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Telegraph and Telephone Companies— Trusts.
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
Injunction is the proper remedy
for the abutting owner on a highway
or against a telegraph or telephone
company, which attempts to
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
reason of the alleged conspiracy.
are properly conjoined in one action,
although, if used alone, each means
would constitute a single cause of
action. Barron v. Plate Glass Co.
The averment of a conspiracy
makes it possible to unite in one ac-
tion, and as a single cause of action,
claims for damages which would oth-
erwise have to be sought in independ.
ent actions. Thus, threats, slander
of business, unlawful solicitation of
customers, etc., may be parts or ele
ments of the charge of conspiracy
or the attempted destruction of plain-
tiff's business. Therefore, a motion
requiring plaintiff to itemize his
damages should be overruled.
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.
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
The Valentine anti-trust law, 93
0. 1., 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 conspiracy
against trade," is not unconstitu.
tional or invalid. State v. Jacobs.
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
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.
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
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.
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.
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.
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.
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.
Where, by the terms of a will, it
is plainly shown to be the intention
of the testator to bar his widow of
tho 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.
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.
Unles some positive rule of law
or enactments of statutes should re-
quire it, a will should be construed
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-
so as to follow former constructions
by courts and interested parties in
the administration of the estate.
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.
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
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
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
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
council, or any committee thereof,
to compel the attendance of wit-
nesses, and provides that no witness
skall 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. Ib.
no property right to legatees claim-
ing under such will. Fleming V.
The will of a resident of another
state does not operate to pass title
to property in Ohio by being admit-
ted to probate in this state until duly
probated in the state where testatrix
was a resident at the time of her
An explanatory clause in a will
containing clear and distinct words
of perpetuity will control doubtful
language used in another clause, es-
pecially if the latter attempts to
Helmig v. Meyer.
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
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
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.