These two cases are error proceedings that were heard together, involving property rights of the members of the family of John Bernard Doppes. He was the founder of a lumber business started about fifty years ago. In 1902, or 1903, he became paralyzed and turned over the business to his three sons, J. Henry, J. Charles and J. August, who conducted the business as partners. In 1904,' J. August Doppes, father of the plaintiffs, died, leaving a widow and three children, Clara, Alma and August. They were the plaintiffs in the
In May, 1906, the grandfather of plaintiffs, John Bernard Doppes, died, leaving the real estate involved here, a lot 300 x 243 feet at Dalton and McLean avenues, Cincinnati, to his two sons, J. Henry and J. Charles, and to the children of his deceased son, J. August, in equal shares. J. Henry then brought a partition suit joining all necessary parties. He was represented by Attorney Louis J. Dolle, who was also the administrator of the estate of J. August Doppes, the father of the plaintiffs. At this time, Clara, the oldest of the plaintiffs, was of age, August was seventeen years old, and Alma was fifteen years of age. Walter C. Taylor filed an answer as attorney for several of the parties in the action, including the mother of the plaintiffs, who acted as their guardian. Harlow C. Farrell was appointed guardian ad litem for the minors and filed the answer usual in such cases. Both Taylor and Farrell were associated with Mr. Dolle professionally and had their offices with him. The court ordered partition and commissioners were duly appointed, and, after the usual proceedings, the land was set off by metes and bounds. J. Charles and J. Henry received the two westerly tracts, and present plaintiffs received the easterly tract, each of which was of the same dimensions.
The contention of the plaintiffs is that the parcel of land set off to them was much less valuable than
The trial court, after rendering an opinion in which he stated that he found no fraud in the transaction, dismissed the petition, and plaintiffs prosecute error to this court.
The gist of plaintiff’s contention is that the property which they received was of less value than that which their uncles got, and evidence of real estate experts was offered to sustain their contention. In view of the statements of these experts on cross-examination, to the effect that the land on the east side of that belonging to the plaintiffs was at least equal in value to that of the uncles, which is to the west of plaintiffs’ land, and for other reasons connected with their credibility, the court attached no weight to the expert testimony, and found in substance that the property which the plaintiffs owned was as valuable as the other two parcels of similar size.
It was the function of the trial judge to determine the weight and credibility of the testimony. We do not find that his determination is against the weight of the evidence. The case is not one like Long et al. v. Mulford, 17 Ohio St., 484, or Murr v. Murr, 5 O. L. R., 125, where advantage had been taken of minors. If there was any presumption arising from the relations of the parties, such presumption was rebutted when it appeared
There is no error in the judgment in the first case with respect to the partition proceedings.
In the second suit complaint is made of the settlement of the business in which the father of the plaintiffs was a partner. At his death, Mr. Dolle was appointed his administrator. The mother was guardian of the children, and there was merit in the contention that it might be inadvisable to have her also act as administratrix of the estate of their father, as their interests might be in conflict. At any rate, it does not show bad faith on the part of the defendants.
Regular proceedings in the probate court were had in 1904, following the death of J. August Doppes, the father of the plaintiffs. The probate court appointed as commissioners William J. O’Neill, Newbold Pierson and Henry W. Meier, the last two of whom were familiar with the lumber business. They returned their appraisement to the probate court, showing assets of the partnership of the total value of $52,293.56. All parties, including the widow, consented to an entry approving and confirming this inventory and appraisement, which was filed on February'20, 1904. In accordance with the usual practice in the management of their partnership affairs, the members of the firm in January preceding the death of J. August Doppes had taken an inventory and made an appraisement of the assets of the business. It
The firm was a going concern with an established business and the contention is that no payment was made for the good-will of the concern. The trial court held that there was no fraud or unfairness in the transaction and rendered a decree in favor of the defendants. The defendants below, who are defendants in error here, urged1 that the $72,920.29 valuation by the members of the firm necessarily included the item of goodwill, because the value of the items or assets were appraised as part of a going concern and not upon their separate value as chattels, and in support of their contention cite Rammelsberg et al. v. Mitchell et al., 29 Ohio St., 22. The trial judge held that the sum of approximately $25,000, which the estate received as its share of the partnership assets, was its fair value, and he points out that the net profits of the firm had been small and the good-will was not a matter of great consequence.
In view of the facts shown by the record, coupled with the valuation of less than $53,000 by the appraisers, we can not say that the decision of the trial judge is contrary to the evidence.
It is further contended by defendant in error, on the authority of McBride v. Vance, 73 Ohio St., 258, and Davis v. Convine, 25 Ohio St., 668, that the right of action, if any there was, belonged
The judgments will be affirmed.
Judgments affirmed.