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missal. Held, (1) section 6710, Rev. St., does not authorize a finding of facts in such a proceeding; (2) the order of dismissal is not reviewable upon such record. and a motion to dismiss the petition in error is well taken.

(Syllabus by the Court.)

Motion to dismiss petition in error to circuit court, Lucas county. The defendant in error received a judgment against the plaintiff in error in the court of common pleas of Lucas county. To reverse this judgment the latter filed its petition in error in the district court. After the lapse of two years the defendant in error moved the circuit court to strike the petition in error from the files, and the case from the docket, for the reason that no service of summons had been made nor appearance entered within two years from the rendition of the judgment. The motion was heard by the circuit court on affidavits and oral testimony. The court granted the motion. The petition in error in this court is to reverse the judgment of the circuit court rendered upon this motion. Certain facts which the court found from the evidence are recited in the record, and the contention of the plaintiff in error is that these facts did not warrant the action of the court upon the motion to dismiss. No bill of exceptions was taken showing the evidence upon which the court made its findings of facts. The circuit court did not pass upon the merits of the case as exhibited by the record of the court of common pleas, and no part of that record is in this court. The questions now before this court for consideration arise upon the motion of the defendant in error to dismiss the proceeding in error for the alleged reason that the court has no jurisdiction of the subject-matter. The foregoing statement embraces as much as is necessary to present the question considered and disposed of by this court.

James A. Wilcox and Doyle & Scott, for plaintiff in error. Joshua R. Seney, for defendant in error.

OWEN, C. J. The solution of the question at bar rests upon the construction of section 6710, Rev. St., as amended May 4, 1885, (82 Ohio L. 230,) which provides, among other things, that * the supreme court shall not, in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence; and on application of any party excepting to a ruling or decision of the circuit court during the trial, or on motion for a new trial, such court shall find from the evidence, and state on the record, the facts upon which the alleged error arises, or which may be material in determining whether error has intervened or not." It is maintained by the defendant in error that this court has no power to entertain this proceeding in error upon the finding of facts set forth in the record, in the absence of a bill of exceptions containing all the evidence upon which the circuit court disposed of the motion to dismiss. On the other hand, the plaintiff in error maintains that a bill of exceptions would have been an idle form, as the weight of evidence cannot be reviewed by this court upon such bill, and that the only means of bringing such question before this court for review is by a finding of facts under section 6710, Rev. St.

Conceding that a bill of exceptions would not require this court to review a judgment or order below upon the weight of the evidence, the fact remains that, if such judgment or order be against the facts established by the uncontradicted evidence presented by the bill of exceptions, there would be power to review and reverse such judgment as a question of law.

The question before us must turn upon the construction of so much of section 6710 as provides that, "on application of any party excepting to a ruling or decision of the circuit court during the trial, * * * such court shall find from the evidence, and state on the record, the facts upon which the alleged error arises," etc. Was the hearing of the motion to dismiss in the court below such proceeding as may be termed a "trial?" We are in full accord with counsel for plaintiff in error when they say in argument: "The

word trial' in this section is, of course, used in the sense of the general definition given to it by the Revised Statutes, § 5127, which declares that 'a trial is a judicial examination of the issues, whether of law or fact, in an action or proceeding."" What are "issues," as that word is here employed? The court is unanimously of the opinion that this question is satisfactorily and conclusively answered by the four succeeding sections, in the light of which it seems reasonable to construe this word "issues." They are here given in full:

"Sec. 5128. Issues arise on the pleadings where a fact or conclusion of law is maintained by one party, and controverted by the other. They are of two kinds: (1) Of law; (2) of fact.

"Sec. 5129. An issue of fact arises (1) upon a material allegation in the petition denied by the answer; (2) upon a set-off, counter-claim, or new matter, presented in the answer, and denied by the reply; (3) upon material new matter in the reply, which shall be considered as controverted by the opposite party without further pleading.

"Sec. 5130. Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided. "Sec. 5131. All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred."

It seems clear that the issues here referred to are those which arise upon the pleadings, and do not relate to controversies involved in summary proceedings, like the one now under consideration, although the pendency of the action in which it is involved depends upon the disposition of it by the court. This view seems to be strengthened by the construction given by this court to section 7356, Rev. St., in Wagner v. State, 42 Ohio St. 537. This section relates to the review of criminal proceedings, and concludes with the provision: "But in the supreme court only errors of law occurring at the trial, or appearing in the pleadings or judgment, can be reviewed." In the case last cited it was held that "trial,' in the sense of this limitation, has reference to a trial upon a plea in bar, and does not extend to a hearing on a motion to quash, or trial upon a plea in abatement. It commences, at least, when the jury is sworn, and embraces questions as to the admissibility of evidence, refusal to charge, and the charge given, and the like, and it ends with the rendition of the verdict."

The construction already indicated is supported by the provision of section 6710, that, "on application of any party excepting to a ruling or decision of the circuit court during the trial," the court shall state its findings of fact, etc. This seems to contemplate an exception to some ruling of the court during the course of the hearing, rather than an exception to the final judgment or order of the court by which the controversy is determined. A legislative provision should quite clearly indicate that such was the purpose of its enactment to authorize the construction that upon each summary proceeding arising upon motion, and not involving the merits of the action, the court is required to make and state a finding of the facts upon which the disposition of such motion is made to rest. There was no authority in the circuit court, derived from section 6710, to make a finding of facts upon which, in the absence of a bill of exceptions, the action of that court can be reviewed in this. The finding of facts is improperly in the record. Lockhart v. Brown, 31 Ohio St. 431.

As the only exception taken in the circuit court by the plaintiff in error was to the action of the court in dismissing the proceeding in error, and as that action is not reviewable, the motion of the defendant in error is well taken, is allowed, and the petition in error dismissed.

(103 N. Y. 445)

In re Accounting of GERRY, as Trustee.

(Court of Appeals of New York. November 23, 1886.) WILLS-CAPITAL AND INCOME-LIFE-TENANT AND REMAINDER-MEN.

Where a testator, by his will, devised to his executors, as trustees, a sum of money to invest, with directions to pay the annual income to his daughter G. during her life, and, upon her death, having no issue, to divide the "principal or capital sum among his other children, in equal proportions, and, after the death of G., the then trustee sold the securities, the sale resulting in a large surplus over the amount of the original investment, held, that the remainder-men, and not the representatives of the life-tenant are entitled to the surplus.

E. L. Fancher, for appellant. George G. Kip, for respondent.

RUGER, C. J. The matter here in controversy arises between the representatives of the life-estate and certain remainder-men, with reference to the proper distribution between them of an increase in the amount of the trust fund discoverable upon a sale of the securities in which it was invested, after the life-estate terminated. The fund was created in the year 1828, under the will of Peter P. Goelet, devising to his executors, as trustees, the sum of $50,000, to invest "in funded stock of the Uuited States or of the state of New York, or in good bonds, and mortgages on real estate;" with directions to pay "the annual interest, income, and dividends thereof" to his daughter Jean B. Goelet during her life, and, upon her death leaving no issue, to divide the "principal or capital sum aforesaid" "among my other children, in equal proportions." A codicil to said will, made in the same year, increased the said fund by an additional sum of $20,000; which, upon the death of said Jean B. Goelet without issue, was also directed to be paid to her surviving brothers and sisters, or to their respective representatives.

During the existence of this trust, which extended for 54 years, to the death of Jean B. Goelet, in 1882, the annual interest collectible upon the sum invested was duly paid to her by its trustees. It does not appear affirmatively in the case in what securities the capital sum was originally invested, or when any investment or conversion of them occurred; but the evidence shows that in 1880 it was represented in unequal proportions by United States bonds, bonds of the cities of New York and Brooklyn, bonds and mortgages on real estate, and the sum of $3,424.95 in cash. The cash seems to have been the result of an increase in the value of some securities exchanged or converted by the trustee prior to 1880. In April, 1880, an order was made by the supreme court in a proceeding instituted by Robert Goelet and Ogden Goelet, who, with Elbridge T. Gerry, had succeeded to the said trusteeship under the will of Peter Goelet, who died in 1879, to ascertain the amount of said fund, the securities in which it was invested, and to obtain their discharge from the duties and obligations of said trusteeship upon the delivery of said trust funds to their associate, Mr. Gerry. Jean B. Goelet and Mr. Gerry were both parties to this proceeding, and acquiesced in the order of the court appointing Mr. Gerry sole trustee, and defining the securities and capital of the trust fund, as it then existed.

It may fairly be assumed from the evidence that this fund has already been kept invested in securities upon which there was a fixed rate of interest, payable annually, determinable by the provisions of the security, and that it has never been possible for the trustee to receive or secure therefrom any extra dividends, or any greater annual income, than that producible by fixed rates of interest. A sale of these securities by the trustee after the death of the life-tenant resulted in a surplus of nearly $23,000 over the amount of the original investment, and this sum is claimed respectively by the representatives of the life-tenants and by the remainder-men.

The primary rule for the determination of questions arising upon the con

struction of wills is the ascertainment of the intent of the testator from a consideration of its provisions. In the case in hand the will provides specifically for the interest which the legatee for life was to take in the fund, and it is limited to the "annual interest, income, and dividends thereof." All beyond this inust, from necessity, have been intended to go to the remainder-men, for there are no other persons who could lawfully take it. This case is not analogous to, and presents none of the questions or embarrassments attending, the division of gain or profits arising upon investments in trade, or the stock of corporate business enterprises, and which are usually represented by dividends, either regular or extra, payable in cash, stock, or scrip, or remaining undivided in the hands of the corporation. The authorities in such cases are very numerous, and show that it is often a matter of great difficulty to distinguish with precision between those gains constituting an accretion to the fund and those which legitimately may be termed the earnings of the investment, properly distributable by way of dividends to the stockholders of the corporation. In this case, however, the investment is directed to be made in securities bearing a fixed rate of interest, which can neither be increased by the prosperity or diminished by the misfortunes of the debtors, and are eventually to be satisfied by the repayment of the principal sum of the obligation. At the time of the conversion of this fund by the trustee, he held in his hands obligations which, upon their face, called for the repayment to him of the sum of $70,000 only, and the purchasers from him received obligations which, at maturity, were redeemable by the obligors at that sum. The cause occasioning the increase in question seems to have been a depreciation in the rate of interest, effected by natural causes, and which gave an increased value to securities bearing the higher rates of former times. This constituted in no sense a profit upon the investment, but was an accretion to the fund itself, arising from natural causes, and was liable to be altogether lost by the approximation of the securities to the period of their maturity. The benefit derivable from this condition was enjoyed annually by the beneficiaries of the fund in the increased value of the income derivable therefrom. Had the lifetenant lived to the maturity of the bonds, she would have received, in annual interest, the entire difference, if any, existing at any time prior thereto between the face and market value of these securities.

The theory of the will did not contemplate any traffic in securities by the trustee, but a permanent investment in interest-bearing obligations, subject to be sold or exchanged only when the exigencies of the trust required it to be done. It is quite clear that the life-tenant could not have compelled the trustee to sell or convert securities lawfully purchased and held by him, upon the ground that their market value had appreciated in his hands, any more than he could have compelled her to make good any depreciation in the value of such securities. The acquisition and retention of such securities was one of the objects contemplated by the will of the testator, and was essential to execute his design, and a proceeding to compel a sale of the securities would plainly have been contrary to his intent in creating the trust. If the will had required trustees to invest in real estate, the rents, income, and profits of which were made payable to the life-tenant, with remainder over, it cannot be questioned but that any increase of the value of the land from natural causes would have been an accretion to the capital, and inured to the benefit of the remainder-men, (Perry, Trusts, § 545, p. 486; Cogswell v. Cogswell, 2 Edw. Ch. 240;) and we can see no difference in principle between this case and the one supposed.

The question here presented was up in the cases of Townsend v. United States Trust Co., 3 Redf. 222, and Whitney v. Phoenix, 4 Redf. 180, before the surrogate of New York, and it was there held that an enhancement of the value of United States bonds held in trust went to the remainder-men, and not to the legatee for life. These decisions accord with our views. The

cases cited by the learned counsel for the appellant may all be classified as cases where the terms of the trust authorized investments in the stock of private corporations or trading enterprises whose profits are largely affected by the vicissitudes of business and trade, and the disposition of whose gains and profits is largely, if not wholly, left to the discretion of the managers of the enterprise. In such cases it was plainly the intention of the settlor of the trust that the life-tenant should have the advantage of any extraordinary profits realized from the investment.

As we before said, these cases are not analogous. The circumstance that the trustee in this case, at some time, invested a portion of the funds in unauthorized securities would not seem to have effected any change in the respective rights of the life-tenant and remainder-men in the corpus of the trust. When the fact came to their knowledge, in 1880, they each and all seem to have acquiesced in and approved the action of the trustee in making the investment; and it cannot now be objected on the part of either of them that any interest of theirs was thereby varied or changed. It was optional with those parties at that time, by taking appropriate proceedings for that purpose, to have required the defaulting trustee to invest the fund in the securities specified in the will, or made compensation in some other form for the damages, if any, occasioned by his wrongful act; but it was also competent for them to ratify and approve the action of the trustee by accepting the securities held by him as representing the trust fund, and this, we think, was determined by the proceedings taken to release Robert and Ogden Goelet from the duties of trustees under the will. The action of the trustee in making the investments in question was sagacious, and inured to the benefit of all the parties concerned, and they should not, after long acquiescence in such dealing, be allowed to obtain an advantage by questioning its legality.

But, further than this, we think the securities in which the funds were actually invested by the trustee, until changed by some proceedings taken for that purpose, so far as the beneficiaries were concerned, represented the trustfund, and their earnings, income, and increase would, as between the several parties interested therein, be subject to the same rules of division and distribution as though it had been invested and kept on interest in accordance with the terms of the will. The remainder-men could not thereby be deprived of a natural accretion to the fund, however invested, or the life-tenant become entitled to an increase which, if the fund had been lawfully invested, would not have accrued to her. Indeed, in prosecuting this proceeding, the representatives of the life-tenant have ratified the acts of the trustee in making the investment in question, by treating the unauthorized securities as the corpus of the fund, and claiming their increased value as income earned by the employment of the capital. In other words, while claiming the advantage to be derived from the unauthorized act of the trustee, they insist that such act was the efficient cause of transforming what was otherwise an accretion to the fund, going to the remainder-men, into profits, accruing to the life-tenant. The life-tenant was not the sole party interested in the determination of this question, and inasmuch as she, during her life-time, and the remainder-men also, acquiesced in and approved the conduct of the trustee in making the investment, her representatives should not now be allowed to acquire an advantage by denying the lawfulness of his proceeding.

The judgment of the court below should be affirmed, without costs to either party. (All concur.)

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