
    Reibold v. McKerrow et al.
    (Decided February 1, 1934.)
    
      Messrs. Bigler & Denlinger, Messrs. Ozias & Ozias and Mr. W. 8. Rhotehamel, for plaintiff in error.
    
      Messrs. Bcharrer, Bcharrer, McCarthy & Eanaghan, for defendants in error.
   Kunkle, J.

In the lower court the plaintiff in error was plaintiff, and the defendants in error were defendants. We will refer to the parties as they appeared in the lower court.

This is a suit for the partition of the premises commonly known as the Reibold building in the city of Dayton, Ohio. The plaintiff filed his petition for partition in the Court of Common Pleas on September 19, 1933, at 7:54 o’clock, a. m.

In his petition plaintiff averred he had a legal right to and was seized in fee simple of the undivided one-fourteenth part of the real estate, described by metes and bounds, and that he acquired such title by devise from Louis Reibold, who died September 19, 1908, and whose last will and testament is of probate in the Probate Court of Montgomery county, Ohio.

The interests of the various defendants are set forth, and the plaintiff asks that his interest in the real estate be set off to him in severalty, or, if that can not be done without manifest injury, that the said premises be appraised and sold according to law.

•To this petition the defendant Fred E. Reibold filed his answer. For a first defense defendant says that Louis N. Reibold died in Cincinnati, Ohio, at the hour of 9 o’clock a. m., on September 19, 1908, seized of the real estate in question, and that said real estate is held in trust by virtue of the last will of said Louis N. Reibold, a copy of which will is attached and marked Exhibit A and made a part of the answer.

The defendant says that the termination of said trust created in the last will and testament of Louis Reibold, deceased, is designated by the following provision contained in item 5 of the said will, namely:

“And I hereby direct that my executor and trustee aforesaid keep the same together and that it remain as a whole, and that it be not sold or partitioned or divided for a period of twenty-five years after my decease and for said term of years. I will and direct that the same be held and managed as one property and as an entirety by said executor and trustee as aforesaid.”

Defendant says that plaintiff filed his petition on September 19,1933, at 7:54 a. m., in the Court of Common Pleas of Montgomery county, Ohio, that said plaintiff is without right either in law or equity to the filing of said petition and to the relief therein prayed for, and that the Court of Common Pleas is without jurisdiction for the hearing of the same or the granting of the relief therein prayed for. A second defense was also set forth in the answer, but it will not be necessary to consider the same. The defendant, therefore, asks that the petition be dismissed.

A demurrer was filed by the plaintiff to the first and second defenses set forth in the answer of defendant.

This demurrer was submitted to the trial court with the result that the demurrer to the second defense of the answer was sustained. The demurrer to the first defense in the answer was overruled, and the plaintiff not desiring to plead further to said first defense, plaintiff’s petition was dismissed.

Prom this ruling of the trial court error is prosecuted to this court.

Counsel for defendant in their brief discuss to some extent the ruling of the trial court in sustaining the demurrer to the second defense of the answer.

This phase of the case is not before us for review. No error has been prosecuted to this court from such ruling of the trial court.

The only phase of the case presented to us for consideration relates to the judgment of the trial court in overruling the demurrer to the first defense of the answer and in dismissing the plaintiff’s petition.

The sole question presented to this court for determination is when did the 25 year term of said trust estate terminate? Was the petition for partition filed in proper time or was it filed one day before the plaintiff was entitled to maintain such an action?

Did the plaintiff have the right to or was he in possession of the property in question on the day he filed his petition?

The possession or the immediate right to possession is necessary in order that a suit in partition may be maintained. Lauer v. Green, 99 Ohio St., 20, 121 N. E., 821.

The provision of the will of Lonis N. Reibold above quoted provides that the property may not be sold or partitioned or divided for a period of 25 years after my decease.

Counsel have furnished the court with very exhaustive briefs, in which the question of computation of time is discussed in detail and many pertinent authorities are cited.

We have considered these briefs with care, but will not undertake to discuss the many authorities cited. We will content ourselves with announcing the conclusion at which we have arrived after a consideration of the respective authorities relied upon by counsel.

Section 10216, General Code, provides:

“Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday.”

Section 10217, General Code, providés:

“When an act is to take effect, or become operative, from and after a day named, no part of that day shall be included. And if priority of legal rights depends upon the order of events on the same day, such priority shall be determined by the times in the day at which they respectively occurred, except as otherwise especially provided by law.”

The facts above detailed as found in the first defense of the answer of defendant are, by the demurrer, admitted to be true. In addition to the statutes above quoted, the latest' expression of our Supreme Court upon this general subject is found in the case of Neiswander v. Brickner, 116 Ohio St., 249, 156 N. E., 138. The syllabus of the Brickner case reads as follows:

“1. Under Section 4736, General Code, signers to a remonstrance may withdraw their names before and np to the end of the 30-day period allowed for the filing of the remonstrance.
“2. Under Section 10216, General Code, when the 30-day period provided for in Section 4736, General Code, expires upon a Sunday, signers of the remonstrance may withdraw their names therefrom upon the following Monday.
“3. Section 10216, General Code, applies generally to all acts required or permitted by law to be done and is not limited in its application to Part Third of the General Code. (Kerr v. Keil, 60 Ohio St., 607, 54 N. E., 1104, overruled.)”

This general subject is discussed in detail in the opinion of the court as delivered by Judge Allen.

The case of Kerr v. Keil, 60 Ohio St., 607, 54 N. E., 1104, is not only expressly overruled, but the rule as announced in the case of State v. Elson, 77 Ohio St., 489, 83 N. E., 904, 15 L. R. A. (N. S.), 686, is approved, and the following quotation from such decision is made a part of the decision of Judge Allen:

“It must, we think, be conceded, in obedience to the clear weight of authority, that in the absence of language compelling the application of a different rule, the established general rule governing the computation of time, whether at common law or under the statute, is that the first day of the period named is to be excluded, and the last named day is to be included, and that this rule applies alike to all provisions for the computation of time whether in civil or criminal cases. In this state it is provided by Section 4951, Eevised Statutes (Civil Code), that: ‘Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded. ’ True this provision applies in terms, only to the computation of time within which an act is required by law to be done; but we can see no good or sufficient reason, nor has any been suggested, why the same rule of computation should not be applied in computing the time within which an act is permitted by law to be done. The mode of computing time, in any particular case or class of cases, is of far less importance than that there should be some established and uniform rule on the subject. Obviously, it is not for the public good, nor in the interest of the due administration of justice, that there should be two rules, or that the rule should be different or less certain in criminal than it is in • civil cases. In our opinion this rule of the statute should be followed and applied in the interpretation and construction of all statutes, save those where the language of the provision as to time, itself clearly forbids it. ’ ’

Among the many authorities cited, directly reflecting upon this question, is that of Bemis v. Leonard, 118 Mass., 502, 19 Am. Rep., 470, the first paragraph of the syllabus of which is as follows:

“In computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises.”

The case of Lester v. Garland, 15 Ves. Jun., 248, 33 Eng. Rep. R., 748, is also pertinent.

From our consideration of the facts as admitted by the demurrer, and of the authorities cited, we can not escape the conclusion that in computing a period of 25 years after the death of Louis N. Reibold the day of his death must be excluded.

If we are correct in this conclusion then the petition of the plaintiff was filed prematurely by one day. The judgment of the lower court must therefore be affirmed.

Judgment affirmed.

Hornbeck, P. J., and Barnes, J., concur.  