Taylor v. Elder.

with that discretion, fairly exercised, a court of equity would not interfere. It is conceded by Mrs. Taylor that while Mrs, Elder remained at the home of the former, as a member of her family, it was her duty to support her; which duty is admitted to have been performed, but it is claimed by Mrs. Elder that the obligation to support her during life, was imposed upon Mrs. Taylor by her election to take under the will, and that the whole of the property devised and bequeathed, was taken by her subject to that trust. These claims were sustained by the judgment of the superior court, which found that by the terms of the will Taylor "intended to, and did, convey all of his property, real and personal," to his wife with a trust, by which his adopted daughter became, and was, entitled to be provided for, out of the estate, with a reasonable and adequate support for her life, proportioned to the estate left by Taylor, and her condition and circumstances in life; and rendered judgment in accordance with that finding. We cannot concur in that construction of the will, which holds the whole property in trust to secure the support for life of the adopted daughter, and makes the rights and interests of the widow subordinate. We do not think the language of the will, or the surrounding circumstances, show that to have been the intention of the testator. We think it is clear that his principal purpose was to give his property to his wife, for her own benefit, but with the obligation to provide, to a reasonable extent, for the adopted daughter. This obligation was fully discharged by the support provided from the death of the testator to the marriage of Mrs. Elder, when it was no longer needed. Cases have been cited, on one side to sustain the position that maintenance for life was intended, and, on the other, that the intended provision was limited to support while the beneficiary should remain a member of the widow's family; but it has been well stated that no definite rule can be laid down; each case must stand upon its own circumstances."

The principles which we consider applicable to this case however, so far as they relate to the extent of the required provision, are stated in the case of Carr v. Living, 28 Beavan,

Taylor v. Elder.

644, where the testator devised and bequeathed his real and personal property to trustees in trust to pay the interest to the testator's wife, for life, for the separate use of his wife, and their children, to be applied for the maintenance and support of herself, and the maintenance, education, clothing and support of the children. Upon the hearing of the case the master of the rolls, Sir John Romilly, said: "The principle on which I have always acted, and which is consistent with all the authorities, is this, that although the parent in these cases is a trustee for the children, it is only so far as is required for their maintenance and support. Thus if the daughters had married and were supported by their husbands, they could not come and complain that no allowance was made to them," and the court held that "when the children are otherwise provided for, and do not require support or maintenance, they are not entitled to complain that they do not receive a portion of the fund which is not required for their maintenance, education and support." The principles applicable to the construction of the will now under consideration are also illustrated by the case of Paisley's Appeal, 70 Pa. St. 153. The testator gave to his wife the rents and profits of all his property, during her life, for her support, and the support and education of his children, under the direction of his executors, and the court held that this did not create a trust for the children, either in the widow or executors, nor give the orphans' court, jurisdiction to call them to account, or to decree in favor of the children for the future administration of the estate; that the children had no present interest in any particular shares, and that the testator's main object was to benefit the widow. In regard to the judgment of the court below the court say, "such a distribution as that decreed might be most unjust and inequitable. It might leave the widow with all the cares and responsibilities of the household upon her, without an adequate support for herself."

Similar considerations are entitled to great weight in determining the meaning of the words "provide for" in the will of P. N. Taylor, and upon the whole we are satisfied that the facts stated in the petition of Mrs. Elder are not sufficient to

Bullock v. Kilgour.

constitute a cause of action, and that the superior court erred in overruling the demurrer to the petition, as well as in the final judgment against Mrs. Taylor.

We do not decide that circumstances may not occur hereafter which would give Mrs. Elder a right to further provision, nor do we decide what mode of enforcing such provision might be adopted, but that she has no right to any share of the property, nor at this time to other relief.

Judgment reversed, demurrer to petition sustained, and cause remanded.

BULLOCK V. Kilgour.

K., a creditor of an insolvent corporation, brought suit against its stockholders, including H., B. and L., to enforce their individual liability as stockholders, for the benefit of the creditors of the corporation, and obtained judgment against such stockholders respectively for the amounts found to be required for the payment of the debts of the corporation; and the court appointed a receiver to collect the amounts for which judgment was rendered, and apply the money to the payment of such debts. K. afterwards filed a supplemental petition against B. and L., alleging that an execution issued against H., upon such judgment, had been returned unsatisfied, that he was insolvent, that he acquired his stock from B. and L., who had held and owned it, and praying judgment againt B. and L., for the amount of the judgment rendered against H.

Held, the judgment rendered in the action brought by K. is a final judgment, conclusive upon K., and the other creditors, as to the liability of the several stockholders who were parties to the action.

ERROR to the Superior Court of Cincinnati.

In July, 1868, Charles H. Kilgour filed a petition in the superior court of Cincinnati against the Pendleton Street Railroad Company, The Franklin Bank of Cincinnati, John J. Hooker, Anthony D. Bullock, Henry Lewis and others, alleging that he had recovered a judgment, which was still in force and unsatisfied, against the street railroad company,.a corporation of which he and the other defendants, except the

Bullock v. Kilgour.

Franklin Bank, were the stockholders; that the Franklin Bank had also obtained judgment against the company, and that there were other debts due from the company; that the entire property of the company had been sold and the proceeds applied to the payment of other debts, and that the company was wholly insolvent; that each of the stockholders was liable to the plaintiff and the other creditors of the company pro rata with the other stockholders to such amounts as were unpaid on their stock, and in a sum of money equal to the amount of his stock, or to such proportion thereof as might be required to pay all the debts of the company; but that controversies had arisen among said stockholders as to the number of shares of stock held by them respectively, and the amounts for which they were liable. The petition prayed that an account might be taken of the debts of the company, and to whom owing; and also of the stockholders of the company, the amount of stock held by each, the amount due on the stock, and also due for the extra liability of one hundred per cent. ; that an assessment might be made on the stockholders, in proportion to their liability, of such sums as would be sufficient to pay all the debts of the company; that judgment might be rendered against the stockholders respectively, for the sums so assessed, and for other relief. The case was referred to a master, to take and state the account prayed for, and upon the confirmation of his report judgment was rendered, in June, 1870, against those stockholders who had been served with process.

It was found by the court that Bullock and Lewis held stock to the amount of sixteen hundred dollars, and judgment was rendered against them for $652; and judgment was also rendered against Hooker, as the holder of stock to the amount of seven thousand nine hundred dollars, for $3,219.

The court appointed a receiver to collect the sums for which judgment was rendered, and also, by legal proceedings or otherwise, the sums found due from those defendants not served with process, and from the money thus collected to pay the costs of the suit, and to distribute the balance pro rata among all the creditors of the company.

Bullock v. Kilgour.

In March, 1882, Kilgour filed a supplemental petition. against Bullock and Lewis, alleging that an execution had been issued against Hooker and returned unsatisfied, and that he was insolvent that Hooker acquired his stock by transfer from Bullock and Lewis August 17, 1867, at which time all the debts of the company had been contracted, and that prior to that day Bullock and Lewis were the owners and holders of that stock; and praying judgment, on behalf of Kilgour and the other creditors of the company, against Bullock and Lewis for the amount of the original judgment against Hooker.

Bullock and Lewis moved to strike the supplemental petition from the files, but their motion was overruled. They then demurred, but the court overruled their demurrer, and rendered judgment against them in accordance with the prayer of the supplemental petition. This proceeding is prosecuted to reverse that judgment.

Ramsey & Matthews, for plaintiff in error.

Healy, Brannan & Desmond, for defendant in error

UPSON, J. It was supposed that in deciding this case it would be necessary to review the decision of this court in Brown v. Hitchcock, 36 Ohio St. 667, in regard to the time at which the individual liability of the stockholders of a corporation attaches in favor of its creditors. This we should not be willing to do in any case where it is not necessary, as we think it is not in the case now presented for our consideration. The first question to be decided is, whether the judgment rendered in 1870, in the action brought by Kilgour, is a final judgment. If it is, it can only be vacated, modified or reversed in the mode prescribed by statute, and until thus vacated, modified or reversed it is conclusive upon all parties to the action, as to all matters involved therein; upon the principle that the public good requires a limit to litigation.

The object of the action was to enforce the individual liability of the stockholders of the company, for the benefit of all its creditors, and in order to enforce such liability it was necessary to determine the controversies which the petition.

VOL. XXXIX.-35