Cuyahoga Common Pleas Court.

WILLS.

Hamilton Probate Court, January, 1897.]

IN RE ESTATE OF LUDLOW.

BURDEN OF PROOF IN THE PROBATE OF A WILL.

The burden of proof in the probate of a will is upon those propounding the will to make out a prima facia case showing that the testator at the time of the execution of the will was of sound mind and memory and under no restraint or influence, and upon failure to make out such case, the will must be denied probate.

FERRIS, J.

The will of this decedent gave all his property to a niece. The subscribing witnesses were Dr. William Judkins, physician, and William S. Little, attorney for the deceased. Testimony as to the execution of the will, which included a rigid cross-examination of the witnesses, was submitted to the court and related to the condition of the testator's mind at time he drew the will.

Held, That the burden of proof is upon those propounding the will to make out a prima facia case showing that the testator at the time of the execution of the will was of sound mind and memory and under no restraint or influence, and failing to make out such prima facia case, the will must be denied probate.

That it was for the court receiving the will to say from the testimony of the subscribing witnesses, or other witnesses adduced by those interested in the probate of the will, whether the testator had the necessary mental capacity to make a will.

In the case at bar the court found that under testimony of the subscribing witnesses a prima facie case had not been made out; and that this being a domestic will (citing Barr v. Closterman, 2 O. C. D., 251), it was within the discretion of the court to permit-as has been done-the introduction by those interested in having the will admitted to probate of such other witnesses as they might

desire.

W. S. Little and C. K. Shunk for the will.

A. S. Ludlow, W. E. Jones, E. P. Bradstreet and L. W. Goss, contra.

FIXTURES.

[Cuyahoga Common Pleas Court, January 28, 1897.]

CHRISTIAN SCHNEIDER V. J. H. SCHNEIDER ET AL.

MACHINERY IN Brewery-Regarded as Personal Property, When— Where a building designed to be used for brewery purposes is so arranged and constructed that the machinery and other mechanical construction could be changed and shifted as desired and openings were made so that the machinery and other articles could be put in or out at any time; and the testimony shows that certain articles of machinery used in the business were so attached and connected in such a way as to be capable of removal without any material injury to the articles themselves or to the building, in such case such articles will be held to be personal property, which the owner is entitled to

remove.

NOBLE, J.

The main issues in this case have already been disposed of at a former term by another branch of this court; and in the decree then entered, in which the sale of the premises and property in controversy was ordered, the court ordered certain specific articles of property situated on and in the brewery property in controversy sold, the character of which as to being real or personal, was to be thereafter determined. In the present hearing, this is one of the things to be done.

Schneider v. Schneider et al.

In the former hearing, however, the court did determine the following specific articles in the brewery in question to be part of the realty, towit: A surface cooler and steel hop jack, a hot water tank, a conversion tub and supports, including stands, clamps, bolts, washers and all those specific articles included in the specifications of defendant Connoly as iron supports; also an Edmunds elevator and certain plumbing work done by Chafer & Baker, including steam water pipes and connections; also a Smith & Vail pump converted into a Burton pump; so that those specific articles need no further attention.

In the first place, what principle of law shall the court go upon in deciding the question? In the first Ohio State, page 528, the supreme court lays down the following rules as essential in determining whether property doubtful in its character, situated like this, is real or personal. To make it real, there must be:

"1st. Actual annexation to the realty or something appurtenant thereto. "2nd. Appropriation to the use or purpose of that part of the realty with which it is connected.

"3rd. The intention of the party making the annexation to make the article a permanent accession to the freehold-this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made."

In formulating these rules, the court takes occasion to remark that the extent and mode of annexation must depend upon the nature of the article itself, the use to which it is applied, and other attending circumstances; and whether articles are personal property or fixtures must be determinable and plainly appear from an inspection of the property itself, taking into consideration its nature, mode of attachment, purpose for which used, and the relation of the party making the annexation, and in some instances, perhaps, other attending circumstances indicating the intent to make a permanent accession to the realty; and inasmuch as it requires a positive act on the part of the person making the annexation to change the nature and legal qualities of a chattel into that of a fixture, the intention to make the article a permanent accession to the realty must affirmatively and plainly appear; and if it be a matter left in doubt or uncertainty, the legal qualities of the article are not changed, and the article must be deemed a chattel.

Later on we find another decision of the supreme court in the 22d Ohio State, 563 Wagner v. the C. & T. R. R. Co.. and on pages 577-8, in which the court uses the following language: "The general principle to be kept in view, which underlies all questions of this kind, is the distinction between the business which is carried on in or upon the premises, and the premises, or locus in quo. The former is personal in its nature, and articles that are merely accessory to the business, and have been put on the premises for this purpose, and not as accessions to the real estate, retain the personal character of the principal to which they appropriately belong and are subservient. But articles which have been annexed to the premises as accessory to it, whatever business may be carried on upon it, and not peculiarly for the benefit of a present business, which may be of a temporary duration, become subservient to the realty, and acquire and retain its legal character. As, however, the combined use of both the real and personal property is necessary for the business, the difficulty, in any given case, consists in determining on which side of the dividing line to assign the particular article in question."

And the court refers approvingly to another case in the 14th Ohio State, page 558. In that case there was a brewery purchased, and a real and chattel mortgage given back for the purchase money. After the purchase, a copper kettle, distilling apparatus, and a tub for soaking barley was added. The common pleas and district courts held it all to be personal property, using the language quoted in the 22d Ohio State; and the case in the 14th Ohio State further held that whether certain articles of property could be removed without material

Cuyahoga Common Pleas Court.

injury to the freehold, or destroying their own qualities or value, was a question of fact upon which evidence in the case was conflicting; and the finding of the common pleas and district courts was not disturbed.

These are the principles, then, upon which the court must base its conclusion as to the articles in controversy The building upon the premises in controversy was erected by Mr. Schneider for use as a brewery He owned the real estate, erected the building, put in the machinery, kettles, tubs and all of the other articles in controversy The testimony of the architect, Mr. Eisenman, shows that the original plans for the building were by eastern architects, but that they were revised by him at the request of Mr. Schneider, changes being made in the plans so that the machinery and the mechanical construction could be changed and shifted as desired, and openings were made so that machinery and other articles could be put in or out at any time; that a part of the iron structure was put in prior to the erection of the building, and the balance put in after; and that they could be removed without injury to the walls. That in the northwest corner of the brew house, between the second and third floors, was a large opening connected with the annex; and that he drew plans of the wash house, and that so far as the structure was concerned, anything could be taken out. There are a large number of articles about which there is substantially no contention, such as the smaller tools in use about the building; and the principal contention rises out of such articles as steam-pumps, large fermenting tubs, copper and iron bottoms, copper grant and pfaf, a copper strainer, a large steam kettle, and other articles of like character.

The testimony was very conclusive that all of these articles were attached and connected in such a way as to be capable of removal, although they were all parts of one general scheme and machinery for brewing; and the testimony showed that the large steam kettle and the large pieccs referred to, could be removed by unscrewing flange joints and taking apart; that although they were riveted together, the rivets could be cut and large pieces removed through the opening in the walls, and could be again put together, all without material injury to the articles themselves or to the building.

The testimony also showed very clearly that there was a custom among brewers here to remove articles of this character from one place to another in the brewery, or outside of the brewery, and to substitute one for another; and that there are places where articles removed in this way are for sale; and that it was a custom of the trade to treat them as movable articles and interchangeable.

The testimony further shows that large vats in the cellar, and the fermenting tubs, although large and cumbersome, and extremely difficult to remove, could be moved and taken out of the brewery, and that the custom of the trade sauctioned it, and although plainly accessory to the business, they were not accessory to the building; and it seems to the court that the distinction drawn by the supreme court between those articles which are accessory to the business and those which are accessory to the building, plainly marks a dividing line in the matters in controversy. Very few if any of the articles mentioned can be said to be accessory to the building alone as distinguished from the business; and the nature of the business was such as to plainly indicate that they were accessory and subservient to it. And again, there was no affirmative testimony tending in the least to show the intention of either of the Mr. Schneiders to change the character of what was by its nature personal (as all of the articles in dispute were) into real property. And our supreme court has held, as already suggested, that this must be affirmatively shown by the party claiming it to be real property.

The view taken by the court seems to have been quite generally followed where the question has arisen.

The supreme court of Michigan in the case of Manwaring v. Jenison, 27 N. W. Rep., page 899, held that certain casks or hogsheads and fermenting tubs, and the copper cooler used in a brewery, were personal property; and that while the casks and tubs were necessary for carrying on the business to which

Jenks, Barner & Co. v. Kress et al

the premises were appropriated, and while constructed for use in the brewery, and placed there with intent to remain permanently, would be equally well adapted to a like use in other breweries; and the copper cooler, being a loose, movable utensil, the same as is in common use in breweries, was a chattel.

The supreme court of Minnesota recognized the same doctrine.

The court is constrained to hold that with the exception of the articles already enumerated, as having been already passed upon by another branch of this court, the specific articles set forth in the order of the court referred to, are personal property.

et al

John H. Schneider & Vogel & Salzman, attorneys for Exceptors.

Henderson & Quale. Blandin & Rice, Emil Joseph, attorneys for Receiver.

MECHANICS' LIEN LAW.

[Cuyahoga Common Pleas Court, January 30, 1897.]

JENKS, BARNER & Co., v. CORA L. KRESS ET AL.

RIGHT OF PRINCIPAL CONTRACTOR TO PERFECT A LIEN.

The act of April 13, 1894 (91 O. L., 135), as amended, still provides for the lien of the principal contractor, and is still in force for the purpose of giving the principal contractor a right to perfect the lien under section 3185 Revised Statutes

DISSETTE, J.

The plaintiffs bring their action against Cora L. Kress and Frederick A. Kress, et al., for the purpose of enforcing and collecting the sum of one hundred and eighteen and 20-100 ($118.20) dollars with interest from the 2nd day of January, 1896, by the foreclosure of a mechanic's lien which they claim was assigned to them. They say in substance that in and by virtue of a written contract made between defendants and Cora L. Kress aud her husband, Frederick A. Kress, and one William B. Furgeson, dated September 27, 1895, Furgeson was to erect and construct a certain building on certain property described, for the said Cora L. Kress and her husband Frederick A. Kress; and that there is due the said sum of $118.20 on that contract with interest from the 2nd day of January, 1896; that on the 27th day of February, 1896, the said Furgeson sold and assigned all his right and interest in said account to the plaintiffs. They say as a second cause of action that said Furgeson, on the 9th day of March, 1896, and within four months from the time of the performance of labor, filed with the recorder an affidavit containing an itemized statement of the value of the labor and materials furnished, with all credits and endorsements thereon, together with the time when said account should have been paid, and a description of said lands on which said building was erected, and a copy of the aforesaid contract for the construction of said building, and that the same was duly recorded. That on the 27th day of February, 1896, the lien of said Furgeson, or the lien which he claimed to have, was duly assigned to plaintiffs; and they now ask for a judgment against the defendant Cora L. Kress and her husband, Frederick A. Kress, for the sum of $118.20 aforesaid, with interest from January 2, 1896, and for the sale of said. lands, enforcement of the liens, and payment of plaintiffs' claim, and for such other and further relief as they may be entitled to.

To the second cause of action of this petition, Cora L. Kress and her husband, Frederick A. Kress, file their demurrer for the reason that it does not state facts sufficient to constitute a cause of action.

It will be seen that the lien here claimed is the lien of the original contractor, and that it is for a balance due on the final payment of the amount claimed in the contract.

Cuyahoga Commou Pleas Court.

The mechanic's lien law has been the subject of a great deal of litigation quite recently, and our supreme court has passed its judgment upon that portion of it which was amended April 13th, 1894; and since that decision it has been a serious question with the lawyers and the courts whether the whole mechanic's lien law had been wiped out by the supreme court. Those legislative amendments sought to introduce into the mechanic's lien law a right to give a lien on the property of the owner, to sub-contractors, laborers, and those who furnished machinery and materials for the construction of a building by the owner under a contract between the principal contractor and the owner. It will be noticed that in the legislation, section 3158 of the Revised Statutes, as it stood before the act of 1894, was not interfered with in any way except by making a supplemental section thereto.

Section 3158 is the section which provides for the manner in which the principal contractor may obtain a lien upon the premises of the owner, and it remains just the same as it was before the act of 1894. There would be no doubt in the mind of any person carefully reading this section and the decision of the supreme court, together with the legislation of 1894, that that legislation did not interfere with the lien of the principal contractor, if it were not that section 3184 had been amended and this act passed upon by the supreme court.

Section 3184 may be said to be the section that defines who may obtain a lien under this law. It was so amended and enlarged as to provide that the sub contractors, laborers, material men and persons furnishing machinery, having no contract relations with the owner, might obtain a lien upon the owner's property, and by the legislation of 1894, this original section 3184 was repealed; and it is now contended that the decision of the supreme court referred to, having declared that legislation unconstitutional, leaves that entire section 3184 as amended, repealed, and that no person now, neither contractor nor anyone else, can obtain a mechanic's lien, as the section providing and defining who may obtain a mechanic's lien as it originally stood has been repealed, and the one that was substituted by the legislature in its place has been declared unconstitutional. This, I think, is giving to the decision of the supreme court a broader effect than the supreme court intended.

Referring to the syllabus of the decision of the supreme court, we find in paragraph four this language:

The act of April 13th, 1894, 91 O. L. page 135, in so far as it gives a lien upon the property of the owner to sub-contractors, laborers and those who furnish machinery and materials or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract, are bound by the terms of the contract between him and the owner."

So that the supreme court has carefully guarded its decision, and has defined the limits of its operation. The act is not as a whole declared unconstitutional, but only in so far as it does those things which the court determines to be unconstitutional. The act, then, as amended, still provides for the lien of the principal contractor, and I am held to conclude that it is still in force for the purpose of giving the principal contractor a right to perfect the lien under section 3185. The demurrer therefore must be overruled.

W. M. Reynolds, Attorney for Plaintiff.

Dickey, Brewer & McGowan, Attorneys for Defendant.