
    The State of Ohio, ex rel. Charles Harkness et al. v. Howard Matthews, Auditor of Hamilton County.
    'Where three executors of an estate reside in the same township, two of them within the corporate limits of a village, the other without such limits, and the three have possession, in law, of the taxable moneys, credits, bonds, and stocks of the estate, the same must, in view of the equities and analogies of the statute (which does not expressly provide for such a case), be entered for taxation—one-third as of the place of residence of each executor.
    Mandamus. Error to the district court of Hamilton county.
    On the 24th day of October, 1859, on the petition of Charles Harkness, Charles L. Gano, and Thomas L. King, executors of the last will and testament of Anthony Harkness, deceased, an alternative writ of mandamus was issued out of the district court of Hamilton county, directed to Howard Matthews, Esq., auditor of said .county, which reads as follows:
    *“ Whereas, it has been suggested to us that Thomas L. King, residing in the eastern precinct of Springfield township, in our said county, and outside of the village of Glendale, did, on the 23d day of April, 1859, as one of the executors of Anthony Harkliess, late of said county, duly make out and return to Joseph B. Compton, assessor of said eastern precinct of Springfield, a sworn statement of the personal property and effects of the estate of said Anthony Harkness, deceased, amounting to $217,323, which return, it is alleged, was, by error or mistake of said assessor, improperly listed and returned by him to you in the list of the village of Glendale, and not in the list of the said eastern precinct of Springfield ■ township. Now, therefore, we being willing that fall and speedy justice should be done in the premises, do command you, that immediately upon the receipt of this writ, you transfer the listing of the personal property, credits, and effects of the estate of Anthony' Harkness, deceased, returned by Thomas L. King, one of the executors of said decedent in due form, from the duplicate or list of the village of Glendale, for the current year, to the duplicate or list., of the eastern precinct of Springfield township for the current year, in your office, and to assess the taxes of the current year upon said' estate so returned as upon property in said eastern precinct, or that you, Howard Matthews, auditor as aforesaid, appear before the-judges of our-said district court of Ohio, within and for said county of Hamilton, at the court-house in Cincinnati, in said county, on or-before the 29th day of October, a. d. 1859, at 9 o’clock a. m., to show cause why you have not done so. And have you then and there this writ, with your return therein of having done as you are hereby commanded.” ■>
    
    On the 29th day of October, 1859, the auditor made the following answer to said writ:
    “ The respondent, Howard Matthews, auditor of Hamilton county, Ohio, for answer to the alternative writ of mandamus allowed, tested, and sealed on the 24th day of ^October, 1859, says, that in or about the month of May, 1858, Anthony Harkness, then a resident of the incorporated village of Glendale, in Springfield township, in said Hamilton county, died, leaving ar. last will and testament, wherein he appointed the relators executors thereof; that on the 18th of May, 1858, the said will was duly proved and admitted to record in the probate court of said county, and letters testamentary were thereupon issued to said relators,. who were thereupon qualified, and have acted as such from that time to the present; that the said relators, Charles Harkness and'; Charles L. Gano, then and ever since resided in the said village of Glendale; that said J. B. Compton was the assessor, not of the ■ eastern precinct of Springfield township, but of the entire township, and as such served notices, in the form furnished by the respondent, as prescribed by law, on the said Charles Harkness and Charles L. Gano, requiring them to list the personal property subject to taxation, which by law they were bound to list; that the-estate of the said Anthony Harkness, deceased, was returned to the • ■respondent, by the said assessor, as having been listed in Glendale by T. L. King, one of the executors, as follows: Moneys, $49,950; -credits, $163,373; bonds and stocks, $4,000; making a total of $217,323. And respondent is informed and believes, and so charges the fact to be, that at the time of said listing, the evidence of said •credits, and the said bonds and stocks, were in the custody and control of the said Charles Harkness, within the village of Glon•dale, and that it'was the intention of the said Thomas L., King, in making out said list, to cause the said estate to be returned, upon -behalf of all the relators, as being subject to taxation in the village of Glendale. Wherefore the respondent submits to the court, whether a peremptory writ should be issued herein.”
    The following is an agreed statement of facts, filed by the counsel of all the parties, on the 5th day of November, 1859 :
    *“It is agreed that the following facts shall be admitted :as proven and in evidence in this cause:
    “ That Anthony Harkness, the testator, was a legal resident in ■the village of Glendale, in Springfield township, Hamilton county, .at the time of his decease, which was on or about the 10th day of May, a. n. 1858.
    “ That by his last will, duly proven and recorded in the probate •court of said county, 18tb of May, 1858, the relators were nominated his executors, and were duly qualified, and took out letters .as such, from said court, and ever since have acted as his executors-
    “ That at the time-of taking out said letters testamentary, the relator, Charles Harkness, resided iii Glendale, the relator, Charles JD. Gano, resided in Butler county, and the relator, Thomas L. King, resided in the eastern precinct of Springfield township, two miles from Glendale; that soon afterward said Gano became a resident of Cincinnati, and on or about the first week of April, 1859, became, and ever since has been, a’ resident in Glendale; that said ■Charles Harkness continued to reside at Glendale until (he) recently', since the commencement of this action, became a resident ■of Cincinnati, and that said King has continued to reside, as before, in the eastern precinct of Springfield.
    “ That Joseph B. Compton, as assessor of Springfield, on the 22d day of April, 1859, filled up and addressed.1 to the estate of A. Harkness, Thomas L. King, one of the executors,’ a notice to make out and hold in readiness for him a statement of the personal jproperty, moneys, credits, etc., belonging to the estate of A. Harkness, made out and ‘listed by Thomas L. King, administrator,’ -affirmed to, and delivered to said assessor by him, on the 23d day ■of April, a. m. 1859, signed ‘ Thomas L. King, administrator,’ amounting in the aggregate to $217,323—moneys, $49,950; credits, $163,373; bonds and stocks, $4,000: $217,323—and returned by the said Compton to the defendant, and listed thus : ‘ Estate of A. Harkness; Thomas L. King, *one of the executors,’ by said ■Compton, in his assessment-book, as of the village of Glendale.
    “ Thát said Compton addressed another notice to said King, individually, which was made and returned by said King in his name, as agent of his wife, amounting to $1,692, which was likewise returned to defendant, and listed by Compton, in his assessment-book, as of Springfield township.
    “ That said Compton addressed another notice, 14th April, 1859, to the said Charles L. Gano, individually, which was made out and returned by said Gano, in his own name, amounting to $3,075, returned to defendant, and listed by said Compton, in his assessment-book, as of Glendale.
    “ That said Compton addressed a like notice to the said Charles Harkness, individually, but which was not returned, said Harkness informing said Compton that he made his return in Cincinnati, as •one of the firm of A. G. Cheever & Co.'
    “ That said Compton addressed two other notices to said Charles Harkness, on the 21st of April, 1859, one addressed to him as J Trustee of Mary A. Fosdick,’ the other addressed to him as ‘ Trustee of Sylvester N. Fosdick,’ both of which were duly made out and delivered by him as trustee, to said Compton, on the 9th of May, 1859, returned by him to defendant, and listed by said Compton, in his assessment-book, as of Glendale, said Fosdicks being legatees, and said Charles Harkness trustee for them, under the will of said A. Harkness.
    • “ That the printed form of each and all the notices so served by ■said Compton, was the same as that hereto annexed.
    
    “That the bonds, bills, stocks, notes, and evidences of debt were mostly kept in a safe at the mansion of said ^testator in ■Glendale, but under the joint control of the three relators, where said Charles Harkness then resided with the widow, and that the moneys and other evidences of debt were kept at the Commercial Bank in Cincinnati, where they were deposited to the credit of the-executors, and the moneys were subject to the check of said CharlesHarkness.
    11 That upon the return by said Compton to the defendant, of the-statement so made and delivered to him by said King, as executor, and the said assessment-books of Springfield and Glendale, the said defendant, by order of the board of equalization, transferred said listing to the estate of Anthony Harkness from the list of Glendale-to the list of the eastern precinct of Springfield, but afterward transferred the same back to the list of Glendale; and being requested by the relators to transfer the same again to the list of Springfield, so that the estate should be taxed as of that precinct. refused so to do.
    “ That the total levy for the current year, as certified by the proper authorities to defendant, and to be assessed by him and. levied, is for the eastern precinct of Springfield eight 67-100 mills, and for the village of Glendale eleven 80-100 mills.”
    The district court, upon a hearing on the alternative writ, the-answer thereto, and the agreed statement of facts, finding that the relators were not entitled, as executors, to have relief to the-extent demanded, refused a preremptory mandamus, and dismissed the petition and alternative writ at the costs of the relators, and-they excepted and filed their petition in error in this court, to reverse the judgment of the district court.
    
      Xing & Thompson, and Thurman and Fullerton, for the relators.
    
      Ferguson & Long, for defendant.
    
      
       Thé printed form annexed to the agreed statement is in the ordinary form for that year.
    
   *By the Court.

As the three executors resided in the-same township, two of them within the corporate limits of the-village, the other without such limits, and the three had possession, in law, of the taxable moneys, credits, bonds, and stocks of the estate, the same must, in view of the equities and analogies of the statute (which does not expressly provide for such a case), be entered for taxation—one-third as of the place of residence of each executor.

Judgment accordingly.  