Railroad v. Hutchins (37 Ohio St. 282, 1881)

McIlvaine, J.

It is claimed by plaintiff in error, that the overruling of the demurrer to the petition was error. That sufficient facts to constitute a cause of action were not stated.

Under the liberal rules of the code of civil procedure, which require a construction favorable to the pleader, the court is of opinion that the demurrer was not well taken. As against a demurrer, we think a cause of action for damages for the conversion of timber, after the same had been severed from the land, and had become the personal property of the plaintiff, by the defendant to its own use, is sufficiently stated, whatever the rule would have been on a motion to make the petition definite and certain.

As to the ownership) of the chattels alleged to have been converted by the defendant to its own use, the plaintiff relied on the title of his wards to the land before and at the time the timber was severed from the realty.

On the part of defendant, it is claimed that the plaintiff’s wai’ds had no title whatever to the land or the timber.

To maintain the issue on his part, the plaintiff proved title to the land in one Justin Ely, and then offered the last will and testament of said Justin Ely, from which the "following extracts only are material:

(< All the residue and remainder of my estate, real and personal, wherever situate, I give, devise and bequeath to my son Charles and my daughter Lucy, to have, receive and enjoy the use, income and profit thereof in equal shares during their natural lives, respectively; and upon their decease I give, devise and bequeath the same to all my grandchildren then living, to be equally divided among them, and to their heirs forever; provided, however, that if the wife of my son Charles shall survive her husband, then she shall have the use and income of his portion thereof during her life, and the de rise to my grandchildren shall not take effect in respect to such portion until her decease.