Слике страница

Ashland Circuit Court.

This raises an important question of fact. Did Mr. Umbaugh, at the time of the purchase of this property, have knowledge, or had he had such information that would put him upon inquiry, which, if he had diligently pursued, he could have ascertained the nature of the claim, or whether there was any claim in fact? We think the testimony shows, and we so find, that before this sale, before Mr. Umbaugh purchased this property, he did have notice of the claim of the plaintiff; that he had knowledge that there was a contention between her and the heirs of George Fast, whereby she was claiming on her part, that she was entitled to the rights of a widow in this property, and on the other hand, the children were claiming that she was not so entitled. If knowledge came to him that there was a claim of this character, and he decides that she has no claim, then he acts at his peril. If sufficient information comes to him to put him on inquiry, he cannot rely upon his rights as a bona fide purchaser. Whenever notice comes to a party, who is entitled to notice, sufficient to put him on inquiry, and he starts to make the inquiry, he must pursue it in all sources in which information can be obtained. Mr. Umbaugh admits that he did come to the county seat, Ashland, and examined the records of the county, seeking for information upon this question. What was the nature of the title that he was inquiring after or seeking? It was a dower interest unassigned. The contention of the plaintiff was, that she had an interest as the widow of George Fast, in this property. He comes and makes the investigation above stated, and he finds nothing and he stops. But he had been informed, and thereby put upon his inquiry, that the plaintiff claimed a dower interest in the property, and if he had pursued the investigation, if he had gone to the plaintiff, the party who was making the claim, as the widow of George Fast, who was then residing on the premises, if he had gone to her and made inquiry, there was the source he could have gotten the information, whether she was in fact making a claim or had any claim or not. That he did not do, so she says. She claims that they did talk, that he was wanting her to sign papers; and the testimony seems to be clear upon the question, that he had knowledge brought home to him, that there was a claim made by her as to her rights in this property.

Mr. Pomeroy states the rule as to notice here invoked, as follows: "If, however, it appears that the party obtains knowledge or information of such facts, which are sufficient to put a prudent man upon inquiryand which are of such a nature that the inquiry, if prosecuted with rea, sonable diligence, would certainly lead to a discovery of the conflicting claim, then the inference that he acquired the information constituting actual notice is necessary and absolute; for this is only another mode of stating that the party was put upon inquiry; that he made the inquiry and arrived at the truth. Finally, if it appears that the party has knowledge or information of such facts sufficient to put a prudent man upon inquiry, and that he wholly neglects to make any inquiry, or having begun it fails to prosecute it in a reasonable manner, then, also, the inference of actual notice is necessary and absolute." 2 Pom. Eq. Jur., Sec. 597, and authorities cited in note (1).

We hold, as a question of fact, that Mr Umbaugh had knowledge of plaintiff's claim; that he is not an innocent purchaser; that when he bought this property he knew that there was this contention on the part of the plaintiff outstanding, whereby she was then claiming the rights,

Fast v. Umbaugh.

that she is now asserting and trying to enforce in this action. So he is not an innocent purchaser.

We, therefore, find that the plaintiff is entitled to dower in these premises by reason of the fact that her husband, in directing his son to transfer this property without consideration to his children, and without the knowledge and consent of this plaintiff, perpetrated a fraud upon her rights, and such a fraud that the court will give her relief by giving her dower in the premises.

Another question here arises, which will be briefly considered. The plaintiff contends that she is entitled to the rents and profits of this property from the death of her husband. The court does not think so. We think that the only period from which she can claim rents and profits will be from the date of the filing of her petition; and this will be the finding of the court. Sections 5711, 5712, 5714, 5715, Rev. Stat.; Vattier v. Johnston, 1 Dec. (Re) 55; Stoddart v. Marshall, 12 Dec. (Re.) 775, 776 (1 Dis. 529, 530).

We therefore find and hold, that the plaintiff is entitled to dower in the premises described in the petition; and the commissioners in assigning the dower should ascertain the rental value of the property, commencing from the date of the filing of the petition, and that she would be entitled to one-third thereof, and this will be the decree of the court.


[Tuscarawas (5th) Circuit Court, November Term, 1899.]

Adams, Douglass and Voorhees, JJ.



Where a husband obtained a divorce a vinculo from his wife on account of her aggression, but the court by its dercee assigned the custody of their minor children to the wife without an order respecting their maintenance, and while in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for such necessaries, in the absence of proof of an express agreement by him to pay for such necessaries, or of a request that they should be furnished to the children.


J. A. Buchanan, for plaintiff in error, cited:

Fulton v. Fulton, 52 O. S. 229 [39 N. E. Rep. 729; 29 L. R. A. 678; 49 Am. St. Rep. 720]; Christoff v. Christoff, 3 Circ. Dec. 562 (6 R. 512); Brow v. Brightman, 136 Mass. 187; Courtright v. Courtright, 40 Mich. 633; Conn v. Conn, 57 Ind. 323; Thomas v. Thomas, 41 Wis. 229; Gishwiler v. Dodez, 4 O. S. 615, 621; Missouri Pac. Ry. v. Palmer, 76 N. W. Rep. 169 [55 Neb. 559]; Ramsey v. Ramsey, 23 N. E. Rep. 69 [121 Ind. 215; 6 L. R. A. 682]; Wright v. McLarinau, 92 Ind. 103; Davis v. Davis, 85 Ind. 157; Fitler v. Fitler, 33 Pa. St. 50; Fross' Appeal, 105 Pa. St. 258.

*Affirmed by the Supreme Court, without report, 64 Ohio St. 605.

Tuscarawas Circuit Court.

J. H. Mitchell and E. E. Lindsay, for defendant in error, cited:

Pretzinger v. Pretzinger, 45 O. S. 452 [15 N. E. Rep. 471; 4 Am. St. Rep. 542]; Fulton v. Fulton, supra; 17 Am. & Eng. Euc. Law (1 Ed.) 354; 29 Barb. (N. Y.) 124, 131.



The defendant in error, Sarah E. Douglass, brought her action against the plaintiff in error in the common pleas court, averring in her amended petition in substance, that on October 29, 1877, she was married to the defendant; that children were born of the marriage and are named in the petition; that at the February term of said court, 1887, such proceedings were had in an action in said court between the plaintiff and defendant, that the plaintiff herein, Samuel L. Douglass, was divorced from the defendant, Sarah E. Douglass, and she was awarded the care and custody of the children; that ever since said decree, said parties have lived separate and apart, and said children have lived apart from the plaintiff in error; that Bessie Douglass, one of said children, has been supported by said Sarah E. Douglass; she is a dwarf and crippled; her condition is given more in detail in her amended petition; that she furnished this child support up to the time of bringing her action, claiming therefor $2,184.

She further says from the time of the decree of divorce up to June 15, 1896, she furnished Roy C. Douglass, another child born of said marriage, with board, etc., to the amount and value of $3.50 per week; she avers that the plaintiff is the owner of real estate, and is well able to support said children, averring the amount for which she should have judgment.

To this amended petition the defendant files an amended answer. The issues presented, briefly stating them, are these: That these parties were married; children were born of their marriage; one of the children is a cripple for life; proceedings in divorce were commenced and prosecuted to termination, resulting in a divorce in favor of the husband; the custody and care of the children were decreed, in the divorce proceeding, to the wife, and no further condition imposed than simply decreeing their custody and care. After the divorce the care and attention thus devolved upon the mother, she brings a suit and seeks to recover for the support and maintenance thus furnished by her to the children of this marriage after the divorce and without showing or averring any agreement for the same.

Defendant in error, recovered on her petition against plaintiff in

The case comes into this court on error. A bill of exceptions embodying the evidence is submitted for review by this court.

We think there is only one question that is necessary to be passed upon to determine the rights of the parties as presented by the record, and that is, whether, after a divorce a vinculo has been granted in favor of the husband on account of the aggression of the wife, she can recover from the husband for the support and maintenance of the children furnished by her. This is the only real question we have here, and an answer to this will determine the rights of the parties in this litigation. We think this question is settled by the Supreme Court of our state in Fulton v. Fulton, 52 Ohio St. 229 [39 N. E. Rep. 729; 29 L. R. A. 678; 49 Am. St. Rep. 720], where it is held that: "Where a divorce, a vinculo, has been granted to a husband on account of the aggression of the wife,

Douglass v. Douglass.

and the minor children of the parties assigned to the custody of the divorced wife, without an order respecting their maintenance, and while so in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for her expenditures in this behalf, in the absence of proof of a promise by him to pay for such necessaries or of a request that they should be furnished to the children." It is not claimed in the case at bar that there was any express agreement between these parties that the husband would furnish or pay for this support.

It is important to look further into this case, as the question before us is certainly an extraordinary one; and if it were possible for the court, in view of the facts in the case, we would be glad to give relief to this mother who has furnished care and attention to this unfortunate child.

In Fulton v. Fulton, snpra, Judge Bradbury, at page 240, says: "And although the separation and divorce were caused by the misconconduct of the mother, it may nevertheless be true that the obligation of the father to reasonably provide for his children will follow them into the custody of the delinquent mother, when circumstances require them to be placed in her custody. If, however, under such circumstances, it does so follow them, the reason and limit of this obligation of the father should be found in the necessities of the children. As to them, the natural obligation of protection, nurture and maintenance, press with equal force upon the parents. By the divorce, a vinculo, the mother is as completely absolved from the marital relations as she would be by death, and if, in the course of the proceeding which end in an absolute divorce, the minor children are put under her control, by her procurement or in response to her wishes, her direct obligation towards them so long as she retains them would seem to be founded upon as substantial considerations as if she was a widow. Their daily wants must be satisfied. Constant supervision may be necessary. Can their divorced mother, who has received them into her custody, abandon them in the one case and not in the other? We think not. By receiving them into her cus tody, she should be held, as to them, to assume the obligations incident to that custody. If, under these circumstances, where her own misconduct has destroyed the family relation, and deprived the father of the custody and society of his children, she has in fact maintained her children, she has no claim, legal or moral, to demand reimbursement from the ather. She has simply discharged a duty cast upon her by the plainest principes of natural justice, for the reason that the necessity for it arose from her own misconduct." The case of Christoff v.. Christoff, 3 Circ. Dec. 562 (6 R. 512), is in harmony with this holding.

We are not unmindful of the claim made here, that in the divorce proceeding there was an answer, in which she set up, perhaps, a defense, and that the answer was withdrawn for some reason, which this court cannot inquire into. This court is powerless to interfere with the divorce that was granted between these parties. We must look at the case as it is presented in the record. Where there is a divorce, a vinculo, on account of the aggression of the wife-in other words, where the husband has obtained a divorce from his wife and the custody of the children are decreed to her, and she then, in the discharge of that duty, which she then assumes, and which the law has placed upon her furnished them support, she cannot look to the former husband for reimbursement, unless she can found her claim upon an express contract or

Tuscarawas Circuit Court.

promise that he had agreed so to do. This is not the case here, and, therefore, we will have to answer the question under the facts in this case, as they are presented in the record, that the plaintiff has no cause of action against the husband for the support that she has furnished these children.

The wife's remedy, if she has one, would be in a reconsideration of her claim for alimony. Olney v. Watts, 43 Ohio St. 499 [3 N. E. Rep. 354]; Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310].

Therefore, the judgment of the court below will have to be reversed and cause remanded to the common pleas court for further proceeding. Judgment reversed.


[Lucas Circuit Court, January Term, 1901.]

Haynes, Parker and Hull, JJ.


Section 524, Rev. Stat., giving the probate court exclusive jurisdiction to grant and revoke letters testamentary and of administration, confers exclusive and final jurisdiction upon the probate court as to such matters, in the strict sense of the term and not simply exclusive original jurisdiction. No other court, therefore, has jurisdiction therein, either original or by appeal or in error.


Authority is vested in the probate court under Sec. 6334, Rev. Stat., to proceed upon its own motion to remove a trustee for neglect of duty, incompetency or fraudulent conduct, or because the interest of the trust property requires his removal, just as complete and exclusive and as free from restriction as is conferred by Sec. 6017, Rev. Stat., to remove an executor. Therefore, an order of the probate court removing an executor and trustee under a will, upon the court's own motion, as an unsuitable person to administer the trust, is within the discretion of the court and cannot be reviewed on error under Sec. 6708, Rev. Stat.

8. RULE APPlied-Removal of Trustee.

Where an executor and trustee, in an examination upon an application for his removal, was asked by counsel for complainants to produce a certain letter which he had written in reference either to his administration of the affairs of the estate or to the action of the court upon some matters pertaining to the estate, and he declined to do so, on the ground that it was a privileged com munication, and upon being ordered by the court to produce the letter, and upon his still refusing, the court announced that he did not care to hear further evidence, but would remove such executor and trustee, the order so made was upon the court's own motion, in the interests of the estate, and within his discretion and is not subject to review.


An order of the probate court removing a trustee and requiring him to con vey to his successor property without the state, vested in him by the will inde. pendently of his letters as executor and trustee, is a nullity and entirely ineffectual, so far as the conveyance of the property is concerned and cannot be prejudicial further than to cast a cloud over the title of the trustee.


Charles G. Wilson and E. F. Bacon, for plaintiff in error, cited:

The general rule is that it is not sufficient to charge mismanage ment, misapplication of funds or maladministration in general terms,

« ПретходнаНастави »