Section 5947, Revised Statutes. How lost or spoliated wills may be probated. Hutson et al. v. Hartley et al., 270. Section 5948, Revised Statutes.

Effect of will so established. Hut

son et al. v. Hartley et al., 267.

Section 5963, Revised Statutes. Citation to make election; petition for construction and advice; provisions in addition to dower, etc. Allen v. Tressenrider et al., 87.

Section 5973, Revised Statutes. Contribution when devised or bequeathed property taken to pay debts. Allen v. Tressenrider et al., 89.

Section 5974, Revised Statutes.

Except when will otherwise pro

vides. Allen v. Tressenrider et al., 88.

Section 6020, Revised Statutes. Proceedings by the administrator or executor against the former administrator or executor. Jones v. Willis, Admr., 206.

Section 6069, Revised Statutes. Naming a person executor will not operate to discharge a debt. Jones v. Willis, Admr., 202. Section 6107, Revised Statutes. Executions against executors or administrators; upon suggestion of waste; trial and judg ment thereon. Jones v. Willis, Admr., 209.

Section 6113, Revised Statutes. Limitation of actions by creditors. Jones v. Willis, Admr., 210.

Section 6175a, Revised Statutes. When executor or guardian shall render final account. Jones v. Willis, Admr., 201.

Section 6181, Revised Statutes. Executor not responsible for bad debts. Jones v. Willis, Admr., 200.

Section 6200, Revised Statutes. Common pleas court to have concurrent jurisdiction to enforce order of distribution. Jones v. Willis, Admr., 209.

Section 6222, Revised Statutes. Amendments allowed to proceedings when necessary to add parties. Railroad v. Tod, 164. Section 6411, Revised Statutes. Code of common pleas to govern in probate court so far as applicable. Railroad v. Tod, 165. Section 6415, Revised Statutes. When appropriation of property can be made. Railroad v. Tod, 166.

Section 6420, Revised Statutes. Jurisdictional questions to be first determined in proceedings for appropriation of property. Railroad v. Tod, 160; Railroad v. Traction Co., 429. Section 6421, Revised Statutes. Drawing jurors and issuing of venire in appropriation proceedings. Railroad v. Tod, 161. Section 6422, Revised Statutes. Who entitled to separate trial, and how trial conducted in appropriation proceedings. Railroad v. Tod, 161.

Section 6432, Revised Statutes. Verdict and confirmation thereof in appropriation of property proceedings. Railroad v. Traction Co., 434.

Section 6436, Revised Statutes. New trial in proceedings to appropriate property. Railroad v. Traction Co., 434.

Section 6437, Revised Statutes. Either party may file a petition in error. Railroad v. Tod, 161.

Section 6438, Revised Statutes. Proceedings in the common pleas on error. Railroad v. Traction Co., 435; Railroad v. Tod, 161. Section 6723, Revised Statutes. Proceedings in error; limitations. Executors et al. v. Young et al., 515.

Section 6920, Revised Statutes. Judgments for fine and costs; how collected. Railroad v. Tod, 163.

Section 6921, Revised Statutes. Offenses against public health; nuisances. Cleveland v. Payne, 355.

Section 6929, Revised Statutes. Offenses against public policy; advertising lotteries; penalties. Stevens v. Times-Star, 146. Section 6930, Revised Statutes. Offenses against public policy; selling tickets, etc., in lotteries or schemes of chance. Stevens v. Times-Star, 146.

Section 6931, Revised Statutes. Promoting lotteries or any scheme of chance. Stevens v. Times-Star, 146.

Section 6938, Revised Statutes. Betting on elections, how punished. Stevens v. Times-Star, 146.

Section 7146, Revised Statutes. Proceedings when accused pleads guilty of misdemeanor. State v. Borham, 361.

Section 7147, Revised Statutes. Proceedings where plea is no plea of guilty. State v. Borham, 364.

Sections 7303 to 7308, inclusive, Revised Statutes.

Jurisdiction

or authority to review or reverse decision or judgment in favor of accused in criminal case. Mick v. State, 393.

Section 7356, Revised Statutes. Judgments and final orders in criminal cases to be reviewed in what courts; supreme court not required to determine as to weight of evidence, except. Mick v. State, 392.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT
COURT OF OHIO

JANUARY TERM, 1905.

HON. WILLIAM Z. DAVIS, CHIEF JUSTICE.

HON. JOHN A. SHAUCK,

HON. JAMES L. PRICE,

HON. WILLIAM B. CREW,

JUDGES.

HON. AUGUSTUS N. SUMMERS,

HON. WILLIAM T. SPEAR,

ROBBINS ET AL. v. SMITH, JR., ADMR., ET AL.

Trust created by will-Not terminated until trust accomplished, when-Remainder of estate to be equally apportionedAmong children of testator-But to be invested for them and not paid over-Power of devisees to will their bequestsIn case of death of devisee without will-Children of devisee to take, how-If no children, devise to go to original testator's children-Question of title of original testator's devisees -Law of wills and distribution of property.

1. A trust created by will, the provisions of which are not repugnant to law or contrary to public policy, will not be decreed terminated where the objects of the trust have not been fully accomplished and their accomplishment has not been made impossible.

2. The will of Edward Harwood provided that the remainder of his estate (two-thirds) should be equally apportioned amongst his children, but should not be paid over to them, but be safely invested for their behoof; and the annual income arising to each child be subject to her control, whether

Statement of the Case.

married or unmarried, and in no instance should the husband of any such child have any power or control over the principal or interest of such share; nevertheless, each to have power and authority to will and devise her portion of said inheritance in such manner as she shall see fit. In case of either dying without leaving a will her portion to be equally divided between her children who may survive her, or if she have no children surviving her, then the said portion to be paid to the testator's children who may survive her, share and share alike. The children referred to were three daughters, one of whom has since deceased. Held:

(a) That under this will the children of the testator took absolute title to the income but only an estate for life in the corpus of the estate, with power in each to finally dispose by will of the portion devised for her benefit, and with remainder in the children surviving such child, and, failing those, in the surviving children of the testator in case the corpus should not be disposed of by will

(b) The will did not create a marital trust to be ended as to each daughter upon the decease of her then living husband. (c) Two of the children referred to in the will still living, the trust has not been subserved, but is an existing trust, and will continue as to each daughter during her life.

(No. 8498-Decided February 28, 1905.)

ERROR to the Circuit Court of Hamilton county.

The cause out of which the present contention grows was tried in the common pleas of Hamilton on an amended and supplemental petition filed by the plaintiffs in error, Harriet C. Robbins and Gertrude Gordon, daughters of Edward Harwood, deceased, against Amor Smith, Jr., administrator de bonis non with the will annexed of the estate of said deceased, and certain of the heirs, to obtain a judgment and decree that plaintiffs are each entitled absolutely to one-third of the remainder of the estate left by the will of said deceased, now under the control of said Amor Smith, Jr., as trustee, and adjudging farther that the trust provided in said will has

Argument for Plaintiffs in Error.

been subserved and the trust ended, and the plaintiffs entitled to the absolute control and possession, each of her share, and that the trustee be ordered to make delivery to each accordingly. The petition set forth a copy of the will and alleged certain facts in support of the construction placed thereon by the plaintiffs and of their claim that the trust had been subserved and the plaintiffs, therefore, entitled to the relief prayed. The supplemental petition sets up a contract between parties alleged to be the only parties now in interest in the property, agreeing to the disposition prayed by plaintiffs, which it is pleaded, further establishes plaintiffs' right to the relief demanded. Issue was taken by answer on the part of the administrator de bonis non with the will annexed, and by others of the defendants, and the trial resulted in a judgment for the defendants. From this an appeal was taken by plaintiffs to the circuit court. That court upon trial found the equity of the case with the defendants; that the will creates a trust for the purpose of caring for the estate in remainder created by the will, and carrying out the various provisions thereof; that the defendant, Amor Smith, Jr., is the duly appointed trustee of said trust; also that the trust is active and existing, and has not been terminated by its terms, or by the parties in interest. Judgment accordingly was rendered. From that judgment plaintiffs bring error. Pertinent facts are stated in the opinion.

Mr. John W. Warrington and Mr. C. B. Matthews, attorneys for plaintiffs in error, cited and commented upon the following authorities:

Gilpin v. Williams, 25 Ohio St., 283; Baxter v. Bowyer, 19 Ohio St., 500; Lord Esher, In re Harri