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German Mutual Ins. Co. v. Lushey.
The plaintiff further avers that on or about February 1, 1898, the said George Lushey made a conveyance of certain real estate to Harry W. Lushey, one of the defendants herein, including the real estate described in the petition, and that the said Harry W. Lushey is now the owner of the same, subject to the lien of plaintiff.
Plaintiff prays for a judgment in the sum of $10,000, with interest on the same from March 30, 1897, and order of sale, and for all proper equitable relief.
To this petition Harry W. Lushey, one of the defendants, has filed a separate answer, in which he admits that the property described in the petition of the plaintiff was conveyed to him on or about February 1, 1898, and he denies each and every other allegation.
And for further answer the defendant, Harry W. Lushey, avers that on or about the day June of 1878, Caroline Lushey, the mother of this answering defendant, parted this life seized in fee simple of the premises described in the petition of plaintiff, leaving this defendant, Harry W. Lushey, and his brother, George G. Lushey, as her only children and sole heirs at law, and also leaving the defendant, George Lushey, as her husband surviving her.
This answering defendant, Harry W. Lushey, further says, that before his birth, and after the birth of his said brother, George G. Lushey, to-wit, on June 11, 1872, the said Caroline Lushey made and executed her last will and testament, whereby she devised said real estate described in the petition to her said husband, George Lushey, one of the defendants herein.
He further avers that he was not provided for in said will, and that by reason thereof this defendant, Harry W. Lushey, is the owner of an undivided one-half in and to said premises described in the petition of the said plaintiff.
Wherefore this defendant, Harry W. Lushey, prays that his title to the undivided one-half of the premises described in the petition be quieted as against the plaintiff and his co-defendants.
To the separate answer of Harry W. Lu-hey the plaintiff has filed its reply. It admits that on June 11, 1872, Caroline Lushey made and executed her last will and testament, whereby she devised the real estate described in the petition to her husband, George Lushey, and that said will was on March 8, 1879, duly probated in the probate court of Hamilton county, Ohio; and a copy of said will is attached to said reply and marked "Exhibit A."
The plaintiff denies that said Harry W. Lushey is the owner of an undivided half in the premises described in the petition.
The plaintiff and the defendants rely upon the construction of said will as to who is entitled to the undivided one-half of sad premises; and the particular clause in said will which all parties agree settles the
Hamilton Common Pleas.
title, either in the plaintiff or in the defendant, Harry W. Lushey, as to the undivided one-half is as follows:
“In the name of the benevolent Father of all, I, Caroline Lushey, wife of George Lushey, of the city of Cincinnati, county of Hamilton and state of Ohio, do make and publish this my last will and testament. I give and devise to my beloved husband, George Lushey, all of my estate, real and personal, of which I may die seized of possessed, to have and to hold the same to himself, his heirs and assigns forever. Should any child or children (we have now only one, George Gabriel) be born to me hereafter it shall in nowise change, alter or revoke this will and testament.”
Section 5959, Rev. Stat., of Ohio reads as follows:
“If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption or revocation shall be received."
That part of sec. 5961, Rev. Stat., that is applicable to this case reads as follows:
“When a testator, at the time of executing his will, shall have a child absent and reported to be dead, or having a child at the time of executiug the will, shall afterward have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, shall take the same share of the estate, both real and personal, that he would have been entitled to if the testator had died intestate.”
The plaintiff contends that secs. 5959 and 5961, Rev. Stat., should be construed together. That is, that the part of sec. 5959 relating to where a party has no children and executes his will and specifically makes plain his intention to disinherit after-born children, should be read into sec. 5961.
The defendants contend that sec. 5959 provides for a case where a party has no children and executes a will, etc., and is to be construed by itself, and provides for a separate and distinct case, differing from that in sec., 5961, which section provides that, where a party has a child living at the date of the execution of his will, should any child or children be born to him alter the date of the execution of such will, such child or children will inherit as if the testator had died intestate.
The question as to whether the deiendant, Harry W. Lushey, has title in this property, depends upon the construction that shall be given to said will in view of sec. 5961, Rev. Stat. If the decedent, Caroline Lushey, had no children at the date of the execution of her said will, it is perfectly clear that, under sec 5959, her said will disinheriting any child or children that should be born to her after the execution of the same
German Mutual Ins. Co. v. Lushey.
would be valid. It is also perfectly clear, from the language of said will—and the same is plain and explicit, and reads as follows: "Should
“ any child or children, we pow have only one, George Gabriel, be born to me hereafter, it shall in nowise change, alter or revoke this will and testament”-that she intended to disinherit any after-born children, and that it was clearly her intention that any after-born child or children should not participate in her said estate.
The legislature evidenty intended, when sec. 5959, Rev. Stat., was enacted, to provide for a particular case; and, so far as the court has been informed and advised, said section was passed by the legislature on March 23, 1840; 38 0. L., 125, Sec. 40. And it is also clear that the legislature intended to provide for another case when sec. 5961 was enacted, because the original section was passed February 26, 1824; 22 O. L., 120, sec. 6. Section 5959 being enacted some sixteen years after sec. 5961, does not repeal sec. 5961, either expressly or by implication. And it is clear that, under sec. 5959, the legislature intended the enactment to cover a particular case; and it is just as clear that the same power intended sec. 5961 to cover another case, and neither of said sections is in conflict with the other.
Section 5961, Rev. Stat., has never been construed by the higher courts, and, so far as counsel and court have been advised, this is the first instance of the presentation of a case calling for construction.
Section 5959, Rev. Stat., has been construed with reference to some of its provisions, and particularly as to the provision in a will where a party intends to make provision for a child born after the execution of his will. See Rhodes v. Weldy, 46 Ohio St., 234.
As before stated, there is no doubt but that the deceased, Caroline Lushey, intended to disinherit any after-born children, and that she devised her property, both personal and real, absolutely to her husband, George Lushey, and that she, by said will, disinherited the child then living, George Gabriel Lushey, and that she clearly intended to disinherit any after-born children.
It is well settled in this state that the intention of a testator shall govern in the construction of wills, provided that said will is not contrary to law or public policy.
The Supreme Court has said, in Carter v. Reddish, 32 Ohio St., 1:
"In the construction of a will it is well settled as a paramount rule, in this state, that the intention of the testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or against public policy.”
It is clear, from the reading and the language of the will of said Caroline Lushey, that her said will is contrary to the statutory provision of sec. 5961, Rev. Stat., which section provides, in terms as plain and as clear as the will, that where a party has one child then living and executes a will, and afterwards a child is born to such person, such
Hamilton Common Pleas.
after-born child shall take his share the same as if the testator had died intestate.
Under this construction it gives to the after-born child his share in his mother's estate, and the child then living receives nothing, the father receiving the other portion.
The decree of the court is that the plaintiff is entitled to recover from the defendant, George Lushey, the sum of $10,000, with six per cent. interest on the same from March 30, 1897; and that an order of sale be entered directing the undivided one-half of said premises to be sold; and that as to the other undivided one-half, the title to the same be declared to be in the said Harry W. Lushey, and that the same be quieted as against the said plaintiff and his co-defendants.
Rattermann & Ward and Chris. Von Seggern, for the plaintiff.
UNION DEPOT COMPANIES.
(Police Court of Columbus, 1900.)
* State of Ohio V. GEORGE BROWN. MAY Give TRANSFER COMPANY Exclusive PRIVILEGES.
A Union Depot Company has the right to give to a transfer company the
exclusive use of depot grounds, for standing its vehicles and soliciting customers thereon, and to exclude therefrom all others engaged in a like business, excepting only for the purpose of delivering passengers or of calling for persons who have previously engaged them, notwithstanding the provisions of the anti-trust law. (Adopted as law laid down in Snyder v. Union
Depot Co., 10 C. D., 000.) EARNHART, J.
In Snyder et al. v. Union Depot Company, the circuit court of Franklin county, Ohio, 10 Circ. Dec., 000, in its opinion says:
"The Union Depot Company has given to the Columbus Transfer Company the exclusive privilege of standing its vehicles in the depot upon the concourse or driveway from High Street to the waiting rooms, and of soliciting customers, and excludes therefrom all others engaged in like business, excepting ouly for the purpose of delivering passengers or of calling for persons who have previously engaged them.”
With this issue then and there squarely before them, as it is here and now before this court, the circuit court found as shown by the entry in the case that,
"The Union Depot Company has the right to give to the Columbus Transfer Company the exclusive privilege of standing its vehicles in the Union Depot of said defendant (The Union Depot Co.) upon the con
Motion in Supreme Court for leave to file petition in error to the judgment of the police court in this case was overruled, thus affirming the circuit court in Snyder v. Union Depot Co., 10 Circ. Dec., 647, on which the decision of the police court in this case was based. For decision of common pleas, contra, in Snyder v. Union Depot Co., see 9 Dec., 63.)
State of Ohio y. Brown.
course or driveway from High Street to the waiting rooms and of soliciting customers thereon and to exclude therefrom all others engaged in a like business excepting only for the purpose of delivering passengers or of calling for persons who have previously engaged them.”
This decision is so specific that it concludes this court from investigation or the exercise of any freedom of judicial opinion upon the question, Being a subordinate court, like a sentinel, the court must pace back and forth upon the space assigned always obedient to orders from its superiors and it only to be responsible for the orders here obeyed.
It has been urged upon the court that this exclusive privilege is against the letter and spirit of the anti-trust law that took effect July 1, 1898, and that although the anti-trust law was in force at the time of the rendition of the opinion of the circuit court, that the attention of the court was not called to it, and that this omission will justify the court in disregarding the law of the case as laid down in the circuit court if this court finds the contract of the Union Depot Company with the transfer company is in violation of the anti trust law.
The attorneys representing the hackmen in Snyder v. Union Depot Co., supra, presented a pumber of authorities holding railroad companies can not give to one hack or bus company the right to use the depot grounds to the exclusion of others engaged in like business, and cited statutes like our anti-trust act and decisions under them declaring all such exclusive privileges were against public policy and void and within the inhibition of said satutory regulations.
The circuit court, not withstanding these citations, in its opinion says: “Cases at common law, or under statutes, to determine whether railroad companies in particular instances give equal terms and facilities to different parties to whom they furnish transportation, and with whom they dealt as common carriers, have no bearing on the case at bar.
"The defendant in his business of solicitor of the patronage of passengers held no relation with the plaintiff as a common carrier, and had no right to use its station, grounds and buildings."
The court thus holds that dependently or independently of statute, the defendant has no right to ply his avocation of soliciting passengers upon the driveway, while the counsel here for the defendant by brief and argument contend that by the statute and independently of it the Union Depot Company cannot make such arbitrary and exclusive regulations.
The point the court wishes to bring to the attention of the defendant and his counsel is that even if the court would be warranted in overthrowing the decision of the circut court because the anti-trust law of 1898 was not urged before that court, that that court did in its decision expressly have called to its attention and refer to statutory enactments as broad as the anti-trust law of 1898, and intended for a like purpose, and did disregard them and hold that they had no bearing upon the case. Having declared this, and having declared when it had before it statutory