White v. White.

WILLS.

[Wood (6th) Circuit Court, October 28, 1911.]

Wildman, Kinkade and Richards, JJ.

*FRANK WHITE (ADMR.) V. JOHN WHITE ET AL.

Determination as to Amount Widow of Deceased Son Should Receive Where Son Died Before Testator.

tiff.

Under the provisions of the will construed in this case, the widow of the deceased son is held to be entitled to receive the share which would have gone to the said son had he survived the testator, less the amount specially provided to be paid by her in the codicil appended to the will after the death of said son.

[Syllabus by the court.]

APPEAL.

Rheinfrank & Ohlinger and Edward Beverstock, for plain

Edgar H. Johnson and Jos. W. Lane, for defendants:

Cited and commented by the following authorities: Worman v. Teagarden, 2 Ohio St. 380; Painter v. Painter, 18 Ohio 247; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408]; Richards v. Miller, 62 Ill. 417; Armistead v. Armistead, 32 Ga. 597; Defreese v. Lake, 109 Mich. 415 [67 N. W. Rep. 505; 32 L. R. A. 744; 63 Am. St. Rep. 584]; Gilmore, In re, 154 Pa. St. 523 [26 Atl. Rep. 614; 35 Am. St. Rep. 855]; Bates v. Alexander, 127 Ala. 328 [28 So. Rep. 415]; Grimms v. Harmon, 35 Ind. 198; Davis v. Taul, 36 Ky. (6 Dana) 51; Miller v. Miller, 29 O. C. C. 451 (9 N. S. 242); Weston v. 'Weston, 38 Ohio St. 473; Eby's Appeal, 84 Pa. St. 241; Hochstein v. Berghauser, 123 Cal. 681 [56 Pac. Rep. 547]; St. Mark's Lodge af F. & A. M. v. Darrow, 16 Dec. 120; Jones v. Lloyd, 33 Ohio St. 572; Reif v. Ulmer, 20 Dec. 342 (9 N. S. 234); Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. R. A. 215]: Clark v. Hardwick Seminary (Tr.), 2 Circ. Dec. 87 (3 R. 152); Lester's Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654]. RICHARDS, J.

This is an action brought for the purpose of obtaining a *Affirmed, no op., White v. White, 88 O. S. 589.

Wood County Circuit.

construction of the will of Henry Rudolph White, deceased. The will was executed on July 23, 1894, on which date the testator had five children then living. The will, after making various preliminary dispositions of property, contains the following clause:

"The remainder of my estate, real and personal, shall be divided equally between my children or their heirs share and share alike."

One of the children of the testator by the name of Henry White died intestate on June 3, 1895, without issue, but leaving surviving him a widow, Rose White. On December 21, 1895, the testator, Henry Rudolph White, executed a codicil to his will, which codicil contains the following language:

"The sum of $88 lawful money of the U. S. bearing interest at 6 per cent. from the first day of July, 1895, till paid shall be paid to my daughter Carolina White, her heirs or assigns, out from the share of the inheritance of my son Henry White, deceased. The residue of said share shall be the only bequest to the heirs or assigns of said Henry White."

Held: That under the terms and provisions of the will and codicil, the widow, Rose White, is entitled to receive the share which would have gone to her husband, Henry White, if he had survived the testator, less the sum of $88 and interest thereon as provided in the codicil.

This construction of the will is not changed by the extrinsic evidence offered. So much of that evidence as tends to show the situation, circumstances and condition of the testator and the natural objects of his bounty, is competent, the remaining portion of it we hold to be incompetent, and we cite the following cases: Lester's Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654]; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. R. A. 215]; Clark v. Hardwick Seminary (Tr.), 2 Circ. Dec. 87 (3 R. 152).

A decree may be drawn construing the will in accordance with the views expressed in this opinion.

Wildman and Kinkade, JJ., concur.

Meredith v. Manufacturing Co

JUDGMENTS AND DECREES.

[Morrow (5th) Court of Appeals, October 15, 1915.]

Shields, Ferneding and Houck, JJ.

(Judge Ferneding of the 2nd district sitting in place of Judge Powell.)

B. M. MEREDITH ET AL. V. BUTLER MANUFACTURING Co.

Vacation of Joint Judgment Entered without Personal Representative of Joint Defendant Dying after Submission.

The vacation of a joint judgment as to one of the joint judgment debtors vacates it as to all, where the subject-matter of the action is such that the plaintiff could not have prosecuted several actions; and a trial court in such a case, a prima facie case having been tendered, should grant a vacation as to all the defendants but suspend the order pending a new trial on the merits.

[Syllabus by the court.]

ERROR.

Mitchell & Bruce, for plaintiffs in error.

J. M. Schooler and Harlan & Wood, for defendant in error. HOUCK, J.

The plaintiffs in error have filed in this court a supple. mental petition in error, alleging that since the trial of this cause in the common pleas court, and since the same was partly heard in this court, the plaintiffs in error, Sarah J. Huntington, as administratrix of the estate of R. N. McMahon, deceased, filed their petition in the common pleas court of Morrow county, Ohio, asking for a vacation of and suspension of a judgment formerly made and entered by said court in said proceedings below, and for leave to file answer therein, for the reasons set forth, and upon the grounds stated therein.

The common pleas court refused to grant the relief prayed for, but entered a judgment affirming the former judgment of the court therein, save and except as to R. N. McMahon, and as to the judgment against him enjoined the plaintiff below 16 O. C. C. Vol. 36

Morrow County Appeals.

from issuing an execution against or in any way attempting to collect said judgment, or any part thereof, from the estate of the said R. N. McMahon, deceased.

Plaintiffs in error claim that there is error in the record and proceedings in said common pleas court, in said supplemental proceedings, to their prejudice, in the following particulars, to-wit:

1. In refusing to vacate the judgment against all the plaintiffs in error, the defendants below.

2. After vacating the judgment against McMahon, the court's refusal to suspend the judgment against all of the defendants below, and set the cause down for trial.

3. The court's refusal to permit the plaintiffs in error, the defendants below, to file an answer which contained two new and additional defenses.

4. Modification of the original judgment without a trial. Upon these grounds the plaintiffs in error seek a reversal of the judgment below.

The original action out of which this proceeding arises was commenced in the common pleas court of Morrow county, Ohio, in December, 1909, by the defendant in error, the Butler Manufacturing Company, against the plaintiffs in error, A. E. Bell, R. N. McMahon, since deceased, and others.

The issue was duly made, jury waived, and the cause was tried to the court, and judgment rendered against the defendants below for $2650, with interest. A motion for a new trial was filed, heard and overruled, and error was prosecuted to this court, the petition in error alleging that after said cause was tried and submitted, R. N. McMahon, one of the defendants died on or about November 4, 1912, before the cause was tried in common pleas court, and before judgment was entered; that no suggestion of the death of said R. N. McMahon was made to the court, and no personal or legal representative of the decedent was made a party to the action, but the case was tried and a joint judgment rendered against said R. N. McMahon and the other defendants in said cause, after the death of said McMahon, and without his legal

Meredith v. Manufacturing Co.

or personal representative being made a party defendant therein.

The petition in error came on for hearing in this court at the June term, 1913, and the above alleged error not appearing in the record, this court was without jurisdiction to hear and determine the same, and the cause was continued to give plaintiffs in error an opportunity to proceed under the provisions of Sec. 11631 G. C., or other similar provisions, to obtain their remedy.

This case is an important one, relating to questions of practice that are of vital importance to the bench and bar.

From an examination of the record we find that the original suit upon which this proceeding is based was founded upon a joint contract, and the judgment rendered therein in the trial below was a joint judgment, and therefore the only question presented to this court for determination is, Does the vacating of a joint judgment against one defendant and joint judgment debtor vacate it as to all?

Section 11631 G. C. provides:

"The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which it was made:

(6)

*

*

For the death of one of the parties before judgment in the action."

Under this section, and Secs. 11636 and 11637 G. C., the successive steps required to vacate a judgment after term are as follows:

"1. An application filed in the original case, stating the ground of vacation and the defense, upon which summons shall issue, and no further pleading is required.

"2. Hearing on the application.

"3. If ground for vacation is found to exist and a valid defense is averred in the application, the judgment shall be vacated, but the lien of the original judgment saved by suspending the order of vacation pending trial on the merits.

"4. A pleading setting up a defense, and a trial upon the issues made, as if no judgment had been rendered.