Neville v. Carlet. TRUSTS-WILLS. [Cuyahoga (8th) Circuit Court, June 26, 1905.] Marvin, Winch and Henry, JJ. S. M. NEVILLE, ET AL., EXRS. v. EUGENE LUCIEN CARLET, Et al. 1. Bequest to Trustees for the Benefit of Three Persons in Certain Proportions Creates Only One Estate. Where testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, one-third for the use of his son for life, and one-third for the use of his daughter for her life, and after the death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares; Held: Not to create separate trust estates but that the whole trust estate should be kept as one entire fund and the income divided among the legatees. 2. Annultant Entitled to have Surplus Applied to Satisfaction of Prior Deficiencies in Annuity. Where the income from property upon which an annuity is charged, is for several years insufficient to pay the full amount of the annuity, but in later years leaves a surplus after the payment of the annuity, the annuitant is entitled to have such surplus applied to the satisfaction of deficiencies in the annuity for the years it was not paid in full. APPEAL. Olds & Willet, for plaintiff in error. M. B. & H. H. Johnson, for defendants in error. HENRY, J. The action below was one to construe a will. Of the questions presented there, only three are again urged here. The last of these questions is premature, and we do not feel justified in undertaking to decide it now. This question is the one relating to the executor's duty when one or more of Amanda M. Neville's children shall die. They are all alive now, and may survive for many years. When the exigency arises, the executor may then confidently seek the assistance of the courts in ascertaining his duties in the premises. It is now an academic question which we must decline to entertain. On both the other questions our view accords with that of Cuyahoga County Circuit. the court below, as expressed in the learned opinion of Judge Lawrence. We find confirmation of this view on two several decisions not cited by him or by counsel. In Bell v. Towner, 55 Conn. 364 [11 Atl. Rep. 185], the syllabus is: "A testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, and one-third for the use of his son T for life, and one-third for the use of his daughter M for life; and after death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares for their lives. Held not to be the intent that there should be three separate trust estates during the life of the wife and two afterwards but that the whole trust estate should be kept as one entire fund and the income divided equally among the legatees." We think that case is very much in point with the case before us. On the other question, Chauncey, In re, 119 N. Y. 77 [23 N. E. Rep. 1000; 7 L. R. A. 361], the syllabus is: "The will of K gave her residuary estate to her executors in trust, to receive rents, profits and income and after paying therefrom certain specific annuities, among them one of $500 to D, her adopted son, for his support during minority, and $1.000 thereafter during the life of her husband during his life. After his death to pay to D $2,000 per annum during his life. D survived the husband, and for a number of years after the death of the latter the annual income was insufficient to pay the said annuity in full. Subsequently it exceeded that amount. Upon a settlement of the accounts of the trustee, held, that, in the absence of any language in the will showing a different intent, D was entitled to have the surplus applied in the first balance to the satisfaction of deficiences in the annuity for the years it was not paid in full.” There are some cases cited in the opinion of the court in this case, the syllabus of which I have just read, which are, perhaps, even more in point than is this one, but I will not stop to read them now. Counsel will see that the journal entry is drawn in accord Neville v. Carlet. ance with the holding of the court below, excepting as to the one question which we find is prematurely presented here. Marvin and Winch, JJ., concur. NEW TRIALS. [Cuyahoga (8th) Circuit Court, October 27, 1905.] Marvin, Winch and Henry, JJ. *INDEPENDENT COAL Co. v. C. N. QUIRK, ET AL. 1. Second Motion for New Trial Based upon Different and Unknown Ground of First Motion Filed within Three Days. A second motion for a new trial may be filed within the three days allowed for filing such motions, when it is based upon a different ground and one not known at the time of filing the first motion. 2. Designating Second Motion for New Trial as Amendment to First Motion is Immaterial. It is immaterial that a second motion asking for a new trial, upon a different ground from that set forth in the first, is designated by the pleader as an amendment to the first motion. 3. Forty Days for Filing Bill of Exceptions Runs from Overruling Second Motion for New Trial. Where there has been a second motion for a new trial filed in season, the forty days allowed for filing a bill of exceptions will date from the overruling of the second motion, notwithstanding the overruling of the first motion and entering of judgment on the same day upon which the second motion was filed. ERROR. Kerruish Chapman & Kerruish, for plaintiff in error. HENRY, J. This proceeding was brought to reverse a judgment for $333.67, recovered at the January, 1905, term of the court of common pleas of Cuyahoga county, by C. N. Quirk and P. F. *Affirmed, no op., Independent Coal Co. v. Quirk, 80 O. S. 746. Cuyahoga County Circuit. Waltham, partners under the firm name of Northern Ohio Coal & Coke Supply Company, an Ohio corporation, in an action upon a contract for the sale and delivery of coal by said partnership to said corporation. The parties here thus stand in the relation opposite to that in which they stood in the court below. After this proceeding in error was commenced, a motion was interposed by the defendants in error to strike the bill of exceptions from the files, upon the ground that the record shows it to have been filed after the expiration of the time limited by law for such filing. Upon diminution of record being suggested by the plaintiff in error, in this, to-wit, that the certified transcript of docket and journal entries filed herein failed to contain the entry of the order made by the court of common pleas, refusing an amendatory motion for new trial, filed by the defendant below. We entertained this suggestion and permitted the plaintiff in error to procure a correct transcript. Defendant in error's objection that the transcript could not thus be amended, after the expiration of the four months period allowed by statute for the commencement of a proceeding in error, was subsequently withdrawn, in view of the rule laid down in Falconer v. Martin, 66 Ohio St. 352 [64 N. E. Rep. 430]. The motion to strike the bill of exceptions from the files was, however, still urged upon the ground that the time for filing the same was begun, not from the date of the overruling of the amendment to the motion for a new trial but from the prior date when the original motion for a new trial was refused; and that, on this view, the forty days had expired when the bill was filed. The transcript discloses this state of facts, namely: verdict rendered March 25, 1905; motion for new trial filed March 27; amendment filed March 28; motion overruled and judgment entered March 28; amendment to the motion for a new trial overruled May 12; bill of exceptions filed May 16. It will be observed that both the motion for a new trial and the amendment thereto were filed within the three days allowed by law; that the motion was overruled before that period had expired; that the overruling of the motion took place on the same day as Coal Co. v. Quirk. the filing of the amendment, and that if we consider the order in which they are recorded in the transcript as indicating the order in which the events occurred, the amendment was filed before the motion was overruled. It should be noted, furthermore, that the amendment alleges a ground for new trial not averred in the original motion, and that it was alleged by the mover and found by the court that this new ground was unknown to the former when the original motion was filed. On this state of facts it is claimed that the motion and the amendment must be deemed to have been acted upon together, and that the subsequent action of the court, in overruling the amendment alone, was therefore vain and nugatory. Or, if we take the view that the order of events, as recorded in the transcript, is not conclusive with respect to actions which took place in a single day, and that the amendment may therefore be deemed to have been filed after the overruling of the original action, it is still urged that the court below could not make a valid order overruling it, for several reasons, viz: first, because it is not competent to file an amendment to a motion which is no longer pending. Secondly, there is no authority for filing within term, a second motion for a new trial, however styled, after a first motion has been disposed of. Thirdly, the ruling, on the first motion, especially when coupled, as it was, with the entry of judgment on the verdict, as required by the present statute, renders the asserted right to a new trial res judicata, and hence a bar to entertaining a subsequent motion in the same behalf. And if the court, in the exercise of its proper control over its own orders and judgments during term, might have vacated its first order overruling the motion for a new trial and also the judgment that was entered thereon, in order that it might entertain a second motion to the same end, it is argued that no such procedure was observed in this case, and the judgment that was first rendered therein still stands, despite the fact that no judgment could lawfully be entered by the clerk until after the motion for new trial, if any, was finally overruled. The whole question thus presented is, so far as we have discovered, a novel one. Two of the points made, may however, |