(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 Evidence having been introduced to the have stopped the car for the momentum of a effect that the defendant company failed to man hurling himself from an automobile sound a warning either by ringing of a bell traveling 15 miles per hour would certainly or the sounding of a whistle, the motion ad-/ carry him as far as momentum would carry mitted the negligence of the defendant in an automobile with brake facilities travelthat respect, and raised the question for the ing at that speed in second gear up a steep court's determination whether the plaintiff's grade over a rough surface. The fact that evidence raised a reasonable presumption of the occupant of the rear seat of the autocontributory negligence on the part of the momile did see, and did escape, together with plaintiff's decedent, directly contributing to the evidence as to speed, gear, grade, conhis injury, and, if so, whether any portion dition of approach and lack of obstruction of such evidence, given the most favor- to view, refuted every hypothesis that deable interpretation of which it was rea-cedent could not have seen the danger, and sonably susceptible in support of the theory did not have time to stop his automobile of due care on the part of plaintiff's dece- after he could have seen, before he reached dent, tended to dispel that presumption. If the northerly rack. so, it made a question of fact for the de The plaintiff's evidence being such that it termination of the jury; if not, it made a raised a presumption of negligence upon the question of law for the court.

part of the decedent contributing directly Traveling up a grade of coarse crushed to his injury, the burden was cast upon stone, with an irregular rise of 12 to 15 feet him to dispel that inference. He offered in 50 to 100 feet, in second gear, at a speed no such evidence. On the contrary no of 15 miles per hour, the decedent could have part of his evidence, given the most favorstopped his car within a very few feet, if not able interpretation of which it is susceptiinstantly. The only obstruction to dece- ble, tended to show other than that he eident's view in the direction of the train be- ther did not look or that if he did look he ing a small tree or a number of small trees saw and had time thereafter in the exercise in the south line of the railroad right of of ordinary care to have stopped the automoway, 50 feet from the center of the north- bile and prevented the accident. If he erly track, and approximately 100 feet west looked, and failed to see, he nevertheless of the highway, his view was unobstructed was warned by the occupant of the rear in the direction from which the train was ap- seat of the automobile in sufficient time and proaching, if not for the whole distance be at a sufficient distance from the crossing to tween the south line of the right of way and have enabled him in the exercise of ordinathe point of collision, at least for a suffi- ry care to have stopped the automobile and cient distance to enable an occupant of the prevented the accident. rear seat of the automobile, who necessa [2] Much of the evidence of plaintifr tendrily would not be able to see for an ins ant ed to affirmatively prove the negligence of after decedent would be able to see, to shout his decedent directly contributing to his ina warning and thereafter escape in safety jury, and none of it was inconsistent with from the automobile and lift or drag his such negligence. Therefore, at the close of companion in safety from the automobile be- plaintiff's evidence the question of contribfore it reached the point of collision. Had utory negligence had not only been raised the decedent looked when he was at the point by plaintiff's own evidence but had ceased where the occupant of the rear seat of the to be a question of fact for the determinaautomobile did, he could and would have tion of a jury, and had become an ascerseen the train, and from there on to the tained fact for the application of the law crossing the evidence discloses nothing to ob thereto by the court. struct his view. On the contrary, it affirma The overruling of the motion, therefore, tively disclosed that there was nothing to

The judgment of the Court of obstruct his view. The elevation of the Appeals and of the trial court will be for tracks could not obstruct it, rather the re- that reason reversed, and this court will en

The momentum of the automobile ter the judgment which each of the lower in second gear up so steep a grade would be courts should have entered and render judg. negligible. The time and space it took the ment for the defendant below, the plaintiff occupant of the rear seat of the automobile in error here. to shout his warning, escape with his com Judgment reversed, and judgment for panion from the automobile, and overcome plaintiff in error. the momentum which his leap from the automobile traveling at the rate of 15 miles MARSHALL, C. J., and JONES, MATTHI. per hour would give, before reaching the AS, DAY, and ALLEN, JJ., concur.

was error.


leaving this plaintiff, George D. Oglesbee, her OGLESBEE v. MILLER. (No. 18363.) widower, and, as such widower, he is interest

ed in the said will of the said Martha Seiver (Supreme Court of Ohio. Dec. 16, 1924.) Oglesbee and as such widower, he brings this

suit. Following is a copy of said will: (Syllabus by the Court.)

“ 'I, Martha Seiver Oglesbee, being of sound 1. Wills Om588—Provision for specific legacy and disposing mind and not under any restraint, from proceeds of land followed by clause dis- do make and publish my last will and testaposing of remainder of proceeds held not ment. general residuary bequest.

'Item 1. I desire all my just debts paid out In a will which directs the sale of real es- of my personal estate. tate and the payment of specific legacies from

'Item 2. I give, devise and bequeath to my the proceeds thereof, followed by the provision husband, George D. Oglesbee, all my property, that “all the rest and residue of my said prop- both real and personal, to have and to hold the erty realized from the sale of 'said real estate" same for and during his natural lifetime, or shall be divided among persons named, such so long as he remains my widower, with the provision disposes only of the proceeds of the following conditions, said husband to keep said real estate and cannot be construed as a gen- farms in state of good cultivation and the eral residuary bequest.

buildings and fences in good repair, and all

taxes paid and the improvements kept insured 2. Descent and distribution mol-Wills for as much at least as they shall be at my

866-All intestate property passes by statute death, and said husband not to sell any timber of descent and distribution; course thereof off of said premises, but to have the right to changed only by will.

use so much of the timber as may be necessary All intestate property passes by virtue of to keep said farm buildings and fences in reand in accordance with the statute of descent pair. And further conditioned that said husand distribution; the course thereby prescribed band shall not sell or convey away his estate can be changed only by testamentary disposi- therein. tion. Mathews v. Krisher, 59 Ohio St. 562, 53 ' 'Item 3. At the death or remarriage of my N. E. 52, approved and followed.

said husband, I desire that the farm of 100

acres, more or less, that I received from my 3. Wills 865(4)–Personal property undis father, Charles Harner, be sold by my execuposed of by will held to pass to husband, tor and the proceeds to go to my brothers and though will gave it to him for life.

sisters, share and share alike to each, and in Personal property undisposed of by will case of any brother or sister dying before my passes to the husband, where the testatrix said husband and without children, then said left no children or their legal representatives, share to go to the surviving brothers and sis. even though by provisions of the will such ters, or the children of any deceased brother property had been bequeathed to the husband or sister. It being my desire to keep said for and during his natural lifetime, or so long farm among the Harner heirs or their children. as he remained unmarried.

“ 'Item 4. At the death or remarriage of my

said husband, I desire the rest and residue of Error to Court of Appeals, Greene County of the proceeds the following legacies paid:

my real estate sold by my executor and out Action by George D. Oglesbee against w.

" "To Franklin J. Harner the sum of three L. Miller, executor, etc. From a judgment thousand dollars ($3,000) and in case of his on appeal to the Court of Appeals, constru- death then to his two sons, Lester and Rosing will, plaintiff brings error. Modified,


" "To Sarah Wendall, the child we partly and, as modified, affirmed.—(By Editorial raised, the sum of five hundred dollars ($500). Staff.)

""To Margaret Morgan Shaw, the sum of This action was brought in the court of five hundred dollars ($500). common pleas of Greene county to obtain a property realized from the sale of my said

“ 'Item 5. All the rest and residue of my said construction of the will of Martha Seiver real estate, I desire divided into two equal Oglesbee, and the direction of the court rel- parts, one half to go to the following: ative thereto. No answer was filed and no "To the nieces and nephews of my former evidence was introduced upon the hearing, husband, Mahlon H. Seiver, share and share and therefore all the facts before the court alike to each. The other half of said residue appear in the petition, the portion essential to go to my brothers and sisters surviving, or to a consideration of the questions present and sisters then the children of said deceased

in case of the death of any of said brothers ed in this case being as follows:

brother or sister to take the share the parent "This plaintiff further says that said Martha would have taken, and in case said brothers Seiver Oglesbee died possessed of real estate or sisters die without issue surviving, then worth the sum of thirty-nine thousand four their share to go to my nieces and nephews.'” hundred ninety ($39,490) dollars, and of personal property of the value of fifteen thousand ($15,000) dollars; that she attempted to dis-dren or descendants of any child or children

The testatrix died leaving no child or chil. 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 do not exceed five thousand ($5,000) dollars.

sought direction and advice particularly as “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 there

For 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 therein described, upon the death or remarfinding and determination of the court as to riage of the husband, and specifically prothe vesting of the title to the real estate. vides the manner of distribution of the pro

The case was heard upon appeal by the ceeds. By item 4 it is directed that at the Court of Appeals, which court found that death or remarriage of the husband the exunder item 2 of the will the plaintiff took ecutor shall sell all other real estate belonga life estate only, or so long as he remained | ing to the testatrix and pay certain legacies, the widower of Martha Seiver Oglesbee, in one of $3,000 and two of $500 each, and imthe personal property of the testatrix, and mediately following this provision is the that the plaintiff would have the right to language of item 5 above quoted. That proelect to take in kind the household goods vision makes no reference whatever to perand personal effects of testatrix after pay- sonal property, but only to the sum or proment of debts, etc.; that the court adminis- ceeds realized from the sale of the real estering the estate is the proper court to de- tate disposed of by virtue of the preceding termine how said property is to be handled item, for we have seen that the entire proat the time of distribution of assets for the ceeds of the 100-acre farm had been disposed protection of the remaindermen; that un- of under the provisions of item 3. der items 4 and 5 the title to the real estate But it is claimed that there is an ambiis vested in the executor for the purpose of guity, and that where there is ambiguous lancarrying out the provisions of the will; and guage in a will, it must be so construed as to that under item 5 the personal property of carry out the intention of the testator, if which the testatrix died seized, upon the that can be gathered from other portions of death or remarriage of George D. Oglesbee, the will, and then it is argued that other porbecomes a part of the rest and residue, to tions of the will show the desire and purbe disposed of as provided in that item of pose that the husband have only the use of the will.

the personal property during his life or his To the portion of the judgment wherein widowerhood. the court held that item 5 makes a disposi The whole difficulty with the application of tion of the personal property mentioned in that proposition here lies in the fact that item 2 of the will, and wherein it held that there is no ambiguity. If item 5 read "all the testatrix did not die intestate as to the the rest and residue of my said property," personal property, and that George D. Ogles- it would pass not only the funds realized bee as sole heir at law of the testatrix does from the sale of the real estate referred to, not take said personalty by descent, the but all the personal property. But that is plaintiff excepted, and thereafter, upon or not the language used by the testatrix, and der of this court, the cause was certified here the words of limitation used by her surefor review and final determination.

ly cannot be disregarded, for the property Robert J. Shawhan, of Lebanon, and Marized from the sale of my said real estate.

she there bequeathed was only that "realcus Shour, of Xenia, for plaintiff in error. L. T. Marshall, of Xenia, for defendant in It may be admitted that when the lifetime

use of the personal property was given to the husband in item 2, the testatrix in

tended 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 courts cannot, under the guise of constructhe statute of descent and distribution, there tion, make a new or corrected will for him having been no children or their legal rep. in order to dispose of his property and avoid resentatives, such property passes to and intestacy. And even if words of exclusion vests in the surviving husband. The provision of this will which it is claimed has the of preventing property which had not been

were used they would not serve the purpose effect of disposing of the personal property disposed of by the terms of the will from of the testatrix is contained in item 5 and passing under the statute of descent and disis as follows:

tribution. The question which the court is "All the rest and residue of my said prop- to determine is not where the testatrix would erty realized from the sale of my said real es

have directed that the residue of her estate tate, I desire divided into two equal parts should go, but only whether by the language (the manner of distribution of which is then directed]."

used in her will she did make any disposi

tion thereof. In order to determine that by It is to be observed that by item 2 all real the provisions of item 5 the testatrix did beand personal property was given to the hus- queath her personal property, it is necesband for and during his natural lifetime or sary to strike bodily from that provision of so long as he remained unmarried. Item 3 the will the very material and controlling directs the sale of a certain 100-acre farm, 1 clause, "realized from the sale of my said


real estate," or, if that be not done, to add effect after his decease. If the owner, there. thereto 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

The court went much further in that case of the sale of the designated real estate than than we are called upon to do here, for it that used. But even if it be admitted that

was there held that "a testator cannot, by some word more apt and appropriate than any words of exclusion used in his will, dis"property,” such as "proceeds,” or “money,” inherit one of his lawful heirs, in respect to or "fund,” could have been employed, still property not disposed of by his will." that would not warrant a total disregard of

The rule applicable to this case is concisely the language used, when the meaning of that stated by Page on Wills, section 467, as follanguage is clear. The court must assume lows: "Where testator makes specific bethat testatrix meant what she said, and sure-quests of his property, and leaves a part of ly cannot ascribe a meaning contrary to the the same undisposed of, such part will deordinary and usual significance of the lan- scend in accordance with the law of descent guage used.

and distribution, irrespective of the actual It is impossible to construe the provision intention or expectation of testator,” in supin question as a general residuary bequest port of which the following cases are cited: without striking therefrom language clear Bill v. Payne, 62 Conn. 140, 25 A. 354; Wildand easily understood, or adding some pro

er v. Holland, 102 Ga. 44, 29 S. E. 134; Anvision such as above suggested, which would drews v. Harron, 59 Kan. 771, 51 P. 885; have the effect of completely changing the State v. Holmes, 115 Mich. 456, 73 N. W. 548; meaning and purport of the language used. Clarkson v. Pell, 17 R. I. 646, 24 A. 110; That would not be interpretation; the lan. Young v. Kinkead's Admrs., 101 Ky. 252, 40 guage is not ambiguous and therefore needs s. w. 776, and Mathews v. Krisher, 59 Ohio no interpretation. It would be judicial con- St. 562, 53 N. E. 52. struction in the sense of making a will, or

In the case of Mathews v. Krisher, the at least of adding an item disposing of prop- facts are quite similar to the case at bar in erty which the testatrix, intentionally or in that the testator had devised all his lands advertently, had not either specifically or to his wife “as long as she shall live," makgenerally bequeathed. The presumption

ing no further disposition thereof. It was against partial intestacy cannot have the ef- there claimed, as here, that the terms of the fect of a bequest of property where none in will limited her interest to an estate for life fact was made. The question always before notwithstanding the provisions of the statthe mind of the court must be not what ute of descent and distribution. This court should the testator have done, but what did

held: he do and what did he mean by the words which he actually employed. We are in no

"The comprehensive language in which the sense disregarding the rule always applica- testacy compels the acceptance of the rule,

statute is made applicable to all cases of inble, 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.

erty to another.” Citing Crane v. Executors In this connection the language used by of Doty, supra. Judge Ranney in the early case of Crane v.

The bequest in question having disposed Executors of Doty, 1 Ohio St. 279, 282, is only of the fund to be realized from the sale pertinent:

of real estate, and there being no general re "It is very true that our law has always siduary bequest, it follows that, the personal allowed to every person of mature age, ab- property of the testatrix not having been dissolute dominion over all he may possess, to dispose of it by last will and testament, sav- posed of by her will, the absolute title thereing the rights of the widow and creditors, if to passes to the surviving husband by virtue any; and it is equally true, that where such of the statute of descent and distribution. disposition is made, the will will be construed The decree of the Court of Appeals is acwith great liberality for the purpose of ar-cordingly modified, and, as so modified, afriving at the intention of the testator.

But firmed. it is very clear that even the expressed inten

Judgment modified, and affirmed as modition of the testator cannot be regarded in the

fied. 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 per MARSHALL, O. J., and ROBINSON and son makes a disposition of his property to take JONES, JJ., concur.

(145 W.E.)

bond which the Bell Telephone Company CITY OF DAYTON V. PUBLIC UTILITIES should give under the provisions of the statCOMMISSION OF OHIO.

ute, whereby, after the expiration of the peCITY OF AKRON et al. v. SAME.

riod of suspension, it might collect the rates

set forth in the schedule. Bond was there(Nos. 18741, 18745.)

upon filed with the commission, pursuant to

said order. On May 28, 1924, an application (Supreme Court of Ohio. Dec. 16, 1924.)

for a rehearing was filed by the city of Day(Syllabus by the Court.)

ton. On June 6, 1924, the application for rePublic service commissions Em30_Time from hearing of the order entered May 15, 1924,

which to compute period for proceeding in was overruled, and on July 3, 1924, an order error is date of entry of final order on jour- was entered overruling the application of nal.

the order of April 30, 1924, and reciting that The time from which to compute the 60 it was the intention of. the commission to days allowed for the institution of proceedings overrule such application in its order of June in error from the public utilities commission 6, 1924, but that through an inadvertence it to the Supreme Court, under the provisions omitted to include reference to the order of of section 547, General Code, is the date of entry of the final order on the journal of the April 30 in that entry. commission, and not the date of the overruling its petition in error in this court, asking for

On August 1, 1924, the city of Dayton filed of the application for a rehearing.

a review of the orders of the commission. Error to Public Utilities Commission.

The case was submitted to this court upon Separate proceedings before the Public motion to dismiss the petition in error, upUtilities Commission of Ohio by the Bell Tel- on the ground that the final order, if one was ephone Company, opposed by the City of Day- made and entered, is the order whereby the ton and by the City of Akron and others, re- rates objected to by the plaintiff in error spectively. To review orders of the com- were temporarily made effective upon the mission, both cities bring error. Motion to giving of bond by the utility, and that the dismiss petitions in error sustained.-[By petition in error was filed more than 60 days Editorial Staff.]

after the entry of that order on the journal The facts in these two cases, so far as es

of the commission. sential to a determination of the issues pre John B. Harshman, City Atty., and W. S. sented, are practically identical. Every pur- McConnaughey, both of Dayton, for plaintiff pose will therefore be served by a full state- in error City of Dayton. ment of the facts shown by the record of the H. M. Hagelbarger, Director of Law, of Dayton Case.

Akron, and S. A. Decker, Sp. Counsel, and On April 1, 1924, the Ohio Bell Telephone 0. D. Everhard, City Sol., both of Barberton, Company filed with the public utilities com- for plaintiff in error City of Akron. mission of the state a schedule of telephone C. C. Crabbe, Atty. Gen., and J. W. Brickrates for the Dayton, Ohio, exchange area, er and Karl E. Burr, both of Columbus, for effective May 2, 1924, and canceling all pre-defendant in error. ceding tariffs. On April 29, 1924, the city, as & subscriber and on behalf of citizens who MATTHIAS, J. The primary question were subscribers and users of such service, presented in these cases is whether the 60 filed a complaint against such schedule, cov- days within which a petition in error must ering unified service arising out of the con- be filed in this court to review the action of solidation of the Bell Company and the the public utilities commission begins to run State Telephone Company, as to which no at the time of the entry of the order of the rate has ever been adopted, and stating that commission, or not until the action of the & proceeding to fix such rates is now pend- commission overruling the application for a ing, filed pursuant to the order of the com- rehearing. mission, which proceeding is undetermined; Although the case of Coss v. Public Utiliand further complaining that the various ties Commission, 101 Ohio St. 528, 130 N. E. rates, charges, classifications, rentals etc., 937, is cited, it does not appear that this provided by such schedules, are unfair, un- question has been dealt with in any previous reasonable, excessive, and unlawful.

opinion of this court. In the case cited a On April 30, 1924, the public utilities com- motion in the alternative was filed by the mission announced that it would enter upon defendant in error, to either dismiss or afa bearing concerning the propriety of the firm the order of the commission. The entry increased rates, and ordered that the opera- shows a consideration by the court upon the tion and use of the rates and charges con- merits, and an affirmance of the order of the tained in such tariff be suspended for a peri, public utilities commission, although the peod of 120 days.

tition in error was not filed until the exOn May 15, 1924, the commission, upon piration of 61 days after the entry of the orhearing, fixed $105,000 as the amount of the i der of the commission.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.—54

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