Franklin County. Burt L. Rees," and to my grandson, Walter B. Huffman, share and share alike, my home property and in item 5 the disposition of property therein devised, is to the grandsons the same as in item 4, except as to the time when they are to have possession. By item 7, the testatrix uses the same language, "I give, devise and bequeath to my grandson, Burt L. Rees," his heirs and assigns forever the realty therein described, and by item 6 the testatrix gives, devises and bequeaths to the grandsons, Burt L. Rees and Walter B. Huffman, all the rest and residue of her estate both real and personal. No other persons except these grandsons, it seems from the will itself, were in the mind of the testatrix whom she desired should have her estate, unless the fact that in items 4 or 5 where she provides that in case of the death of one or both of the grandsons before the expiration of the time therein stated, that the share of the deceased grandson should go to his children, and if one should die without children, then the share of the deceased grandson should go to the survivor, children and to his heirs forever. It will be noted first, that the devises, under items 4 and 5 are not to the trustee but direct to the grandsons. From this alone we think it is apparent that the testatrix intended to give the grandsons an immediate vested interest therein, and intended simply to delay the possession thereof until a future time. This view we think is justified by the fact that the grandsons are to have and enjoy all the benefit that could arise out of the bequests whilst the control thereof was in the trustee. It is further to be borne in mind that the bequest in item 4 is real estate and hence does not fall within the line of those cases where the bequests are those in the direction to pay or distribute at the expiration of a period named as was the devise in the case of Richey v. Johnson, 30 Ohio St. 288, and relied upon by counsel for the university as the controlling authority in the case at bar. In that case the executors were directed to sell the testator's farm after death of the widow and to distribute the proceeds arising from the sale equally among his brothers and sisters living at that time, and to the children of such as had died before the death of the widow. We are, therefore, of the opinion, that the grandsons, Rees and Huffman, took a vested estate in the real estate devised by item 4, and in consequence thereof, the liens of the judgment creditors of Burt L. Rees are superior and prior to any interest or estate, that the university took under the deed to it, and a decree may be so drawn. Dustin and Wilson, JJ., concur. Hazzard v. Wallace. PLEADING-TRIAL-AMENDMENTS. [Cuyahoga (8th) Circuit Court, November 7, 1904.] Hale, Marvin and Winch, JJ. WILLIAM W. HAZZARD V. JOHN B. WALLACE. AMENDMENT OF PETITION TO CONFORM TO FACTS PROVED SUBSTANTIALLY CHANGING PLAINTIFF'S CLAIM PROPERLY REFUSED. It is not error to refuse leave to file an amended petition conforming to the facts proved at the trial, where the amended petition offered for filing substantially changes the plaintiff's claim. Laning R. L. 8629 (R. S. 5114). ERROR to Cuyahoga common pleas court. Blandin, Rice & Ginn and William Howel, for plaintiff in error. WINCH, J. Plaintiff filed his petition against defendant in the common pleas court alleging in substance that on a certain day defendant for a valuable consideration agreed to buy of plaintiff thirty shares of stock in a certain corporation and pay therefor $3,000, tender of the stock by plaintiff and refusal of defendant to pay. Further alleging that he at all times has been and still is willing to deliver said stock on payment of said sum, plaintiff asked judgment in the sum of $3,000. The answer was a general denial, and a jury being waived, the issues thus made were tried to the court. After the introduction of the plaintiff's evidence, the defendant made a motion to arrest the evidence and render judgment for the defendant, and said motion being argued and submitted to the court, the court expressed its opinion that the evidence did not make a case entitling the plaintiff to recover under the allegations of the petition; thereupon the plaintiff requested the court to consider the case upon the evidence as if the petition were amended to conform to the facts proved, which application the court then and there allowed; and thereupon the plaintiff applied to the court for leave to amend the petition to conform the same to the facts proved; which application was sustained and plaintiff submitted to the court an amended petition in the cause and asked leave of the court to file the same; which application the court refused for the reason, as stated in the journal, "that the same did not in the judgment of the court conform to the facts as proved by the evidence in the case and for no other reason whatever," to which refusal plaintiff excepted. Thereupon defendant again moved the court for judgment in his favor, which motion was sustained and Cuyahoga County. judgment for him rendered. Proper exceptions being taken, bill of exceptions was prepared and the matter brought to this court for review. Upon the argument here it was conceded by counsel, or at least, it clearly appears from the record, that plaintiff upon the evidence adduced by him was not entitled to judgment under his original petition. The amended petition which plaintiff requested leave to file, in substance sets forth that, upon the formation of the corporation whose stock is in question, plaintiff was requested to take fifty shares; that, defendant being interested in the promotion of the company, plaintiff inquired of defendant if he would take thirty of said shares from plaintiff at par if plaintiff took the fifty shares, to which defendant agreed; thereupon plaintiff contracted for the fifty shares, afterwards paid for and received them, but defendant refused to comply with his agreement to take the thirty shares; that said thirty shares were really of the value of only $2,250 and that by reason of the breach of defendant's contract plaintiff was damaged in the sum of $750. It is manifest that the amended petition set up an entirely different cause of action from that set up in the original petition. Such being the case, did the court err in refusing leave to file it? Laning R. L. 8629 (R. S. 5114), provides that: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Manifestly the amended petition was offered under favor of the last clause of the statute quoted. As it substantially charged the plaintiff's claim, the court had no right to allow it to be filed. For this reason there was no error in refusing leave to file the amended petition offered. The fact that the trial judge gave another reason for his refusal is immaterial, (Palmer v. Yarrington, 1 Ohio St. 253), and whether or not the amended petition was in accordance with the facts proved at the trial and made a cause of action, need not be considered. The cause of action set up in the amended petition was entirely different from the cause of action upon which the parties went to trial, and whatever its merit, it could not be considered in that trial. Finding no error in the record, the judgment is affirmed. Hale and Marvin, JJ., concur. Buras v. Burns. WAIVER-AFFIDAVITS OF BIAS AND PREJUDICE. [Hamilton (1st) Circuit Court, January 27, Giffen, Jelke and Swing, JJ. CARRIE BURNS V. GEORGE W. BURNS. 1905.] PARTY DEEMED TO HAVE WAIVED AFFIDAVIT OF BIAS AND PREJUDICE BY ATTORNEY'S WAIVER, ETC. A party to an action will be deemed to have waived an affidavit of bias and prejudice filed by her against the trial judge, when she stands by, and without objection or protest allows her attorney to state in open court that the affidavit was waived, that the case would be tried to the judge on the facts, and that he would not agree to appear in the case until his client consented to waive the affidavit. ERROR to Hamilton common pleas court. Allen Andrews, for plaintiff in error: Laning R. L. 876 (R. S. 550) disqualifies a judge to sit in a case when an affidavit has been filed by a party setting forth the fact of bias and prejudice or disqualification. State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753]; State v. Wolfe, 6 Circ. Dec. 118 (11 R. 591). Where the judge is disqualified to sit in a case, such disqualification cannot be waived by even the consent of the parties. Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547; Chambers v. Hodges, 23 Tex. 104; Dallas v. Peacock, 89 Tex. 58 [33 S. W. Rep. 220]; Hibbard v. Odell, 16 Wis. 633; Hall v. Thayer, 105 Mass. 219; Taylor v. Worscester Comrs. 105 Mass. 225; Moses v. Julian, 45 N. H. 52 [84 Am. Dec. 114]; Foot v. Morgan, 1 Hill (N. Y.) 654; Edwards v. Russell, 21 Wend. 63; Converse v. McArthur, 17 Barb. 410; White, Estate of, 37 Cal. 190; Newcome v. Light, 58 Tex. 141 [44 Am. Rep. 604]; 3 Am. & Eng. Enc. Law (2 ed.) 345, 353, 356, 357; Jenkins v. Gillespie, 18 Miss. (10 Smed. & M.) 31 [48 Am. Dec. 732]; Wabash, St. L. & P. Ry. v. McDougall, 126, Ill. 111 [18 N. E. Rep. 291; 9 Am. St. Rep. 539]; Dickerson v. Hodges, 43 N. J. Eq. 45 [10 Atl. Rep. 111]; Howe v. Lawrence, 22 N. J. Law (2 Zab.) 99; Clark v. Randall, 9 Wis. 135 [76 Am. Dec. 252]; 4 Cyc. 535; Warwick v. Marlatt, 25 N. J. Eq. 188; Spaulding v. Allen, 10 Circ. Dec. 397 (19 R. 608). C. W. Baker, for defendant in error. PER CURIAM. The plaintiff in error claims that the trial judge had no jurisdiotion of the case, for the reason that she had, prior to the day of trial, filed an affidavit to the effect that the judge was prejudiced against her. Hamilton County. Upon the day of trial she appeared with her counsel, who stated to the court in her presence: "That he wished it distinctly understood that he was not going to have any more nonsense about the previous attempt at swearing the judge off the bench by reason of the affidavit filed January 8 by the defendant, but that all that was waived by the defendant through him, her counsel, as well as were the affidavits that had been filed swearing Judge Smith off the bench by Mrs. Burns, and that he and his client proposed to try the case on the facts to Judge Smith then and there." He also stated: "That he would not agree to appear in the case and act as counsel for Mrs. Burns until Mrs. Burns agreed and consented to waive the affidavit that she had filed swearing Judge Smith off the bench, and agreed to submit the case to Judge Smith for trial and determination." This is not a waiver by counsel only, but is in fact a waiver by the party herself, and the authorities cited by counsel for plaintiff in error are not in point. We may well conclude from this statement that the plaintiff in error was then advised that the facts set forth in the affidavit were not true and that she had therefore consented to submit her case to the judge before whom it had been set. |