Merchants' National Bank v. Rieck et al. part of the wall which was leaning eastward from falling in that direction. There is some evidence tending to show that the foreman of the work was told by some one that the method he was employing was not safe, and that the wall should be taken down by erecting a scaffold and by the use of picks, and that the foreman stated that his object in using a rope or pulley was to to save time and material. Under the circumstances the case should have gone to the jury. The judgment is therefore reversed and the case remanded for a new trial. HUNT and SMITH, JJ. concurred. Symmes & Fox, for Plaintiff in Error. Ramsey, Maxwell & Ramsey, for the Bridge Company. TRUSTS AND TRUSTEES. [Hamilton Common Pleas Court, June, 1897.] THE MERCHANTS' NATIONAL BANK V. M. E. RIECK ET AL. 1. GRANTING OR DEVISING PROPERTY AND WITHHOLDING IT FROM THE PAYMENT OF DEBTS A person cannot own property, either legal or equitable, by grant or devise and withhold the same from the payment of his debts. 2. CREATION OF A TRUST BY THE TESTATOR FOR THE BENEFIT OF HIS CHILD. A trust may be created by a testator, for the benefit of his child, by which creditors of the child can not subject the same to the payment of debts; but to create such a trust the title, either legal or equitable, or income from the trust, must not be vested in the child or placed under its control. 3. TRUSTEE Bound to PERFORM HIS DUTY. Trustee under a will, unless excused by authority of court, is bound to perform his duties as directed by the testator. DAVIS, J. The plaintiff obtained a judgment against the defendant, M. E. Rieck, April term, 1895, for $4,629, and an execution was issued and the same was returned unsatisfied. August 3, 1895, the plaintiff filed its petition against the defendants, setting out that the defendant, M. E. Rieck, is a beneficiary under the will of one John Rieck, deceased, and this suit is to subject said beneficial interest to the payment of said judgment against M. E. Rieck; the petition further avers that the defendant, D. D. Bramble, as trustee under the will of said John Rieck, holds said beneficial interest in trust for said M. E. Rieck. The whole question turns upon the construction of Item V. of the will of John Rieck, deceased, which item reads as follows: "I give, devise and bequeath to my son-in-law, D. D. Bramble, of Cincinnati, Ohio, all the rents in sections 13 and 25, Sycamore township, Hamilton county, Ohio (the same being about one hundred and seventy-five acres of the probable value of $18,000), in trust, however, he to have fulí and complete control and possession thereof, with full power to rent or lease the same to such persons and on such terms and for such price as he may deem best, to collect and receive the rents derived from such premises, and from the rents received to pay the taxes on said lands, the premium necessary to insure the buildings on said lands against loss by fire, the charges necessary for keeping the said premises in repair, and to retain a reasonable compensation for his services therefrom, and to pay the remainder of said rents to my son, M. E. Rieck, for the support of himself and his family; the said D. D. Bramble to make annual settlements with said M. E. Rieck in which it shall be shown in writing all the receipts and expenditures relating to said premises." The plaintiff argues that said item, and especially the words "and to pay the remainder of said rents to my son, M. E. Rieck, for the support of himself and Hamilton Common Pleas Court. his family," make a clear gift to M. E. Rieck, and that said net rents are absolutely his property: while the defendants contend that said phrase creates a trust in M. E. Rieck and family, and that said net rents are not to be subjected to the payment of the debts of said M. E. Rieck. There are a great many authorities covering this and kindred questions. "In order to create a trust it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed upon mere words of recommendation and confidence. So for example, it is held that no trust is implied from the words in which the testator may be understood to state a motive, or assign a reason for a gift 'as to maintain the children, or that he may support himself and children.'" See 59 Wis., 172; 98 I., 625; 1 Perry on Trusts, section .9; Gray on Alienation, section 115. The case is not without precedent in Ohio. In the case of Thornton et al v. Stanley, 55 O. S. Adv., 379, in construing the will almost identical with the one in question, it was held that no trust was created, the court saying: "It will be observed that the testator gives all his property to his trustee, upon the express trust, however, that the net income shall go to the child, Emma, during her life, for her support and education. The purpose named, however, is no limitation upon the gift itself, it only expresses the motive of the gift. No discretion is given the trustee as to the amount he may so apply; it is all the income, after deducting the expenses and a reasonable compensation to himself. Whilst, under the rule that is admitted to prevail in England, such a bequest might be alienated and would without doubt, be subjected to the claims of creditors. It is claimed that under the rule that prevails in Massachusetts and many other states, such is not the case. This rule permits the testator, through the agency of a trustee, to make the bequest in such wise as to preclude the claims of creditors against the beneficiary, where the purpose is clearly expressed, on the ground that a testator has a right to dispose of his property as he sees fit; and may, therefore, so limit a bequest as to protect it from the claims of creditors against an improvident beneficiary." It will be observed that in the case at bar the trustee is to pay the net rent to M. E. Rieck, and the testator uses the following language: "And the said D. D. Bramble to make annual settlements with said M. E. Rieck, in which shall be shown in writing all the receipts and expenditures relating to said premises." The testator in this sentence did not say that it was to be paid to M. E. Rieck as trustee, but that it was to be paid to M. E. Rieck, which phrase, or sentence, taken in connection with the sentence, "and to pay the remainder of said rents to my son, M. E. Rieck, for the support of himself and his family," clearly shows that M. E. Rieck personally and individually was to have the income and use of said net rents; and the testator expresses a motive, or desire, or purpose, or a wish that said M. E. Rieck was to have said net income or rent for the support of himself and his family. If the testator had intended that said net rents were to be held in trust for the benefit of M. E. Rieck and family, it seems to the court that he should make the statement that the payments of said net rents should be made to M. E. Rieck and family. Taking all of the language in the will relative to this question, and construing them together makes, in the opinion of this court, a clear and strong statement that M. Ē. Rick individually is the owner of said net rents, and that it was never the intention of the testator that said M. E. Rieck should hold such funds or net rents in trust. Further, the trustee, D. D. Bramble, has no authority or any power over such net rents. The only direction to him is, that he pay the same to M. E. Rieck. Board of County Commissioners v. Easton. A person cannot own property, either legal or equitable, in Ohio, by grant or devise by which the same cannot be subjected to the payment of his debts, and the question has been before our supreme court upon several occasions. See Hobbs v. Smith, 15 O. S., 419; Anderson v. Cary et al., 36 O. S., 506; Wallace v. Smith et al., 2 Handy, 78; Thornton v. Stanley, supra. The court is, therefore, of the opinion that the net rents in this case are liable to the claims or creditors, and that an accounting will be ordered; and Judge James B. SWING is hereby appointed a referee for that purpose. It is admitted in argument in this case that the trustee has permitted M. E. Rieck to take possession of said lands and not account to said trustee for the rents. The court is of the opinion that the trustee has violated his trust in this regard, and that it is the duty of said trustee to rent said premises for a fair rental, such as like premises would rent in the community, and carry out the objects of the said testator by making payments as in said will provided. Stephens & Lincoln, Attorneys for Plaintiff. COUNTY COMMISSIONERS. [Logan Common Pleas Court, April, 1897.] BOARD OF COUNTY COMMISSIONERS V. JOEL EASTON 1. ACCOUNTS OF A COUNTY COMMISSIONER WILL BE ALLOWED, WHEN. Before the accounts of a county commissioner shall be allowed by the board of county commissioners, it shall be certified to by the prosecuting attorney and approved by the probate judge. 2. COMPENSATION OF COUNTY COMMISSIONERS. County commissioners can only receive such compensation as the law allows, therefore when they receive more than their statutory compensation, such payments are illegally made and the board of commissioners, under section 845, Revised Statutes, have the power to maintain an action to recover back so much thereof as may be due the county. Dow, J. The petition in this case sets forth that from the first Monday in January, 1894, until the 12th day of June, 1896, the date of filing the petition herein, the defendant was one of the duly elected, qualified and acting county commissioners of Logan county, and states 37 several causes of action against him. The first one charged that on the 6th day of February, 1894, the defendant, as such county commissioner, demanded and received of the county treasurer, by virtue of a warrant issued to him by the county auditor, as mileage for attending certain sessions of the board of county commissioners held during the month of January, 1894, and also for boarding and other personal expenses, incurred while attending such sessions, certain sums of money, which money was by him received out of the county treasury in addition to his full statutory compensation, mileage and expenses. The other 36 causes of action are similar to the first, except that the receipts were for different months and parts of months succeeding and for different sums, in all amounting to $415.31, for which with interest from March 30, 1896, plaintiff asks for judgment. To this petition the defendant files his answer, stating two grounds of defense. The first is simply a denial that he, as county commissioner, demanded or received of the county treasurer as and for his mileage, boarding or other personal expenses any sum whatever in addition to his statutory compensation therefor. Logan Common Pleas Court. For a second defense the defendant says that for all the money, as set out in the petition received by him he presented itemized statements of his accounts, which accounts were duly submitted and examined by the prosecuting attorney and the probate judge of Logan county, who duly certified and approved his said accounts, to which proceeding of approval the plaintiff and defendants were parties, and that such approval was an adjudication upon the merits of said accounts, and that the approval of said accounts by the prosecuting attorney and probate judge thereof became and are res judicata, or in other words, the accounts of the defendant, whether legal or not, having been approved by the prosecuting attorney and probate judge, that they cannot now be questioned. Section 897 of the Revised Statutes provides: "That each county commissioner shall be allowed $3 for each day that he is employed in his official duties and five cents per mile for his necessary travel for each regular or called session, not exceeding one session each month, or twelve in any one year, and five cents per mile when traveling within their respective counties on official business, to be paid out of the county treasury on the warrant of the county auditor, * * * and when necessary to travel on official business out of his county shall be allowed, in addition to his.compensation and mileage as hereinbefore provided, any other reasonable and necessary expense actually paid in the discharge of his official duty, and each commissioner shall present an itemized statement of his account per diem mileage, services and expenses as aforesaid, which, before it is allowed by a full board, shall be certified to by the prosecuting attorney of the county and approved by the probate judge thereof." As will be noticed, before the accounts of a county commissioner shall be allowed by the board of commissioners it shall be certified to by the prosecuting attorney and approved by the probate judge. It is claimed that when the prosecuting attorney certifies to the accounts and the probate judge approves the same, that the claim is thereby adjudged to be correct and becomes res judicata and must be paid. One of the many essential requirements necessary to constitute a matter res judicata is that the decision of the court or tribunal to which the same was submitted was final unless appealed from. That this is not the case with reference to the approval of the accounts of county commissioners by the prosecuting attorney and probate judge there can be no doubt. Section 894 provides that no claims against the county shall be paid otherwise than upon the allowance of the county commissioners, except when the amount due is fixed by law or is fixed by some other person authorized by law. Section 897 provides that after the approval of the account by the prosecuting attorney and probate judge the account must be passed upon by the full board of commissioners and by them allowed, before the warrant can legally issue therefor. The auditor cannot legally issue his warrant in payment of these accounts notwithstanding the approval of this tribunal until allowed by the full board of commissioners, hence the rule of res judicata does not apply. The answer nowhere states that these accounts, after their approval by the prosecuting attorney and probate judge, were allowed by the full board of commissioners. There are many other essential elements wanting in reference to the allowance of the fees in this case, in order to constitute the action of this tribunal res iudicata, but which it is not necessary now to mention. The petition alleges that these sums sued for were received by the defendant out of the county treasury as and for his mileage, boarding and other personal expenses in addition to his full statutory compensation mileage and expenses, all of which he now retains. As to the truth of this allegation the court is not now called upon to pass, and in fact has no opinion. Kramer v. Fay. The second defense of the answer admits these facts to be true. Suppose the additional allegation had been made, viz., that after the prosecuting attorney and probate judge had approved defendant's accounts, the county commissioners had allowed the claims and ordered payment if unauthorized and illegal, can a recovery be had in this action. It is well settled in this state that a public officer can receive only such compensation as the law allows. 70. S. 237, 25 O. S. 13. The State v. Kelly, 32 O. S. 421. If this compensation was illegally drawn from the treasury it belongs to the county and should be refunded. Section 845 of Revised Statutes provides, "The board of commissioners shall be capable of suing and being sued * * and to ask, demand and receive by suit or otherwise * * any sum or sums of money due to such county, and the money so recorded in any case shall be by them paid into the treasury of the county." It seems to me that in case the averments of the petition are true that the payments were illegally made to the defendant, he having been fully paid for all his statutory compensation, mileage and expenses, then there was no authority for the prosecuting attorney and probate judge to approve the accounts nor for the county commissioners to allow the same; and if the defendants through such approval and allowance, illegally drew money from the county treasury, then the county commissioners under the law have the power to maintain this action, to recover back so much thereof, as may be due the county. Any other holding would encourage the presentation of illegal accounts, and the reckless allowance thereof. The demurrer to the second defense will be sustained and the motion to make the first defense more definite and certain overruled. S. H. West and J. A. Odor, Attorneys for Plaintiff. Howenstine, Huston & Miller, Attorneys for Defendant. PERSONAL INJURIES-EVIDENCE. [Superior Court of Cincinnati, General Term, June 1, 1897.] CHARLES KRAMER, BY HIS NEXT FRIEND, JOHN KRAMER V. HENRY FAY. 1. WEIGHT AND SUFFICIENCY OF THE EVIDENCE TO BE PASSED UPON BY THE JURY, WHEN. If the evidence tends in any degree to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has the right to have the weight and sufficiency of the evidence passed upon by the jury. 2. NECESSARY EVIDENCE TO ENTITLE PLAINTIFF TO RECOVER FOR AN INJURY. In order to entitle a plaintiff to recover for an injury, there must be some evidence tending to support the issue and to show that the negligence complained of brought about the injury. HUNT, J. This case comes before the court in error to the special term. The petition alleges that Henry Fay, the defendant in error, is the owner of certain real estate, with improvements thereon, at the southeast corner of Bank and Baymiller streets, in the city of Cincinnati, and was such owner at the time of the happening of the events complained of; that there is located on said premises a certain closet connected with the sewerage system of the city of Cincinnati, and that through the negligence and carelessness of said Fay the closet on the premises became filled with sewer gas or some other explosive substance, and that by reason of the improper condition of the same, and in consequence |