Holmden v. Craig. Whoever, by virtue of law, succeeds to the rights of an intestate in real property, is heir of such intestate, so that a husband upon whom the title to real estate is cast by the death of the intestate, is properly spoken of as the heir of the intestate. However, it is a matter of indifference whether the word heir be the proper term to apply to him who inherits. The section of the statute referred to does provide that under certain circumstances the husband shall become the owner of real estate left by the deceased wife, and in this case, the only argument used against the right of the husband in this property is equally fatal to any claim on the part of the plaintiffs in error, because their rights as well as the rights of those claiming under the deceased husband, are dependent upon the statute which provides for the descent of real estate from one who dies intestate. That one may die intestate as to certain property and not intestate as to all, is recognized by numerous authorities. Indeed, it seems too plain for argument. In the case of Bane v. Wick, 19 Ohio 328, the court had under consideration a will in which the testator bequeathed certain property. On the one hand it was claimed that the will disposed of his entire estate; on the other that it disposed of part of his entire estate; on the other that it disposed of part of his entire estate only; Judge Spalding announcing the decision of the court, begins with these words: "The only question raised by the pleadings for our consideration, is this: Did Henry Wick, by his last will and testament, dispose of his entire estate? If he did, there is an end of the case, for no one has doubted his right, under all the circumstances, to make a full testamentary disposition of his property. If he did not, then, under the statute of 'descent and distribution,' the complaints, as the legal representatives of Matilda Bane, will take the one-eighth part of such intestate estate." Here recognizing that though one dies leaving a will, he may leave an intestate estate." In the case of Gillen v. Kimball, 34 Ohio St. 352, it is clearly recognized that one may die leaving a will and still die intestate. as to some part of the property. In Gilpin v. Williams, 17 Ohio St. 397, the second clause of the syllabus reads: Cuyahoga County Circuit. "Where a testator devises to his 'daughter E, during her natural life, and to her children after her death forever, oneeighth part of his real estate, and there is no provision in the will in respect to a disposition of the remainder in case E shall die without having had issue, and there is nothing in the will showing a contract intention on the part of the testator, E takes a life estate only, although, on the death of E without having had issue, the testator will have died intestate as to the contingent revision of her share, and the same will revert to his heirs general." And there are numerous other authorities to the same proposition that one may die leaving a will and still die intestate as to part of his property. In the case of Doyle v. Doyle, 50 Ohio St. 330, [34 N. E. 166], a husband died leaving a will which was duly admitted to probate, and leaving a widow. No mention was made in the will in any wise of the wife, who, at his death became his widow. She brought suit for dower and a distributive portion of the personal estate. It was urged against her claim that she was not entitled to any dower against her claim that she was not entitled to any dower or distributive portion of it, because she did not come within any of the provisions of the statute entitling her thereto. The provisions being that where a husband dies intestate, his widow shall be entitled to dower and a distributive portion of his personal estate. And the only other provision in reference to the question, is that where any person shall die leaving a widow, and leaving a last will in which some provision is made for such widow, shall have her election whether to accept the provisions of the will or to take dower and a distributive portion of the personal estate." Clearly Mrs. Doyle came under neither of these provisions and yet the court say, in the last sentence of the syllabus: "As to her in such case, he is regarded as dying intestate." So that it is recognized by the courts that one may die testate as to a part of his property, and intestate as to the balance, and he may be testate as to certain persons and intestate as to others. For here it is said, that Doyle died intestate as to his wife. Holmden v. Craig. In Baker v. Baker, 51 Ohio St. 217 [37 N. E. 125], a will is defined to be a disposition of property to take effect after death. In Crane v. Doty, 1 Ohio St. 279, a will is defined to be "an instrument by which a person makes a disposition of his property, to take effect after his decease." In Bailey v. Bailey, 8 Ohio, 238, this lanuage is used: "What is a will? In Ohio, it is an instrument in writing signed by the party making the same, or by some other person in his or her presence, and by his or her express direction, attested and subscribed by two or more credible witnesses, and by which the party executing the same, makes a disposition of his or her property, to take effect after his or her death." Of course, this last definition would exclude non-cupative wills, but the will under consideration in this case, not being such, these definitions which are practically alike, may be taken as the true definition of a will. It has been defined as the means whereby one may dispose of his property, to take effect at his death. Indeed all definitions of a will include the idea that it is a means of disposing of property, to take effect at the death of the testator. We must bear in mind that a will always disposes of property. It is clear, therefore, that a written instrument in the form of a will which makes no disposition of property is not a will. To illustrate: If one were to provide in a writing executed in conformity with the law in relation to the execution of wills, in which the only provision made is in these words, "I will and direct that my son John shall receive no part of my estate at my death," it would seem clear that this instrument was not a will. It disposes of nothing. It leaves all the property of the deceased undisposed of, and so the party executing such an instrument die intestate. See Crane v. Doty, supra. And to the extent that one dies leaving property undisposed of by will, he may properly be said to have died intestate, and it is clearly in this sense that the word "intestate" is used in the statute, and the statute is to be construed to mean as though it read: When any person shall die leaving no will by which his real estate is disposed of, the same shall descend and pass as follows. Cuyahoga County Circuit. Suppose Mary H. Craig had by her will bequeathed to John Doe the sum of one hundred dollars and had made no other disposition of any property, it could not, with any sort of propriety be said that her real estate would not descend to these persons named in the statute as entitled to the inheritance where one dies intestate. The result of this reasoning is that we hold that W. E. Craig was the owner of these premises at the time of his death, and that the defendant in error is, by virtue of his will, the owner, as against any claim of any of the plaintiffs in error, and the judgment of the court of common pleas is affirmed. Winch and Henry, JJ., concur. TRIAL WAREHOUSEMEN. [Cuyahoga (8th) Circuit Court, November 1, 1909.] THOMAS DAVE BROWN ET AL V. MRS. ALBERT BRAY. 1. Petition in Action for Damages against Warehouseman for Injury to Goods Stored Sufficient without Alleging each Item of Damage. In an action against a warehouseman for damages to a piano and china closet stored with him, by reason of his negligence in permitting the varnish on said articles to become checked, the veneering loosened, the ivory on the keys of the piano loosened, its metal rusted, etc., all to her damages in a certain sum, it is not error to overrule a motion to make the petition definite and certain by setting out after each item the amount of damage claimed therefor. 2. Inference of Negligence to be Removed by Warehouseman. If goods are placed in the care of a warehouseman in a certain condition and are returned to the owner in a worse condition and one which would not ordinarily arise without negligence, an inference arises that the goods were damaged by the negligence of the warehouseman and under such circumstances it is not erroneous to charge that such inference of negligence must be removed by the warehouseman. 3. Charge as to Absence of Party from Court Room. Under the facts of this case, the plaintiff having testified by deposition, being absent on a pleasure trip in California, it is not erroneous to charge that "the presence or absence of the parties in the court room should not influence you in the least." *Affirmed, no op., Brown v. Bray, 83 Ohio St. 462. Brown v. Bray. 4. Apportionment of Costs on Retrial Discretionary with Court. Upon reversal and retrial of a cause with the same result, it is not an abuse of discretion to refuse to apportion the cost. J. J. McCormick, for plaintiff in error. J. A. Fenner, for defendant in error. MARVIN, J. Suit was brought by Mrs. Bray against T. D. Brown and Wm. P. Herig, partners doing business as the Eagle Storage & Moving Company. The petition set out that the defendants were carrying on a business as public warehousemen and movers; that on the 3d day of May, 1905, she placed with the defendant as such warehousemen, for storage, certain articles of furniture, including a piano and a china closet; that when she so placed this property with the defendants, the same was in good condition. She says that this bailment continued until the 3d day of April, 1906, on which day the defendants returned her property to her, but when it was so returned the piano was greatly damaged in "that the varnish and finish of piano was checked; the veneering roughened and loosened; the ivory on piano loosened, the keys would not work, the felt on piano loosened, and metal parts rusted and damaged." She says that by reason of this it became necessary to have the piano refinished and repaired, which took from the 3d of April to the 23d of September, 1906, during all of which time she was deprived of the use of the piano. She says, too, that when the china cabinet was returned to her, the varnish and finish of the same was damaged and ruined by being checked. and roughened, and that by reason of the condition of this property, when restored to her, as compared to its condition when delivered to the defendants, she was damaged in the sum of $150. To this petition the defendant filed a motion asking that the plaintiff be required to make the petition more definite and certain, by stating the various amounts of damage sustained by said plaintiff opposite each item, and the cost or expense thereof. Doubtless what was meant was, that the plaintiff be required |