Lake County.

such claim shall, in such case be disallowed and rejected by such administrator or executor, and the holder of such claim shall be required, within six months after such rejection of such claim, to bring his action against such administrator or executor, to enforce such claim, and if he recover, the judgment shall be against the said administrator or executor; and in such action, such heir, creditor, or other person claiming to hold such property, shall be made a party defendant with such administrator or executor, and shall have the right to plead and make any defense to such action which such administrator or executor could make; whenever such written requisition and undertaking shall be so filed in the probate court, the probate judge shall at once notify such administrator or executor thereof; and such administrator or executor shall thereupon at once notify the holder of such claim that such claim is rejected and disallowed."

What was the intent of the legislature in the use of the word "heir?" The word "heir," as it is generally understood, has a very broad signification and as the provision of Lan. R. L. 9637 (R. S. 6098) is remedial in its nature, the word should not be considered a technical one or restricted in its meaning, without there is some controlling reason for doing so.

But in its legal or technical signification, under our statute it includes widow, as a widow may inherit property. Laning R. L. 6855, 6856 (R. S. 4158, 5159). Bouvier in his law dictionary says, the word heir, "In its strict and technical import applies to the person or persons appointed by law to succeed to the estate in case of intestacy. 2 Bla. Com. 201; Rawson v. Rawson, 52 Ill. 62; Kellet v. Shepard, 139 Ill. 433 [28 N. E. Rep. 751; 34 N. E. Rep. 254]; Dukes v. Faulk, 37 S. C. 255 [16 S. E. Rep. 122; 34 Am. St. Rep. 745]. In wills, in order to effectuate the intention of the testator, the word 'heir' is sometimes construed to mean the next of kin, Horseman v. Abbey, 1 Jac. & W. 381; Reen v. Wagner, 51 N. J. Eq. 1 [26 Atl. Rep. 467]; and statutory next of kin, 41 L. T. Rep. (N. S.) 209; the word 'heir' can be construed as 'distributees' or 'representatives,' King's Appeal, 84 Pa. St. 345; and children, Ambl. 273; Lott v. Thompson, 36 S. C. 38 [15 S. E. Rep. 278]; Baxter v. Winn, 87 Ga. 239 [13 S. E. Rep. 634]; Franklin v. Franklin, 91 Tenn. 119 [18 S. W. Rep. 61]; Barton v. Tuttle, 62 N. H. 558; Underwood v. Robbins, 117 Ind. 308 [20 N. E. Rep. 230]. Under the term 'heirs at law,' a widow has been allowed to share. Lawrence v. Crane, 158 Mass. 392 [33 N. E. Rep. 605]; Unfried v. Heberer, 63 Ind. 67, 72.

*

*

"In a bequest of personalty the word 'heirs' is used to mean

Todd v. Todd.

those entitled under the statute of distribution in case of intestacy. Comly, Estate of, 136 Pa. St. 153 [20 Atl. Rep. 397]. The word may be used in a contract to designate the representatives of a living person. Lockwood v. Jesup, 9 Conn. 272.

"The words 'heir' and 'heirs' are interchangeable and embrace all legally entitled to partake of the inheritance. Stokes v. Van Wyck, 83 Va. 724 [3 S. E. Rep. 387]."

But it is said that the parties under the statute entitled to file the requisition with the probate court must be an heir that has inherited property that came to him or her by descent, in each particular case, and does not apply to devisees and legatees under a will, although they may also be heirs. We do not think this is correct. Who can tell whether the will of the decedent will be effective or not? Possibly the will may be set aside, prove wholly ineffective and, if so, the right of the heirs may be jeopardized or wholly lost.

We think it is intended, just as the statute reads, that any "heir" may object to the allowance of a claim, and file a written requisition with the probate court, although such heir may also be interested as devisee or legatee. We go further and hold that the words "any heir or creditor," in the statute includes devisees and legatees or any person whomsoever whose property is or may be affected by the recovery of a judgment. We have seen that the word "heir" in a will may be con-strued to mean widow, next of kin, children-in a contract, personal representatives; and the same rule no doubt would apply in a deed where it was manifestly the intention of the parties. Why not the word "heir" then in this statute have as liberal interpretation and include devisees and legatees?

The object of a statute, and the mischief against which it was designed to guard will be looked to; such is the general holding in this state; indeed it is one of the fundamental canons in the construction of statutes. As was said by Brinkerhoff, judge, in Terrill v. Auchauer, 14 Ohio St. 80, 87:

"In the construction of statutes we may look to the mischiefs, if any, which the statute was designed to remedy, and also to the consequences which would flow from any particular construction; and if the statute be fairly susceptible of two different constructions, we are at liberty to choose that one which, while it remedies the mischief aimed at, avoids the absurd or unjust consequences which would flow from the other."

Lake County.

How applicable this opinion of the learned judge to the statute under consideration! The mischief aimed at is to prevent the allowance and payment of unjust claims against the estate of deceased persons, through the fraud or perverseness of an unscrupulous or incompetent administrator or executor; and what unjust and absurd consequences would arise from so construing the statute that the ward "heir" does not include a devisee or legatee!

The word "heir," if interpreted in its narrow and strict sense, would furnish ample opportunity to defeat an unjust claim, although the party's interest be ever so small, while a legatee or devisee whose interest might be great would be required to stand by and see an unjust claim pressed to judgment without any opportunity whatever to object. We do not think such was the intent of the legislature.

The judgment of the court of common pleas will be affirmed.

Burrows, J., concurs.

Laubie, J., dissents.

Railway v. Connor.

STREET RAILWAYS-NEGLIGENCE-EVIDENCE-TRIAL.

[Franklin (2nd) Circuit Court, February 20, 1905.]

Dustin, Wilson and Sullivan, JJ.

COLUMBUS RY. V. PATRICK J. CONNOR.

1. MANNER IN WHICH STREET CAR IS EQUIPPED MAY BE SHOWN, WHEN. To support the claim that a street car was operated negligently, the manner in which the car is equipped may be shown in the examination in chief, for the purpose of determining the speed with which it could be run with safety to the public.

2. EVIDENCE AS TO TIME WITHIN WHICH CARS CAN BE STOPPED, PROPER, WHEN. It is competent to prove in chief by an expert witness that other cars differently equipped could be stopped in a shorter distance and time than the car which ran over plaintiff, in order to demonstrate that the latter could not be safely run at as high a rate of speed as other cars better equipped; and on cross-examination, evidence of the same character is competent for the purpose of testing the expert knowledge of the wit

ness.

3. EVIDENCE THAT OTHER CARS WERE BETTER EQUIPPED, INCOMPETENT.

Evidence that other cars on the same and other lines, better equipped than the car which ran over plaintiff, were in common use, is incompetent, when the defective equipment is not the negligence complained of.

4. EXPERT MUST HAVE KNOWLEDGE ON PARTICULAR SUBJECT.

A witness cannot testify as an expert as to the time and distance within which a particular street car could be stopped, when it is not shown that he had any experience with, or made any observation of the car in question, or one similarly equipped.

5. REQUEST FOR INSTRUCTION WHICH MISSTATES PLEADINGS PROPERLY REFUSED. A request that a certain charge be given the jury is properly refused when it misstates the pleadings.

6. RULE OF CARE APPLICABLE TO INFANT MUST BE GIVEN TO JURY.

In an action by an infant against a street car company to recover for injuries suffered from being run over by a street car, a charge to the jury which defines the rule of care applicable to an ordinary prudent person, without referring to the infancy of the plaintiff, is properly refused.

7. COURT SHOULD GIVE OR REFUSE REQUESTS FOR INSTRUCTIONS WITHOUT COMMENT. The proper practice is for the court to give or refuse special requests for instructions without qualification or comment. But where the court, after commenting on a charge which he refused to give, instructs the jury to disregard his comment, the error is cured.

8. WHAI SUFFICIENT PLEA OF CONTRIBUTORY NEGLIGENCE.

In an action for damages claimed to have resulted by reason of the negligent operation of a street car, an allegation in the answer, that "the plaintiff was negligent and therefore the defendant denies all right or claim of damages on the part of the plaintiff against it, by reason of the allegations contained in the amended petition," is in effect a plea of contributory negligence on the part of plaintiff.

9. CHARGE DEFINING CONTRIBUTORY NEGLIGENCE MISLEADING, WHEN.

A charge that "contributory negligence only ceases to be a defense if defendant could have avoided the injury by ordinary care," is misleading and

Franklin County.

prejudicial; it should have been qualified by adding some such words as, "after the negligence of plaintiff had intervened."

10. SPEED ORDINANCE CONSTRUED

Where an ordinance does not fix a uniform rate of speed applicable at all times and places, but provides that it shall not exceed fourteen miles per hour including stops, it is permissible to run a part of the time at a speed greater than fourteen miles an hour, in order to make up the time lost in stopping; and the proper construction of such ordinance is, that it regulates the speed only to the extent that at the end of the run the car must not have exceeded the average of fourteen miles per hour. 11. EXCESSIVE SPEED NOT NECESSARILY NEGLIGENCE.

Whether the speed is excessive under such an ordinance depends in some degree upon the conditions affecting the public safety at the particular time and place in question. The mere fact that the speed exceeded fourteen miles per hour is not conclusive on the question of negligence, even though the speed of the car was the proximate cause of the injury. The proximate cause is not necessarily negligence.

12. MOTORMAN BOUND TO SEE PEDESTRIAN, WHEN.

A charge to the jury, in effect, that the motorman of a street car should have seen plaintiff on the track, if in the exercise of ordinary care he could have seen him in time to prevent the injury, may be proper owing to the circumstances.

13. CHARGE REQUIRING STREET CARS TO COME UP TO CERTAIN STANDARD, MISLEADING, WHEN.

In an action by a street pedestrian against a street car company to recover for injuries caused by the negligent operation of a street car, a charge to the jury which implies that the cars of a street railway company should at least come up to the standard of such as are in common use, and that the fender be the best that could be procured, is confusing and misleading because it too nearly defines the duty of the company as a common carrier to its passengers, instead of to pedestrians.

14. INFANT OVER FOURTEEN PRESUMED TO BE SUI JURIS, WHEN.

An infant over fourteen years of age is presumed to be sui juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.

15. NO FAIR TRIAL WHEN JURY VIEWS CASE THROUGH PASSION EXCITED BY COUNSEL.

A party cannot be said to have had a fair trial when the jury is required to view the case through an atmosphere of passion and prejudice, excited by the conduct of counsel. The fact of provocation, or that opposing counsei was also guilty of the same conduct, does not change this conclusion.

16. CHARGE OF UNPROFESSIONAL CONDUCT SHOULD NOT BE MADE IN TRIAL OF CASE. A charge of unprofessional conduct against opposing counsel should not be made in the trial of a case, but in a proceeding specially instituted to inquire into the truth of the charge.

ERROR to Franklin common pleas court.

Booth, Keating & Peters, for plaintiff in error.

J. J. Lentz and L. G. Addison, for defendant in error.

WILSON, J

This a proceeding in error to reverse a judgment below in the sum of $9,000, for personal injuries claimed to have been caused by the negligence of the plaintiff in error.