359

City of Cincinnati v. Corry.

damages by reason of the change of grade, and if such claims are not made as provided, the same shall be barred.

The question in the case at bar arises whether the board of public affairs has complied with the statute with that apparent strictness indicated by the language of sec. 2327, which reads as follows: "Proceedings with respect to improvements shall be liberally construed by the councils and courts to secure a speedy conclusion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured as to limitation and assessment of private property and compensation for damages sustained."

It is also well settled by numerous decisions of the Supreme Court of this state, that a change of grade affecting improvements of an abutting property owner, is as much a taking of property as the appropriation of the land and private property for the street itself, and that in such cases all proceedings and requirements to give the municipal authorities jurisdiction, should be strictly complied with, and that all statutes pertaining thereto and giving jurisdiction should be strictly construed.

Section 2293 (a) Rev. Stat., commonly called the Two Million act, provides for the publication of the change of grade. Reference to the notice given in the present instance, shows that the property owner is notified that a necessary change of grade will be made to accommodate an improvement, the details of which necessary change are to be found on file in the office of the chief engineer of the board of public works, thus in brief informing the property owner that better information may be obtained as to the manner in which the property is to be affected by visiting one of the city departments.

Certainly it was not the intention to charge the property owner with notice of the precise character of the improvement by providing in an ordinance for all the details of the improvement, and simply filing such details in the office of the chief engineer of the board of public works. Legal notice can not be so construed as to require a person to go, for instance, to a public office and there get the information which the law requires should be brought home to the party in terms sufficiently descriptive of the improvement intended.

As held in the case of Harbeck v. City of Toledo, 11 O. S., p. 219, the notice should contain all the material facts, and making it reasonable, specific and certain as to what the corporate authorities proposed to do, and in such a way that from the notice itself the property owner might know with definiteness and accuracy just how far above or below the existing grade the owner's lands and improvements wonld be after the change was made, or to what extent the ingress or egress to and from the premises would be affected by the change. The language of the court in the case cited, to-wit: "If a municipal corporation avails itself of the statute to take private property without the owners consent, it must strictly follow its provisions," sustains us in the view we take in the case at bar; that is, that the notice given to the property owners was insufficient in the description of the character and extent of the improvement and its effect upon the abutting property damaged thereby.

360

Superior Court of Cincinnati.

MUTUAL RELIEF ASSOCIATION.

[Superior Court of Cincinnati, General Term, April, 1890.]

360

YOUNG MEN'S MUTUAL LIFE Ass'n. v. SARAH A. HARRISON ET AL.

1. A member of an association for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of the deceased members may designate his mother as the beneficiary, and cause the usual certificate to be issued in her name, and it is not essential that she be a resident of the member's family.

2. The will of a member directing "all policies of insurance" upon his life to be invested and used by his wife for the benefit of herself and their children, is not such an execution of the power of appointment as will control the fund; it appearing that the deceased had other policies of insurance, and it not appearing to be clear, by the language of the will, that there was an intention to again exercise the power of appointment by naming another beneficiary, the member having once directed payment previous to his death,

MOORE, J.

The Young Men's Mutual Life Association, a corporation under the laws of Ohio for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of the deceased members, filed its petition in special term, alleging that on October 15, 1883, it issued to one Wm. H. Harrison a certificate of membership, which provided that said Harrison was a member of the third division of said association, and in the event of his death during the continuance of said membership, that his mother, Sarah A. Harrison, should be entitled to the sum of $1,000. The petition further alleges that Harrison died on or about the first day of April, 1887, and that while the said Sarah A. Harrison is the beneficiary named in the certificate, that Alice A. Harrison, who is the widow of decedent, and made a party defendant on her own motion, claims that she is entitled to the said sum of $1,000 by virtue of a will which she claims was made by said decedent, leaving the fund to herself and children; that, under the circumstances, it cannot safely pay the fund to either of said parties, but is ready to pay or dispose of the same as the court may direct.

Alice A. Harrison filed an answer, in which she averred that at the date of the issuance of the certificate, nor at any time subsequent thereto, was the said Sarah A. Harrison a resident of the family or an heir of the deceased, but that she, the said Alice A. Harrison, and her minor children, at the date of said certificate, and up to the time of her husband's death, were such. That by the last will and testament of said decedent, he devised to his wife, said Alice, "all moneys that may be received under and by virtue of any and all policies of insurance that he had upon his life, to be invested and used by her for the benefit of herself and their children."

On submission, the court at special term rendered judgment in favor of Sarah A. Harrison, the beneficiary named in the certificate of membership.

The said Alice Harrison, and the guardian of the minor children, now presented their petition in error to reverse the judgment of the special term.

The plaintiffs in error contend that they are entitled to the fund in uestion by the terms of the last will and testament of said decedent;

360

Young Men's Mutual Life Association v. Harrison et al.

that under the act of incorporation of the Young Men's Mutual Benefit Association, payments of stipulated sums of money are confined to the families and heirs of the deceased members, and that the mother of said Harrison not being a member of his family, cannot be a beneficiary; that therefore the fund becomes part of the estate of the deceased member, to be disposed of for the benefit of those living with the family and as part thereof, or as his heirs, according to their construction of sec. 3630, of the Rev. Stat., which section provides as follows: "A company or association may be organized for the purpose of mutual protection and relief for its members, and for the payment of stipulated sums of money to the families or heirs of the deceased members of such company or association." They further contend, if Mrs. Sarah Harrison is a legal beneficiary, that the designation of her as such was changed by the terms of said deceased member's will.

It will appear by the record that the mother of W. H. Harrison was not living with the family of the deceased at his death, and for the purposes of this controversy we do not think it necessary to refer to the question whether she was or not.

If it be true, that the mother was not a resident member of the family, and therefore not a legal beneficiary, then certainly the contract is void ab initio, and there is no fund to pass. If the contract is void because not made for the benefit of an heir or a member of the family circle of the deceased member, how can these claimants maintain their position or claim to a fund which was created for a person outside of the immediate family and not an heir? Although we do not deem it essential in the determination of the question of the right to the possession of this fund, yet we might very reasonably hold that the legislature did not intend that the word "family" should be used in a sense so restricted as to exclude the kindred of a member not actual members of his household; indeed we have the authority of our Supreme Court (Arthur v. Odd Fellows Beneficial Ass'n, 29 Ohio St., 557), in a matter concerning the disposition of a fund created by an association organized under the act governing the association in the case at bar, wherein it was held that "the laws and regulations adopted by a beneficial association incorporated and organized under the act of April 20, 1872, Ohio L. Vol. 69, p. 82, determine the rights of the members and the association; and a fund raised by the association in pursuance of such laws and regulations, to be paid to the family or heirs of a deceased member, in the manner herein specified, unless otherwise directed by such member in his lifetime, will, on failure of the member to give such direction, be controlled by such laws and regulations." And then the laws and regulations of the association grouped the beneficiaries under its statutory authority to pay to "families and heirs," as the widow, children, mother, sister, father or brother of a deceased member; and the court in that case recognized such persons as beneficiaries in the order named.

It is quite plain that the legislature intended that the benefits should not be extended beyond the kindred of a member, and used words of a very general signification, the term "family" covering all the persons. named.

As a matter of public policy, the legislature intended to prohibit the farming out of certificates of insurance, to creditors or strangers by mutual relief associations. This view is supported by our own Supreme Court in the case of the Mutual Aid Ass'n v. Gonser, 43 Ohio St., 1, where it was held that the assured was not vested with the right to bequeath

Superior Court of Cincinnati.

360

the proceeds of a certificate of membership in such a mutual protection or relief association to a stranger or a creditor, and fairly indicating that that class of persons were the only kind excluded.

The pleadings and record in the case at bar do not show what class of persons the laws and regulations of the plaintiff's society designated as beneficiaries under the designation "families or heirs."

If we are right in assuming that Mrs. Sarah A. Harrison is a legal beneficiary, did the will of the deceased member operate as a change in favor of his widow and children? We think not, under the instruction of the Supreme Court, in Arthur v. The Odd Fellows Beneficial Ass'n, supra, we find that "Where by the laws and regulations of such association the fund to be paid respectively to the widow, children, mother, sister, father or brother of a deceased member, if not otherwise directed by the member previous to his death, the relatives will take the fund in the order named, unless the member in his life-time executed such power of direction and appointment, thus changing the order of payment, and the will of a member, who died seized of property real and personal, devising and bequeathing to his children 'my estate and property real, personal and mixed,' without referring to the power or the subject of it, is not such an execution of the power as will control the fund." With this ruling we have the fact in the case at bar that previous to the death of the member he directed payment to be made to his mother, and she is the only party named, and the certificate was delivered to her, and has at no time been in the hands of assured member-therefore it will be seen that the power of appointment was exercised, and cannot be changed unless it be clear that the intention is again to exercise the power of appointment and name another beneficiary. It will appear that the testator had other life insurance policies that passed under the provisions of the will, thus satisfying the words of the will without supposing an intention to change the appointment already made.

There is another reason why we think the beneficiary named in the certificate in the case at bar, is entitled to the fund, and it is with the exclusion of the theory that she was living with the "family," or is "an heir," of a member of the association.

In pursuance of the laws and regulations of the association, and upon the death of the member in question, the managers of the association levied an assessment upon its surviving members, and paid the amount called for by the certificate of membership into this court, and have expressed their intention to waive any irregularity or illegality growing out of a possible want of authority to issue the certificate in the name of Sarah A. Harrison, as mother of the member. The question of the want of power to issue the certificate is not raised by any other party. The mother is in possession of the certificate by delivery to her by the association. The association expresses its willingness to pay the fund to her as the beneficiary named in the certificate. The association has received from the member his dues or assessments as the same were called for. In fact, the contract has been executed. All authorities in like cases direct the application of the principle of estoppel, as against the association setting up a want of power to issue a certificate in the manner indicated, and we think unless the association complains no one else can. Judgment affirmed.

NOYES and HUNT, JJ., concur.

Francis C. Ampt, for plaintiffs in error.

Healy & Brannan and R. S. Fulton, contra.

379

Kusta v. Kimberly, Treas, et al.

DOW LAW TAX.

379

[Cuyahoga Common Pleas, 1890.]

CHARLES KUsta v. David H. KIMBERly, Treas. et al.

Where a person commences on the first day of May, in any year, the business of trafficking in spirituous, vinous, malt, or any intoxicating liquors, such person is only required under sec. 3 of the amendment of the Dow law, (85 vol. O. L. 117) to pay an amount proportionate to the remainder of the assessment year; but in no case to be less than $25.00. And in such cases, where the person so commencing business tenders to the auditor the sum of $25.00, the tender is sufficient, and he can not be charged or assessed in any amount beyond said sum of $25.00.

SOLDERS, J.

In this case the plaintiff says in his petition that on the first day of May, 1890, he commenced the sale of intoxicating liquor in this county. That on the second day of May, he tendered to the auditor a sum the proportionate amount to the remainder of the assessment year, to-wit: the sum of $25.00; that the auditor refused to accept this sum or any sum less than $50.00, and that the plaintiff has been assessed upon the tax duplicate in the sum of $50.00 with interest and penalty; that on the tenth day of May, the plaintiff made the same tender, which was refused, and he brings the tender into this court and deposits it with the clerk thereof. To this petition a demurrer is filed. The question is, what is a proportionate amount under the amendments to the Dow law? Under sec. 1, the assessment is $250.00 for the entire year. The assessment year is the year following the fourth Monday in May. This plaintiff began the first day of May, 1889; the assessment year is from the fourth Monday in May, 1889, to the fourth Monday of May, 1890. Section three says, that when such business shall be commenced in any year, after the fourth Monday of May, said assessment shall be proportionate in amount to the remainder of the assessment year, except that it shall be in no case less than $25.00. By this assessment year I take it as meant the assessment year after the fourth Monday in May, or May 27th. Said assessment shall be proportionate in amount to the remainder of the assessment year except in no case shall it be less than $25.00. In the case at bar the business was commenced the first of May, hence he should pay from the first of May, to the end of May, the time being less than one month. He should pay something less than one-twelfth of $250.00 or about $18.90 hence, his tender of $25.00, which the plaintiff had deposited with the clerk, is a sufficient sum. The demurrer is overruled. The defendants not wishing to further plead, the injunction in this case is made perpetual and the defendants are ordered to strike off the duplicate all of the assessment in excess of $25.00 on deposit with the clerk in full of the assessment.

Wilson and Sykora, for plaintiff

T. K. Dissette, for defendants.