
    Evers et al. v. Williams, Admr., et al.
    (Decided July 29, 1932.)
    
      Mr. Powell Grosley and Mr. Wm. G. Groh, for plaintiffs in error.
    
      Mr. A. L. Herrlinger, Mr. Michael G. Heints and Mr. Harry J. Wernlce, for defendants in error.
   Ross, P. J.

This is a proceeding in error to review a judgment of the court of common pleas of Hamilton county, rendered in favor of Charles F. Williams, administrator with the will annexed of Charles J. Eyling, deceased, upon his cross-petition to quiet title against the plaintiffs, plaintiffs in error in this court. Ferdinand, Louis H. and Leonora Evers, children of Henry H. Evers, brought the action against Charles F. Williams, administrator with the will annexed of Charles J. Eyling, deceased, and others interested in Eyling’s estate, to quiet the title of the plaintiffs to certain property which they claimed by reason of the language of item III of Eyling’s will, which reads as follows: “I give and devise to Henry II. Evers, my bookkeeper, and his heirs forever, my three houses No. 525, 527 and 529 Findlay Street, Cincinnati, Ohio, together with the lots of land upon which they are situated, with the privileges and purtenances to the same belonging. ’ ’

Williams, as administrator, cross-petitioned, asking that the title be quieted against the plaintiffs.

It is now admitted that Evers died before the testator, Ryling.

June 13, 1929, an action was brought by Williams, as administrator with the will annexed, and as trustee, to construe the will of Ryling. At this time it was not known to Williams that Evers had died before his testator, and consequently the effect of such fact was not in issue in the proceeding to construe the will. Evers’ children were made parties. The decree in this construction proceeding states: ‘ ‘ That it was the intention of said Charles J. Ryling by his said will to devise all of his estate to his said nieces and nephews, subject only to the payment of his debts and the bequest to Elizabeth Eyling in Item II thereof, and the devise to H. H. Evers in Item III of said will.” This is the only reference in the decree to Evers or his children.

September 30, 1929, a partition proceeding was filed by Ferdinand Evers against Martha E. Evers, wife of Ferdinand Evers, Louis H. Evers and Estelle Evers, his wife, Leonora E. Evers, unmarried, William F. Hess, auditor of Hamilton county, and Edgar Fried-lander, treasurer of Hamilton county, Ohio. The purpose of this proceeding was to partition the property devised to their father Henry H. Evers by item III of the Eyling will.

Williams, as administrator with the will annexed, was made a party defendant, and, still ignorant of the fact that Evers had died before the testator, did not contest the title of the Evers children, and a decree of partition was entered, and sale ordered and made. When the purchaser, discovering this fact, refused to take the title, this proceeding was commenced to quiet title in the Evers children, and for the first time an issue was made as to the title of the Evers children, in view of the fad that Evers predeceased the testator.

The Evers children had been permitted to collect the rents of the property devised to their father, and to occupy it without paying rent, and this is set up as the first defense in the second amended reply to the cross-petition of the administrator. The ignorance of the administrator of the facts is a bar to this contention.

It is also asserted in the reply that the proceeding to construe the will and the partition proceeding render the claim of the administrator res judicata.

The question presented by the present proceeding has not been heretofore adjudicated, and the doctrine of res judicata does not apply.

The bequest to Evers lapsed upon his death prior to that of the testator. This is a matter of law_ and was never passed upon before. The time of his death was a fact — never presented, as far as the record shows, to any court before. The doctrine of res judicata is well stated in 15 Ruling Case Law, 949, Section 429: “The doctrine of res judicata is a principle of universal jurisprudence forming part of the legal systems of all civilized nations. It may be said to inhere in them all as an obvious rule of expediency and justice. Briefly stated, this doctrine is that an existing final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.”

No estoppel has been shown in the administrator, and the judgment is affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  