Moton v. Dewell.

A more appropriate suit would have been on behalf of the executor to confirm the manumission provided in the will, and as the proceedings here were in the court probating the will and administering the estate, and not at the domicile of both the slaves and the executor, the inference in support of the theory of the executor having brought the suit is strengthened.

The inference of knowledge of property rights by the ignorant slaves from the judgment of the court resolving the bondage, their passports and journey into the free state, is by no means conclusive so as to overcome other positive averments admitted by the demurrer.

It is still further contended that the amended petition does not allege that the descendants of the slaves are ignorant or illiterate, and that, therefore, their knowledge of property rights from lapse of time and proximity of residence must be conclusively presumed. But it will be noted that about fifty of the John Randolph slaves were still living when the suit began, and as to descendants of those deceased, it does not appear that they were in such contact with the stirring events of their ancestors' emancipation and exodus as to lead to a necessary inference of knowledge of their property rights. The only means of knowledge necessarily inferred from the state of facts contained in the petition lay with their ancestors who cannot be held to have transmitted greater information than they possessed. The petition does not inform us of the date of the death of any of the ancestors, and we cannot, therefore, from the petition determine as to the beginning of the tolling of the statute of limitations as to any of the descendants.

The foundation of the present cause of action arises from the investment of the trust funds in the Mercer county lands, and specific knowledge of that fact cannot be deduced from any situation or set of circumstances shown in the petition, nor from any notice charged by law of the probation and contents of the Randolph will in the courts of Virginia in face of a distinct averment of the petition of want of knowledge or of opportunity for knowledge on the part of the ex-slaves and their descendants.

Mercer County.

It is contended by counsel for the plaintiffs that the trust created by the will of John Randolph and transferred to the successive grantees of the real estate is a continuing and subsisting trust, and thereby excepted from the present statute of limitations, but that is immaterial for the reason that the statute of limitations in force at the time the cause of action arose controls, and that under the prevailing practice at that time legal limitations were not applied as between trustee and cestui que trust until after there had been an open denial or repudiation of the trust brought home to the cestui que trust. Paschall v. Hinderer, 28 Ohio St. 568; Ham v. Kunzi, 56 Ohio St. 531 [47 N. E. Rep. 536].

It is also contended in support of the demurrer that the executor having bought the land and taken the title in his own name had an absolute right to convey and restore thereby the funds to its original form and that the rule requiring specific authority of the court or will does not apply. The effect of such conveyance as to an innocent purchaser need not be determined for here the amended petition charges the successive purchasers with knowledge of the trust, and they are, therefore, bound by the trust.

It is argued that there is no sufficient showing or statement of facts as to fraud, but the averments showing breach of trust, intent to defraud, and fraudulent concealment are sufficiently broad and specific to pass the test of a general de

murrer.

It is asserted that the provisions of the Randolph will were personal to the slaves and that the right did not descend. The act of March 3, 1834, (1 Curwen 145), first brought into the statutes the rule of construction of wills averring the vesting of the estate in fee simple in the absence of words of succession. But independent of the statute, a devise was so construed even in the absence of words of succession. Niles v. Gray, 12 Ohio St. 320; Platt v. Sinton, 37 Ohio St. 353, 355; Flickinger v. Saum, 40 Ohio St. 591, 600.

This is the law of Ohio and is presumed to be the law of Virginia in the absence of a showing otherwise, and, therefore,

Moton v. Dewell.

controls, whether the construction of the will for the purposes of this case be under the laws of either Ohio or Virginia.

Whether the term "settle" employed in the will is to be construed in harmony with plantation customs in slavery days and applied as a sort of tenancy by sufferance or in the more enlarged acceptation of the free states in which the investment was directed, it is not necessary to decide at this stage. The laws and customs of the state of Virginia, if competent at all to be engrafted upon the construction of the will, must be specifically pleaded and proven.

The investment of the funds in the real estate described and the taking of the title in the name of the executor impressed thereon a trust for the settlement of the slaves, and under the facts stated in the petition, the interest so conferred upon the slaves is one in fee simple.

The third amended petition, therefore, stating a good cause of action as against a demurrer, the judgment of the common pleas court should be reversed and the cause remanded with instructions to overrule the demurrer, and for further proceedings.

Hurin, J., concurs.

Donnelly, J., concurring:

I agree with the majority of the court that the third amended petition is good as against a demurrer, but do not fully agree with the reasons given by the majority of the

court.

Lippert v. Page.

EVIDENCE-BROKERS.

[Cuyahoga (8th) Circuit Court, January Term, 1910.]

Henry, Winch and Taggart, JJ.

(Judge Taggart, of the fifth circuit,, sitting in place of Judge Marvin.)

MARY H. LIPPERT ET AL. v. W. B. PAGE.

1. INCOMPETENT HEARSAY EVIDENCE ADMITTED WITHOUT OBJECTION HAS SOME PROBATIVE FORCE.

Incompetent hearsay evidence, when admitted without objection, has some probative force.

2. REAL ESTATE BROKER REQUIRED TO SHOW THAT PURCHASER WAS INDUCED TO APPLY TO OWNER THROUGH MEANS EMPLOYED BY BROKER. To entitle a real estate broker to recover commissions he must show that the purchaser was induced to apply to the owner through means employed by the broker. It is not indispensable, however, that the purchaser be introduced to the owner by the broker, or that the broker be personally acquainted with the purchaser, or that the broker at the time have knowledge of the negotiations between the owner and the purchaser. [Syllabus by the court.]

ERROR to Cuyahoga common pleas court.

A. R. Odell, for plaintiffs in error:

Cited and commented upon the following authorities: Schwartz v. Hoyne, 54 Ill. App. 499; Gleason v. Nelson, 162 Mass. 245 [38 N. E. Rep. 497]; Vanstone v. Hopkins, 49 Mo. App. 386; Jones v. Frost, 24 Misc. 208 [53 N. Y. Supp. 573]; Johnson v. Seidel, 150 Pa. St. 396 [24 Atl. Rep. 687]; Earp v. Cummins, 54 Pa. St. 397; Colwell v. Tompkins, 6 App. Div. 93 [39 N. Y. Supp. 478]; Whitcomb v. Bacon, 170 Mass. 479 [49 N. E. Rep. 742; 64 Am. St. Rep. 317]; Commercial Nat. Bank v. Hawkins, 35 Ill. App. 463; Evans, Agency 341; Lincoln v. McClatchie, 36 Conn. 136; Gleason v. Nelson, 162 Mass. 245 [38 N. E. Rep. 497].

George A. Grott, for defendant in error:

Cited and commented upon the following authorities: Schwartz v. Yearly, 31 Md. 270; Lincoln v. McClatchie, 36

Lippert v. Page.

Conn. 136; Carter v. Webster, 79 Ill. 435; Newhall v. Pierce, 115 Mass. 457; Mooney v. Elder, 56 N. Y. 238; Lloyd v. Matthews, 51 N. Y. 124.

WINCH, J.

This is a proceeding to reverse a judgment recovered by Page on a claim for commissions on the sale of a small farm of six acres in Warrensville township, Cuyahoga county, Ohio. The sole error complained of is, that there was not sufficient evidence produced before the jury to sustain its verdict. It is said that the plaintiff below failed to show that by his efforts a sale of the property was made.

The evidence was very conflicting; the defendants below not only denied having authorized Page to sell their property for them, but denied that he had in any way directly contributed as the efficient cause to the sale which was finally made.

After carefully considering the evidence, and allowing for an absolute disbelief in some statements of the defendants which the jury doubtless had because of manifest untruths in other parts of their testimony, we think it may be said fairly that the following is all the plaintiff proved regarding the transaction:

About September 1, 1907, W. B. Page, a real estate man, called upon the Lipperts at their home in Warrensville and made a verbal agreement with them whereby he was to try to find a purchaser for said real estate at a price above $1,000, and was to have all over said sum that any purchaser furnished by him might pay for it, the Lipperts retaining the right to find. a purchaser themselves. It was also arranged that in order that the Lipperts might know Page's customers Page was to give his business cards to everybody sent by him, and the Lipperts were to ask everybody who went there to buy, or to consider buying the place, whether they came at Page's suggestion, or were sent by him, and if the customer said that he came by or through Page, then the Lipperts were to regard him as Page's customer.

Thereafter, Page advertised in the "Plain Dealer" that he had six acres of land in Euclid, of North Woodland avenue