruled distinctly to the contrary of the street railroad company’s proposition in the case of Schwartz, wherein it affirmed without report (33 Bull., 131) the judgment of the circuit court in the case of Schwartz, Acl'mr., v. The Cincinnati Street By. Co., 4 Circ. Dec., 272; 8 C. C. R., 484.</p> <p>The circuit court' decided the same'proposition in Vail v. The Ciu-cinnaii By. Go., 7 Cir. Dec., 28; 13 C. C. R., 494; Street By. Co, v. Buodrou, 2 Am. & Eng. R. R. C'a., 30; Schwartz v. Bailway Co., 4 Circ. Dec., 272; 8 C. C. R., 484. The case of 13th and 15 th Streets Passenger By. v. Boudru, 92 Pa. St., 475, decided A. D. 1880, is a case directly in point. The court-cited and followed the leading English case of Greenland v. Chaplain, 5 Ex.; 2 Shear. & Red. on TSTeg. (7th Ed'.), See. 523, p. 973; Bailroad Co. v. Ball, 53 1ST. J. L., 283; Watson v. Bailway Go., 55 1ST. J. L., 125; Will-mott v. Street By., 106 Mo., 535 (1891); Seymour v. St. By. Go., 114 Mo., 266 (1892); Whalen v. Traction Co'., 61 1ST. J. L., 606; Keith v. Pinkham, 43 Me.> 501; Vail v. Bailroad Co., 147 1ST. Y., 377; Holán v. Bailroad Co., 87 1ST. Y., 63; Graham v. Manhattan B. B. Co., 149 1ST. Y., 336; Thompson on Reg. (3d Ed.), Sec'. 2954; Nellis on Surface Railroads, Sec. 271.</p> <p>A very full discussion of the subject of contributory negligence is to be found in the work of Beach on Contributory Negligence (3d Ed.), Sec. 292.</p> <p>But in view of the obligations of a common carrier of passengers, 'as established and enforced by this court in Bailroad Go. x. Kassen, 49 Ohio St'., 230, decided as late as 1892, the position of the street railroad company is without any foundation whatever. The ívassen case was followed and approved by this court in Krause v. Morgan, 53 Ohio St., 26, and, also, in SchweinfuHh, Admr.j v. Railway Go., 60 Ohio St., 215, and by the United States Circuit Court of Appeals for this circuit in Railroad Go. v. TidUn-Ikál, 10 O. F. D., 348; 88 Fed. Rep., 116. Thompson on Carriers of Passengers, p. 544, Sec. 2; Abbott’s FT. Y. Dig., under title. of Carriers of Passengers; Bigelow on Torts (1th Ed.), Sec. 781; Greenland v. Chaplain, 5 Ex.; Sweetland v. Railroad Go., 117 Mass., 574.</p>

<p>Homestead Exemptions in Attachment and Garnishment — Proceedings in Garnishment before Justice of Peace — Sections 6489 and 6498, Revised Statutes — Property Exempt from Levy — Section 5441, Revised Statutes — Failure to Claim Exemption Luring Attachment, not Waiver, When — Exemption Applicable Before Appropriation tinder Attachment.</p> <p>1. In a proceeding in attachment and garnishment under Sections 6489 and 6498, Revised Statutes, where property of the defendant in the hands of a garnishee is at the time of the service of process upon such garnishee, subject to exemption by said defendant, under Section 5441, Revised Statutes, in lieu of a homestead, mere failure of the defendant to assert such right in the attachment suit by a motion or application to discharge the attachment, or for a release of the property on the ground that the same is so exempt, does not of itself amount to and constitute an abandonment or waiver by said defendant of his right to claim and have such exemption.</p> <p>2. If in such action no such motion or application is made by defendant, and the decision of the justice is in no way invoked by him upon the question of his (defendant’s) right to demand and hold said property exempt, the judgment of the justice upon the final hearing of said cause “sustaining said attachment and ordering the garnishee to pay the money in his hands into court, will not conclude or estop the defendant from thereafter asserting his right to have and hold said money exempt; but he may, notwithstanding said judgment and order, demand such exemption, and upon demand made at any time before the actual appropriation of the same to the payment of the plaintiff’s claim, he is entitled to have said money set off and allowe'd to him as exempt.</p>

<p>Escape of Oil from Tank — Flows on to Adjoining Property and Igniting, Burns Building — Action Toy Property Solder Against Lessor and Lessees — Lessees Charged with Negligence — Error to Withdraw Certain Matter from the Jury — Question of Negligence in- Pleading —Lessor Not Liadle for Negligence of Lessee, When — Refusal to ■ Charge Jury Reversible Error, When — Contracts—Pleading—Jury.</p> <p>1. In. an action against the lessor and lessees in an oil and gas lease to recover for the burning of plaintiff’s building on a lot adjoining the leased premises, through the alleged negligence of the lessees, whereby oil escaped from a tank on the latter, and flowed under the building and thence down the slope of the hill to a creek where it came into contact with a fire which followed back the trail of oil and burned said building, and the plaintiff’s petition on which issue is joined, alleges that such escape of oil resulted from the negligent acts and omissions of duty on the part of lessees, in not safely keeping and caring for the oil, it is error for the court to withdraw from the jury all consideration of the issues joined on the allegations of negligence, and limit its inquiry to the questions:</p> <p>“First — Is crude oil stored in tanks a highly explosive and dangerous substance and a constant menace to property in its vicinity?</p> <p>“Second — Did the defendants, or either of them, store crude oil in tanks on Mrs. Scott’s property adjoining plaintiff’s property, and if so, was the storage of such oil there the proximate cause of burning plaintiff’s property?”</p> <p>On the contrary, the case should have been submitted to the jury on the questions of negligence put in issue by the pleadings.</p> <p>2. In the trial of such action, where it appears from the evidence, that the lessor leased the lot for the purpose of producing oil or gas therefrom, reserving to herself one-eighth of the oil produced and delivered in tank, or the pipe lines, but reserving no control or right to direct the manner of drilling, or of the erection of tanks on the leased premises, hut who surrendered complete possession and control thereof to the lessees during the term of lease, such lessor is not liable to the owner of property to which oil escapes to its injury, solely through the negligence and omission of duty on the part of the lessees; and refusing to so charge when requested by the lessor, is reversible error.</p>

The defendant in error, as beneficiary, brought suit in the court of common pleas against the company upon 'a policy of insurance against accident to recover on account of the death of George S. Dornej', alleged to have resulted from accident.

On the twelfth day of September, 1894, William Hutchings, living in Cujrahoga county, died leaving a will of which the following is a copy: “I William Hutchins of Chagrin Falls County of Cuyahoga State of Ohio being in health and of sound mind do make, publish and declare this my last will and testament. “My will is my hereinafter named executor shall pay my just debts arising from reasonable steps taken in connection with funeral expenses Doctors Bills etc. etc. “I give and…

<p>Error to the Circuit Court of Crawford county.</p>

<p>Error to the Circuit Court of Huron county.</p>

<p>Error to the Circuit Court of Mahoning county.</p>

<p>Error to the Circuit Court of Lucas county.</p>

<p>Error to the Circuit Court of Darke county.</p>

<p>Error to tlie Circuit Court of Hancock county.</p>