Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1868-02-27
surnEmE CoUar OF ONO.

[Ohcisl Report Supervised by the Supreme Court
| TUESDAY. Feb. IS. 1858.
wtii Chief y9.tiss.LuthsrL i Day; yustise:.Willis%
Scott. Reporter-L. J. Critcbfeld.
| GENERAL DOCKET. ~
No. 81. James Glass and wife v. Robert
Dunn ct al. Appeal, reserved in the Dis
trict Court of Belmont county.
WEIGH, j.:
| Where will gives pecuniary legacits 8,
and provides that they and the debts of the
estate shall be paid out of the personal as
sets and the proceeds of real estate direct
ed to be sold for that purpose, such iegs-
cies are not demonstrative, or in the nature
of specific bequests, but are to be regarded
as mere general pecuniary legacies.
If the fund thus provided prove INSULT
cient to pay the debts and legacies, such
general pecuniary legatees cannot compel
contribution from specific devisees to
equalize the loss arising from the defi-
cheney.
Such fund cannot be applied in payment
of a debt secured by mortgage on land
| specifically devised, unless it be sufficient
for the payment of all other debts and the
legacies; and If so applied, when the fund
is insufficient, must be refunded by the de-
visee. t.I-
A provision In such will that the "pro-
ceeds" of q tract of land therein directed
to be sold should ssbe equally divided be-
tween 'testator's' eight children. together
with all remainders and excess. after paying
the toithin and before mentioned bequests," does
not make such proceeds q part of the fund
for payment of debts and legacies, but
gives the same specifically. together with
the restduum of the fund for the payment
OF debts and legacies to the eight children
named. - :
Specific devisees can compel contribution
from each other, where the land devised to
either Is taken for payment of debts which
are not; charged thereon, or secured by
mortgage or other lien upon the same.
Decree will be entered accordingly.
No. II. Peter Masters v.Francis NJ Free
man and Isaac Zent In error to the Court
of Common Pleas of Richland county. Re-
served in the District Court.
SCOTT j., Held 55'i-.
l. In the action brought by two plain
tiffs for the recovery of q personal judg-
ment, on an alleged Indebtedness of the
defendant to the plaintiffs Jointly, the fact
that the cause of action is not joint but seq
eral in its character, constitutes good de-
fense.
?. Where such defect appears on the face
Of the petition, it may be demurred to, as
not stating facts sufficient to constitute a
cause of action; but the right to make
such defense by answer, is not waived by a
failure so to demur.
8. Written contracts may always be read
in the light OF surrounding circumstances.
The intention of the parties to contract so
unskillfully drawn as to be obscure or
doubtful, may be rendered reasonably GER
tain by proof of ext,insic facts. Where the
record does not disclose all the evidence of
this character offered in the court below, a
construction given to such an instrument
which Is not clearly inconsistent with its
terms, will not be held erroneous by re-
viewing court.
Judgment reversed, and cause remanded
to the Common Pleas for further proceed
ings.
No. SO. Mary Turner by her guardian v.
Emily A. Turner ct al. Error to the Dis
trict Court of Lorain county.
WHITE, j. held:
l. In a case in equity, under the code, as
we'll as In a case which before the code
would have been an action at law, before
this court can review the finding in the
court below on conflicting evidence, it is
indispensable that a motion for new trial,
on the ground that snch finding Is against
or not sustained by the evidence should
have been made and overruled.
2. Where, on error, the record shows no
such motion, but contains bill of excep-
tions embodying all the evidence, aud it
appears that on the trial evidence was
given which standing alone warranted the
finding, the Judgment cannot be reversed
for error In law, on the ground that con-
sidering all the evidence the finding is
against the weight of evidence. To reverse
on such grounds would not be reviewing
the judgment of the court below on aques-
tion of law, but on the credibility and
weight of the testimony.
3. In the absence OF statutory provision,
error in law, tor want of proof only arises
where there is no evidence fairly tending
to establish one or more facts the existence
of which is essential to the recovery.
Judgment affirmed. -'4
Barclay, ct. al. Error to the District Court
OF Mahoning county.
DAY, G. j. Held:
l. To invalidate will for fraud or undue
influence, 1t must appear that the fraud or
influence complained of, had some effect
upon the testator. i1 producing the very
2. A will cannot be impeached tor undue
influence, unless the influence under which
it Is made, imposes some 'restraint" upon
the testatOr in the disposition Of his pro-
perty. in accordance with his own inde-
pendent wishes and Judgment
3. A will produced by influences spring.
ing from an unlawful relation between the
testatOr and legatee, is not for that reason
void, unless such influences were exerted
in restraint OF the free will of the testator
4. Where on the contest of will, the
court were requested to charge the iury,
that If man knowingly marries and CO.
haolts with the wife OF another, and by the
influence OF such marriage and cOhabita-
tion procures vii! from her, In his favor,
the Will Is void for illegal influences: Held,
that, unless the influence mentioned placed
tne testaIfiX unoer some restraint, It was
date her will: and as such restro;nt nonnnt
necessarily he imnI;ed from the facts T aS.
snmed. n was NOT error to retnse to char~e
as reonested: and. whether snch restra;nt
existed was uronerlv left to he determin.
ed by the iury. under the instrnet;on tha,
| if it did the will was void,
Judgment affirmed.
No oao Tho,os o,M.o., Th. c....