Franklin County.

and we think it is because her sister's name is not to this paper, that she claims she did not sign it. Her attention had not been called to the fact of her name to this paper until the trial below, and the lapse of time furnished, we think, ample reason for forgetting it, if she had signed it. No motive is shown in any other person to sign her name to it. At the time, this controversy could not have been in contemplation-no controversy over assessments that could have suggested to anyone that her signature to the paper would become important.

The petition had a sufficient number of names to confer jurisdiction under the statute and authorize the commissioners to proceed. Hence all that the parties had in contemplation at the time could as well be accomplished without her name as with it. There was no reason—at least none is made to appear-why anyone should attach her name, but herself. It cannot be said to be unusual to forget such a fact, especially when as in this case, there was no imperative reason why the fact should be fixed in the mind for the purpose of remembering it. For no reason was it required she should remember it. Our opinion is, she signed it and has forgotten it. We recall counsel's oral argument, to concede as much. This supplemental petition asked for all contained in the original, and in addition that the sidewalks be graded, as provided for in the so-called Taylor law. The commissioners took no action in the matter until after the supplemental petition was filed and then acted upon both, as one petition. Plaintiff was, therefore, an active partici pant in the promotion of the improvement. So far as doing the work was concerned, she obtained the improvement as prayed for in the supplemental petition, as well as that asked for in the original petition.

It is contended by plaintiff's counsel that, admitting all these facts, the plaintiff may still challenge the assessment as to the excess of special benefits, which question is one of fact, and her counsel claims the testimony clearly shows that the amount of the assessment is in excess of special benefits. The leading case cited and relied upon by plaintiff's counsel in support of this claim is that of Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169]. It was there held "to be the general policy of the legislation to restrain the power of local as sessment, by fixing a limit * beyond which municipal corporations may not go." This policy is the same without doubt as to all local assessments, unless the contrary clearly appears. An intention to adhere to that policy will be presumed, in the enactment of par ticular statutes relating to local assessments, and a construction given hem. if possible, allowing the application of the general limitations.

In the application of this rule to the statutes to be construed in

Murphy v. Sims.

that case, it was held that a party petitioning for the improvement, thereby consenting to the raising of a certain proportion of its cost by assessment on all the abutting property, was not estopped to maintain an action for an injunction, restraining the collection of the amount of said assessment in excess of special benefits. The assessment in that case, as in this, was by the foot front and the contention of Birdseye was, that notwithstanding it was by that method, yet the limitation providing that an assessment for such an improvement could not exceed 25 per cent of the taxable value of this property, applied.

1

The statute under which the assessment was made in that case provided that such assessment by the foot front should be made on the abutting property "as provided by the laws of the state of Ohio." By this provision, some of those of the general statutes of the state relating to assessments for local improvement were incorporated into, and became a part of, the special, act and intended to govern assessments under the act. It was for this reason, fully set out in the opinion, that the owner had the right to presume that the assessment would be made, according to the provisions of said statutes, and hence he was not estopped from maintaining his action to enjoin any assessment in excess of the amount provided in the provision of former statutes incorporated into the special act.

Section 6 of the statute here under consideration provides that the assessment shall be by the foot front upon the abutting property, not exceeding a depth of 250 feet, etc., in accordance with the provisions of law now enacted or hereafter enacted, applicable thereto, "and not inconsistent with this act,"-very unlike the special act under consideration in Birdseye v. Clyde (Vil.), supra. To make the assessment upon the basis of the taxable value of the property, would be inconsistent with the provisions of the act, as the plaintiff is one of the petitioners, and thereby active in the promotion of the improvement, knowing that her lands would be assessed, for a part of the costs and expenses to the amount found by the commissioners per foot front. Such conduct and knowledge on her part would now make it inequitable to others if she were allowed to complain of the illegality of the assessment because the statute under which the proceedings were had was unconstitutional, or that the assessment was in excess of special benefits. Shepard v. Barron, 14 O. F. D. 417 [194 U. S. 553; 24 Sup. Ct. Rep. 737; 48 L. Ed. 1115].

At the time the proceedings were instituted and the improvement made, a law of a similar nature was held to be constitutional, in the case of the State v. Franklin Co. (Comrs.) 35 Ohio St. 458. The

Franklin County.

fact that similar laws were long afterward held to be unconstitutional would not entitle her to the remedy by injunction. Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1].

The exceptions to the master's report are therefore sustained, and as a consequence motion to confirm is overruled, and plaintiff's petition is dismissed at her costs.

Wilson and Dustin, JJ., concur.

CONTEST OF WILL-EVIDENCE.

[Hamilton (1st) Circuit Court, March, 1905]

Jelke, Swing and Giffen, JJ.

FRANK SCHOCH ET AL. V. JULIUS SCHOCH ET AL.

1. REFUSAL TO GIVE CHARGE AS TO TESTATOR'S BELIEF IN SPIRITUALISM IS PROPER IF ALL THE FACTS PROVED ARE NOT STATED.

The refusal to charge the jury in a will contest that the belief of the testatrix in spiritualism afforded no ground to set the will aside is not erroneous, where such charge did not present all facts as to her belief and practices as they appeared from the evidence.

2. TESTIMONY AS TO DECLARATIONS BY WITNESS TENDING TO SHOW DESIGN TO EX ERCISE UNDUE INFLUENCE OVER TESTATRIX ADMISSIBLE.

In the contest of a will the admission of testimony as to certain declarations on the part of a beneficiary and his wife made prior to the death of the testatrix, for the purpose of showing a design on their part unduly to influence her in their favor in the execution of such will, is not prejudicial

error.

3. ADMISSION OF CERTAIN TESTIMONY NOT A GROUND FOR REVERSAL WHEN OBJECTIONS RELATE SOLELY TO MODE OF PROOF.

Where objections to the admission of certain testimony go to the mode of proof rather than to its substance, and it appears that the adverse party was not prejudiced thereby, the admission of such evidence is not reversible

error.

ERROR to Hamilton common pleas court.

Keam & Keam, for plaintiffs in error:

Cross-examination of witnesses under Rev. Stat 5243 (Lan. 8752) does not give counsel the right to question his own witness, as if he were the witness of the other party. Simons v. Mooney, 12 Circ. Dec. 73. (22 R. 271); Roush v. Wensel, 8 Circ. Dec. 141 (15 R. 133).

The court having given special charges, as requested under Rev. Stat. 5190 (Lan. 8699), must not repeat special charge in genera charge, and then proceed to qualify, modify or in any manner to ex plain the same. Rupp v. Shaffer, 12 Circ. Dec. 154 (21 R. 643); Bait

Schoch v. Schoch.

v. Wilson, 10 Ohio St. 14; Walker v. Stetson, 14 Ohio St. 89 [84 Am. Dec. 362]; Caldwell v. Brown, 6 Circ. Dec. 694 (9 R. 691); Lutterbeck v. Railway, 5 Circ. Dec. 141 (11 R. 279); Avery v. House, 1 Circ. Dec. 468 (2 R. 247).

Erroneous charge. West v. Knoppenberger, 26 O. C. C. 168.

When all the evidence and the charge to the jury are made a part of the record by bill of exceptions, and the charge appears to be erroneous, the reviewing court, although no exception was taken, will consider whether the case was fairly tried. Dollman v. Haefner, 4 Circ. Dec. 290 (12 R. 721).

A special exception to the charge is not always necessary. Baker v. Pendergast, 32 Ohio St. 494 [30 Am. Rep. 620]; Weybright v. Fleming, 40 Ohio St. 52.

Horstman & Horstman, for defendants in error:

Admission of testimony to show feeling of unfriendliness, etc. Wigmore, Evidence Secs. 1714, 1715, 1800, 2207; Sugden v. St. Leonards, L. R. 1 P. D. 154; Biles v. Holmes, 11 Ired. 16; State v. Howard, 32 Vt. 380; Travelers Ins. Co. v Mosley, 75 U. S. (8 Wall.) 397 [19 L. Ed. 437]; Elmer v. Fessenden, 151 Mass. 359 [24 N. E. Rep. 208; 5 L. R. A. 724]; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 [12 Sup. Ct. Rep. 909; 36 L. Ed. 706]; Commonwealth v. Trefethen, 157 Mass. 180 [31 N. E. Rep. 961; 24 L. R. A. 235]; Bacon v. Charlton, 61 Mass. (7 Cush.) 581; State v. Hayward, 62 Minn. 474 [65 N. W. Rep. 63]; Day v. Stickney, 96 Mass. 255; Abbott, Trial Ev. (2 ed.) Sec. 63, p. 147; Kirkpatrick v. Jenkins, 96 Tenn. 85 [33 S. W. Rep. 819]; Kinkead's Instruc. & Jour. Ent. 484; Page, Wills Sec. 423.

When the feeling of contestant towards testator is material, the declarations of the contestant expressing such feelings are admissible, even if it is not shown that the testator was informed of such declarations. Page, Wills 478, 507; Stevens v. Leonard, 154 Ind. 67 [56 N. E. Rep. 27; 77 Am. St. Rep. 446]; Henderson v. State, 105 Ala. 82 [16 So. Rep. 931]; Burney v. Torrey, 100 Ala. 157 [14 So. Rep. 685; 46 Am. St. Rep. 33]; Eastis v. Montgomery, 95 Ala. 486 [11 So. Rep. 204; 36 Am. St. Rep. 227]; Higginbotham v. Higginbotham, 106 Ala. 314 [17 So. Rep. 516]; Manatt v. Scott, 106 Iowa 203 [76 N. W. Rep. 717; 68 Am. St. Rep. 293]; Denning v. Butcher, 91 Iowa 425 [59 N. W. Rep. 69]; King v. Holmes, 84 Me. 219 [24 Atl. Rep. 819]; McHugh v. Fitzgerald, 103 Mich. 21 [61 N. W. Rep. 354]; Merriman, In re, 108 Mich. 454 [66 N. W. Rep. 372]; Stewart v. Jordan, 50 N. J. Eq. 733 [26 Atl. Rep. 706]; Hindman v. Van Dyke, 153 Pa. St. 243 [25

Hamilton County.

Atl. Rep. 772]; Barney, In re, 70 Vt. 352 [40 Atl. Rep. 1027]; Slinger, In re, 72 Wis. 22 [37 N. W. Rep. 236]; Nash v. Railway, 95 Wis. 327 [70 N. W. Rep. 293]; Reynolds v. Adams, 90 Ill. 134 [32 Am. Rep. 15]; Carpenter v. Hatch, 64 N. H. 573 [15 Atl. Rep. 219]; Beaubien v. Cicotte, 12 Mich. 459; Harrel v. Harrel, 62 Ky. (1 Duv.) 203; Campbell v. Carnahan, 13 S. W. Rep. 1098 (Ark.).

GIFFEN, J.

This was an action to set aside a will upon the grounds that the testatrix was not of sound mind and memory, and was unduly influenced.

The jury returned a verdict finding that the paper writing purporting to be the last will and testament of Mary Schoch, deceased, was not the valid last will and testament of the said Mary Schoch.

The judgment rendered upon this verdict is now sought to be reversed for the alleged error of the court in refusing to give the following special charge at the request of the plaintiffs in error:

"I charge you, that even if you should find from the evidence that Mary Schoch, deceased, during her lifetime was a believer in spiritualism, and did believe during her lifetime that she could have communication with spirits in the other world, that this would be no ground. for the setting aside of her wishes in making a distribution of her property in her last will and testament."

The objection to this charge is, that it does not embrace all the facts. brought out at the trial concerning the belief and practice of spiritualism by the testator, nor was there any pretense on the part of the defendants in error that any or all of the facts concerning spiritualism proved at the trial constituted the only ground for setting aside the will.

The charge, therefore, if given, would have been misleading, and we find no error in the refusal of the court to give the same to the jury. It is also claimed that the court erred in its general charge and its comments upon the special written instructions given to the jury before argument, but no objection was interposed at the time and upon the whole record we think no prejudicial error resulted.

The next alleged error appears on pages 87 and 88 of the bill of exceptions. Barbara Deckham was permitted to testify over the objection of counsel for plaintiffs in error to declarations made to her by Lena Schoch, the wife of Frank Schoch, one of the plaintiffs in error:

"I was up there and I told the old lady what I think of her before she croaked." And, "Well, she won't eat a meal at my place; because if she had one she never would eat another." Also, "If I go to the