(145 N.E.) pany for a directed verdict, which motion | northerly track of the defendant company, was overruled. was ample time and space for decedent to have stopped the car for the momentum of a man hurling himself from an automobile traveling 15 miles per hour would certainly carry him as far as momentum would carry an automobile with brake facilities traveling at that speed in second gear up a steep grade over a rough surface. The fact that the occupant of the rear seat of the automomile did see, and did escape, together with the evidence as to speed, gear, grade, condition of approach and lack of obstruction to view, refuted every hypothesis that decedent could not have seen the danger, and did not have time to stop his automobile after he could have seen, before he reached the northerly track. Evidence having been introduced to the effect that the defendant company failed to sound a warning either by ringing of a bell or the sounding of a whistle, the motion admitted the negligence of the defendant in that respect, and raised the question for the court's determination whether the plaintiff's evidence raised a reasonable presumption of contributory negligence on the part of the plaintiff's decedent, directly contributing to his injury, and, if so, whether any portion of such evidence, given the most favorable interpretation of which it was reasonably susceptible in support of the theory of due care on the part of plaintiff's decedent, tended to dispel that presumption. If so, it made a question of fact for the determination of the jury; if not, it made a question of law for the court. Traveling up a grade of coarse crushed stone, with an irregular rise of 12 to 15 feet in 50 to 100 feet, in second gear, at a speed of 15 miles per hour, the decedent could have stopped his car within a very few feet, if not instantly. The only obstruction to decedent's view in the direction of the train being a small tree or a number of small trees in the south line of the railroad right of way, 50 feet from the center of the northerly track, and approximately 100 feet west of the highway, his view was unobstructed in the direction from which the train was approaching, if not for the whole distance between the south line of the right of way and the point of collision, at least for a sufficient distance to enable an occupant of the rear seat of the automobile, who necessarily would not be able to see for an instant after decedent would be able to see, to shout a warning and thereafter escape in safety from the automobile and lift or drag his companion in safety from the automobile before it reached the point of collision. Had the decedent looked when he was at the point where the occupant of the rear seat of the automobile did, he could and would have seen the train, and from there on to the crossing the evidence discloses nothing to obstruct his view. On the contrary it affirmatively disclosed that there was nothing to obstruct his view. The elevation of the tracks could not obstruct it, rather the reverse. The momentum of the automobile in second gear up so steep a grade would be negligible. The time and space it took the occupant of the rear seat of the automobile to shout his warning, escape with his companion from the automobile, and overcome the momentum which his leap from the automobile traveling at the rate of 15 miles per hour would give, before reaching the The plaintiff's evidence being such that it raised a presumption of negligence upon the part of the decedent contributing directly to his injury, the burden was cast upon him to dispel that inference. He offered no such evidence. On the contrary no part of his evidence, given the most favorable interpretation of which it is susceptible, tended to show other than that he either did not look or that if he did look he saw and had time thereafter in the exercise of ordinary care to have stopped the automobile and prevented the accident. If he looked, and failed to see, he nevertheless was warned by the occupant of the rear seat of the automobile in sufficient time and at a sufficient distance from the crossing to have enabled him in the exercise of ordinary care to have stopped the automobile and prevented the accident. [2] Much of the evidence of plaintiff tended to affirmatively prove the negligence of his decedent directly contributing to his injury, and none of it was inconsistent with such negligence. Therefore, at the close of plaintiff's evidence the question of contributory negligence had not only been raised by plaintiff's own evidence but had ceased to be a question of fact for the determination of a jury, and had become an ascertained fact for the application of the law thereto by the court. The overruling of the motion, therefore, was error. The judgment of the Court of Appeals and of the trial court will be for that reason reversed, and this court will enter the judgment which each of the lower courts should have entered and render judgment for the defendant below, the plaintiff in error here. Judgment reversed, and judgment for plaintiff in error. MARSHALL, C. J., and JONES, MATTHIAS. DAY, and ALLEN, JJ., concur. (No. 18363.) OGLESBEE v. MILLER. (Supreme Court of Ohio. Dec. 16, 1924.) (Syllabus by the Court.) 1. Wills 588-Provision for specific legacy from proceeds of land followed by clause disposing of remainder of proceeds held not general residuary bequest. In a will which directs the sale of real estate and the payment of specific legacies from the proceeds thereof, followed by the provision that "all the rest and residue of my said property realized from the sale of 'said real estate" shall be divided among persons named, such provision disposes only of the proceeds of the real estate and cannot be construed as a general residuary bequest. 2. Descent and distribution -Wills All intestate property passes by virtue of and in accordance with the statute of descent and distribution; the course thereby prescribed can be changed only by testamentary disposition. Mathews v. Krisher, 59 Ohio St. 562, 53 N. E. 52, approved and followed. 3. Wills 865 (4)-Personal property undisposed of by will held to pass to husband, though will gave it to him for life. Personal property undisposed of by will passes to the husband, where the testatrix left no children or their legal representatives, even though by provisions of the will such property had been bequeathed to the husband for and during his natural lifetime, or so long as he remained unmarried. Error to Court of Appeals, Greene County. Action by George D. Oglesbee against W. L. Miller, executor, etc. From a judgment on appeal to the Court of Appeals, construModified, ing will, plaintiff brings error. and, as modified, affirmed.-[By Editorial Staff.] This action was brought in the court of common pleas of Greene county to obtain a construction of the will of Martha Seiver Oglesbee, and the direction of the court relative thereto. No answer was filed and no evidence was introduced upon the hearing, and therefore all the facts before the court appear in the petition, the portion essential to a consideration of the questions presented in this case being as follows: leaving this plaintiff, George D. Oglesbee, her widower, and, as such widower, he is interested in the said will of the said Martha Seiver Oglesbee and as such widower, he brings this suit. Following is a copy of said will: "I, Martha Seiver Oglesbee, being of sound and disposing mind and not under any restraint, do make and publish my last will and testament. ""Item 1. I desire all my just debts paid out of my personal estate. "Item 2. I give, devise and bequeath to my husband, George D. Oglesbee, all my property, both real and personal, to have and to hold the same for and during his natural lifetime, or so long as he remains my widower, with the following conditions, said husband to keep said farms in state of good cultivation and the buildings and fences in good repair, and all taxes paid and the improvements kept insured for as much at least as they shall be at my death, and said husband not to sell any timber off of said premises, but to have the right to use so much of the timber as may be necessary to keep said farm buildings and fences in reAnd further conditioned that said huspair. band shall not sell or convey away his estate therein. "Item 3. At the death or remarriage of my said husband, I desire that the farm of 100 acres, more or less, that I received from my father, Charles Harner, be sold by my executor and the proceeds to go to my brothers and sisters, share and share alike to each, and in case of any brother or sister dying before my said husband and without children, then said share to go to the surviving brothers and sisters, or the children of any deceased brother It being my desire to keep said or sister. farm among the Harner heirs or their children. "Item 4. At the death or remarriage of my said husband, I desire the rest and residue of my real estate sold by my executor and out of the proceeds the following legacies paid: ""To Franklin J. Harner the sum of three thousand dollars ($3,000) and in case of his death then to his two sons, Lester and Ros well. "To Sarah Wendall, the child we partly raised, the sum of five hundred dollars ($500). ""To Margaret Morgan Shaw, the sum of five hundred dollars ($500). ""Item 5. All the rest and residue of my said property realized from the sale of my said real estate, I desire divided into two equal parts, one half to go to the following: ""To the nieces and nephews of my former husband, Mahlon H. Seiver, share and share The other half of said residue alike to each. to go to my brothers and sisters surviving, or in case of the death of any of said brothers and sisters then the children of said deceased brother or sister to take the share the parent would have taken, and in case said brothers or sisters die without issue surviving, then their share to go to my nieces and nephews.' "This plaintiff further says that said Martha Seiver Oglesbee died possessed of real estate worth the sum of thirty-nine thousand four hundred ninety ($39,490) dollars, and of personal property of the value of fifteen thousand The testatrix died leaving no child or chil($15,000) dollars; that she attempted to dis-dren or descendants of any child or children pose of all of said property by her said will; that the debts and claims against said estate to take the personal property, and plaintiff sought direction and advice particularly as do not exceed five thousand ($5,000) dollars. "This plaintiff, George D. Oglesbee, further to whether he was entitled to the personal says that said Martha Seiver Oglesbee died property absolutely, or only to the use thereFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) of during his lifetime, but also asked the finding and determination of the court as to the vesting of the title to the real estate. therein described, upon the death or remarriage of the husband, and specifically provides the manner of distribution of the proceeds. By item 4 it is directed that at the death or remarriage of the husband the executor shall sell all other real estate belonging to the testatrix and pay certain legacies, one of $3,000 and two of $500 each, and immediately following this provision is the language of item 5 above quoted. That provision makes no reference whatever to per ceeds realized from the sale of the real estate disposed of by virtue of the preceding item, for we have seen that the entire proceeds of the 100-acre farm had been disposed The case was heard upon appeal by the Court of Appeals, which court found that under item 2 of the will the plaintiff took a life estate only, or so long as he remained the widower of Martha Seiver Oglesbee, in the personal property of the testatrix, and that the plaintiff would have the right to elect to take in kind the household goods and personal effects of testatrix after pay-sonal property, but only to the sum or proment of debts, etc.; that the court administering the estate is the proper court to determine how said property is to be handled at the time of distribution of assets for the protection of the remaindermen; that un-of under the provisions of item 3. der items 4 and 5 the title to the real estate is vested in the executor for the purpose of carrying out the provisions of the will; and that under item 5 the personal property of which the testatrix died seized, upon the death or remarriage of George D. Oglesbee, becomes a part of the rest and residue, to be disposed of as provided in that item of the will. But it is claimed that there is an ambiguity, and that where there is ambiguous language in a will, it must be so construed as to carry out the intention of the testator, if that can be gathered from other portions of the will, and then it is argued that other portions of the will show the desire and purpose that the husband have only the use of the personal property during his life or his To the portion of the judgment wherein | widowerhood. the court held that item 5 makes a disposition of the personal property mentioned in item 2 of the will, and wherein it held that the testatrix did not die intestate as to the personal property, and that George D. Oglesbee as sole heir at law of the testatrix does not take said personalty by descent, the plaintiff excepted, and thereafter, upon order of this court, the cause was certified here for review and final determination. Robert J. Shawhan, of Lebanon, and Marcus Shoup, of Xenia, for plaintiff in error. L. T. Marshall, of Xenia, for defendant in error. The whole difficulty with the application of that proposition here lies in the fact that there is no ambiguity. If item 5 read "all the rest and residue of my said property," it would pass not only the funds realized from the sale of the real estate referred to, but all the personal property. But that is not the language used by the testatrix, and the words of limitation used by her surely cannot be disregarded, for the property she there bequeathed was only that "realized from the sale of my said real estate." It may be admitted that when the lifetime use of the personal property was given to the husband in item 2, the testatrix intended later in the will to make full and MATTHIAS, J. [1-3] The only question final disposition thereof; but clearly she presented to this court is whether the person- did not do so. It is an elementary princial property owned by the testatrix at the ple of construction that where a testator has time of her death was disposed of by her not disposed of his property by will, the will. If it was not, it follows that under the statute of descent and distribution, there tion, make a new or corrected will for him courts cannot, under the guise of construchaving been no children or their legal rep-in order to dispose of his property and avoid resentatives, such property passes to and vests in the surviving husband. The provision of this will, which it is claimed has the effect of disposing of the personal property of the testatrix is contained in item 5 and is as follows: "All the rest and residue of my said property realized from the sale of my said real estate, I desire divided into two equal parts [the manner of distribution of which is then directed]." It is to be observed that by item 2 all real and personal property was given to the husband for and during his natural lifetime or so long as he remained unmarried. Item 3 directs the sale of a certain 100-acre farm, were used they would not serve the purpose tribution. The question which the court is The court went much further in that case than we are called upon to do here, for it was there held that "a testator cannot, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will." real estate," or, if that be not done, to add | effect after his decease.' If the owner, therethereto some such provision as "and all my fore, for any reason, fails in his lifetime to personal property." It is doubtful whether designate who shall succeed to it, the law steps any language could have been used which in at his death and supplies the omission, and casts it upon the heir at law." would have more clearly limited the property bequeathed in item 5 to the proceeds of the sale of the designated real estate than that used. But even if it be admitted that some word more apt and appropriate than "property," such as "proceeds," or "money," or "fund," could have been employed, still that would not warrant a total disregard of the language used, when the meaning of that language is clear. The court must assume that testatrix meant what she said, and surely cannot ascribe a meaning contrary to the ordinary and usual significance of the language used. The rule applicable to this case is concisely stated by Page on Wills, section 467, as follows: "Where testator makes specific bequests of his property, and leaves a part of the same undisposed of, such part will descend in accordance with the law of descent and distribution, irrespective of the actual intention or expectation of testator," in support of which the following cases are cited: Bill v. Payne, 62 Conn. 140, 25 A. 354; Wilder v. Holland, 102 Ga. 44, 29 S. E. 134; Andrews v. Harron, 59 Kan. 771, 51 P. 885; State v. Holmes, 115 Mich. 456, 73 N. W. 548; Clarkson v. Pell, 17 R. I. 646, 24 A. 110; Young v. Kinkead's Admrs., 101 Ky. 252, 40 S. W. 776, and Mathews v. Krisher, 59 Ohio St. 562, 53 N. E. 52. It is impossible to construe the provision in question as a general residuary bequest without striking therefrom language clear and easily understood, or adding some provision such as above suggested, which would have the effect of completely changing the meaning and purport of the language used. That would not be interpretation; the language is not ambiguous and therefore needs no interpretation. It would be judicial construction in the sense of making a will, or at least of adding an item disposing of property which the testatrix, intentionally or inadvertently, had not either specifically or generally bequeathed. The presumption against partial intestacy cannot have the effect of a bequest of property where none in fact was made. The question always before the mind of the court must be not what should the testator have done, but what did he do and what did he mean by the words "The comprehensive language in which the which he actually employed. We are in no statute is made applicable to all cases of insense disregarding the rule always applica- testacy compels the acceptance of the rule, ble, that the intention of the testator shall generally recognized, that the heir at law can govern and that such intention shall be gath-be disinherited only by a devise of the propered from the entire instrument. In the case of Mathews v. Krisher, the facts are quite similar to the case at bar in that the testator had devised all his lands to his wife "as long as she shall live," making no further disposition thereof. It was there claimed, as here, that the terms of the will limited her interest to an estate for life notwithstanding the provisions of the statute of descent and distribution. This court held: erty to another." Citing Crane v. Executors of Doty, supra. The bequest in question having disposed only of the fund to be realized from the sale of real estate, and there being no general residuary bequest, it follows that, the personal property of the testatrix not having been disposed of by her will, the absolute title thereto passes to the surviving husband by virtue of the statute of descent and distribution. The decree of the Court of Appeals is accordingly modified, and, as so modified, affirmed. "It is very true that our law has always allowed to every person of mature age, absolute dominion over all he may possess, to dispose of it by last will and testament, saving the rights of the widow and creditors, if any; and it is equally true, that where such disposition is made, the will will be construed with great liberality for the purpose of arriving at the intention of the testator. it is very clear that even the expressed intention of the testator cannot be regarded in the absence of such disposition; and this arises from the very nature and office of a will, which is defined to be 'an instrument by which a person makes a disposition of his property to take | JONES, JJ., concur. But Judgment modified, and affirmed as modi fied. MARSHALL, C. J., and ROBINSON and (145 N.E.) CITY OF DAYTON v. PUBLIC UTILITIES CITY OF AKRON et al. v. SAME. (Supreme Court of Ohio. Dec. 16, 1924.) Public service commissions 30-Time from which to compute period for proceeding in error is date of entry of final order on journal. The time from which to compute the 60 days allowed for the institution of proceedings in error from the public utilities commission to the Supreme Court, under the provisions of section 547, General Code, is the date of entry of the final order on the journal of the commission, and not the date of the overruling of the application for a rehearing. Error to Public Utilities Commission. Separate proceedings before the Public Utilities Commission of Ohio by the Bell Telephone Company, opposed by the City of Dayton and by the City of Akron and others, respectively. To review orders of the commission, both cities bring error. Motion to dismiss petitions in error sustained.-[By Editorial Staff.] The facts in these two cases, so far as essential to a determination of the issues presented, are practically identical. Every purpose will therefore be served by a full statement of the facts shown by the record of the Dayton Case. On April 1, 1924, the Ohio Bell Telephone Company filed with the public utilities commission of the state a schedule of telephone rates for the Dayton, Ohio, exchange area, effective May 2, 1924, and canceling all preceding tariffs. On April 29, 1924, the city, as a subscriber and on behalf of citizens who were subscribers and users of such service, filed a complaint against such schedule, covering unified service arising out of the consolidation of the Bell Company and the State Telephone Company, as to which no rate has ever been adopted, and stating that a proceeding to fix such rates is now pending, filed pursuant to the order of the commission, which proceeding is undetermined; and further complaining that the various rates, charges, classifications, rentals etc., provided by such schedules, are unfair, unreasonable, excessive, and unlawful. On April 30, 1924, the public utilities commission announced that it would enter upon a hearing concerning the propriety of the increased rates, and ordered that the operation and use of the rates and charges contained in such tariff be suspended for a period of 120 days. On May 15, 1924, the commission, upon hearing, fixed $105,000 as the amount of the bond which the Bell Telephone Company should give under the provisions of the statute, whereby, after the expiration of the period of suspension, it might collect the rates set forth in the schedule. Bond was thereupon filed with the commission, pursuant to said order. On May 28, 1924, an application for a rehearing was filed by the city of Dayton. On June 6, 1924, the application for rehearing of the order entered May 15, 1924, was overruled, and on July 3, 1924, an order was entered overruling the application of the order of April 30, 1924, and reciting that it was the intention of. the commission to overrule such application in its order of June 6, 1924, but that through an inadvertence it omitted to include reference to the order of April 30 in that entry. its petition in error in this court, asking for On August 1, 1924, the city of Dayton filed a review of the orders of the commission. The case was submitted to this court upon motion to dismiss the petition in error, upon the ground that the final order, if one was made and entered, is the order whereby the rates objected to by the plaintiff in error were temporarily made effective upon the giving of bond by the utility, and that the petition in error was filed more than 60 days after the entry of that order on the journal of the commission. John B. Harshman, City Atty., and W. S. McConnaughey, both of Dayton, for plaintiff in error City of Dayton. H. M. Hagelbarger, Director of Law, of Akron, and S. A. Decker, Sp. Counsel, and O. D. Everhard, City Sol., both of Barberton, for plaintiff in error City of Akron. C. C. Crabbe, Atty. Gen., and J. W. Bricker and Karl E. Burr, both of Columbus, for defendant in error. MATTHIAS, J. The primary question presented in these cases is whether the 60 days within which a petition in error must be filed in this court to review the action of the public utilities commission begins to run at the time of the entry of the order of the commission, or not until the action of the commission overruling the application for a rehearing. Although the case of Coss v. Public Utilities Commission, 101 Ohio St. 528, 130 N. E. 937, is cited, it does not appear that this question has been dealt with in any previous opinion of this court. In the case cited a motion in the alternative was filed by the defendant in error, to either dismiss or affirm the order of the commission. The entry shows a consideration by the court upon the merits, and an affirmance of the order of the public utilities commission, although the petition in error was not filed until the expiration of 61 days after the entry of the order of the commission. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |