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Grinnell v. Commissioners.

resolution, declare such necessity and intent, and shall state the manner in which the alterations in the crossing are to be made," etc. Section 10 (Lan. R. L. 5321; B. 3337-17) provides that "When any grade crossing is on a county line road, the commissioners of each county in which such crossing is situated may join in all the proceedings necessary for the abolition of such grade crossing as provided in this act," etc.

This act and all of its provisions, beyond question, relate solely to existing crossings-crossings that have been and are being used by, and on the line of operated railroads, to the danger and inconvenience of the public, and for that reason are to be changed or abolished.

Here there are not only no existing crossings, but no built and operated railroad-there is nothing to change, alter or abolish except a scheme or design. How is it possible to abolish a crossing, because of its dangerous character, that does not and never did exist? Commissioners of counties are quasi corporations, and have only such power as is conferred by statute, and such statutes are to be strictly construed; and the power here conferred is limited to existing crossings upon existing and operated railroads, and cannot be enlarged to include proposed crossings upon a proposed railroad.

But if it were otherwise there are still other reasons why their action would be illegal, and plaintiffs entitled to relief prayed for.

The grade crossing which they are thus seeking to abolish is not, or will not be on the Ravenna-Kent highway, but on the Sandy Lake road; and that is the only highway necessary, or that they could have any right to change in order to abolish such crossing. The statute in question limits such right to the highways intersected, and to the points of intersection.

That road could be changed just as proposed and its crossing abolished by continuing it instead of the Ravenna-Kent highway, along the south line of said railroad to the northwest, until it strikes said. Ravenna-Kent highway where said highway was to be reunited as aforesaid, without affecting or changing one foot of the line of the RavennaKent highway.

It would seem therefore, that even if the proposed change in the line of the Ravenna-Kent highway was agreed upon for the security and convenience of the public in getting rid of a grade crossing on another highway and not for the pecuniary benefit of the Pennsylvania Company, that it could be done at much less expense to the county and productive of much less inconvenience and injury to the adjacent landowners.

Portage County.

Again, the plaintiffs live upon lands owned by them, abutting on the Ravenna-Kent highway at the point in question, and they will, it appears, suffer injury by the vacation and abolition of such part of such highway in excess of and different from that of the general public; and therefore, before their property rights in such easement can be taken, compensation must be first made then.

But here there is no provision or method in this or any other statute by or under which their damages could be ascertained and ordered paid. And in such cases, where no provision exists for awarding compensation the parties thus injured are entitled to an injunction restraining the officials from making the proposed change. Tussing v. King, 65 Ohio St. 10 [60 N. E. Rep. 986]; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600].

We have an earlier statute which, while it is not decisive of the question, reflects somewhat upon it. The act of April 2, 1891 (88 O. L. 261), confers upon township trustees authority to fix and determine the kind and extent of all new crossings, and the time and manner of constructing the same, within their townships.

Section 1 of said act (Lan. R. L. 5307; B. 3337-3) provides that "railway or railroad companies operating a line or lines of railway in this state, shall build good and sufficient crossings over, or at all points

approaches to such line or lines of railway where any public highway

is now or may hereafter be inter

sected by such lines of railway, its tracks, side tracks or switches. And as to crossings and approaches outside of municipal corporations, the township trustees shall have power to fix and determine the kind and extent thereof, and the time and manner of constructing the same; * shall be constructed,

and such crossways, approaches

repaired and maintained by the railroad companies as so ordered." The other sections of the act provide for notice to be served by such trustees on the company to build such crossing; that if not done in thirty days thereafter the township trustees may construct the same, and recover the cost from the company; that such company must keep the same clean of snow, etc.; and if such company neglects to comply with these demands, a penalty shall be assessed against it in favor of the township where the crossing is situate.

The Pennsylvania Company, as shown in this case, is operating a line of railway in this state, and is ncv. constructing an additional track to get rid of curves and shorten its said line, which will intersect and cross the highway and road in question at points where its said line did not intersect or cross the same; and therefore it is the township trustees

Grinnell v. Commissioners.

of the township where these crossings are to be made, who are to determine the kind and extent of these crossings, and the manner of constructing the same as the defendants cannot change the position of these crossings in the manner agreed upon by them.

This authority is not taken away or abridged by the said act of April. 27, 1893.

It is only after crossings are constructed and become established, that the commissioners of the county are, by such later statute, authorized to act in these respects by joining with the company in changing, altering or abolishing such of those crossings as may be grade crossings. We are not aware whether the trustees have taken action in the matter or not, but that is immaterial to the present case.

The injunction prayed for is granted.
Burrows and Cook, JJ., concur.

EXECUTORS AND ADMINISTRATORS.

[Hamilton (1st) Circuit Court, August 3, 1904.]

Giffen, Jelke and Swing, JJ.

FRANK J. DORGER V. J. O. WOODWARD, ADMR, ET AL.

1. LIABILITY OF COADMINISTRATORS FOR DEBT DUE ESTATE BY ONE OF THEM. That where one of two administrators is indebted to the decedent's estate at the times of their appointment and the giving of a joint bond with surety, the amount of such indebtedness will be treated as assets coming into their joint possession, for which both are liable as principals as between themselves and the surety. The giving of separate bonds thereafter will not, in any way, change the liability which accrued while the joint bond was in force.

2. DEBT DUE BY HEIR, WHO IS ADMINISTRATOR, TO ESTATE SHOULD BE TREATED AS CREDIT ON AMOUNT DUE HIM.

An heir who is indebted to an estate of which he is also administrator, need not pay into court, on his settlement as administrator, money which would be immediately returnable to him as heir on distribution. The amount due as heir should be treated as a credit on the amount due as administrator.

ERROR.

J. C. Healy, for plaintiff in error.

Horstman & Horstman, for defendant in error:

Debt or advancement. Christy's Appeal, 1 Grant Cas. (Pa.) 369; Miller's Appeal, 31 Pa. St. 337; Grey v. Grey, 22 Ala. 233; Crosby v. Covington, 24 Miss. 619; Bingham, Descents 348, 404, 414; 1 Am. &

Hamilton County.

Eng. Enc. Law (2 ed.) 763, 775, 778, 779; Goar v. Maranda, 57 Ind. 339; Speer v. Speer, 14 N. J. Eq. 240; Harris' Appeal, 2 Grant Cas. (Pa.) 304; Jones' Estate, 29 Pitts. L. J. (Pa.) 89; Morr's Appeal, 80 Pa. St. 427; Middleton, Ex parte, 42 S. C. 178 [20 S. E. Rep. 34]; Overholser v. Wright, 17 Ohio St. 157; Robinson v. Moseley, 93 Ala. 70 [9 So. Rep. 372]; Denman v. McMahin, 37 Ind. 241; Strock, In re, 158 Pa. St. 355 [27 Atl. Rep. 1003]; Seagrist's Appeal, 10 Pa. St. 424; Vaden v. Hance, 38 Tenn. (1 Head) 300; Roland v. Schrack, 29 Pa. St. 125; Yundt's Appeal, 13 Pa. St. 575 [53 Am. Dec. 496]; Levering v. Rittenhouse, 4 Whart. (Pa.) 130; Medill v. Fitzgerald, 8 Circ. Dec. 129 (15 R. 415); Homiller's Estate, 17 W. N. C. (Pa.) 238, 239; 2 Woerner, Administration Sec. 555; Harley v. Harley, 57 Md. 340; Miller's Appeal, 107 Pa. St. 221; Merkel's Appeal, 89 Pa. St. 340; Thornton, Gifts & Advancements Secs. 527, 546 and 563.

A child's note to its parent raises a presumption of debt. This presumption may be repelled. It is still a debt though the parent never intended to collect it unless he needed the money during lifetime.

Joint liability of coadministrator. Bigelow v. Bigelow, 4 Ohio 138 [19 Am. Dec. 591]; Miller v. Donaldson, 17 Ohio 264; Tracy v. Card, 2 Ohio St. 431; Raahs, In re, 16 Ohio St. 273; Mitchell v. Towner, 1 Dec. Re. 352 (7 W. L. J. 581); Perkins v. Scott, 6 Circ. Dec. 226 (9 R. 207); McGaughey v. Jacoby, 54 Ohio St. 487 [44 N. E. Rep. 231]; Eckert v. Myers, 45 Ohio St. 525 [15 N. E. Rep. 862]; Seymour v. Stone, 2 Re. 648 (4 W. L. M. 323); Slagel v. Entrekin, 44 Ohio St. 637 [10 N. E. Rep. 675]; Foster v. Wise, 46 Ohio St. 20 [16 N. E. Rep. 687; 15 Am. St. Rep. 542].

The giving of separate bonds afterwards could not divest the joint liability. Ames v. Armstrong, 106 Mass. 15; Brazer v. Clark, 22 Mass. (5 Pick.) 96; Newcomb v. Williams, 50 Mass. (9 Metc.) 525; Towne v. Ammidown, 37 Mass. (20 Pick.) 535; Boyd v. Boyd, 1 Watts 365; Sparhawk v. Buell, 9 Vt. 41.

SWING, J.

H. J. Cordesman and Frank J. Dorger were appointed administrators of the estate of Maria F. Cordesman, and gave a joint bond with the American Bonding & Trust Company as surety. At the time of the appointment H. J. Cordesman was indebted to the estate in the sum of $2,000, evidenced by a note to M. F. Cordesman. It is claimed in this action that at the time of the giving of the bond said Cordesman was insolvent and has remained so up to the present time. Under the law as announced in the first proposition of the syllabus in the case

Dorger v. Woodward.

of McGaughey v. Jacoby, 54 Ohio St. 487 [44 N. E. Rep. 231], the amount owing by said Cordesman became assets in the hands of the administrator for which the surety on his bond is liable.

There being no question but what the amount due by said Cordesman is assets, in his hands and for which the surety on the bond is liable, the question here is whether in the first instance the joint administrator, Dorger, or the surety company is liable. Dorger had knowledge of this indebtedness at the time of the appointment and had the note in his possession.

An inventory was returned by said administrators to the probate court in which said note was mentioned but was not returned as assets in their hands.

Under these facts we think this asset must be considered as having come into their joint possession, and under the case of Eckert v. Myers, 45 Ohio St. 525 [15 N. E. Rep. 862], as between themselves and the surety are principals.

Some time afterwards said administrators gave separate bonds, but this in no way changed the liability of the parties which accrued while the first bond was in force. Besides it seems to us that the bonds given separately were not substitutes for the first bond, but additional bonds.

Judgment was rendered in this case in the court of common pleas for the full amount due on this obligation. As H. J. Cordesman was an heir of Maria F. Cordesman, and there being no debts of the estate and as such heir he would be entitled to a certain portion on distribution, it would seem unnecessary to pay into court the amount which would be immediately payable to him as heir on distribution. The amount due him as heir should be a credit on the amount due from him as administrator.

The judgment should be modified to this extent.
Giffen and Jelke, JJ., concur.

GUARDIAN AND WARD-EQUITY.

[Lucas (6th) Circuit Court, November 7, 1904.]

Parker, Hull and Haynes, JJ.

MERCHANTS & CLERKS SAV. BANK Co. v. WILLIAM SCHIRK ET AL. 1. WARDS NOT PREJUDICED BY WRONGFUL TRANSACTION OF GUARDIAN, WHEN. The principle that where one of two innocent persons must suffer from the wrongful act of a third person, the one who put it in the power of such party to commit the wrong, must suffer the loss rather than the other

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