
    Stewart v. Welch.
    A will, probated, in A. d. 1858, contained tbe following provisions:
    “20th. I will and direct tliat all tbe residue of my estate, not herein specially bequeathed or disposed of, be equally distributed among my surviving children, and the heirs and representatives by families of those who may have deceased.
    ‘ 23d. I hereby authorize and empower my executors, the survivor or survivors of them, to sell and convey such parts of my real estate as may remain undisposed of at my decease to any of my legatees who may elect to take the same, or to others, as they shall deem most expedient or beneficial in the speedy and satisfactory settlement of my estate.”
    
      Without fault, the executors were ignorant that the testator had had a daughter Phebe, who, being dead, was represented by her grandson. They distributed the residue to the surviving children, and the heirs and representatives of the other deceased children. Their final account, showing this, was filed and approved by the probate court in 1860. ' Throughout their administration they had duly published the statutory notices. As early as 1853 the grandson knew of his relationship to the testator; where the latter lived; that he had a large estate, and would probably soon die. The grandson could have (at his pleasure) readily ascertained when the testator died and the contents of the will. He did not inform either executor of his existence, or claim, until in 1871. In 1878 suit for his share was begun by W. and K. claiming as his assigns. Seld:
    
    1. As against the executors his action is barred.
    2. A contract based upon a champertous agreement is void. Although said contract is in form an assignment of the claim, and suit is brought in the assignee’s name, if it was made for the purpose of carrying on litigation without expense to and free from the control of the assignor, who received and is to receive nothing except a share of the recovery, the transaction is champertous, and the action should.be dismissed, if defendant so asks, as soon as the court ascertains its nature.
    Error to tbe District Court of Athens County.
    In February, A. d. 1858, Daniel Stewart, of Athens county, Ohio, died testate. His will was admitted to probate, and on March 3, 1858, the executors named therein were duly appointed and qualified. The will read thus:
    “I, Daniel Stewart, of the township of Rome, in the county of Athens, in the state of Ohio, for the purpose of arranging and disposing of my worldly affairs in the manner I deem most suitable, equitable and just, while as yet by the blessing of Divine Providence I remain in the exercise of my right reason, do make and publish this, my last will and testament, as follows, to wit:
    “1st. I will and direct that all my just debts and the expenses of my last sickness and burial be fully and promptly paid.
    “ 2d. I give and bequeath to my beloved wife, Louisa Stewart, should she survive me, six hundred dollars and the use and occupation of that certain part of a lot and the' “Brick House” thereon in the town of Athens, conveyed by Thomas Francis to Hull Foster and by said Foster to me, in lieu of dower in the remainder of my real estate, agreeably to the terms and intent of the marriage contract between us, dated August 24th, 1841, together with all the household and other property by her brought into my family, and any other household goods she may desire to retain.
    “ 3d. I give and bequeath to my brother, Arehelaus Stewart, in case he shall survive me, in token of my love, one hundred dollars.
    “ 4th. I give and bequeath to the heirs of my son, Andrew Stewart, deceased, five hundred dollars, to be equally divided among them by families in addition to advances made to my said son in his lifetime.
    “ 5th. I give and bequeath to my son, William Stewart, four thousand dollars, subject to the deduction of such sums as I may have advanced to him, and for which receipts may have been taken.
    “ 6th. I give and bequeath to Emily, Lauretta and Martha, the three daughters of my son, Charles Stewart, deceased, two hundred and fifty dollars each, subject to like deductions for advances.
    “7th. I give and bequeath to my son, John Stewart, four thousand dollars, subject to like deductions.
    “ 8th. I give and bequeath to my son, Ezra Stewart, four thousand dollars, subject to like deductions.
    “ 9th. I give and bequeath to my son, Alexander Stewart., four thousand dollars, subject to like deductions.
    “ 10th. I give and bequeath to my son, Daniel B. Stewart, four thousand dollars, subject to like deductions.
    “ 11th. I give and bequeath to my son, Hiram Stewart, four thousand dollars, subject to like deductions.
    “ 12th. I give and bequeath to my daughter, Lois Webster, two thousand dollars, subject to like deductions.
    “ 13th. I give and bequeath to my daughter, Sally Warren, two thousand dollars, subject to like deductions.
    “ 14th. I give and bequeath to my daughter, Lucinda Kincade, two thousand dollars, subject to like deductions.
    
      “15th. I give and bequeath to my daughter, Polly Root two thousand dollars, subject to like deductions.
    “ 16th. I give and bequeath to my daughter, Harriet Stewart, two thousand dollars, subject to like deductions.
    “ 17th. I give and bequeath to the missionary society of the Methodist Episcopal Church, for the support of missions, five hundred dollars.
    “ 18th. I will and direct that my household goods that my wife shall not desire and elect to retain for her own use be distributed in as near equal proportions as may be among my five daughters.
    “ 19th. I will and direct that my books be distributed to and among those whose names I may direct and cause to be written therein.
    “ 20th. I will and direct that all the residue of my estate not herein specially bequeathed or disposed of be equally distributed among my surviving children, and the heirs and representatives by families of those who may have deceased, and in case my estate shall prove insufficient for the payment of all my legacies, debts and expenses of administration, that the deficit be deducted ratably from all said money legacies except that of six hundred dollars to my said wife.
    “ 21st. I will and direct that a sufficient portion of said bequest of five hundred dollars to the missionary society of the Methodist Episcopal Church be applied for the purpose of constituting my son, John Stewart, and grandson, William Fletcher Stewart, life directors of the parent missionary society of said church, and the remainder for the purpose of constituting my wife, Louisa Stewart; my daughters, Lois Webster, Sally Warren, Polly Root and Harriet Courrier; my son-in-law, William Kineade, and my daughter-in-law, Eliza D. Stewart; Sarah Stewart, wife of John Stewart; Julia Stewart, wife of William Stewart, life members of said society.
    “ 22d. I further will and direct that the price of any lands I may have conveyed in fee or otherwise by way of advance-merit before my decease to any of my said legatees, or for their use, be deducted from the bequest of such legatee.
    “ 23d. I hereby authorize and empower my executors, the survivor or survivors of them, to sell and convey such parts of my real estate as may remain undisposed of at my decease to any of my legatées who may elect to take the same, or to others, as they shall deem most expedient or beneficial in the speedy and satisfactory settlement of my estate, and also to compromise and adjust any matters of dispute or doubt which may arise in such manner as may to them seem most expedient, just and equitable.
    “ 24th. I further will and direct that my executors shall be allowed and receive six per cent, and no more on the amount of money and property by them settled and distributed in the due course of administration of my estate as compensation for their services, and in no case for extra charges beyond that amount.
    “25th. I hereby constitute and appoint my sons, John Stewart and Hiram Stewart, and my friend, Archibald Or. Brown, executors of this, my last will and testament, with full and adequate powers and authority for the carrying of the same into early, full and complete effect.
    “ In testimony whereof I, the said Daniel Stewart, have hereto set my hand and seal this 2d day of December, A. D. 1852.”
    The executors settled the estate, paid the legacies, and distributed the residue among the surviving children and the representatives of those deceased children who were named in the will. The final account, filed in Athens probate court, showed this distribution, and that no part of the estate remained unadministered, or undistributed. This account was approved by said court on August 14, 1860, and the following entry made:
    “ State of Ohio, Athens County, ss.:
    
    “Probate Court, August 14th, 1860.
    “ The executors of the estate of Daniel Stewart this day made a final settlement with the court after due notice being given of the time of settlement, and it is found that said executors have faithfully paid out according to law and the will of said decedent, all the assets of said estate, and that there is nothing remaining in their hands.
    “Calvary Morris,
    Probate Judge.”
    All statutory notices were duly published during the administration, including those of the filing and hearing of said final account. No exceptions were ever filed.
    In 1871, Nelson L. Hilliard came to Athens and claimed that he was the grandson and sole surviving heir of Phebe Derthick; that she was the first born child of the testator by his first wife. Hilliard stopped at a hotel, but called upon Daniel B. Stewart (one of testator’s sons), and remained at his house for the night. They exchanged such information as either had touching the family history. Hilliard was told of the settlement and distribution of the estate. He made no demand of either executor, sought no counsel, and returned to his home in Cuyahoga county, Ohio. Joseph L. Kessinger talked with Hilliard at the hotel, and learned his relationship to the Stewarts as claimed by him. Kessinger told Johnson M. Welch what he had thus learned, and the latter, without any invitation from Hilliard, went to Cuyahoga county and opened negotiations. It was understood between Welch and Kessinger, that the latter should share equally with the former in any contract with Hilliard. The negotiation produced a contract reading thus:
    “Nelson L. Hilliard, of the County of Cuyahoga, Ohio, who claims to be a great-grandson of Daniel Stewart, deceased, late of the County of Athens, Ohio, has and hereby does sell, assign and transfer to Johnson M. Welch, of said Athens County, Ohio, for and in consideration of the covenants and agreement of said Welch, hereinafter set forth, all his interest, claims, right and title as an heir of the said Daniel to his distributive share of the estate left by said Daniel at his -death, according to the terms and provisions of the last will and testament of said Daniel Stewart, or to his right as such heir to any and all part or parts of said estate under said will, and said Hilliard hereby authorizes said Welch to bring or defend any suit or suits necessary to establish or protect his said rights as such heir — or to make him a party plaintiff of defendant in any suit now pending in said Athens County, involving his said rights as such heir. Provided in no case shall said Hilliard pay or be liable for any costs or expenses of any kind in any steps said Welch shall deem necessary to take to establish his, said Hilliard’s, said heirship.
    “ The said Welch hereby agrees to pay said Hilliard for his said interest, one half of whatever sum he may recover or receive on said claim. Provided, however, that said amount is not to be paid until and only when said Hilliard’s rights as such heir is established, and his share of said estate has been realized in money. Said Welch binds himself to prosecute the said claim of said Hilliard hereby so assigned to him with reasonable dispatch.
    “ This agreement is not to be binding and carried out unless said Welch, before he receives any money by reason thereof gives said Hilliard the guarantee of Judge John Welch and E. H. Moore, both of said Athens County, that he will fulfil and perform the same on his part.
    (Signed) N. L. Hilliard.
    “ May 12,1871. Johnson M. Welch.”
    The guarantee was given. After some unsuccessful attempts to enforce Hilliard’s claim, by intervening in actions brought on notes that had belonged to the testator, but had been sold by the executors, Welch and Kessinger, on the 6th of March, 1878, sued the surviving executors (John Stewart having died), in Athens common. pleas; claiming one fourteenth of $65,650, the amount distributed under the residuary clause of the will, and interest thereon. Hilliard was made a nominal defendant.-
    The executors answered:
    1st. A denial of a transfer to Welch, with additional averments reading thus:
    “Said, defendants allege that said Welch on said 12th day of May, A. ». 1871, and prior thereto, was, and still is, an attorney and counselor-at-law, admitted to practice in the courts of this State, and then well knew that said claim of said Hilliard against said defendants would be contested by said defendants, and if insisted upon, would be litigated. Thereupon on said 12th day of May, A. D. 1871, said Welch, for the purpose of stirring up and maintaining a suit against said defendants, covenanted and agreed with said Hilliard, to bring a suit against said defendants to establish said claim, and to prosecute such action at his. (said Welch’s) cost and expense, and without any cost or expense to said Hilliard, and that said Welch might bring any suit or take any step, which he should deem necessary to enforce said claim, and without any interference or control on the part of said Hilliard, or any power in him to release, compromise or adjust said claim ; and in consideration thereof said Welch agreed to pay to said Hilliard one half of whatever sum said Welcli might recover or receive on said claim, and nothing more, and with the provision that said consideration should not be paid until and only when said Hilliard’s claim should be established, and his pretended share in said estate should be realized in money.
    “ In pursuance of said agreement said Welch and Hilliard, on said 12th day of May, 1871, made and signed a paper writing, purporting to assign and transfer said claim to said Welch upon the consideration, covenants and terms above set forth; but said defendants allege that said pretended assignment is illegal, champertous and void, and that said Joseph L. Kessinger was privy thereto.”
    The second defense denied Hilliard’s pedigree, &c., in detail.
    The third denied charges of combination, &c., to defeat Hilliard’s claim. Their fourth defense set out their proceedings in settlement of the estate, the action of the court on their final account, and added:
    “Upon such settlement and order said executors were finally discharged from their trust, which then ceased and terminated. Neither of said executors had any knowledge, or information or suspicion of the existence of said Hilliard, or of his relationship to said testator, or of his claim to be a legatee under said will until more than ten years after all the assets of said estate had been distributed, and their said trust had been finally settled and terminated. Although said Hilliard had notice by publication of the appointment of said executors, and of the filing of their said account, he never made known to said executors, or to either of them, his claim or demand in the premises until the year 1871, but suffered said executors, without objection, to make distribution as aforesaid of all the assets of said estate.”
    This defense also denied the averments in the petition that Hilliard had no notice of the testator’s death, &e., until 1871.
    The fifth defense adopted the statements and denials of the fourth, and averred that “ the cause of action set forth in the petition did not accrue within ten years before this action was commenced, &c.”
    The sixth defense pleaded the six years’ bar, and a seventh the four years’ bar.
    The plaintiffs combined a reply and demurrer thus:
    “1. The plaintiffs, for reply to the defendants’ first ground of defense, say that the plaintiff, Welch, was not a practicing attorney-at-law on or before said 12th day of May, 1871, nor did he then know that said claim would be litigated— and plaintiffs deny that said Welch made the champertous agreement set forth in the answer.
    “ 2. For reply to fourth ground of defense the plaintiffs say they deny that said Hilliard had notice of the appointment of said executors, or of the filing of said accounts, or of the distribution of the assets, as alleged in the answer.
    “3. And the plaintiffs,demur to so much of the 5th, 6th and 7th grounds of defense as set up the statutes of limitation — first, because they do not, nor does either of them, set forth facts sufficient to bar the action; and, second, because they are multifarious and contradictory, containing both denials and new matter in confession and avoidance.”
    After a judgment in the common pleas, the cause was appealed to, and tried in, the district court. That court found for the plaintiffs, and made a decree in their favor for $7,518.49. A motion for a new trial was overruled, and a bill of exceptions presenting all of the evidence duly-made part of the record.
    The evidence showed that prior to 1790 the testator was living with a woman, reputed to be his wife, in Litchfield county, Connecticut. She then had two children — a girl several years old, named Phebe, and a baby son named Andrew. The testator, about 1790, disposed of his property, abandoned his wife and the children, and went to New Jersey with a woman, whom he thenceforward treated as his wife. About 1802 he moved to Athens county, Ohio, and resided there until his death in February, 1858. Children were born to him, both in New Jersey and Ohio. At some time he married the woman with whom he had left his Connecticut home. About 1795 his first wife married one Taylor, and had by him a son, born in 1796. After this son, whose name was Philo Taylor, had grown old enough to notice and remember occurrences, the testator visited his first wife in her Taylor home. The daughter Phebe grew up, married James Derthick, and died about 1803, leaving a child, Calista Adaline, then a baby. Derthick took the baby to his father’s in Litchfield county, Connecticut, and she there grew up, within a few miles of the former home of the testator, and of the then home of the Taylors, as was known to her grandmother and Philo. The boy Andrew, after an appenticeship in Connecticut, followed the testator to Athens, Ohio, and was received and acknowledged by the testator as his “ son by his first wife.”
    Calista Adaline, in 1822, married Gurden Hilliard, had two children, Phebe and Nelson, and died before the testator. Phebe also died, unmarried and childless, before the testator. Nelson was born in 1824, lived for three years, or more, in Portage county, Ohio, and afterwards in Cuyahoga county. A year or two before January, 1853, his grandfather Derthick told him that Daniel Stewart was his great-grandfather ; that he was living in Athens county, Ohio; that from him he would inherit a share of a large estate, and advised him to look after it. On January 24, 1853, Nelson wrote to Daniel B. Stewart at Athens, Ohio, making inquiries about the Stewart family, but giving no hint of his object, or of his relationship. In reply he received, by due course of mail, a letter reading thus:
    “ Gttysville, Athens Co., Feb. 28, 1853.
    
      “Dear Sir: Yours of Jany. 24 Directed to Daniel B Stewart was duly reed by me altho it was not exactly my name yet I suppose it was intended for me. I live 13 miles below Athens in Rome Tp Guysville P. O. As it respects my parentage my Fathers name is Daniel Stewart his fathers name was Daniel his Mother name was Phebe & had a sister named Phebe whom died many years since, they were all Born in Litchfield State of Connecticut. My Father is now over 90 years old was in the Revolution war I am one of his younger sons. Born in Ohio and am now over 40 years old and one of a Large Family, 6 Brothers of us 5 Sisters m3r Father had but one Brother named Archelaus 10 years younger than himself had one sister Marnell Hodskip who died in Astabula Co this State. Left several children who are there now in Geneva Center or near there, there was three more sisters of my Father that stayd in Connecticut If I understood my Father right perhaps this will give 3rou enough information as to our origin to enable you to arrive at what you want. I shall be hapy to hear from you again soon.
    “ Respectfully, D. B. Stewart.
    “ if you should want any Correspondence with Hodskins, his name is Aaron he had a sister Maud Marinus Prince. Both lived in Geneva, Astabula Co. Ohio when I was there 4 or 5 years since.”
    Nelson made no further inquiry, or communication, until, in 1871, being in Logan, Hocking county, on other business, he concluded to visit Athens. What he did there, and afterwards, has been already stated.
    During his entire life the testator never spoke of Phebe (Nelson’s grandmother) as his child to any one (so far as the evidence shows), unless he did so a few months before his death to one Bowles, who did not inform any of the executors, or of the family of such conversation. It does not appear that Andrew spoke of her to any of his half brothers, or sisters, or to any other person in Ohio. They and the executors remained ignorant that she had ever existed until Nelson’s visit to Athens in 1871. The settlement and distribution of the estate was made in good faith, and was believed to be in strict accordance with the directions of the will. The executors had no reason to suspect the existence of any person entitled to a share of the residue other than those to whom distribution was actually made. Hilliard, on the other hand, had good reason to believe that his relationship to Daniel Stewart was unknown to the family at Athens, and that Daniel Stewart had not recognized Phebe Derthick as his child for more than sixty years, if ever.
    
      Harrison, Olds & Marsh, for plaintiff in error.
    I. The contract between Welch and Hilliard was clearly champertous and hence absolutely void. It could not legally operate to assign or transfer to Welch or Kessinger any interest in the claim of Hilliard against the defendants. The plaintiffs could not through or under it derive or obtain any right to maintain an action against the defendants. They,. therefore, had no cause of action.
    Broom’s Legal Maxims, *734; Walker’s Am. L., 218; 2 Blackstone’s Com. Book 4, page 135; Pollock on Contracts, 294; Martin v. Clark, 8 R. I. 389; Brown v. Beauchamp, 5 Ky., 413; Duke v. Harper, 66 Mo., 51; Ackert v. Barker, 131 Mass., 436 ; West v. Raymond, 21 Ind., 305; Key v. Vattier, Ohio, 132 ; Weekly v. Hall, 13 Id. 167 ; Reed v. Quigley, 16 Id. 445; Morrison v. Deaderick, 10 Humphreys (Tenn.) 342; Norton v. Tuttle, 60 Ill., 130; Coleman v. Billings, 89 Id., 183; 2 Story’s Eq. Jur., §§ 1048, 1049; Dewitt v. Brisbane, 16 N. Y., 508; 103 U. S., 261; Webb v. Armstrong, 5 Humphreys, 379; 29 Wis., 502; 61 Ind., 201; Hilton v. Woods, L. R., 4 Eq., 432; 2 L. R., Ch. App., 164; 14 Wis., 131.
    
      II. The settlement in the Probate Court was conclusive. Redfield on Wills, Pt. 2, p. 894; 3 Toller on Exrs. ch. 10, p. 495; Field v. Hitchcock, 14 Pick., 405; 76 Pa. St., 231; Schouler’s Exrs. and Admrs., § 528. And the statute of limitations began to run from the settlement of the account. Angell on Lira., § 166; Carpenter v. Canal Co., 35 Ohio St., 316; 33 Conn., 67; Clark v. Boorman, 18 Wall., 493; Moore v. Porcher, 1 Bealey Eq. R. (S. C.), 195; Payne v. Harris, 3 Strobhart (Eq.), 39; 2 Rawle, 287, 304; Fee v. Fee, 10 Ohio, 469; Lathrop v. Snellbaker, 6 Ohio St., 276; Kerns v. Schoonmaker, 4 Ohio, 331; Park v. R. R. Co., 23 Ind., 572.
    III. If the trust continued and subsisted after the settlement, and therefore the case did not come within the bar of the statute, still it was a stale equity, and Hilliard was guilty of such laches that equity should not relieve him.
    
      Clark v. Potter, 32 Ohio St., 59, and cases there cited.
    
      DeSteiguer & Jewett; E. A. Cuthrie and Welch Welch, for defendant in error.
    I. As to champerty: In the light of all the non-Ohio cases on the subject of champerty we think five things may safely be asserted:
    1. The English courts uniformly confine the defense of champerty to actions or disputes between the parties to the champertous contract, and never allow it in an action to recover the claim which was the subject of the contract.
    2. A decided majority of the American cases, and those of the highest authority, hold the same doctrine.
    3. There is no case, English or American, where the legal title, or the exclusive right of action was in the alleged champertor, in which the defense has been allowed.
    4. In no case has it been allowed, unless the creditor or claimant was, in some shape or manner, a necessary party to the action, liable for costs, and deprived of the right to settle or dispose of the action or controversy.
    5. Where the plea of champerty is allowed it has been allowed for the benefit, and not to the injury of the original claimant; the primary object of the court being the protection of the claimant against the machinations of the champertor, and not the protection of the debtor who refuses to pay an honest debt.
    
      Wright v. Tibletts, 91 U. S., 252; Wylie v. Cole, 15 How. (U. S.), 415; 1 Parsons on Notes and Bills, 218, 219; 3 Pickering, 184; 48 Ind., 206; Pollock on Contracts; Albany Law Journal of May 21, 1881.
    The Ohio cases which bear on the subject are: Key v. Vattier, 1 Ohio, 132; Hall v. Ashby, 9 Id., 96; Weekly v. Hull, 13 Id., 167; Lewis v. Lewis, 15 Id., 715; Reed v. Quigley, 16 Id., 445.
    II. As to the settlement and statute of limitations:
    As long as the beneficiary trusts the trustee, or is supposed to trust him, the trust is a “subsisting or continuing” trust. Whenever the beneficiary is advised that the trust is disavowed, then he ceases to trust, and the trust is no longer “ subsisting or continuing.” It would almost seem that the word “ continuing ” was put in the law purposely to meet a case like the present. By a final distribution the executors disavow the trust; but the eestue que trust “ continues ” to' trust, until he is informed of the disavowal.
    These propositions, in regard to the law of limitations in such cases, are fully sustained by the authorities, both in and out of Ohio. We cite the following:
    
      Carlisle v. Exr's of Loring, 10 Ohio St., 198; Williams v. Pres. Society, 1 Id., 478; Williams v. Van Tuyl, 2 Id., 336 ; 16 Id., 11, 16 ; Tappan, 198; Wright, 370 ; 17 Ohio St., 484, 505; 22 Id., 27; 14 Id., 424; 20 Id., 310; 5 Id., 87; McAfee v. Philips, 25 Id., 374; 7 Id., pt. 1 p. 21; 24 Ohio St., 160, 169; 39 Mo., 292; 9 Fla., 187; 4 How. (U. S.), 560; 3 Johns ch., 190, 214, 216; 2 Watts (Pa.), 161, 163; Hill on Trusts, 168, 169, 583; See also Arden v. Arden, 1 Johns. Ch., 313 and cases cited at p. 316 ; Perry on Trusts, 186, 867; Tiffany on Trusts, 715; 2 Am. R., 572; 7 Blackford, 86, 16; Davis v. Bagley, 2 Id., 572; Chitt. on Con., 311; See also State v. Immel, 2 Ohio St., 561; Albany Law Journal, April 22, 1882, p. 317. Also same Journal, of February 17, 1883, p. 135, of Dec. 2,1883 and of June 1880, p. 495.
   Granger, C. J.

It seems to us that the evidence showed that the testator did not consider Phebe Derthick as one of the deceased children referred to in the 20th or residuary clause of the will. If, before her birth, he had married her mother, the law would presume her legitimacy. But it cannot be fairly claimed that the record before us does more than to show that, at a time when Phebe was several years old, the testator was living with her mother as his wife, and that he acknowledged Andrew as “his son by his first wife.”

While the law of evidence, ex necessitate, permits hearsay as to pedigree; and general reputation that a man and woman lived and cohabited in a community as man and wife, has been held sufficient to establish the fact of marriage, the weight to be given to such evidence varies with the circumstances of each case. No witness of the marriage between Daniel and Phebe’s mother was examined. If such marriage occurred prior to Phebe’s birth, it was celebrated as early as 1783. Of the witnesses for Hilliard’s claims, Philo Taylor was born in 1796 ; Lucy Ann Judd in 1790; Sallie Baldwin in 1791; Mercy G. Alcott in 1797; Jedadiah Gaylord in Í803; and Anne Derthick in 1799. No one of these, therefore, could, of their own knowledge, tell of the cohabitation of Daniel and Phebe’s mother, and its accompanying reputation. Whatever they testified was a repetition of another person’s narrative of the events of years prior to the birth of all of these witnesses. Only two of those witnesses ever heard any of Daniel’s family say anything on the matter. Jedadiah. Gaylord’s mother (a sister of Daniel) told him “ about my (his) uncle Daniel Stewart going away from Connecticut and leaving his wife there and taking another woman with him.” Gaylord added, “ I also heard her say that he left a son, by the wife he left, by the name of Andrew there. When I was a boy Andrew came to my father’s on his way to Ohio to find his father.” Mercy G. Alcott, sister of Jedadiah Gaylord, related what their mother had told her thus: “ I heard mother say he was married in Connecticut; do not recollect who-she said he married, nor when and where; he left his wife in Connecticut with two children and in low circumstances, and his wife in the family way. * * * Andrew was one. As near as I can recollect, the other one’s name was Covil.” Now, Schovil was the maiden name of Phebe’s mother. Mrs. Alcott also testified that Andrew told her “ that his father had fifteen children ; three born in Connecticut and the rest in Ohio.” As she saw Andrew when he was “about 17 years old” of course he could not, and did not, tell her that his father had 12 children born in Ohio. Moreover, if Andrew told her of three children born in Connecticut he included Philo Taylor, who was not his father’s son. It is an undisputed fact that several of the testator’s children were born in New Jersey. Hence we .must conclude that either Andrew was incorrect in his statement, or Mrs. Alcott’s memory of them is defective.

As Andrew was an infant when his father abandoned his mother, anything said by him before he rejoined his father, as to Phebe’s pedigree, was necessarily hearsay from his mother’s side of the house.

In 1795 that mother married Taylor, and subsequently the testator openly visited her at Taylor’s house. ' The tes'tator married another woman while Andrew’s mother was yet living. There is no evidence of any divorce. He acknowledged Andrew. Andrew, before reaching manhood, confidently made the then long and difficult journey from Connecticut to Ohio, to see his father. But no witness speaks of any such acknowledgment of Phebe. Neither Phebe, nor any of her descendants, ever sought recognition until Hilliard visited Athens in 1871. For three fourths of a century there was an absence of recognition on one side, ■and of all claim for such recognition on the other.

It is urged that the testator, when he made his will, supposed that Phebe had died childless. Of this there is no •evidence. Her child was reared to womanhood within five miles of the home of Mrs. Taylor (Andrew’s mother). Philo Taylor saw her there. Mrs. Taylor did not die until Calista was in her teens. Andrew did not leave Connecticut until after Phebe had died, and her child .had been left at its grandfather Derthick’s, within five miles of his own home. Calista was almost a woman when Philo Taylor came to Athens in 1818. She was married before he left Athens county. Andrew and Philo were half brothers, and Calista was certainly their niece. These facts do not prove that the testator knew of Calista’s existence, but they render improbable the suggestion that he did not know of it.

Andrew married, and had nine children. It • does not appear that he ever named to them Phebe, or her child.

uJames Derthick never told Hilliard of his relationship to Daniel Stewart until after 1850 — when Nelson was more than twenty-five years old. Although told of his supposed great-grandfather’s wealth, of his own heirship, and that Daniel Stewart, in 1853, was more than ninety years old, he made no further inquiry until 1871. Even then he showed no confidence in his claim, and if left to himself, would probably not have asserted it.

The only witness who claims to have ever heard Daniel Stewart speak of leaving more than one child in Connecr ticut, is Peter W. Boyles. Boyles moved into the house of Daniel in the fall of 1857, and Daniel died there in February, 1858. Whatever talks they had were in that interval —Daniel being almost 95 years old. Boyles’ narrative not only conflicts with the power of attorney of June, 1857, but it contains his assertion that Daniel “ wanted me (him) to have A. Gr. Brown to come down so that he could make an alteration in the disposition of his property.” Neither Boyles, nor any other witness, testified that any such message was carried to Brown. The will, the power of attorney, and the entire evidence as to Daniel Stewart’s life, satisfy the mind that if he had desired such a message carried, he would have been obeyed.

Looking at the whole will in the light of the evidence in the record; it is plain that the testator did not, in his own mind, include Phebe among his “ deceased children ” referred to in clause 20. Possibly, if her legitimacy had been clearly established, it would be the duty of the court to hold that in law he did intetad to so include her. But the evidence does not so establish her relationship to the testator.

Leaving this question of pedigree, we turn to the facts presented .in support of the third defense.

In August, 1860, the executors, in open court, declared that their office under the will was at an end; that they had paid out the entire residue to specified persons as proper distributees. The court approved their final account, found that they had fully distributed the estate according to law and the will, and discharged them. From that time the statute of limitations began to run against all persons who had notice of this termination of the trust relation of the executors. While numerous cases thus hold, Justice Milieu, of the Supreme Court of the United States, in Clark v. Boorman’s Exrs., 18 Wall., 493, clearly and concisely stated the rule thus:

“It may be conceded that, so long as a trustee continues to exercise his powers as trustee in regard to property, that he can be called to an account in regard to that trust. But when he has parted with all control over the property, and has closed up his relation to the trust, and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor, and time begins to cover his past transactions with her mantle of repose.”

Nelson Hilliard, long a resident of Ohio, was especially bound to take notice of our statutes regulating’the settlement of estates by executors and administrators in the probate court. In Februarjq 1853, he knew that the man whom James Derthick spoke of as his great-grandfather, possessed of a large estate, was a fixed resident of Athens county; that he was then more than ninety years of age, and therefore his death was probably nigh .at hand. He had been told of his relationship and of his probable inheritance. His maternal grandfather had urged him to look after it. After reading D. B. Stewart’s letter he knew that the old man’s death at an early day was probable. Long a resident of Ohio, he knew that her law allowed a limited period for the administration of an estate. He had good reason to believe that Daniel Stewart was dead, and that his estate was being settled in ignorance of his own existence and claims. His voluntary omission to inquire as to the death, and to notify the executors of his claim, produced the distribution without assigning any share to him. True, he knew nothing of the will, but if he was a great-grandson of the decedent he was an heir. Until informed that there was a will he had a right to consider himself as an heir, and therefore having an interest that he ought to make known to those administering upon the estate. If he did not have actual notice of the proceedings in Athens probate court it was his own laches that prevented it. The executors acted in good faith, and without negligence. They gave every notice required, or authorized by law. Having no knowledge of Hilliard, or of his claims, they could not specially notify him. We think his knowledge of the position imposed upon him a duty in favor of the executors.

The error of the trial court was in holding that Hilliard’s notice dated from his visit to Athens in 1871, when he first learned of the will and its contents. But we think that, under the peculiar circumstances hereinbefore detailed he must be held to have known all that proper diligence on his part would have told him. This included everything in the probate court, from the probate of the will to the discharge of the executors. What Hilliard actually knew in January, 1853, “put him upon inquiry.” That being so he should be treated as having learned all that reasonable inquiry would have made known to him. While equity refuses to allow the statute of limitations to run in favor of a trustee, who has disclaimed the trust, until his beneficiary has notice of such disclaimer, it will not allow a beneficiary to remain silent, and without inquiry, while he has good reason to believe that the trustee, innocently ignorant of his claims, is distributing the estate to others, without treating the beneficiary so acting as one having notice of all that his own laches left him ignorant of.

Applying this principle to Hilliard, it is evident that nothing but his own failure to inquire prevented his actual knowledge of the appointment, proceedings, account and discharge of the executors at the time. Certainly the most ordinary diligence would have informed him of everything as early as 1863. The suit was not begun until 1878.

This conclusion requires a reversal of the judgment below and a final judgment for the executors, but we ought to notice the defense in which champerty is pleaded.

The facts have been fully stated. The district court held that the agreement between Hilliard and Welch was champertous. In that holding we concur. But that court decided that the executors could not avail themselves of the champerty; that Hilliard had completed the transfer of his rights to Welch; that it was an executed contract, and could not be annulled. In this we see error.

If Welch and Kessinger had obtained actual possession of Hilliard’s share of the estate in specie, the champertous agreement could not be so used as to dispossess them, or to prevent their recovery against any subsequent wrong-doer. To such, and kindred cases, the doctrine of the trial court well applies.

But the pending action is the identical one for whose prosecution Hilliard and Welch contracted. If the parties to such a contract, by a mere change in its form; the introduction of a few words; by agreeing that the claimant shall assign his claim to the champertor; that the latter shall prosecute the suit in his own name, and pay to his assignor a share of the recovery, can escape the power of the court and force the tribunal which condemns champerty to actively aid the champertor, the common law was indeed blind when it pronounced champertous contracts void.

Courts are not so helpless that they can be rendered powerless by the easy change of words in the contract, or the shifting of parts in a play of champerty. Such tribunals, when not shackled by statute, look through words and form to substance; deal with things, rather than names ; look at what was intended, more than at what was said, or written, in all cases.where evidence, legally admissible, establishes the actual facts. It is plain that the contract before us was skilfully drawn; that the purpose was to commit champerty in such form that it would be impossible for any person, or court, to defeat its object. To find and decree for Welch and Kessinger is to interpose actively in giving effect to a champertous contract. This the court should refuse to do. We think the first defense was one the executors had full right to make; that, the evidence established it, and that upon it judgment ought to have been rendered dismissing the action. Whether Welch was an attorney at law, or not; practicing or not, was immaterial.

In Weakly v. Hall, 13 Ohio, 168, it was held that “ In Ohio there is no statute against champerty, or maintenance, but contracts founded on such considerations are void.” Whether such contract stipulates that the action shall he in the name of the champertor, as purchaser of the claim, he to share the recovery with his assignor, or that the claimant himself shall be plaintiff and allow the champertor .to. control the suit and to receive his share of the recovery, is unimportant if the agreement is actually champertous. The contract is an entirety. It cannot be carried out without the aid of a court. That aid the court should refuse, if satisfied of the champerty, regardless of the form of the agreement. The cases cited' by counsel confirm us in this view. The judgment of the district court is reversed, and the action dismissed at the costs of the plaintiffs below.

Martin, J.

I concur in the judgment on the ground that Hilliard’s heirship is not established by the testimony.  