Clark Probate Court.

at Dayton, Ohio. In February, 1884, he was removed as an incurable from the asylum to the infirmary of Clark county, Ohio, where he has remained ever since, and is yet a lunatic.

No pay has ever been received by the infirmary board for his maintenance. Frederick Gram was the owner of no property until his father, Cornelius Gram, died in December, 1890, when he fell heir to real estate of the value of about $1,200.00, and personalty of about $100.00. On August 6, 1891, this application was filed in this court by his brotherin-law, M. L. Kissell, for the appointment of a guardian, and was set for hearing on August 1, 1891. On August 11, 1891, the board of infirmary directors commenced suit in partition, claiming to represent the interest of Frederick Gram, under secs. 979 and 981, Rev. Stat., in the estate of his father, Cornelius Gram, deceased. They now resist this application for appointment of a guardian on the ground that under secs. 979 and 981, Rev. Stat., they are entitled to the care and custody of all the property of said Frederick Gram, and that there is no use for a guardian, and that therefore this court cannot appoint a guardian. The infirmary directors claim possession of Gram's property under the followings sections of the Revised Statutes.

"Section 979. When a person is admitted into the infirmary as a pauper, whether insane or otherwise, and such person is possessed of, or is the owner of property, whether real or personal, or has an interest in remainder, or is in any other manner entitled to gift or legacy, or bequest of whatever nature or kind the same may be, the directors may take possession of all such property or other interest such pauper is entitled to, and as soon thereafter as they deem proper, sell or dispose of the same, the real estate to be sold as herea ter provided, and the net proceeds arising therefrom shall be applied in whole or in part, under the special direction of the directors, in such manner as they think proper, during the continuance of such person as pauper in said infirmary, and the net proceeds arising from the sale of any property belonging to such pauper, shall be paid over to the county treasurer, and by him placed to the credit of such pauper to be paid out upon the warrant of the county auditor, approved by the county commissioner; and the clerk shall open an account with said pauper, and charge him with board and such specific sums as are furnished for his exclusive use, which account shall be approved by the board and shall be submitted to the county commissioners on the first Monday of March, and September of each year, when the directors make their report.

Section 981. When a person is admitted into the infirmary as pauper, whether insane or otherwise, and such person is possessed of, or is the owner of real estate, or has an interest in revers on, or is in any manner legally entitled to gift, legacy, or bequest in real estate, the directors shall take possession of all such property or other interest such pauper is entitled to, and when they deem advisable and to the best interest of such pauper, shall proceed to sell the same, and they shall file a petition for that purpose in the court of common pleas or probate court, in the county where such property is situated, and the proceedings therefor, sale, confirmation of sale and execution of deed by said directtors, shall, in all respects, be conducted in conformity to the practice. and statutory provisions for the sale of real estate by guardians, and the net proceeds arising from such sale, shall be applied, under the special direction of the directors, in such manner as they think best, to the

Kissell v. Gram.

maintenance of such person during his continuance as a pauper in the infirmary."

But if the guardian, husband, wife, heirs, or persons who are entitled to the residuary interest in said property, of said pauper, give bond to the directors of the infirmary, to their satisfaction, and pay into the hands of the clerk of the board of directors, at such times as the directors require, an amount sufficient to support said pauper while he remains in the infirmary, the directors shall not take charge of said property.

Do these statutory provisions confer such power and duties upon the infirmary directors, as will preclude the appointment of a guardian. by the probate court in a case like the present one, presents a question of some difficulty. The power of chancery courts over the estates of infants, lunatics, etc., as exercised by the courts of England, has generally been transferred to the probate courts of this state. It was always claimed by the chancery courts of England, that they had a right to appoint a guardian for the property of a lunatic.

But this power is given also in Ohio by the provisions of the following statute:

"Section 6302. The probate court upon satisfactory proof that any person, resident of the county, or having a legal settlement in any township thereof, is an idiot, imbecile, or lunatic, shall appoint a guardian for such person, which guardian shall by virtue of such appointment, be the guardian of the minor children of his ward, unless the court shall appoint some other person, as their guardian; an imbecile shall in this chapter be understood to mean a person who, not born idiotic, had become so, provided that no such guardian be appointed until at least three days * * * notice to the persons next of kin, resident of the county of such person, is given to attend at the same time and place, which notice shall be served by delivering to each person named therein a copy thereof, or by leaving such copy at his usual place of residence."

The language of this section is positive upon satisfactory proof that any resident of the county * * * is an idiot, imbecile or lunatic, the probate court shall appoint a guardian for such person."

Has the court a discretion in this matter, if the person is a lunatic and there is some responsible person willing to take the guardianship? The word "shall" implies the performance of some act. It is very rarely used in a request, and generally in a command.-Thou shalt not killthou shalt not commit adultery,-thou shalt not covet, etc., are familiar uses of this word. It is construed "must" in order to sustain an existing right, but need not be to create a new right. Cairo & Co. v. Hecht, 95 U. S., 170. "An appeal from the circuit court shall be allowed," in the U. S. Rev. Stat., 692, has been held to mean must be allowed when asked for by one in position to demand it. Hannibal, etc. R. Co. v. Board, 64 Mo., 304, where an act provides that certain lands shall be given to National Greene." It was held that these were words of absolute dona tion, and conveyed a present right. Rutherford v. Heirs, 2 Wheat., 198. "Shall not" has been construed to "mean cannot." Parke v. U. S., 2 Wash., 363.

It would seem, therefore, from the usually imperative meaning given to the word "shall," it would demand that where the court finds a person to be a lunatic, he must at least, unless positively forbidden by statute, appoint a guardian. Giauque on Guardians and Trustees, in giving the law on this subject, uses the word "must" instead of "shall," p. 230.

Clark Probate Court.

A close examination of secs. 979 and 981 above herein quoted, will fail to disclose any positive prohibition of the exercise of the powers of the court to appoint a guardian of an insane pauper at the infirmary. If forbidden at all, it is only by implication. It is hardly to be presumed that by the provisions of these sections the legislature intended to make the infirmary board the guardian of every inmate in their charge. A lunatic is not there of his own free will; he is there by order of the court, he may have large property interests, he may have become insane in the midst of the performance of contracts affecting large interests of his own and others. Would it be said that the infirmary board may fulfill these contracts and carry on his business? Hardly.

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But sec. 981, by its own provision where it says: "But if the guardian, husband, etc., give bond, the directors shall not take charge," strongly intimates that it is proper to appoint a guardian for the insane inmate. At least it is intimated that the *** lunatic may have a guardian.

And there may be many other reasons which readily suggest themselves, and I need not stop to enumerate why he should have a guardian. And I rather take it to be the duty of the court if any competent person apply, or such guardianship, to make the appointment.

As to the rights between this guardian and the infirmary directors to the management of the ward's property, it is not necessary here to decide. Sufficient in this case that an order be made for the appointment of a guardian for Frederick Gram.

J. L. Zimmerman, for application.

Chase Stewart, for infirmary board.

WITNESSES.

[Clark Probate Court.]

IN THE MATTER OF THE ESTATE OF F. C. RUNYAN.

HEIRS AND PARTIES IN INTEREST CANNOT TESTIFY ADVERSELY TO DECEASED ADMINISTRATOR'S ACCOUNT.

Exceptions were filed by R., an heir-at-law, to an administrator's account, on the ground that said administrator was largely indebted to the estate, and had failed to so charge himself. Said exceptions were never heard, and upon the death of the administrator, his executor filed a second account, substantially the same as the first one or that filed by the administrator himself: Held, that, under sec. 5242, Rev. Stat., R. is incompetent to testify except as to facts occurring since the appointment of the executor of the administrator and that all heirs, legatees or other parties in interest are incompetent to testify adversely, to matters contained in a deceased administrator's account. In the matter of the exceptions to the account of F. C. Runyan, deceased, administrator of John Runyan, deceased.

ROCKEL, J.

On June 27, 1889, F. C. Runyan, filed in this court his first account as administrator of John Runyan, deceased. On October 9, 1889, and before said account was passed upon, Alonzo Runyan, one of the heirs at law, filed exceptions to the account, alleging among other things, the administrator was indebted to the estate in a large sum, which he had failed to charge himself with in the account. Neither the account nor

the exceptions thereto were ever passed upon by the court. In June, 1891, F. C. Runyan, the administrator, died, and Georgiana Runyan

In the Matter of the Estate of F. C. Runyan.

was appointed and qualified as his executrix, and as such filed herein an account as such executrix of F. C. Runyan, administrator of John Runyan. Exceptions were also filed to the account by Alonzo Runyan. But they merely brought up the same matters that were set out in the exceptions to the first account. Alonzo Runyan offered himself as a witness which was objected to by executrix of the deceased administrator, claiming that under sec. 5142, he was incompetent.

Section 5242 provides: "A party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is the executor or administrator, or claims or defends as heir, grantee, assignee, devisee of legatee, of a deceased person"--and then follows a number of exceptions, none of which apply to the case at bar.

At common law, all the parties in interest or to the suit were not allowed to testify. And when this restriction was removed, it would have been very unjust to not have made some provision in the case of death, or incapacity of the one party, that his opponent could not testify. Where death seals the lips of deceased, the law will close the mouth of the living. They must however stand in an adverse position. The last clause of sec. 5242, further provides "and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied." Showing that a liberal construction should be given to the statute.

66

In Wolfe v. Powner, 30 O. S., 476, the Supreme Court say: all concur in the opinion, the parties intended to be excluded from testifying by this section are the real and not merely formal, nominal and wholly unnecessary parties. This section only prohibits a party from testifying in an action where the adverse party sustains certain relations or characters, or comes within certain specified descriptions. Whether the parties are adverse to each other or not, depends not on their mere position as plaintiffs or defendants in the case." Referring to Allen v. Miller, 11 O. S., 374, where it was held (p. 378), that the character of a party as adverse or otherwise, is to be determined not by his position upon the docket, or in the title of the cause, but by reference to his relations as shown by his interests involved in the case.

It will therefore be held in this matter, that Alonzo Runyan is incompetent to be a witness, except as to facts which have occurred since the appointment of Georgiana Runyan as executrix of T. E. Runyan, of which there appears to be none in issue.

The rule here applied would also exclude all heirs, legatees or other parties in interest from testifying, adversely as to the matters contained in the deceased administrator's account.

Hamilton Common Pleas.

COURTS-JURISDICTION.

[Hamilton Common Pleas Court, December, 1897.]

*JOHN OMWAKE V. LUCY JACKSON.

THE COURT FIRST ACQUIRING POSSESSION OF PROPERTY BY MESNE PROCESS, HAS EXCLUSIVE JURISDICTION OVER IT.

The court whose mesne or final process has made the first actual seizure of the thing, must have exclusive power over its disposal and the distribution of the fund arising therefrom.

JELKE, J.

The petition in foreclosure of a real estate mortgage was filed herein July 18, 1896; on March 26, 1897, an amended petition was filed; Lucy Jackson answered April 24, 1897, with a general denial; another defendant also filed an answer and cross-petition. On October 27, 1897, this cause was practically ready for decree and order for sale. On that day an entry was made making Channing Richards, assignee of Lucy Jackson, a party. On October 30, 1897, the said assignee filed an answer, and on the same day Lucy Jackson filed a supplemental answer, setting out that on the 23d day of October, 1897, the said Lucy Jackson had made a general assignment for the benefit of all her creditors to the said Channing Richards; that therefore the court of insolvency has exclusive jurisdiction of the sale of the property.

I am of the opinion that the mortgaged property having passed into the jurisdiction of the court of insolvency by the filing of the deed of assignment therein, the comity which exists between this court and that, the courts being of concurrent jurisdiction, would prevent any interference by this court by issuing an order of sale to the sheriff.

The court of insolvency acquired jurisdiction of the property by the filing of the deed of assignment. Havens v. Horton, 53 O. S., 342, 344. In the case at bar jurisdiction does not attach exclusively to the property until the court lays hold of it by mesne or final process.

It will not do to say that this court acquired exclusive jurisdiction over the property by the filing of the petition in foreclosure. Non constat on the trial of the issues an order for sale might never be made.

The court whose mesne or final process has made the first actual seizure of the thing, must have exclusive power over its disposal and the distribution of the fund arising therefrom. Averill v. Steamer Hartford, 2 Cal., 308; Barr v. Chapman, 3 Ohio Cir. Dec. 36.

Personal judgment, likewise judgment for costs, may be obtained in this proceeding; the property will be sold in the proceedings in the court of insolvency.

C. W. Baker, Michael G. Heintz; Channing Richards, Thomas McDougall.

* Affirmed by circuit court. See Court Index, February 16, 1898, afterwards, upon a reconsideration of the case by the circuit court, it reversed its former opinion. For the opinion of the circuit court upon a reconsideration, see, 8 O. C. D., 235.