TELEGRAPH, ETC.-Continued.

When a telegraph or telephone
company proceeds to construct its
line and erect poles upon the high-
way during the pendency of an action
to enjoin them from so doing against
the objection of the owner and with-
out first acquiring the right to do so
by contract with the owner or other-
wise, a court of equity will order the
same removed.
Ib.

Injunction is the proper remedy
for the abutting owner on a highway
or against a telegraph or telephone
company, which attempts to con-
struct its line on the highway with-
out obtaining his consent or other-
wise acquiring the right to do so,
and the abutting owner's right there-
to is not defeated by a right of ac-
tion to sue for the amount claimed
as damages.
Ib.

Section 3461, Rev. Stat., relating
to telegraph companies, and by sec.
3471, Rev. Stat., extended to apply
to telephone companies, authorizing
the probate court, upon failure of the
municipal corporation and the com-
pany to agree, "to direct the mode in
which such lines shall be construct-
ed along the streets, alleys or pub-
lic ways, so as not to incommode the
public." attempts to confer legisla
tive functions upon probate courts
and is, therefore, unconstitutional
and invalid. Zanesville Tel. and
Tel. Co. v. Zanesville.
134
Determining and fixing of the
mode of use of streets and alleys of
a municipality by a telephone com-
pany, so as not to incommode the
public in the use of the same, is a
legislative function or duty.

TRIAL-

Ib.

In the absence of defendant's
admission that he has no defense,
or where there remains a scintilla
of proof in his favor, the court can-
not strike the answer from the files
as sham or frivolous, and thus de-
prive the party of trial by jury on
the merits. Wentzel v. Zinn. 97

TRUSTS-

In an action brought under the
provisions of the Valentine-Stewart
anti-trust law, for attempting to
"freeze" the plaintiff out of business,
the main gravamen of the complaint
is the attempted destruction of plain-
tiff's business, sought to be accom-
plished by various means, which, by

When two parties acquire prop-
erty through an illegal business the
title to which is taken in the name
of one of them, the husband of such
party who succeeds to such property
by inheritance will be held to hold
the other party's share in trust for
his benefit. The fact that the prop-
erty was acquired in an illegal busi-
ness, is not, as between such par-
ties, material and will not defeat an
action to establish the trust. Brue-
ger v. Molique.
731

A trustee of an express trust or
a person in whose name a contract
has been made for the benefit of an-
other, may be joined with his bene-
ficiaries as a party plaintiff in a suit
to protect the rights under such con-
tract, although by sec. 4995, Rev.
Stat., he may sue without joining
his beneficiaries. Kuhn v. Woolson
Spice Co.
292

The Valentine anti-trust law, 93
O. L.. 143, providing that "a combi-
nation of capital, skill or acts by two
or more persons, firms, partnerships,
corporations, or associations of per-
sons, or any two or more of them, to
create or carry out restrictions in
trade or commerce, are illegal;" and
that "violation of either or all of the
provisions of this act shall be and
is hereby declared a conspiracy
against trade," is not unconstitu
tional or invalid.. State v. Jacobs.
252

The law in question declares
that "any combination of capital,
skill, or acts by two or more persons,
firms, partnerships, corporations or
associations of persons, or of any
two or more of them, for either any
or all of the following purposes, shall
constitute a trust." The first purpose

named is to "create or carry on re-
strictions in trade or commerce."
Therefore, any combination or con-
federation among two or more per-
sons in restraint of trade or com-
merce comes within the cxpress let-
ter of this act.
Ih.

A combination by two or more
persons for the purpose of boycotting
a third person is a violation of the
provisions of said act and is a con-
spiracy against trade within said
act.
Ib.

In a prosecution for boycotting
under this act it is sufficient to prove
that a combination as defined therein
existed and that the defendant be-
longed to or acted for or in connec-
tion with it, without proving all the
members belonging to it, or proving
or producing any article of agree-
ment or any written instrument on
which it may have been based, or
that it was evidenced by any written
instrument at all. The character of
the combination alleged may be es-
tablished by proof of its general
reputation as such.

Ib.

Where several persons are prov-
ed to have combined together for the
same illegal purpose, any act done
by one of them in pursuance of the
original concerted plan and with
reference to the common object, is,
in the contemplation of the law, the
act of the whole party, and therefore
proof of such act is competent evi-
dence against any of those who were
engaged in the conspiracy; and any
declaration made by one of the par-
ties during the pendency of the il-
legal enterprise, is evidence against
himself and all the other conspira-
tors, who, when the combination is
proved, are as much responsible for
such declaration and the acts to
which it relates as if made and
committed by themselves. This rule
applies to the declaration of a co-con-
spirator, although he may not him-
self be under prosecution.

See also WILLS.

UNION DEPOT COMPANIES-

Ib.

A Union Depot Company has the
right to give to a transfer company
the exclusive use of depot grounds,
for standing its vehicles and solicit-
ing customers thereon, and to ex-
clude 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, notwith-

standing the provisions of the anti-
trust law. (Adopted as law laid
down in Snyder v. L on Depot Co.,
10 C. D., 000.) State Brown. 28

VERDICTS-

Admissions made by pleadings,
proof taken by deposition, and the
admission of the execution of the
contract, are sufficient to cure a de-
fect in the verdict caused by the
failure of the jury to find that plain-
tiff was a corporation. Grand
Rapids Furniture Co. v. Robinson.
93

WILLS

A will bequeathing testator's es-
tate to her husband and providing
that "should any child or children
(we have now only one, George Ga-
briel) be born to me hereafter, it shall
in no wise change,alter or revoke this
will and testament" is contrary to
sec. 5961, Rev. Stat., and while sec.
5959, Rev. Stat., controls as to the
child mentioned in the will and he
takes nothing, a child born after the
execution of the will takes the same
share he would have taken had his
mother died intestate. The provi-
sion of sec. 5959, Rev. Stat., relating
to where a party has no children and
executes his will and makes plain his
intention to disinherit after-born
children, cannot be read into sec.
5961, Rev. Stat., or allowed to defeat
the claim of such after-born child.
German Mut. Ins. Co.

V. Lushey.

24

Section 5959, Rev. Stat., does not
expressly, or by implication, repeal
sec. 5691, Rev. Stat. The two sec-
tions should be construed separately
as each was enacted to cover a par-
ticular case and neither is in con-
flict with the other.
Ib.

Where, by the terms of a will, it
is plainly shown to be the intention
of the testator to bar his widow of
the first year's support, and provi-
sion is made for her in lieu thereof,
if she elects to take under the will,
she is not entitled to such allowance.
Witner, In re Est. of.

30

The rule in Shelley's case as ap-
plied to wills was abrogated by stat-
ute in Ohio, in 1840, cannot, there-
fore, be appealed to assist in ascer-
taining the intention of the testator
in the construction of a will.
Kiersted v. Smith.
279

Unles some positive rule of law
or enactments of statutes should re-
quire it, a will should be construed

WILLS-Continued.

Wills.

so as to follow former constructions
by courts and interested parties in
the administration of the estate.
Ib.

Heirs presumptive or apparent
who have not a vested estate in trust
property have a right to object to the
termination of a trust created by a
will, which will cut them out of the
rights accruing to them should the
trust be continued according to the
terms of the will.
Ib.

A trust created by a will in prop-
erty cannot be terminated with the
consent of the beneficiaries, if such
termination will destroy the rights
other parties would eventually have
inthe trust property, should the trust
be continued under the terms of the
will.
Ib.

In the construction of a will, the
rules that "the intention of the tes-
tator must control;" "words should
be used in their ordinary and usual
signification;" "the whole will should
be construed as a whole;" "equitable
words should be given their tech-
nical meaning;" "the law favors the
vesting of estates;" are subject to
the application of the broader rule
that the clear meaning of the will,
showing the clear intent of the tes-
tator must not be negatived or set
aside.
Ib.

The rule that such a construc-
tion will be favored as will contrib-
ute to the immediate vesting of an es-
tate will not be applied so as to de-
feat the intention of the testator. Ib.

A will devising property to a
trustec to be held in trust for the
benefit of testator's two daughters, to
be "set off" to them or either of them
by the trustees on their arrival at
age, but to be still held in trust to
their arrival at age, "and said parti-
tion between them," the rents and
profits only to be paid to them or
either of them, according to their
respective shares, during their lives,
with the fee simple to the heirs of
said daughters "to be divided equally
as above," gives to the daughter a
life estate only and not a fee simple.
Ib.

Where a will provided that the
residue of testator's estate should be
held in trust for his daughters, to
be "set off" to them by trustees on
their arrival at age, but to be still
held in trust after their arrival at
age and "partition" between them,
the words "set off" and "partition,"

as against the provisions referred to
in a preceding paragraph, are not
to be construed to mean a division
of a fee simple or inheritable estate.
Ib.

Section 5970, Rev. Stat., provid-
ing that every devise of lands, etc.,
in any will hereafter made, shall
be construed to convey all the estate
of the devisor therein which he could
lawfully devise, unless it shall clear-
ly appear by the will that the de-
visor intended to convey a less es-
tate, does not necessarily mean that
the whole estate must be devised to
the first taken, unless the intention
of the testator is clearly shown, nor
does it require each item of the will
to show the testator's intention, if
the intention as to the several items
can be devised from the whole will.
Ib.

Where the language of a will
clearly indicates the intention of the
testator to give a life estate to his
daughters, and the fee simple in re-
mainder to their heirs, such inten-
tion cannot be defeated by a con-
struction as to the sense in which
the word "heir" is used. The ex-
pressed intent of the testator, not the
mere implication should fix the
meaning of the word "heir.” Ib.

Where, by the provisions of a
will certain sums are set aside and
invested and the proceeds are to be
paid to certain persons during their
lives, such persons are legatees and
not annuitants. Krigbaum v. Ir
vine.
226

Where an executor in carrying
out the provisions of a will sets aside
and invests certain sums, the income
of which is to be paid to a certain
pcrson during her lifetime, he ceases
to act as executor and as to that
property becomes a trustee. Ib.

Where a testator makes the same
provision in his will for his widow
that she would be entitled to by the
terms of an ante-nuptial contract,
and stipulates that it shall be in lieu
of dower and in lieu of her rights
under the ante-nuptial contract, the
widow by electing to take under the
will waives her right to dower and
her rights under the ante-nuptial
afterwards
contract, and cannot
claim either.

Ib.

Where a testatrix residing in
West Virginia made a will and con-
tinued a resident of that state until
her death, the original probating of
her will in Ohio is void and passes

The question of the constitution-
ality of a statute requiring witnesses
to appear and answer questions, can-
not be raised by one who is not a
formal party to a case, criminal in
its nature, when it appears that, in
his own opinion, the answer would
not tend to criminate him. Steuer v.
McConnell.
573

The legislature of Ohio has con-
stitutional power to vest a city coun-
cil, or a committee thereof, with au-
thority to commit to jail a witness
who may refuse, except under the
privilege as to incriminating testi-
mony, to answer pertinent questions
put in the course of an investigation
which is confined within the proper
limits of its lawful functions; and so
far as an investigation is confined to
finding out whether or not corrupt
methods have been used, or attempt-
ed to be used, in procuring a public
contract, it is legitimate.

Ib.

council, or any committee thereof,
to compel the attendance of wit-
nesses, and provides that no witness
shall be excused from testifying, but
that the testimony shall not be used
in criminal prosecution, except for
perjury, gives no power to a commit-
tee of the council, to commit for con-
tempt, it does not in terms, or by im-
plication, repeal or prevent the ope-
ration, as conflicting or inconsistent,
of sec. 1687, Rev. Stat., which pro-
vides that in all cases in which at-
tendance of witnesses may be com-
pelled, etc., the council or a commit-
tee thereof, shall have the power to
compel the giving of testimony con-
ferred upon courts of justice.

WRONGFUL DEATH-

Ib.

Where, in an action for wrong-
ful death, caused by failure of a rail-
road company to fill or block a guard
rail, as required by statute, it ap-
pears that plaintiff's decedent had
worked about the place, as a brake-
man, for ten years; that the un-
blocked rail was an obvious condi-
tion; that he had had abundant op-
portunity to observe that the rail was
unblocked; that he made no com-
plaint; in such case decedent must
be held to have assumed the danger
and cannot recover on the ground of
the failure of the company to block
the guard rail. Johns V. Railway
Cc.
348

The words "personal representa-
tives" as used in secs. 6134 and 6135,
Rev. Stat., relating to actions for
wrongul death, mean executors and
administrators. Therefore an action
under the statute in question may be
brought by the executor of the per-
son so deceased. Wittman's Extrx.
v. Railroad Co.
563

Ex