Catlin et al. v. Huestis, Executor. The court of common pleas, at its April term, 1895, tried the case, a jury having been waived, and upon the trial, found in favor of the crosspetitioner, Huestis. The court found specifically that the debts alleged to be due to the estate of said Elias W. Coit, as appears in said cross petition, towit: $65, $4.00 and $7.16, have been presented to said executor for allowance and have been by him duly allowed; that the $200.00 note and interest thereon, mentioned in said pleadings, and the proceeds resulting from the payment of the same by defendant, Emery Carpenter, to the clerk of this court, by order of this court, made on the 6th day of August, 1894, recorded in volume 22, page 176, of the journal of said court, are assets of the estate of said Elias W. Coit, deceased, and the said Huestis, as executor aforesaid, is entitled to said fund, and it is ordered that it be administerrd by him. A motion for a new trial was filed and overrulea. There is appended to the record a paper purporting to ne an agreed statement of facts and a copy of the agreed statement of facts appears in the bill of exceptions, which is as follows: "It is conceded by the parties hereto, that the following facts are true: That after the death of Elias W. Coit which occurred on or about the 9th day of May, 1887, his will which is set forth in the petition, was duly and properly probated, and that his daughters, Ellen A. Cooper and Sarah M. Coit, referred to and mentioned in the will, received the entire property of Elias W. Coit, according to the terms of the will; that they settled and paid all the claims and outstanding debts against the estate of Elias W. Coit of which they knew, or of which the defendant now known, except the alleged claims hereinafter stated; that after the death of the said two daughters of Elias W. Coit, and the appointment of Stephen L. Cooper as administrator of the estate of Ellen A. Cooper, he presented to Jonathan Huestis the claims alleged in the answer of said Huestis, after the time of the appointment of said Huestis as executor herein. Said alleged claims have not been paid. The children referred to in the petition are the children of Victor and Minerva Catlin, referred to in the will of Elias W. Coit, and Minerva Catlin is their duly appointed and qualified guardian. It is further conceded that on or about November 1, 1893, Stephen L. Cooper, mentioned in plaintiff's petition and defendant Huestis' cross petition herein, purchased of Tyson Brothers of Plymouth, Ohio, a granite monument as per contract hereto attached, the same to be set over the graves of Sarah M. Coit, Ellen A. Cooper (wife of Stephen), and Elias W. Coit, which graves were together in the same cemetery. Such monument was inscribed with the names of Ellen A. Cooper, wife of Stephen L. Cooper, Sarah M. Coit, sister of Mrs. Cooper, and Elias W. Coit, the father of Mr. Cooper's wife.' 2. "That prior to November 1, 1893, Ellen A. Cooper died intestate, leaving Stephen L. Cooper, her husband, as her only heir at law, and leaving property to be administered to the amount of about $1,300, which came to her from a former husband. 3. "Stephen L. Cooper was appointed and duly quilified as administrator of the estate of Ellen A. Cooper prior to November 1, 1893, and said estate was not settled prior to said November 1, 1893. 4. "Said Stephen L. Cooper paid Tyson Brothers for said monument from moneys in his hands which would belong to him as heir of his wife, which came into his hands as aforesaid from the above mentioned estate of his wife." Huron County Circuit Court. It will be seen by this statement of facts which is made and somewhat prolonged and perhaps unnecessarily so, that the claim of this executor under this will and the right and power to administer this estate, rests almost exclusively upon the claim made in the case in his behalf that there were debts outstanding to the extent of $69 for the grave stone and $4 for probating the will, together with some $7 and some odd cents for the services of the probate court in further proceeding in administering the estate. It was ruled by this court substantially upon the trial of the case as it came here in a former proceeding, under the authority of the 46th Ohio State, 391, and the 30th Ohio State, 288, supplemented by a case since reported in the 51st Ohio State, 446, that there was no necessity, as the facts appear in this case, for an administrator or an executor to close up this estate. It appeared satisfactory to the court upon that hearing, that substantially all outstanding debts had been paid by the parties entitled to the fund under the terms of the will of the deceased, Mr. Coit, and the courts do not tolerate or encourage proceedings under the direction of the probate court for the administration of an estate, nor the expenditure of money left by deceased parties for the mere forms of administering upon an estate. In this case it would appear, and it is not contravened by anything stated here, that the debts due from this estate had been paid, or at least substantially paid. The debt that is set up here as one of the debts of the estate for the purchase of a tombstone, the record satisfactorily shows is not a debt of the estate of this decedent. The statute does not make any provision for the payment of such a debt. Section 6185 says: "The court may also, on settlement, allow, as a credit to the executor or administrator, any just and reasonable amount expended by him for a tombstone or monument for the deceased; but it shall not be incumbent on any executòr or administrator to procure a tombstone or monument." In other words, the statute empowers an executor or an administrator to provide a monument for a deceased party with the consent and approbation of the probate court, and where that has been done, he is warranted and authorized in paying from the assets of the estate for such monument. But this monument for which the claim is made here, was not one which was provided for by the administrator or the executor; it was one that was provided by the husband of the deceased Mrs. Cooper, Mr. Cooper, rather for his deceased wife than for the other parties interested in the estate, and Mr. Cooper could estate, not undertake, either with or without the authority and sent of the probate court, to charge upon the little fund remaining of the assets of this estate, any part of that expense. There was no authority by or from the probate court to provide that monument. The probate court could not have conferred any authority upon the executor to erect a monument under such circumstances and charge the expense upon the estate, unless it might be argued perhaps that the executor might contribute with other parties in providing a monument for several members of the family, including the deceased testator. that was not done; there is no pretense that anything of that kind was done. So that, leaving out of view what should be done with the item of charging for the providing of a monument for this deceased Mr. Coit, there remains just simply the expense that was incurred in procuring the probating of the will; that was all there was of it. There was no neces But Commissioners v. State. sity whatever, so far as appears in the record in this case, for the appoint ment of this executor; there were no debts to be paid; there were no duties to be performed. This $200 was in the hands of Emery Carpenter whose note was outstanding for the amount, and these children by their guardian were seeking to enforce the payment of it by some meanswhat means we are not advised. This man Huestis, master of masons for the time being, and coming perhaps within the terms and provisions of the will, places himself under bond as executor to take charge of this estate and administer upon this fund. Our conclusion is, that the appointment of this administrator was wholly uncalled for and entirely unnecessary. The case is covered directly, we think, by the reported decision in the 46th Ohio State, where it is held that moneys or devices such as these were, may be claimed directly by the legatees or devisees without passing into the hands of the executor; or, if it fairly appeared that there were creditors who were entitled to be paid, it might be necessary, upon the failure of the devisees or legatees to make payment where an administrator was appointed, for the executor to claim a fund from which to pay the debts that were set up, if any there should be. But here there are none set up that are entitled to any notice or recognition; none that would warrant a party appointed as executor by the probate court to claim and hold and administer this fund as against the children to whom it was devised. The result of our views in this particular is, that the judgment of the court of common pleas in this respect should be reversed and the case will be remanded to the court of common pleas with directions that the fund be paid to the proper parties. G. Ray Craig and Andrews Bros., for Plaintiffs in Error. MISCONDUCT IN OFFICE. [Wood County Circuit Court, November 6, 1895.] [Haynes, Scribner and Price, J.J.] STAHL ET AL., COMMISSIONERS, V. STATE. 1. PRESUMPTION AS TO PLACE WHERE OFFENSE WAS COMMITTED. When the law directs where an officer shall transact his business and he is indicted for an offense committed as such officer, it will be presumed that the offense was committed where the law directs the business to be done. 2. REPEALS BY IMPLICATION NOT FAVORED. An act of the legislature will not be held to have been repealed by implication when another act is passed, if they can be construed to stand together. 3. PRESUMPTION AS TO REASONS FOR EXCUSING JURor. It will be presumed, in the absence of facts appearing to the contrary, that there were proper reasons for excusing a juror and filling his place with another. 4. ERRORS IN CHARGE TO GRAND JURY. Errors of a court in the charge to a grand jury cannot be reached by a plea in abatement. 5. EVIDENCE OF SIMILAR UNLAWFUL PROPOSITIONS. County commissioners were indicted for wilfully, corruptly and unlawfully entering into a contract with architects for plans and specifications for a court house: Held, it is competent to show that the commissioners on other occa Wood County Circuit Court. sions prior to entering into the unlawful contract, had made unlawful propositions to other architects for the purpose of showing their corrupt motiv 6. MISCONDUCT IN REFUSING TO PERFORM DUTIES. County commissioners charged with specific duties, who wilfully refuse to perform them are guilty of misconduct in office within the meaning of section 6915 of Revised Statutes, although no money consideration is shown. PRICE, J. (orally). At the February term of the court of common pleas of Wood county, Ohio, for the year 1895, the grand jury presented an indictment against the plaintiffs in error charging them with official misconduct in office as commissioners of said county; certain acts and proceedings were done and had by the commissioners in the discharge of their official duties which are charged in the indictment as official misconduct. The prosecution is founded on section 6915 of Revised Statutes, which reads as follows: "Whoever, being a county commissioner, is guilty of any misconduct in office, shall be fined not more than four hundred dollars and forfeit his office.” The accused parties each entered a plea of not guilty, and in June, 1895, were brought to trial and found guilty by a jury. A motion for a new trial was overruled, as was also a motion in arrest of judgment. Jacob Stahl was adjudged to pay a fine of one hundred dollars, and, as his term of office had before that time expired, no forfeiture of office was adjudged. Each of the other defendants were fined one hundred dollars and his office declared forfeited. Exceptions were taken from the first to last in the course of the trial, and error is prosecuted to reverse the judgment of the lower court to obtain a new trial. When arraigned, the defendants filed their motion to quash the indictment. That was overruled, and they filed a plea in abatement which was held bad on demurrer, and then they demurred to the indictment. The court overruled the demurrer, and exceptions were taken to these several rulings. Inasmuch as counsel argued the same objections to the indictment in support of both the motion to quash the indictment and the demurrer, we will pass upon them together as both seem intended to raise the same questions, suggesting, however, that as to an objection reaching to the substance of the indictment, a demurrer is the proper pleading. The first count in the indictment is as follows: "The jurors of the grand jury of the state of Ohio within and for the body of this county of Wood impanelled, sworn and charged to inquire of crimes and offenses committed within the said county of Wood, in the name and by the authority of the state of Ohio, on their oaths, do find and present, that Jacob Stahl, Samuel Knight and James Gibson, late of said county, on the third day of May, in the year of our Lord one thousand eight hundred and ninety-three, in said county of Wood and the state of Ohio, were then and there the county commissioners in and for said county, having been duly and legally elected and duly qualified to perform the duties of said office of county commissioners, during the term of office to which they had been severally elected as aforesaid; that said Jacob Stahl, Samuel Knight and James Gibson had for a long time before said 3d day of ' May, 1893, been, and for a long time thereafter continued to be, the county commissioners in and for said county, duly elected and qualified as aforesaid. And the said Samuel Knight and James Gibson still continue to be and now are county commissioners in and for said county and Commissioners v. State. are acting in that official capacity. That said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said Wood county, Ohio, acting in their said official capacity did, on said 3d day of May, 1893, resolve upon and declare their intention to erect a new court house in and for said county of Wood and state of Ohio, under and by virtue of the provisions of an act of the general assembly of the state of Ohio entitled, 'An act to authorize the commissioners of Wood county, Ohio, to build a court house,' which said act was passed and took effect on the 2d day of February, A. D. 1893. "That thereupon, on said 3d day of May, A. D. 1893, said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, did unlawfully, wilfully, knowingly and corruptly. make and enter into a certain contract with a partnership then and there doing business under the firm name and style of Yost & Packard, whereby they employed the said Yost & Packard to make the plans and specifications for and supervise the erection of said new court house. That prior to said last named date, to wit, on the 28th day of February, A. D. 1893, the judges of the circuit court in and for said county of Wood and state of Ohio, had duly and legally appointed Earl W. Merry, Frank A. Baldwin, Edward B. Beverstock and John Ault as the "building committee," under and in accordance with the provisions of the aforesaid act of the general assembly of the state of Ohio to act and vote with the aforesaid county commissioners in procuring, making and approving plans, estimates and specifications tor said court house, and in determining all questions in connection with the erection of said court house, all of which the said Jacob Stahl, Samuel Knight and James Gibson then and there well knew, but they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, unlawfully, knowingly, wilfully and corruptly failed, neglected, omitted and refused to act with the aforesaid building committee in the procuring of said plans and specifications for said court house, and unlawfully, knowingly, wilfully and corruptly refused to permit the aforesaid building committee to act with or to vote with them, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, in procuring the said plans and specifications for said court house, and in making the aforesaid contract therefor, and unlawfully, knowingly, wilfully and corruptly prevented the aforesaid building committee from in any manner acting or voting or participating in the procuring of said plans and specifications for said court house and in providing for the supervision of the erection thereof. "And they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners as aforesaid, in the manner and by the means hereinbefore stated, and without the co-operation therein by the aforesaid building committee, did unlawfully, knowingly, wilfully and corruptly. make and enter into the aforesaid contract with said firm of Yost & Packard, and caused the aforesaid plans and specifications for said court house to be made by said firm of Yost & Packard, and did commence and proceed with the erection of said court house, and did cause the work of the erection and construction of said court house to be done under the supervision of said firm of Yost & Packard. "And so the jurors aforesaid, on their oath aforesaid, do find and say that the said Jacob Stahl, Samuel Knight and James Gibson, being county commissioners as aforesaid, are guilty of misconduct in office, in the manner and form aforesaid, contrary to the form of the statute in ch |