John is not complaining. The real estate is divided between David and John in same proportions as in the third will.

There is certainly nothing in this change of distribution of the property which would tend to show that the terms of the will were influenced by any delusion.

I think, therefore, there is no testimony whatever tending to show that the testator was in any way influenced in the distribution of his property by the fourth and last will by the claimed delusion, and that, therefore, the testimony as to the delusion becomes immaterial, and there was no testimony to go to the jury on the question of insanity.

That the court may direct the jury to find a verdict sustaining a will where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, is settled by Wagner v. Ziegler, 44 Ohio St.. 59, 60.

I am cited to the case of Baldwin v. Robinson, 53 N. W. Rep., 531, to the effect that the case could not be taken from the jury. In that case the court say, that "considerable testimony was offered upon the trial in the court below tending to show undue influence." Of course, therefore, that case should not have been taken from the jury.

It is claimed the court erred in its remarks to the jury urging an agreement, and 103 N. Y., 614, is cited. But as the jury did not agree until instructed to return a verdict for the defendants, they were in no way affected by such remarks.

The testimony established beyond a doubt that John F. Davis was of sound mind and memory, and not under any restraint when he made the will in controversy, and in my opinion the court should not stand on technicalities in order that it may be set aside. As Judge Cooley says, in 42 Mich., 234, "whatever court overturns a will ought to have reasons to stand upon which are within the grasp of the common sense of mankind.” The motion for a new trial will be overruled.

Porter & Rendigs, for plaintiff.

John Follet and Wm. Strunk, for defendants.

286

STREET RAILWAY GRANTS.

[Superior Court of Cincinnati, Special Term.]

ALBERT C. Barney et al. v. MT. ADAMS & EDEN PARK INCLINED PLANE RY. Co.

1. Abutting owners of property on a proposed street railway route or extension cannot complain in their character as abutting owners that the grant is invalid except upon the ground that the necessary consents have not been secured upon the street upon which their property abuts.

2. Non-consenting abutting owners cannot be heard to complain of the violations by the grantee of conditions imposed by those who consented when such consenting owners do not themselves complain of such violations.

SMITH, J.

Plaintiffs are owners of property abutting on McMillan street, between Highland avenue and Auburn avenue, in the city of Cincinnati, the property being improved with new and valuable buildings, occupied by the plaintiffs or their tenants as residences.

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Barney et al. v. Railway Co.

The defendant is the owner of several street railroads, one of which, known as Route No. 10, it became the owner of by purchase in 1881. This route begins at Fifth and Walnut streets in said city, and runs over different streets to Gilbert avenue, and along Gilbert avenue to Walnut Hills. In 1881 an ordinance was passed allowing Route No. 10 to extend its tracks over a large number of streets in said city, a part of said extension being as follows:

(C. & H. Ord., 600). "From Gilbert avenue westerly to McMillan street over the tracks of Route No. 16 to May street; thence continuing westwardly by double track to a turn table on Clifton avenue; thence returning on McMillan street to Vine street; thence southwardly by double track on Vine street," etc.

The ordinance declared that there had been obtained and produced to the public authorities, making the grant, "the written consents to such extension of the owners of more than one-half of the feet front of the property abutting on the streets along which said extension is [was] to be made."

It further provided that: "This permission is given on the express condition that this work of extending the line of track along McMillan street, and the whole line shall be commenced within six months after the passage hereof, and the whole extension completed for travel and operated within twelve months thereafter, and any omission of completion of roadway, or bridge along the route, shall be made good by the grantee herein by temporary provisions for a speedy conveyance of passengers along the whole route."

In 1886 another ordinance was passed, authorizing the defendant company to use "electric or any other approved system of motive power for moving cars," but requiring that "the consent of the majority of the property owners in feet front abutting on the streets along the line of streets where such cable, electric or other system is extended, shall have been previously obtained and certified to by the City Engineer before the work is begun on any of the streets on which new tracks are to be laid."

No attempt was made by the defendant to lay tracks on McMillan street between May street and Auburn ave, until 1887. Previous to that year that part of the street between May street and Hunt street was simply a dedicated street running through a rough and unimproved country; but in 1889 this part was opened and improved by the city, and a bridge built over Hunt street, thus connecting Walnut Hills and Mt. Auburn. At the time the street was thus improved, and the bridge built, the defendant company laid its tracks upon the same, and was proceeding to lay them on that part of the street between the bridge and Auburn avenue when this suit was brought by the plaintiffs as abutting owners of property to enjoin such action.

They claim the right to enjoin on the following grounds:

First-That the proposed extension is not an extension, but a new route, and is illegal in that it should have been granted after competitive bids had been received, as is provided in section 2505, Revised Statutes, for the establishment of a new route.

Second-That the inaction of the defendant and the lapse of time require the courts to declare that the franchise has been lost by abandonment.'

Third-That the franchise has been forfeited and lost by reason of the failure of the company as provided in the ordinance of 1881, to

5 L. B. 56

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commence the work on the whole line within six months after the passage of the ordinance, and to complete and operate the same for travel within twelve months.

Fourth-That the consents of the abutting owners, given to the ordinance of 1886, contained a condition that the electric system should be completed during the year in which the signatures were obtained, and that as such completion was not accomplished, the grant is void.

Fifth-That the laying of a double track opposite the property of the plaintiffs will interfere with and cut off the access to their property. In the decision rendered by me last term, in the case of Glidden et al. v. Johnson et al., 4 S. & C. P. Dec., 423, in which the plaintiffs, as abutting owners of property, sought to prevent the construction of what is known as Route No. 25, I made a somewhat extended examination as to the right which an abutting owner, as such, and as distinguished from a taxpayer, has to complain of the unlawful construction of a street railroad in the street upon which his property abuts. It would not be profitable to repeat here at length the reasons which led to the conclusions there reached.

The following citation, however, from that opinion, gives a general statement of both the conclusions reached and the reasons for the same, and it may therefore be adopted as a part of this opinion.

"While it is true that the general taxpayer can not complain that a grant is invalid because of a failure to secure the necessary consents, so it is equally true that the abutting owner can not complain of defects in the grant other than that of a failure to secure sufficient consents. The reason of this rule is obvious.

"The right in Ohio to declare invalid a public grant, rests in the first instance with the public officers; but if they decline to act the taxpayer himself, after certain preliminaries have been complied with, may institute the necessary proceedings. The reason of this rule is that the discharge of public business belongs to public officials, and the law requires and expects that they will prevent the execution or performance by the municipality of contracts which violate its ordinances or the statutes of that state. And it is only when they fail to act, that the outside taxpayer is allowed to interfere. This is a salutary rule, and the only one which could be adopted without involving a municipality and all its rights in inconsistent, injurious and inextricable litigation.

"Now, it can not have been the intention of the statute, that when it conceded to abutting owners a voice in the question as to whether a street railway shall be constructed by requiring that a certain portion of the property shall consent thereto, that it intended, except as to the right to complain upon the question of consents, to give such owners any greater rights than other taxpayers have to complain of the invalidity of the grant. The right to complain as to the want of sufficiency of consents, gives them the right to protect themselves as to the only right which they enjoy different from other taxpayers. In other respects, where of course no special injury is complained of, they stand in the same class with other taxpayers in the community, having the same rights and subject to the same restrictions. See Sloan v. Peoples Ry. Co. et al., 3 Circ. Dec., 674.

In view of these principles, it is apparent that the plaintiffs in this case can not be heard upon the first ground of their complaint, viz., that this pretended grant of an extension is in reality the grant of a new

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route, and therefore void. consideration.

It may therefore, be dismissed without further

For the same reason, I am of the opinion that the plaintiffs can not be heard as to the second and third grounds of their complaint, viz., (2) that the defendant company, by inaction and lapse of time, in contemplation of law, has abandoned the grant; and (3) that the ordinance of 1881, provided that the road should be begun and completed within a certain time, and that the defendant has failed to comply with this provision, and has, therefore, forfeited the grant.

In both of these grounds of complaint the general public is quite as much interested as the abutting owners; and as they do not relate to the question whether sufficient consents were obtained, such abutting owners can not be heard to complain with reference to them. Furthermore, it is undoubtedly true, as a proposition of law, that the city authorities may waive the forfeiture of a franchise, and that an abutting owner can not be permitted to enjoin the exercise of the franchise, and thus prevent the city from executing its right of waiver. Booth on Street Railway; section 50; Hamilton St. Ry. & Elec. Co. v. Hamilton & Lindenwall Elec. Transit Co., 3 Circ. Dec., 158.

Whether as a matter of fact, or in contemplation of law, the defendant has abandoned this franchise; whether the proviso in the ordinance of 1881, that the work should be begun and completed within a certain time, is a condition the non-compliance with which renders the grant void; or whether it is a mere collateral covenant; whether a taxpayer, as such, can in any event complain of the termination of this grant by forfeiture, or whether the city alone can proceed against the grantee of the franchise, are questions which, for the reasons above given, can not be presented in this cause, and upon which, therefore, I express no opinion.

The fourth ground of complaint is, that the consents to the ordinance of 1886, by which the defendant company secured the right to substitute electricity as a motive power, were given upon the condition that the work under the ordinance should be begun and completed within a certain time, with which condition the company has failed to comply.

Waiving the question as to whether the provision contained in the consents is a mere covenant or a condition whose violation makes the consents invalid, there can be no question but that even if it is such a condition, its violation does not ipso facto render the consents void, but only makes them voidable at the option of the property owners who have given them.

But in this case, the plaintiffs gave no consent; they are non-consenting abutting owners. And it is quite clear to my mind that they have no right to ask a court to declare that the consents given by others who are not in court, shall be declared void because of the violation of a certain condition contained in those consents. Such a violation can be complained of by such consenters only, and, in place of complaining, they may be willing to waive it and insist upon the enforcement of the grant.

The fifth ground of complaint, viz., that the laying of a double track opposite the property of the plaintiffs will interfere with and cut off the access to their property, is not, in my judgment, sustained by the evidence. The tracks when constructed will leave a space of ten feet between the nearest track and the curb. To declare that tracks thus constructed are an interference with the access to property, would be to declare that nearly all the street railway tracks in this city are an unlawful

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interference with the access to the property which abuts upon them; because, as a rule, the space which will be left in this case is quite as large as that which has ordinarily been left in laying tracks in our streets. In my opinion, there is, as a matter of fact, no interference with the access to plaintiff's property.

It follows from the foregoing opinion, that, in my judgement, the petition of plaintiffs should be dismissed, and it is so ordered.

C. B. Matthews, for plaintiffs.

W. W. Ramsey, E. W. Kittredge, and Wm. M. Ramsey, for defendant.

288

INVOLUNTARY ASSIGNMENT-HOMESTEAD.

[Clark Probate Court, October 23, 1893.]

IN RE SAMANTHA STAFFORD V. VICTOR Y. SMITH, TRUstee. 1. In an involuntary assignment under section 6344, the trustee becomes the legal owner, and entitled to the legal possession of the premises over which he has been appointed upon his qualification.

2. In such an assignment a homestead cannot be acquired after the qualification of the trustee.

3. The right to a homestead cannot be established at a time when the claimant has neither the legal title, nor the legal, actual or constructive possession of the premises. ROCKEL, J.

day of

- day of

On the 1891, Samantha Stafford made a deed of conveyance of the premises in question to her son Herbert Stafford. Afterwards to-wit, on the 1892, Wm. A. Young and Charles Young creditors of Samantha Stafford, brought an action in the court of common pleas, to set aside said conveyance, alleging that the same was made without consideration to defraud creditors.

On the thirteenth day of March, 1893, said court of common pleas found that said conveyance was fraudulent: Thereupon W. A. Young and Charles Young had a certified copy of the journal entry in said matter filed in this court and asked that a trustee be appointed as provided in section 6344 Rev. Stat.

On the twenty-fourth day of March, 1893, Victor Y. Smith was appointed trustee, and immediately qualified and entered upon the discharge of his duties.

The premises, consisting of a house and lot in the village of New Carlisle, Ohio, were at the time occupied by Charles Saylor, who had rented them from Herbert Stafford.

The trustee, Mr. Smith, immediatly upon his appointment notified the tenant Mr. Saylor, of his appointment as such trustee, and demanded the rent, which was thereafter paid to him.

Sometime during the last week of May, 1893 two months after the qualification of the trustee, the husband of Samantha Stafford secured from Mr. Saylor a room in the house, and moved into such room a bed, chair and bedding with the intention of making that his family home. Before this neither he nor his wife had occupied any part of the premises at any time: At and previously to this time Samantha Stafford kept a boarding house in Dayton, Ohio, where the husband made his home as did also the unmarried son, Herbert Stafford.