Cuyahoga Common Pleas.

would the remedy be, either with or without the action of the council for the city authorities, to tear up its tracks, destroy its trolley wires, dig out its switches, and cross-over tracks, spike its turn-tables or in any other manner forcibly interfere with its machinery and appliances, so as to render it much less effective in the performance of its contract duties toward the public? Clearly not; and it would be a sad commentary upon the civilization of the country, if the law in this day and age would permit of such acts at the election of municipal officers, without notice, demand or even an opportunity to be heard; and to my mind it would be a long step backward, if the courts were to permit the municipality, through its agents and officers guilty of such conduct, to come into court and say: "We have determined that you are not complying with your contract, and therefore you ought not to be heard or granted relief. We ought not to be restrained from continuing our unlawful acts." The very first rule of equity would require the chancellor to close his ear to the plea of such a party, and deny him the right to be heard at all. Granting that the railroad was not complying with its franchise in this case, and for the reason set forth in the answer and proof of the defendant, who would think of asking the chancellor to make an order to destroy the switches or cross-overs (even if it should appear that they were not, in the opinion of the court, necessary to the operating of the road), as a means of compelling the railroad company to comply with its contracts? No one; for no precedent or rule of law can be found for such a decree, unless it be in case of nuisance; much less ought the act of the board of control be recognized as a lawful act in thus impairing contract rights and practically destroying property. Counsel for the defendant forget, in contending to the court, that the plaintiff is violating its contract with passengers-and the city, that the act of the city in tearing up the plaintiff's tracks or switches, thereby rendering it less able to serve the entire patronage along its lines, was guilty of a much greater breach of duty, if not of contract, than the plaintiff; for it is the duty of the defendant to see to it that the people of the municipality have the best possible service; and if a portion are not receiving that service, it illy becomes the law preserving power of the city to so conduct itself in attempting to correct one wrong as to do or create a greater one.

In

Street railroads have become an indispensable necessity in conducting and managing the business of great cities; but ample power is reserved not only in the organic law of the state, but in every statute and ordinance upon the subject, to enforce all reasonable conditions and burdens lawfully imposed; but it is not by destroying its property or arbitrarily tearing up its tracks or switches. this case, complaint was made to the city authorities that the plaintiff was not complying with its franchise or contract. The city council heard the complaint and directed by resolution what should be done. Complaint was made that the plaintiff was disregarding the resolution. Then, instead of the city using this reserved power in one of many ways, it or some of its officers determined that the switch was not necessary to the reasonable operating of the road, and that the road could get along without it, and therefore it would tear it up and not allow the plaintiff to relay it, and by that means punish the plaintiff and compel it to comply with its contract. The mere statement of the facts refutes any claim of authority for such conduct.

Why, The city

Who had determined that it was not complying with its contract? the city, or some officer of the city-the other party to the contract. in this instance, though a party to the contract, proposes to declare the breach on the part of the other party, fix the penalty and enforce the punishment; and while thus holding the plaintiff by the throat, so to speak, it proposes to defeat the plaintiff of relief in a court of equity by saying to the court that the plaintiff has not clean hands, and has not, in its judgment, done equity, although itself asking for no relief. It might just as well have destroyed any other switch or any other part of the road. Furthermore, it is not now seriously contended by counsel for the defendant, that the city had the right to do what it did, and if

Jackson v. Shinnick et al.

contended for it would not be tenable, for the reason that no authority or tribunai authorized by law ever undertook to declare the switch unnecessary for the reasonable operating of the road. But it is contended by the city that having been done, and the plaintiffs not having kept and performed all the conditions of its franchise, it, the plaintiff, can have no relief in equity. Such a proposition can receive no consideration at the hands of the chancellor. If the city or individuals may thus go and take up the switches or destroy property without appealing either to law or equity, it would not be long until serious conflict would arise, and the law preserving power of the city would soon be involved in attempting to quiet or overpower those who were defending their property rights against the unlawful assaults of the city itself. To hear the city and defeat the plaintiff in this case, or deny it the relief sought, would be for a court to recognize the clearly unauthorized and unlawful acts of the defendant. This a court of equity ought not to do and will not do.

Again, it is said the plaintiff's legal rights must first be determined. What legal rights? Why the very right that the city refused to submit or appeal to the law to determine, but undertook to determine and fix for itself—that of the necessity of the use of the switch in controversy, or the failure on the part of the plaintiff to comply with its franchise. Can the city now be heard to say that the plaintiff must first resort to a court of law to redress a dispute between the parties, when it itself undertook to determine that question and in so doing perpetrated an unlawful act? Clearly not. The equity powers of the court are broad enough and active enough to grant the relief sought in this case and to restore the status quo and allow the defendant to pursue a lawful remedy, and invoke the aid of a court of law, or equity, as it may see fit and as may be its rights, to redress any wrong done or perpetrated by the plaintiff.

The prayer of the petition will be granted, and injunction allowed. Order see journal.

Squire, Saunders & Dempsey, Counsel for Plaintiff.

M. G. Norton and Judge Phillips, Counsel for Defendant

1. CONSTRUING A WILL.

WILLS.

[Franklin Common Pleas Court.]

JACKSON V. SHINNICK ET AL.

In construing a will the obvious intention of the testator must prevail over the strict grammatical construction of his testamentary language.

2. PROVISIONS IN A WILL RESTRICTED BY THOSE MADE IN A CODICIL, WHENWhere the dispositions made in a will are irreconcilable with those made in the codicil; Held, that the codicil being the most recent expression of the purpose of the testator, it therefore, must be deemed to have restricted and modified the will to that extent. George White made his will and codicil thereto, February 17, 1886; on January 3d, 1890, he made a second codicil. He died August 17, 1892, leaving the real estate of which the plaintiff seeks partition. The question to be determined here involves the construction of George White's will.

PUGH J.

This is the second item of George White's will: "I give and devise unto my daughter, Margaret Jackson, and all my grand-children, all of my estate of every kind, share and share alike. If, at the time of my death, my daughter Margaret, or any of my grandchildren now living, shall have deceased, then my estate shall go to the survivors, their heirs and assigns, share and share alike."

Franklin Common Pleas.

The first codicil to the will is of no importance in the solution of the case. The material part of the second codicil is couched in this language: "It is my will that itein 2d of my will be and the same is hereby so changed as to exclude my grand-daughter Emma Campbell, I having since said 17th day of February, 1886, conveyed to said Emma, certain real estate which I consider fully equal to her full proportion of my real estate; I hereby revoke so much of item 24 in my said will as would include said Emma, and I hereby give and devise to my daughter Margaret Jackson, and all my other grand-children, not including said Emma, all my estate of every kind, share and share alike. * * With the change above made, I hereby approve and confirm all my will and codicil as my last will."

Bessie Elerick, one of the defendants, was the only child of Margaret E. Elerick, deceased, who was a grand-child of George White.

George White died August 17, 1892, while Margaret E. Elerick died January 14, 1892.

Edward F. Shannon, another defendant, was the only child of George F. Shannon, deceased, who was also a grand-child of George White, and died October 5, 1895, several months before White's will was executed.

By section 5971 of the Revised Statutes, it is provided: "When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case, such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator; ** unless a different disposition shall be made or required by will."

In Woolley vs. Paxson it was resolved that this statute applies to a devise to a class, as to children.

Classes may be designated by the terms, heirs, children, grand-children, brothers, sisters, nieces, and the like.

Two questions arise upon the will and second codicil, the facts recited and the statute quoted.

1. Does the second codicil abrogate the provision of survivor contained in the original will?

Do the two great grand-children, Bessie Elerick and Edward F. Shannon, take the respective shares of their parents in White's estate?

If, before White died, either Margaret Jackson, or any of the grandchildren, living at that time, that is, when the will was made, had died, the whole estate would have devolved upon the survivors and their heirs. Since Margaret, a grand-child, had been dead several months before that, a strict grammatical construction of the language would vindicate the conclusion that Margaret Elerick was not included with the other grandchildren, "now" (then) "living." This construction turns upon the words of the will, "now living.' But the obvious intention of the testator must prevail over the strict grammatical construction of his testamentary language. When he made his will, George White knew that Margaret Elerick was dead. He ordained that his estate, not part of it, not all except the share of Margaret Elerick, but all of it, should go to the survivors, their heirs and assigns, share and share alike." Since they were to have all of it, how could the child of Margaret Elerick be entitled to a share? This provision in favor of the survivors constituted a "different disposition" as meant by section 5971 of the Revised Statutes, which prevented Bessie Elerick from taking thereunder her mother's share.

Did the second codicil disannul the provision as to the survivorship? The words, "I hereby give and devise to my daughter Margaret Jackson, and to all my other grand-children not including said Emma, all my estate of every kind, share and share alike," isolated from the context of the codicil, make it manifest that he intended to retract the disposition of the will to the survivors.

Jackson v. Shinnick et al.

But the whole of the will and the whole of the codicil must be laid side by side and construed together, and a meaning given to every word, if possible, in order to arrive at the purpose of the testator. Does conformity to this rule, logically force one to a different conclusion? First in this codicil, the testator declared: "It is my will that item second of my will be, and the same is hereby, so changed as to exclude my grand-daughter, Emma Campbell, as a legatee under my said will." It is true as counsel in argument stated, that the draughtsman of the codicil did not perceive the distinction between the terms legatee and devisee, but this want of perception is of no practical moment.

Again, the testator declares: "I hereby revoke so much of item second in my said will as would include said Emma." If the testator only designed to change the will so as to exclude Emma Campbell from a participation in the division of his estate; if he only revoked so much of it as would include her in that participation, how can it be concluded that he intended to revoke the disposition of the property to the survivors and their heirs and assigns? These two provisions of the codicil, insulated from the contents, make it obvious that he did not intend to revoke the disposition of the will in favor of the survivors.

But this conclusion rests upon the assumption that these declarations of a purpose to change and revoke the will, in one particular, imply that he did not intend to, and did not, in fact, make any other change and revocation of the will.

In truth, however, this was not all the change of revocation; for immediately following these two declarations, he said: "And I hereby give and devise to my daughter, Margaret Jackson, and to all my other grand-children, not including said Emma, all of my estate of every kind, share and share alike.” If he did not intend to revoke the disposition of the survivor, this testamentary declaration was superfluous, because he had previously in the will expressed the same purpose just as clearly. Could any other reason for that reiteration be conceived? I think a fair translation of this codicil might be expressed thus: "It is my will that item second of my will be, and the same is hereby so changed as to exclude my grand-daughter, Emma Campbell, as a legatee and devisee under my said will; because I have by deed given her a full proportion of my estate, and I hereby revoke so much of said item second as would include Emma, and I also hereby give and devise to my daughter, Margaret Jackson, and to all my other grand-children, not including said Emma, all my estate of every kind, share and share alike."

It is true that there is no expressed revocation of the disposition of the will in favor of the survivors; but a revocation necessarily inferred from the terms of a codicil is just as effective as a revocation clearly expressed in the codicil. Collier v. Collier, 3 Ohio St., 369.

It is also true that the functions of a codicil are to add to the will, "to enlarge or restrict or modify some of its provisions," and that it does not, like a subsequent will, wholly supersede the previous will or wills. Id. 373.

But this does not invalidate the conclusion that this codicil of George White revoked the disposition of his estate to the survivors of his grand-children and daughter. This purpose is made plainer, and is illuminated by an attending fact. By a deed, he conveyed to his grand-child, Emma Campbell, some real estate which he declared was her full proportion of her estate. The deed bestowed upon her a fee simple title to that property. It contained no limitation that, in the event of her death before that of the testator, the property should go to the surviving daughter and grand-children, their heirs and assigns. The will revealed an express design to place Emma Campbell on an equality with the other grand-children. If he subsequently intended to discriminate in her favor, he gave no intimation of it. Having made such a deed to her, and having vested a fee simple title in her to her share, it affords a presumption that he intended to reserve the equality between her and the other grand-children, by disaunulling the disposition in favor of the survivors, as I think he did by his second codicil.

Franklin Common Pleas.

There was no evidence to prove that he did not entertain the same kindly feeling and disposition towards all of his grand-children.

The disposition of the will in favor of the survivors and the codicil, as a whole, are irreconcilable. The codicil being the most recent expression of the purpose of the testator, it must be deemed to have restricted and modified the will to that extent.

It is not necessary to attach any significance to the last clause in the codicil-With the change above made, I hereby approve and confirm," etc.

The internal evidence of the will and codicil discloses that it was drawn somewhat carelessly. It is exemplified by this very clause. It makes the testator say: "With the change above made I hereby approve and confirm 'all will and codicil' as my last will." Only one will and only one codicil had been made, and yet the testator speaks of more than one of each as having been made. Designating two changes of the will as one change, may reasonably be imputed to the same carelessness of the draughtsman's hand that made more than one will and codicil.

The conclusion reached as to the construction of White's will and codicil is fortified by one's sense of justice. An innate sense of justice would dictate that the great grand-children should have the respective shares of their parents. Why should they be excluded from the participation in the estate, merely because their parents had died before the testator did? True he had an absolute right to make such a discrimination, but his purpose to do that should be made manifest, either by an express testamentary declaration or by a fair and reasonable construction of all the dispositions of his will and codicil.

The doctrine of survivorship and lapsing of legacies and devises was, in olden times, and even in early modern times, carried to such extreme applications, that statutory restrictions were devised and enacted just like that in section 5971 of the Revised Statutes. An extreme instance is that of Dimond v. Bostick. decided by Malins, V. C., affirmed by the Lords Justices on appeal, and reported in 23 W. R., 554. There the testatrix bequeathed the residue of her estate to "all the nephews and nieces in the first degree of relationship to my late husband, who were living at the time of his decease." The husband had at his death, nine such nephews and nieces, two of whom died during the life of the testatrix, one before and one after the date of the will. The decision was that the words "living at the time of his decease" were insufficient to take the case out of the general rule, and that those who survived the testatrix should take the whole estate.

The conclusion as to the construction of the will and second codicil thereto of George White, logically, makes this a case for the application of section 5971 of the Revised Statutes. The only "different disposition," of the will, meant by the statute, having been abrogated by that codicil, Bessie Elerick and Edward F. Shannon are entitled to have, possess and enjoy the shares which their respective parents would have had, if they had survived George White.

A decree in conformity to this opinion may be drawn.

E. L. De Witt, for Defendants.

Peters & Taylor, for Plaintiff.