West, Executrix, v. Knoppenberger.

[Vol. IV, N. S.

sequence of melancholy, grief, sorrow, misfortune, sickness or disease, yet, if such discomposure or derangement is not so great as to deprive the testator of the rational faculties common to men, he may still have testamentary capacity.

I say when we come to consider this in the light of the evidence in this case as to the physical and mental condition of the deceased, and the simple character of the will he signed, we feel bound to hold that the charge in the particulars pointed out contained serious errors prejudicial to the plaintiff in error and which may have produced a result different from that which might have been produced by a correct charge.

In this case because of the state of the evidence pro and con as to the testamentary capacity of the deceased, the evidence positive and negative, or, I may say, the paucity of evidence as to his loss of memory, lack of capacity to transact his ordinary business, delusions operating upon his mind so as to influence him in the disposition of his property; unnatural aversion to the natural objects of his bounty in view of their conduct toward and treatment of him; anything complicated or difficult in the problems to be considered and solved in the making of such disposition of his property as was attempted by the will in question, and other elements and subjects of inquiry ordinarily submitted to the jury as tests of testamentary capacity, and especially in view of the general character of the answers of physicians to the hypothetical questions mentioned, that in their opinions his mind was not, or might not have been sound, we think that the court should have given more prominence and emphasis to the phase of the law that sustains testamentary dispositions though the mind of the testator may not have been in all respects sound or the memory perfect, or the mind entirely clear or free from prejudice or even delusions (ideas not sufficiently elucidated in the charge); and the court should have avoided so charging as to in effect shift the burden of proof and impose it upon the defendant, a fault quite apparent in the charge.

Because of these errors the judgment of the court below is reversed and the verdict is set aside and the case will be re

manded to the court of common pleas, to be there proceeded with according to law.

Stueve & Connaughton, Jesse Stephens and Sumner & Tucker, for plaintiff in error.

Goeke & Hoskins, Layton & Son and D. F. Mooney, for defendant in error.

PLEADING-SPECIFIC PERFORMANCE.

[Circuit Court of Hamilton County.]

FRANK J. SCHNITZER V. ROBERT S. COLE.

Decided, March, 1904.

Pleading-Failure of Averment to Present an Issue-But Case is Tried as though Issue was Made-Assertion as to Purchase Received in Silence by Defendant-Not an Admission upon which Specific Performance can be Based.

1. Where a case is tried upon the theory that the pleadings present a certain issue, a reviewing court will consider it from that point of view, notwithstanding the failure of the averment relating to that issue.

2. The hearing in silence by the defendant in a saloon of a declaration by the plaintiff, that he had purchased a lot from defendant upon certain terms, is not sufficient to establish a claim for specific performance against positive testimony denying the existence of an agreement to sell, by defendant and his wife, the only persons present with plaintiff when the agreement is alleged to have been made.

GIFFEN, J.; SWING, J., and JELKE, J., concur.

The answer of the defendant to the amended petition contains no general or other denial of the agreement set up, and the averment that "said verbal agreement was an option upon said lot for two weeks from the said 12th day of May, 1903," is a mere conclusion of law, and presents no issue of fact. But inasmuch as the parties tried the case upon the theory that the pleadings presented an issue, whether the contract of sale was upon consideration that plaintiff pay the purchase money within two weeks from the date of the sale, we will so consider it.

At the time of the alleged sale the only persons present were the plaintiff, the defendant and his wife. The latter two both testify that the plaintiff first offered $225; that the defendant asked $275, and finally offered the lot to plaintiff for $250 if he would pay the same within two weeks from that time, and that plaintiff accepted. The plaintiff testifies that the time of payment was two or three weeks from date of sale.

The testimony of the witness, Breitfelder, is a recital of a conversation between witness, plaintiff, and defendant, had in a saloon soon after the contract had been made and the receipt for five dollars given, in which plaintiff said that he had bought a lot of defendant and was to have two or three weeks to close up the trade, to which statement the defendant assented. It is not claimed by the plaintiff that the contract was made or its terms altered at this time, but only that the defendant admitted the terms of the contract to be as the plaintiff testifies they were originally understood by him.

Without intending to discredit the witness Breitfelder, we can only say that such an alleged admission, made under such circumstances, ought not to be considered as outweighing the positive statements of both the defendant and his wife of what took place at the time the contract was made. The receipt of fered in evidence is in no sense a memorandum of the agreement, but only evidence of part payment in pursuance of that agreement. The parties elected to make a parol agreement, and the burden of proof being upon the plaintiff, we think he has failed to establish his claim for specific performance. It will be necessary however for the defendant to amend his answer in conformity with the proof made at the trial, when he will be entitled to a judgment.

Renner & Renner, for plaintiff.

H. E. Engelhardt, W. W. Bellew, for defendant.

1904.]

Cuyahoga County.

A DIVORCE DECREE CAN NOT BE REOPENED AT A

SUBSEQUENT TERM.

[Circuit Court of Cuyahoga County.]

WALTER B. SOLOMON V. ANNA A. SOLOMON.*

Decided, May 16, 1904.

Divorce-Publication for Defendant-Plaintiff a Non-resident-Decree Granted-Defendant Moves at a Subsequent Term-To Reopen the Case for Fraud-Section 5355 and Its Scope-Does not Reach the Question of Original Jurisdiction, and not Applicable to a Divorce Proceeding-Public Policy as to Divorce.

1. Section 5355, Revised Statutes, relating to the reopening of cases within five years in which there was no other service than by publication and the defendant had no actual notice of the pendency of the action, does not authorize the reopening of a divorce suit at a term subsequent to that in which the decree was entered. 2. Owing to the effect upon innocent parties which may result from the opening up of decrees for divorce, public policy requires that they be treated as a peculiar class in themselves to be governed by principles especially applicable to such cases.

3. Section 5355 would authorize the personal representative of a party who had died after judgment to have the judgment opened up in the same manner as the party if living might have done himself, and conversely that in a proper case a judgment might be opened up against the personal representative, for the purpose of being let in to defend. But in a divorce proceeding there is nothing to defend, for the case has abated and passed beyond the limits of revivor.

MARVIN, J.; HALE, J., and WINCH, J., concur.

Error to the court of common pleas.

The parties here are as they were in the court below. Prior to the 13th day of April, 1901, the plaintiff and defendant were husband and wife. On said date the plaintiff filed his petition in the court of common pleas of this county, praying to be divorced from the defendant. Among the allegations of the petition was the following:

"The plaintiff says he has been a resident of the state of Ohio for the year last past, and is at present a bona fide resident of the said county of Cuyahoga.'

The defendant was a non-resident of the state of Ohio at the time the action was brought, and, on the 8th day of May, 1901, the plaintiff filed his affidavit with the clerk of said court,

*Reversing 1 N. P.-N. S., 113.

setting up that the defendant was not in the state of Ohio, and that her whereabouts were unknown to the plaintiff, and that service could not be made upon her other than by publication of notice to her. Thereupon notice was published to her of the filing and pendency of the petition, in a newspaper published and of general circulation in said Cuyahoga county, and such proceedings were thereafter had in the cause that on the 29th day of October, 1901, an order was made in said court, in these words:

"This cause having been duly advanced, came on to be heard October 29, 1901, upon the petition and evidence, the defendant being in default of answer or demurrer, although duly served with process according to law, and upon due consideration thereof the court finds that the allegations of the petition are true; that the plaintiff was a resident of the state of Ohio for one year next preceding the filing of his petition, and at that time was a bona fide resident of this county of Cuyahoga, and that the parties were duly married as stated in the petition. The court further finds that the defendant has been guilty of gross neglect of duty to said plaintiff as charged in the petition, and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore ordered, adjudged and decreed that the marriage contract heretofore existing between the parties hereto, to-wit, said Walter B. Solomon and Anna A. Solomon, be and the same is hereby dissolved and both parties are released therefrom."

At a subsequent term of said court, to-wit, on the 15th day of March, 1902, the defendant filed in said court a motion asking that the order and judgment heretofore quoted be opened and that she be let in to defend, and as cause for the granting of such motion it is stated therein:

"That she had no actual notice of the pendency of this case in time to appear in court and make a defense; that the plaintiff was not a resident of the state of Ohio during the year prior to the filing of the petition herein, and was not at the time of the filing of the petition a bona fide resident of Cuyahoga county, Ohio; that the allegations contained in the affidavit for publication herein, namely, 'that the said defendant's whereabouts is absolutely unknovu to him' (meaning thereby the said plaintiff) was absolutely false and untrue."

With this motion the defendant filed an answer, which admits the marriage of the parties as stated in the petition, and denies each and every other allegation and averment in said petition contained. She also filed a large number of affidavits