the money to the personal representatives | husband and wife are now fixed. Her right
of the wife, seems to have been made under of dower terminated with her death. The
a misapprehension of the effect to be given wife could assert her right to the fund only
to general statements in Bartlett v. Van during her life, and when she took no pro-
Zandt, 4 Sandf. Ch. 396, and Robinson v. Gov- ceedings to withdraw the fund the right
ers, 138 N. Y. 425, 34 N. E. 209. These au- thereto abated absolutely at her death.
thorities are cited as controlling in the opin. Howell v. Newman, 59 Hun, 538, 13 N. Y.
ion below, although the question now before S. 648. As between her husband as surviv.
the court was not considered. In the former or and her personal representatives, he is en-
case, the purchasers of the lands sold in titled to the fund. The judgment in parti-
the partition action claimed, on the death of tion was subject to modification so long as
the wife, the fund which represented the the court had control over the fund.
value of the wife's contingent dower. It

"Courts have always control over their own
was held merely that it belonged to the sur proceedings, and where there is not express
viving husband as personal property, jure prohibition, may deal with them so that what
mariti, under the common law. In the latter is right and just may be reached." City of Buf.
case the action was to recover dower. The falo, In re, 78 N. Y. 362, 370.
widow had filed her consent to receive a sum
of money in lieu of dower, and the only ques Conceivably an application for reargument
tion was whether plaintiff at the time of her to the Appellate Division may lead either to
death was vested with the right to such sum, a modification of the order or to the certi-
which passed to her executors. It was held fication of questions of law to this court, so
that the proceedings had reached such a that the point may be more carefully con-
stage before plaintiff's death as to vest in sidered before the harsh result of our pres.
her such right. Here the wife made no ent decision becomes final.
election to take the fund set apart for her,
but allowed it to remain on deposit with HISCOCK, C. J., and CARDOZO, Mc
the chamberlain until her death. She ex- LAUGHLIN, CRANE, ANDREWS, and
ercised no dominion over it. The money LEHMAN, JJ., concur.
was ordered to be paid over to her, but it
was not paid. The rights and interests of the Order affirmed, with costs.


(148 N.E.)

ond street in the city of Cleveland, Ohio, the HERMAN v, TEPLITZ. (No. 18688.) defendant Olga Herman fraudulently repre(Supreme Court of Ohio. June 2, 1925.)

sented such lot to be 50 feet front on the

street by 173 feet deep from the sidewalk (Syllabus by Editorial Staff.)

line, when the lot, in fact, was only 140 feet 1. Fraud Paw 20—If purchaser, from inspec- deep from the sidewalk line; that plaintiff tion, knew depth of lot, he could not re

bought he lot relying on the defendant Olga cover for misrepresentation.

Herman's representations and suffered the Where vendor represented that lot was

damages claimed. 173 feet deep from sidewalk line, if purchaser,

The petition also alleged that according to from inspection, before signing contract, knew the agreement in question the title papers to that it was only 140 feet deep, he could not the property and the plaintiff's money were recover damages for the misrepresentation. placed in escrow with the Cleveland Trust 2. Appeal and error Om 1067 Refusal of

Company, under an agreement by which it charge that, if purchaser, from inspection was to act for both parties, for a consideraknew depth of lot, he could not recover for tion. misrepresentation, held reversible error. The petition further alleged that the Cleve

In purchaser's action for fraud in misrep- land Trust Company failed properly to perresenting depth of lot, it was prejudicial er- form its duties as escrow holder, in that it ror to refuse charge that, if, from inspection permitted Olga Herman's deed to the plainhe made of lot before signing contract, he knew tiff to be recorded and plaintiff's money to be that it was only 140 feet deep instead of 173 paid to Olga Herman, when it knew, or feet as represented, he was not entitled to ver- should have known, that the lot described in dict.

Olga Herman's deed to plaintiff was only 173 3. Trial Com 133(1)-Request that jury should feet from the center of the street and only

pay no attention to statement in argument 140 feet from the sidewalk line. of possible claim of defendant against an

The Cleveland Trust Company demurred to other improperly refused.

plaintiff's petition on the ground of misjoinIn purchaser's action against vendor for der, and was dismissed from the action. The misrepresenting depth of lot from street line, argument of plaintiff's counsel that purchaser case proceeded to trial against the defendant had tried to sue vendor and bank, her agent, Olga Herman, and the jury returned a verbut bank demurred, and that vendor could dict of $4,000 in favor of the plaintiff. Uprecoup her damages from bank, was improper, on the filing of a motion for new trial the and refusal of instruction that jury should pay court remitted from the verdict all in excess no attention thereto was erroneous.

of $2,000, overruled the motion for a new 4. Appeal and error Cam 1060(3)–Refusal to trial, and entered judgment for the plaintiff instruct to disregard prejudicial statements in the sum of $2,000 and costs. The judgin argument on matters not in issue is re- ment of the trial court was affirmed by the versible error.

Court of Appeals. It is reversible error to refuse to instruct The record discloses the following facts : jury to disregard prejudicial statements made It is conceded that the lot in question was during arguments on matters not in issue.

173 feet deep from the center line of the

street, its rear line being marked off by a Error to Court of Appeals, Cuyahoga fence, and that before the consummation of County.

the sale the plaintiff went to the lot in quesAction by Meyer Teplitz against Olga M. tion several times, alone and with others; Herman and another. Judgment for plain that he walked over the lot and looked at it tiff against defendant Herman was affirmed for some time; that the fence marking the by the Court of Appeals, and the case comes

rear line of the lot was pointed out to him at to the Supreme Court on allowance of motion various times; and that he had opportunity to certify the record. Reversed and remand-to guage the lot's size either by examination ed.-(By Editorial Staff).

or by actual measurement. On March 28, 1923, the plaintiff, Meyer Teplitz, the plaintiff below, testified that Teplitz, filed his petition in the court of com- before he bought the lot he told Miss Hermon pleas of Cuyahoga county, Ohio, joining man and her mother that it was designed to Olga Herman and the Cleveland Trust Com- be used for an apartment house; that he pany as defendants, and claiming that he talked over with Miss Herman the size of had been damaged by the fraud of the de- the lot and the number of feet which would fendants in the amount of $7,500. Plaintiff's be needed to build an apartment house upclaim, stated in substance, was that in nego- on the lot because of the set back from the tiations preliminary to a contract between street required by the building code. defendant Olga Herman and plaintiff execut, said that Miss Herman stated that the size ed upon January 13, 1923, for the sale by the of the lot was 173 feet from the sidewalk defendant Olga Herman to the plaintiff of line. Miss Herman stated that she had said & certain lot fronting upon East Eighty-Sec-| that the lot was 173 feet in depth, but posi.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 148 N.E.-41


tively denied that she had ever stated to Tep-, rely upon the alleged misrepresentations of litz that it was 173 feet in depth from the Miss Herman. “If one purchase property on sidewalk line. The deed by which Miss Her- his own knowledge, he cannot recover for man obtained title to the property read 173 fraudulent representation of it, because he feet from the center of the street. Miss Her- has not been deceived by it." Wilkinson v. man also denied that she had been told prior | Root, Wright 686; 20 Cyc., 34. to the consummation of the sale that the lot [2] We think that the refusing of this was to be used for an apartment house. It charge was prejudicial under the evidence was in evidence that Teplitz, when he was offered in the case, and constituted reversidiscussing the price of the lot with Miss Her- ble error. man, said that the price was much higher [3] Moreover, during the course of the arthan that of the lot which had been sold fur- gument, the attorney for the plaintiff made ther down the street, and that Miss Herman the following statement: answered that the lot in question was only a 140-foot lot. Moreover, Miss Herman states Herman knew that she had 173 feet from the

"We don't claim anything, except that Miss that she knew the whole time that the lot

center of the street, and that she had 140 feet was only 140 feet from the lot line; that the to sell, only, and when she signed this contract 173 feet was measured from the center of and put in the 173 feet, adding in the above the street; and that she never told this fact property unrestricted'-whatever that little to Teplitz because she did not "consider it lady knew about the meaning of the word rematerial."

stricted, or incumbered, and 10 years in the The evidence also shows that one Fitzger- public schools to teach her the ordinary meanald, an employé of the Cleveland Trust Coming of the language—but when she went to her

banker, and that great institution first depany, who, Miss Herman says, was her agent clined to put in the 173 feet, and then, at the in this matter, drew the contract of sale in request and insistence of my client said the the escrow transaction. When Teplitz saw property is unrestricted,' Olga Herman, that the depth of the land was not included through her agent, the Cleveland Trust Comin the contract, he insisted that the number pany, who sits here now, and ought to be at the of feet be stated therein, whereupon Fitz- foot of a lawsuit, and when you render a vergerald, in his own hand, wrote into the con- | dict here to correct the injury which has been tract a statement that the lot approximated done, Miss Herman, there are the people who

are to answer to you. They will answer to 50x173 feet. Fitzgerald then had a certif

you. We can't sue them both in this action. icate of title drawn, showing that the lot was We tried to do it, and let them fight it out, only 140 feet deep from the sidewalk line. but they demurred. The Cleveland Trust ComThis certificate of title Fitzgerald later had pany have gotten out of it, and all we can do changed to read 173 feet from the cen- is to sue the person to whom-with whom we ter of the street, and thereupon gave it to had the contract, and then she can go back Teplitz, who had never seen the certificate to the Cleveland Trust Company and recoup containing the statement that the lot was

her damages, if they have cheated her. 140 feet deep from the sidewalk. The case comes into this court upon allow

After argument and before the court charg. ance of motion to certify the record.

ed the jury, counsel for defendant requested Fackler & Morgan, of Cleveland, for plain the following charge: tiff in error. Cline & Patterson and Friedman & Bloom, sideration of this case, to any suggestion made

“You should pay no attention, in your conall of Cleveland, for defendant in error.

by counsel for plaintiff that the defendant might have a claim against the Cleveland

Trust Company. Such suggestion was im. PER CURIAM. [1] The testimony offered

proper." at the trial was sharply conflicting upon material points. This being the state of the record, the following request to charge was

This request should have been given. The made of the court by defendant, and re- charge asked upon this point was not covered fused:

in the general charge. When the attorney

for the plaintiff told the jury that Miss Her"If you find from a preponderance of the man could go back to the Cleveland Trust evidence that plaintiff from the, inspection he made of the lot before he signed the contract Company and recoup her damages, he in ef. of purchase knew that it was only about 140 fect told the jury that, if it rendered a verfeet deep from the street line, then plaintiff is dict against Miss Herman, the Cleveland not entitled to a verdict in his favor."

Trust Company would pay it. In that re

spect the statement was similar to stateThis charge should have been given. If ments made by counsel in the course of arthe plaintiff did know that the fence was 140 gument that defendants in personal injury feet from the street line, then he was not suits carry insurance which indemnify them entitled to recover, for in such case he knew against loss. This sort of statement is or. that the lot was only 140 feet deep instead dinarily held to be a ground for reversal. of 173 feet deep, in which event he did not | Emery Dry Goods Co. v. De Hart, 130 II.

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(148 N.E.) App. 244; Hollis v. U. S. Glass Co., 220 Pa., 3. Trial On 296(2)-Instruction on acknowl49, 69 A. 55.

edgment of illegitimate child not objectiona. [4] In this statement the attorney for the ble, in view of other instructions. plaintiff went outside the record and brought In partition, where plaintiff claimed as an Before the jury something not in evidence illegitimate child acknowledged by decedent to and highly prejudicial. Comments upon mat- be his, an instruction, after calling attention ters not in evidence which are prejudicial, ing to show that decedent had made state

to the fact that evidence was introduced tendmade by attorneys during the course of ar-ments that plaintiff was not his, that the jury gument, should be disapproved by the court could consider all the evidence on this subject at the time. Burns v. State, 75 Ohio St. 407, in determining whether decedent at any time 79 X. E. 929.

after his marriage acknowledged plaintiff as It is reversible error for a court to refuse his child, was not objectionable as failing to' to instruct a jury to disregard prejudicial state that the jury must consider all the acts statements made during arguments upon mat- and declarations of decedent relating to this ters not in issue in the case. Miller v. State, subject, in view of other instructions supply

ing these omissions. 73 Ohio St. 195, 76 N. E. 823. This rule obtains in civil as well as in criminal cases. 4. Bastards C13-Statute does not require 38 Cyc. 1479 and 1494, and cases cited.

acknowledgment to be made after marriage.

Burns' Ann, St. 1914, 8 3001, providing, if The instruction to disregard the statement should have been given. The judgment will child and acknowledge it as his own, such child

a man shall marry the mother of an illegitimate be reversed, and the cause remanded for new shall be deemed legitimate, does not require trial.

that such acknowledgment be made after marJudgment reversed, and cause remanded. riage or before its severance by death or other

wise; hence, in partition, where plaintiff claimJONES, MATTHIAS, DAY, ALLEN, KIN- ed as an illegitimate child acknowledged by deKADE, and ROBINSON, JJ., concur.

cedent, an instruction authorizing considera-
tion of statements made by decedent after the
death of his wife was not error, as contradict-
ing sections 8362, 8373.
5. Marriage em 13–Statutes held not to apply

to common-law marriage. CASTOR V. McDOLE. (No. 11416.) *

Burns' Ann. St. 1914, 8$ 1060, 1062, have

reference only to void and voidable marriages, (Appellate Court of Indiana, Division No. 2. and not to legal marriages; hence have no apJan. 30, 1923. Rehearing Denied. Trans

plication to common-law marriages, which are fer Denied.)

in fact legally entered into. 1. Bastards 105–11legitimate child inherits, | 6. Bastards 8-instruction limited stateIf acknowledged at or after marriage.

ments as to legitimation to questions of mar. Where a man marries the mother of an il

riage and birth. legitimate child, and at the time or afterwards

In partition, where there was an issue as acknowledges the child as his, it may inherit

to whether plaintiff was an illegitimate child a portiou of his estate the same as if born in and acknowledged by decedent, an instruction wedlock, even though, either before or after that the jury could take into consideration all such acknowledgment, he denied that it was his the statements and representations of deceased child.

members of the family, related by blood or mar2. Bastards fm 105-Acknowledgment of ille. riage to decedent, of and pertaining to his margitimate child, once made, not affected by de- riage with plaintiff's mother, held to limit such nials,

statements to the questions of marriage and Where, in partition, in which plaintiff claim- birth, and was not referable to statements of ed to be an illegitimate child, but acknowledgest other persons as to whether decedent had, acby decedent as his, an instruction, after calling

knowledged plaintiff as his child. attention to the fact that evidence had been 7. Witnesses aw167-Witness claiming from · introduced tending to show that decedent had deceased ancestor not competent to impeach made statements that plaintiff was not his other witness as to ancestor's statements in child, that the jury bad the right to consider her presence. all evidence on this subject in determining

Where, in partition, defendant claimed as whether decedent at any time after his mar- heir, under Burns' Ann. St. 1914, $8 521-523, riage to the mother acknowledged plaintiff as

she was not competent to testify to statements his, and that if it was found he had at any alleged to have been made by decedent, for the time at or after marriage acknowledged her ay purpose of impeaching a witness for plaintiff, his own, denials made by him at other times and was bound by witness' statements that the would not affect such acknowledgment, if once conversation referred to was had in the pres. made, was not reversible error.

ence of deceased. *REPORTER'S NOTE.-This case as originally filed, 8. Witnesses w 128—Partition suit within was published in 137 N. E. 889. Since this filing and publication, changes in the opinion have been

statute prohibiting evidence by party as to made, which, while not affecting the merits of the

matters occurring prior to ancestor's death, decision, make it necessary, in the interest of our A suit for partition is an action by and subscribers, to reprint the case here.

against heirs, and affects the property of an ComFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

, withite Byros against

Skei 1914 |

Action by Georgianna McDole against $ 522, providing, in suits by or against heirs or Elizabeth Castor. From a judgment for devisees, founded on a contract with an ances- plaintiff, defendant appeals. Affirmed. tor to obtain title to real property, neither party shall be a competent witness as to matters Meade Vestal, of Noblesville, Robert S. which occurred prior to the ancestor's death. Hunter, of New Castle, and Gentry, Cloe & 9. Evidence m291-Evidence of statements Campbell and Shirts & Fertig, all of Nobles

of mother as to the father of her children ville, for appellant. held competent.

Thomas E. Kane, of Noblesville, Geo. D. In partition, where plaintiff claimed as an Forkner, of New Castle, and Bagot, Free & illegitimate child acknowledged by decedent to Pence and Diven, Diven & Campbell, all of · be his, evidence of a statement by plaintiff's Anderson, for appellee.

mother that she had made a "mistake in her life, and that she was never married to John MCMAHAN, J. This is an action by appelson, but did marry Eli Stern (décedent)," and lee against appellant for partition of real es"that said Eli was the father of her children," tate, for an accounting of rents and profits was competent.

and to quiet title. Trial by jury resulted in 10. Evidence w291-Rule as to declarations a verdict for appellee, that she was the owner

of deceased persons in proof of pedigree of an undivided one-half of the real estate, stated.

and for $1,000 damages, and quieting her Proof of pedigree is restricted to declara- title. tions of deceased persons, who were related by blood or marriage to the person whose par

Appellant appeals, and assigns as error the entage is the subject of investigation, and the overruling of her motion for a new trial. statements of an ancestor or deceased kinsman

Eli Stern died intestate in 1920, the owner are not to be regarded as separate and distinct of the real estate in controversy. His wife, conversations, but are to be taken as a con- Mary Stern, who was the mother of appel. nected and indivisible thing, indicating the lant and appellee, died in 1914. Appellee treatment of the person whose pedigree was claimed that she was an illegitimate child in dispute.

of Mary Fry; that after her birth Eli Stern 11. Appeal and error C 1050(1)-Admitting married her mother and acknowledged her as clerk's certificate that no record of marriage his child. Appellant is the legitimate child license existed in his office, if error, harmless. of Eli Stern and his wife, Mary. There

Admitting in evidence certificate of the being no contention that the verdict is not clerk of a county in a foreign state to the effect sustained by the evidence, we will not underthat there was no record in his office of a mar

take to review or to set out the evidence, any riage license issued, without showing that there further than may be necessary in discussing was any law in that state for the recording of the contentions relied on by appellant for resuch license, if error, was harmless.

versal. 12. Appeal and error cm 1060(1)-Argument [1] Appellant's first contention is that the of counsel that defendant was competent wit court erred in giving instructions Nos. 8 and ness to deny certain statements, but did not, 9. By the eighth instruction the jury was told held not reversible error.

that, if it found from the evidence that apIn partition, where plaintiff claimed as an pellee was the illegitimate child of Mary illegitimate child of decedent, 'her counsel's argument, quoting testimony of a witness to the Fry, that Eli Stern married her mother, and effect that before decedent's death he had a

that he, at or after the marriage, acknowlconversation with defendant in the absence of edged appellee as his child, she would be endecedent, in which she said the Lord had been titled to inherit a portion of his estate, the good to her because decedent had made no same as if she had been born in wedlock to will, a matter on which defendant was com- him and his wife, even though the jury petent to testify, but did not, held not reversi-should find that at another time or times, ble error.

either before or after such acknowledgment, 13. Appeal and error C 1060(1)-Jury not he denied she was his child, or even though

misled by counsel's argument as to relation the mother had denied that she was illegitiship of party at whose house child was born. mate or that she was begotten by a former

In partition, where plaintiff claimed as an husband by the name of Charles Johnson. illegitimate child of decedent, but acknowledged by him on marriage to her mother, argument after calling attention to the fact that evi

[2] By the ninth instruction the court, of counsel stating that plaintiff was born at the house of a sister-in-law of decedent, and dence had been introduced tending to show that she was born at the home of M., "who was that Eli Stern had made statements that apa sister-in-law by marriage of Eli Stern (de- pellee was not his child, instructed the jury cedent), and who knows but that Eli Stern that it had the right to consider all the evipaid her expenses there" when plaintiff was

dence upon this subject in determining born, held, in view of evidence, not misleading, whether or not he had at any time after his and not such misconduct as required reversal. marriage to the mother acknowledged her

Appeal from Circuit Court, Henry County; as his child, and that if the jury found he Fred C. Gause, Judge.

had at any time at or after his marriage to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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