Miller, Executor, v. Mackenzie. [Vol. 23 (N.S.) ADOPTION OF PAPER IN WILL BY REFERENCE. Common Pleas Court of Columbiana County. JEPTHA G. MILLER, AS EXECUTOR OF THE ESTATE OF LAURA LOUNSBURY, Deceased, v. CoRA L. MACKENZIE ET AL. Decided, October Term, 1920. Wills-Adoption by Reference of Letter of Instructions not in Eristence at Time of Execution of the Will not Effective. 1. The will itself must refer to a paper to be incorporated as being in existence at the time of the execution of the will, and in such a way as to reasonably identify such paper in the will, and in such way as to show testator's intention to incorporate such instrument in his will and to make it a part thereof. 2. Such document must, in fact, be in existence at the time of the execution of the will. 3. Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred to. Lodge Riddle, for plaintiff. No counsel for defendants appeared. MOORE, J. Laura Lounsbury died June 11, 1920, leaving a last will which was duly admitted to probate in the probate court of Colum biana county, on July 1, 1920. Jeptha G. Miller was duly appointed executor thereof. The will was executed May 20, 1916. Item 3rd of the will is as follows: "Third: I give, devise and bequeath all the remainder of my property real and personal (except such articles as are otherwise disposed of in my letter of instructions to Mrs. Miller, who is to distribute them according to instructions) to my nieces Cora Mackenzie, Mrs. J. G. Miller, Mrs. H. T. Clapp. Mrs. Garry Dunn and my nephews Harry MacLane and Ed. MacLane to be equally divided among them all." 1921.] Miller, Executor, v. Mackenzie. After the death of said Laura Lounsbury her said will and the following letter were found among other papers in her safety deposit box in the Firestone Bank, Lisbon, Ohio. Said letter was in a sealed envelope addressed on the outside thereof to Cora Mackenzie, Mrs. H. T. Clapp and Mrs. J. G. Miller. The following is a copy of said letter: "March 16, 1920. "Dear Girls. This is the last request I will make of you. Now I want to tell you my wishes. You three, Cora, Minnie and Nettie, are to have the contents of the house to divide between you, only Dorothy Petty is to have the old secretary, as she will value it more than any wife of Mackenzie Miller would. "The blue and white quilt is to be Dorothy Petty's, too, as it is the last one I pieced. If you want to give anything to the MacLanes you can do so, though you girls come first (as they were so many years that they drifted away). The house is not to be sold at a loss, and when sold the money is to be divided among all the heirs. Cora is to have my wrist watch, if she hasn't one. If either of you three girls die before I do, her share of Union stock is to be divided between the two remaining. "My jewelry you can divide as you like, it is not valuable only for association. "Laura Lounsbury, Lisbon, "Nannie Baker." Said Margaret Meister and Nannie Baker, it is admitted, signed said letter as witnesses only. In Page on Wills, Section 162, pages 183, 184 and 185, and cases there cited, it is said: "A will may by reference incorporate into itself as completely as if copied in full, some other paper which, in itself, is not a will for lack of execution." "In order so to incorporate three things are necessary: "1. The will itself must refer to such paper to be incorporated as being in existence at the time of the execution of the will, and in such a way as to reasonably identify such paper in the will, and in such way as to show testator's intention to incorporate such instrument in his will and to make it a part thereof. Miller, Executor, v. Mackenzie. [Vol. 23 (N.S.) "2. Such document must, in fact, be in existence at the time of the execution of the will. "3. Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred." It will be noticed that said will was executed May 20, 1916, and said letter is dated and was executed March 16, 1920. So that said letter of instruction was not in existence at the time of the execution of said will. The will refers to a letter of instructions to Mrs. Miller. The letter found and described in the petition was addressed on the envelope to three persons, one of them being said Mrs. Miller, and the letter itself is addressed to "Dear Girls.' There are no words in the will in terms making said letter a part of the will, or stating that the letter is to be considered as a part thereof. Therefore, said letter of instructions not being in existence at the time of the execution of said will, and not reasonably identified as the paper described in the will, and no language of the will stating the same shall be considered as a part of the will, the court is of the opinion that said letter of instructions. referred to in said petition, is not and should not be considered as a part of this will, and the true construction of said item third of said will is as follows: "Third. I give, devise and bequeath all the remainder of my property, real and personal, to my nieces Cora Mackenzie, Mrs. J. G. Miller, Mrs. H. T. Clapp, MacLane, to be equally divided among them all." Mrs. Garry Dunn and my nephews Harry MacLane, and Ed. And a decree may be taken accordingly. 1921.] Warren v. Erie Ry. NEW CROSSINGS OF RAILWAYS AT GRADE. Court of Common Pleas of Trumbull County. THE CITY OF WARREN V. THE N. Y., P. & O. R. R. Co. and THE ERIE RAILROAD COMPANY.* Decided, March 21, 1919. Appropriation of Railway Right-of-Way for a Grade Crossing—Public Convenience as Distinguished from Public Necessity in the Matter of Crossings-Future Requirements of the Railway as well as of the Public Must be Considered-Policy of the State with Reference to New Grade Crossings. An action does not lie under the present statute for the appropriation of so much of a railway right-of-way as would be required to extend a street over the company's tracks, and for an order for a grade crossing at that point, when the evidence goes to show that the benefit to the public from the proposed crossing would be small, the increased burden which it would cast upon the railway would be serious, the location perilous for a grade crossing because of obstruction of the view, and that a crossing at that point would be one of convenience rather than of necessity. R. D. Leffingwell, City Solicitor, and D. R. Gilbert, for plaintiff. Gilmer & Gilmer and J. Paul Lamb, contra. COLE, J. The city of Warren by proper legislation determined to appropriate that portion of the defendant railroad company's rightof-way contained within the limits of Paige avenue if extended. across the railroad tracks in the northeasterly part of the city. It then brought action under Section 3677 et seq., G. C., to assess the compensation due the railroad companies by reason Appeal dismissed by the Court of Appeals, September 19, 1919. of such appropriation, and also by proper averments in the petition asking for an order for a grade crossing at the place where the appropriation is made under the provisions of Section 8897 et seq., G. C. The right to maintain a single action for the determination of both of these objects seems to be settled in the case of the C. & P. R. R. Co. v. City of Martins Ferry, 92 O. S., 157, in which the court discussed the question quite fully. In appropriation cases by municipalities the general rule is that the appropriation is complete when the proper legislation has been made by council; but in cases where it is sought to appropriate a portion of the right of way of a railroad company, a very important preliminary question must be determined by the court. This question relates to whether the appropriation will unnecessarily interfere with the reasonable use of the property so crossed by such improvement. See G. C. 3677, Sub. 1; P. C., C. & St. L. Ry. Co. v. City of Greenville, 69 O. S., 497; C. & P. R. R. Co. v. City of Martins Ferry, 92 O. S., 157. While this preliminary question necessarily comes before the court, it is also made the subject of the fourth defense in the answers of the defendant companies and the issue on the same is joined by the reply of the city. The allegations of the petition for the establishment of a grade crossing are also denied by the answer, although this is possibly not necessary. The evidence offered in the trial relates solely to these two questions and from the nature of the case the evidence is in a large degree applicable to each situation. In passing on the matters it has seemed convenient to first determine the application for a crossing at grade. This railroad was constructed in about 1863 when the city was no larger than some villages and the territory in and around the proposed crossing largely covered with timber and wholly without the limits of the municipality. In fact it is only within the last few years that it became incorporated within the city limits. Owing to the rapid growth of the city within a compara tively short time, caused in part probably by the increased industrial activities of the country at large, the shipping facilities of Warren, and other local causes, the city has increased from about |