Hughes v. Hughes. sisters, and three brothers were the only children and heirs of Levi Hughes, who died at Remington, in said county, November 6th, 1870, testate, the owner of real estate therein; that by the will of the said decedent, the testator devised all the rest and residue of his estate, real and personal, after the payment of debts and charges, to his widow, to be to her and her heirs forever; that after the execution of the will there was issue of the marriage four children, and before its execution there had been issue three children, all of whom were living; that the youngest child was about six years old at the death of the testator; that there are no debts against the estate of the said decedent; that the will was revoked for the reason that no provision was made by the will for the children born after its date; and that this was an amicable suit to obtain the determination of a question of law arising upon the will. A copy of the will was filed with the complaint. The will was executed June 5th, 1855, and admitted to probate the 15th day of February, 1871. The appellant appeared to the action, and filed a demurrer to the petition, upon the ground that the same did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the appellant excepted, and declining to answer over, the court adjudged the will invalid, for the reason that children had been born subsequent to its execution, for whom no provision was made in the will, and revoked the probate of the will. The only question presented for our decision is, whether the court erred in overruling the demurrer to the petition. The third section of the statute of wills reads as follows: "Sec. 3. If after the making of a will, the testator shall have born to him legitimate issue who shall survive him, or shall have posthumous issue, then such will shall be deemed revoked, unless provision shall have been made in such will for such issue." 2 G. & H. 552. The above section of the statute is so plain and unequivocal as to leave little room for doubt or construction. The Hughes v. Hughes. object of the statute was to render certain and definite what had become uncertain and doubtful by reason of the conflicting decisions of the courts in England and this country. The ecclesiastical courts very early adopted the rule, that marriage and the birth of a child revoked a will as to personalty, and the same principle was ultimately, but not without a struggle, applied to devises of real estate. Finally, it was held that it was not necessary that a subsequent marriage and birth of a child should both concur, but that the birth of a child alone, in connection with other circumstances, might be sufficient to raise an implied revocation. In some of the cases it was held that the subsequent birth of a child only revoked the will as to such child, while in others it was held that it was not necessary that the provision for the subsequent issue should be made in the will, but that it might be made otherwise. The most, if not all, of the American states have adopted statutes on the subject, but these statutes are as different and conflicting as had been the decisions of the courts. The precise question involved in this case has been decided in Ohio and Illinois, where it was held, under statutes similar to ours, that the birth of a child subsequent to the execution of a will worked an entire revocation of the will. Evans v. Anderson, 15 Ohio St. 324; Tyler v. Tyler, 19 Ill. 151. The whole question is now regulated by statute in England. Under our statute, the birth of a child, after the execution of a will, works an entire revocation of the will, unless provision shall have been made in such will for such issue. Such is the plain, express, and undoubted requirement of the statute, and it is our imperative duty to carry into execution the legislative intention. We are of the opinion that the court committed no error in overruling the demurrer. The judgment is affirmed, with costs. D. H. Maxwell, for appellant. B. E. Rhoads, for appellee. Noble v. Leary. NOBLE V. LEARY. ATTORNEY.-Set-off.-Agency.-An attorney, when sued for money collected for the plaintiff, may set off a note held by him, executed by the plaintiff. There is nothing in the doctrine of agency that forbids such a defence. APPEAL from the Marion Common Pleas. DOWNEY, J.-This action was set on foot by the appellee against the appellant. It is alleged in the complaint that the defendant was a claim agent, and as such he undertook to collect a balance of pay for one John Maloney from the United States, for a designated sum as compensation, to be deducted from the money when collected; that the defendant under this employment collected the sum of four hundred and ten dollars and forty-one cents; that afterward Maloney demanded the money of him, less the amount of his compensation, which he refused, and still refuses to pay; that Maloney assigned the claim to the plaintiff, who also demanded the money of the defendant, when he again refused to pay. The defendant answered, by way of set-off, that the plaintiff's assignor was indebted to him in the sum of two hundred and eighty-eight dollars and fifteen cents, with interest from August 2d, 1866, on a promissory note of that date, at three months, made by Maloney to third persons named, and by them indorsed to him, before notice to him of the assignment by Maloney to the plaintiff of the cause of action. on which the suit is brought; and, also, in the sum of fortytwo dollars for the services mentioned in the complaint. The defendant proposed to set off these amounts against so much of the plaintiff's demand, and offered to confess judg ment for the residue of the plaintiff's claim. A demurrer to this answer, alleging that it did not state facts sufficient to constitute a defence, was sustained by the court. The defendant excepted, and, abiding by his demurrer, final judgment was rendered against him. Noble v. Leary. The error assigned is the sustaining of the demurrer to the answer. The ground assumed by counsel for the appellee in support of the ruling of the court is, that on account of the existence of the relation of principal and agent between Maloney and Noble, Noble could not purchase the note against Maloney and use it as a set-off in the action for the recovery, by the plaintiff, from him, of the money collected and received by means of the agency. He deduces this principle from the rule that the agent cannot place himself in a position adverse, or in opposition to the interest of the principal. No authority on the exact point involved is cited by counsel for either party. We have not found, in a limited search for authority, any case exactly like this. Recurring, however, to the works on the subject of agency, we find the rule referred to by counsel for the appellee to be this, "that, in matters touching the agency, agents cannot act, so as to bind their principals, where they have an adverse interest." Story Agency, sec. 210. The purchase of the note in this case, which the defendant sought to use as a set-off, was, so far as we can see, in no way connected with the agency. Had it been shown, by a reply to the answer, that the defendant, by the use of the money of his principal, had purchased the note at a discount, it is probable that he could receive credit only for the amount paid by him. Story Agency, secs. 207 and 214; Dunlap's Paley Agency, 49. But this question is not before us. We see no reason why, if the defendant had sued Maloney on the note which he purchased and held against him, Maloney could not have met the claim by an answer of setoff on account of the liability of the defendant to him for the money collected. Nor can we, on the other hand, see any legal reason why, when Maloney or his assignee sues the defendant for the money collected, he cannot use the note as a set-off, to that extent, against the demand for the money. The statutory provision regarding a set-off is this; "the set-off shall be allowed only in actions for money de Kellenberger v. Boyer et al. mands upon contract, and must consist of matter arising out of a debt, duty, or contract, liquidated or not, held by the defendant at the time the suit was commenced, and matured at or before the time it is offered as a set-off." 2 G. & H. 88, sec. 57. It is not claimed by counsel for the appellee that there is anything in the nature of this particular agency which requires it to be distinguished from any other agency; but it is insisted that the rule contended for applies to all agencies where it is the duty of the agent to account for money received by him for his principal. Could it be successfully asserted that the defendant could not have sued Maloney on the note, even while he yet held the money collected for him in his hands? We think not. It is our opinion that the set-off should have been allowed. A. G. Porter, B. Harrison, and W. P. Fishback, for appellant. *Petition for a rehearing overruled. KELLENBERGER V. BOYER ET AL. MECHANIC'S LIEN.-Action.-Necessary Parties.—In a suit to enforce a me- APPEAL from the Wayne Common Pleas. BUSKIRK, J.-This was a proceeding on the part of the appellees against appellant and Reuben Taylor, to enforce liens against certain described real estate, for materials furnished and labor performed in the erection of a house thereon. |
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