Pitts., F. W. & C. R. W. Co. et al. v. Brigham.

was clear, and quite as favorable as defendants had a right to claim.

WELCH, C. J. In the first paragraph of the court's instruction we think the law of the case is correctly stated. If the defendants, in the construction and maintenance of the building, used that degree of care which men of ordinary prudence are accustomed to employ in like business, they were not liable. Had the court stopped with this proposition there clearly would have been no error in the charge. But the court went further, and told the jury that the defendants were bound to provide against all storms which could reasonably have been anticipated, and by plain implication told them that the defendants were bound to provide against all storms that were not "unprecedented," or that were of a kind that had ever happened within the range of human "experience." Taken by itself, this latter part of the charge is clearly erroneous, and in conflict with the rule as first and, as we think, correctly laid down by the court. The whole charge, taken together, to say the least, was calculated to mislead the jury. Two rules, apparently in conflict with each other, were laid down for their guidance, and it is impossible to know which they followed. The general custom of prudent persons in such cases, and not the absolute requirements of the occasion, is the true standard by which the defendants should be tried. They were only bound to come up to the fair average of careful and prudent men.

There are other assignments of error made in the case, but we only deem it necessary to say of them that we do not deem them maintainable.

Judgment reversed, and cause remanded.

Carpenter v. Denoon et al.

BALDWIN C. CARPENTER V. ELIZABETH S. DENOON ET AL.

1. The attestation clause to a will executed and probated in a sister state, whereof an authenticated copy has been duly admitted to record in this state, is as follows: "Signed, sealed, and published in presence," the will being signed at the end thereof by the testator and three witnesses. Held, in the absence of proof to the contrary, it will be presumed that the testator and witnesses signed the will in the presence of each other. 2. Where an application was made to the proper court, under section 28 of the wills act of 1840, to admit to record an authenticated copy of a will executed and proved in a sister state, it was not necessary to continue the motion to the next term or give notice of such application in a public newspaper, as prescribed in section 30 of the act. The latter section did not apply to wills executed and proved in any of the states or territories of the United States.

3. The neglect of a devisee for three years to cause a known will to be offered or admitted to probate, whereby the devise lapses under the thirty-fourth section of the act of 1840, refers to the original probate, and not to the admission to record of an authenticated copy of a probated will.

4. The provisions of section four of the act of March 20, 1849 (47 Ohio L. 32), did not apply to foreign wills on record in this state at the date of the passage of the act.

5. A will executed and proved in a sister state, and afterward, under the act of 1840, an authenticated copy thereof is duly admitted to record in any county in this state where any part of the property devised is situated, is as valid to vest title in the devisee as a domestic will duly probated. 6. A domestic will, under the act of 1840, when duly probated in any county of this state, vested in the devisee the property therein devised, although such property was situated in another county.

7. A will, executed in conformity with the provisions of the act of 1824, but made and proved in a sister state, might, after the repeal of that act, be admitted to record in this state, under the act of 1840.

8. When an authenticated copy of a foreign will is properly admitted to record in this state, and afterward a copy of such record, under section 26 of the act of 1852, is filed and recorded in another county, the latter record may be given in evidence, in an action for the recovery of lands devised by the will, commenced before the record was made.

9. When lands are devised for life to one person with remainder over in fee to another, the possession of a third person, under the tenant for life, is not adverse, within the meaning of the statutes of limitation, as against the remainderman until a right of entry accrues to him.

10. A deed of conveyance by a tenant for life purporting to convey the title in fee, passes the life estate, but does not forfeit it to the reversioner or remainderman.

Carpenter v. Denoon et al.

ERROR to the Court of Common Pleas of Pickaway county. Reserved in the district court.

The original action was brought by defendants in error against plaintiff in error, on the 9th day of May, 1868, in the Court of Common Pleas of Pickaway county, to recover the possession of a tract of land situate in said county, containing about 142 acres.

The defendant below filed his answer in the action denying title in the plaintiffs, and asserting title in himself.

It is admitted in the pleadings that one Thomas Pemberton, deceased, is the common source of title. The plaintiffs claim title as devisees under the last will and testament of said Thomas Pemberton, and the defendant claims under mesne conveyances from his heirs and by adverse possession for more than twenty-one years.

In the court of common pleas, at the March term, 1872, the cause was submitted to the court upon an agreed statement of facts, and judgment was rendered in favor of plaintiffs.

The following is the agreed statement of facts:

"It is admitted that Thomas Pemberton, who, during his lifetime and at the time of his decease, was a resident of the State of Virginia, was seized in fee simple of the lands described in the petition, and was so seized at the time of his death; that he was also seized in fee simple of a large number of acres of other lands in the State of Ohio; that on the 4th day of October, 1828, he made and published his last will and testament, a copy of which is hereto annexed and made a part of this agreement, together with a copy of the proceedings in the proper court of Goochland county, State of Virginia, admitting said will to probate there.

"It is further admitted that the plaintiffs in this action are grandchildren of the said Thomas Pemberton, and the heirs at law of the said Dicey Quarles, who was a daughter of the said Thomas Pemberton and one of the devisees mentioned in his will; that the said Dicey Quarles died

Carpenter v. Denoon et al.

December 30, 1860, leaving the plaintiffs her heirs at law; that the will of the said Thomas Pemberton, who departed this life in October, 1828, was duly probated, according to the laws of Virginia, in Goochland county, Virginia, where the said testator resided at the time of his death, on the 15th day of December, 1828.

"And it is further admitted that a copy of said will and of the proceedings admitting the same to probate was admitted to record in Clinton county, Ohio, on the 4th day of March, 1846; that a part of the testator's lands were situated in said county of Clinton. A copy of the proceedings in the Court of Common Pleas of Clinton county, Ohio, at the March term thereof (1846), is hereto annexed and made a part of this agreement.

"It is further admitted that a copy of the proceedings in Clinton county, Ohio, admitting said will to probate there, and a copy of said will were ordered to be recorded by the Probate Court of Pickaway county, Ohio, on the 31st day of July, 1869, after the commencement of this action; a copy of which proceedings is hereto annexed and made a part of this agreement.

"It is further admitted that, on the 8th day of March, 1834, an amicable partition of the lands of which the said Thomas Pemberton died seized was made among his children, and the lands described in the petition were set off to the said Dicey K. Quarles.

"That on the 7th day of March, 1837, the said Dicey K. Quarles executed a power of attorney authorizing J. S. Watkins to sell her lands, which power was duly recorded in Pickaway county, Ohio, November 7, 1839. A copy of said power of attorney is hereto annexed and made a part of this agreement.

"That on the 18th day of May, 1840, the said Dicey K. Quarles, by her said attorney, for a full and valuable consideration, sold and conveyed the premises in the petition described, to James Allen by a deed of general warranty.

"That on the 11th day of March, 1853, the said Allen,

Carpenter v. Denoon et al.

for a full and valuable consideration, sold and conveyed the said premises to the defendant by a deed of general warranty; that the said Allen and the defendant have been in the quiet and peaceable possession of the premises ever since the 18th day of May, 1840, without any notice of the claims of the plaintiffs.

"It is further agreed that this statement of facts is made for the purposes of this action only, and is not to be used in any other, and that either party may at any time before final judgment in this action, or on proceedings in error in any court, correct any error, misstatement, or omission as to the facts by proper testimony."

The land in controversy was disposed of by Thomas Pemberton in the residuary clause of his will, which reads as follows:

"All the rest and residue of my estate, both real and personal, whatsoever and wheresoever not herein specially devised and bequeathed, I devise and bequeath to my said children, John, Robert, Thomas, Ann, Mary, Dicey, and Maria, and their heirs, to be equally divided between them.

"That portion of my estate, real and personal, which shall be allotted as the shares of my two daughters, Ann C. Crenshaw and Dicey Quarles, I give and devise to my three sons, John, Robert, and Thomas Pemberton, or the survivors of them and the heirs of the survivors, in trust for my said daughters, Ann and Dicey, to be held for them severally during their lives, to take and receive the rents, issues, hires, and profits, and apply the same severally to the support and maintenance of my said daughter Ann and her children and Dicey and her children; and after the death of my said daughter Ann, the estate held in trust for her I give to her children and their heirs, except her oldest son, Thomas, unless she shall by writing, executed by her in the presence of two or more creditable witnesses, request, direct, and will that he shall take equally with her other children; and after the death of my daughter Dicey Quarles, I give the property devised in trust for her to her