Heimrich v. Dechant. BALDWIN, J. This cause was submitted on a motion by the defendant, Dechant, to dismiss the action, based on two grounds: First. That the action being one to contest a will, abated upon the death of plaintiff and that the heirs of plaintiff in whose name an order of revivor was heretofore entered, can maintain the action. not should Second. That if the action is revivable, the revivor have been in the name of the personal instead of the legal representatives of plaintiff. ants: As to the first ground: Upon the oral argument defendCounsel in support of their contention presented Taylor Taylor, 18 Dec. 101 (5 N. S. 323); Youtsey v. Bowman, 18 Dec. 577 (6 N. S. 381). V. has At the time it was supposed by court and counsel that neither of these cases had been reviewed by an appellate court. It transpires however that the decision of Judge Brodrick been reversed by the circuit court of this district, and a certified copy of the judgment of reversal has been furnished to the court. The decision of Judge Brodrick covers the idenquestion presented by the motion in the case at bar, he tical court motion. holding that the action abated. The judgment of the circuit of reversal finds that this holding was erroneous, and in effect decides that the action survives. This holding of the circuit court not only accords with the view of this court, but it must be followed, it being decisive of this ground of the No extended opinion is necessary. Following that we hold that this ground is not well taken. As to the second ground: This is predicated upon the averment in the petition, admitted in the answer, "that the of the testator consists of personalty to the amount of $8000 and more." decision, estate This averment is unnecessary. Could not be an issue in an action to contest the will. The sole issue being whether the writing produced is the will of the testator. It is not even necessary that any answer be filed. The court will take no Cognizance of any other than the statutory issue, whether controverted or not. or not. Windisch & M. Brew. Co. v. Opp, 9 Circ. Seneca Common Pleas. Dec. 516 (17 R. 465); Dew v. Reid, 52 Ohio St. 520 [40 N. E. Rep. 718]. The contest has to do with the estate of the testator, generally, regardless of whether it be real, personal or mixed. And all persons interested in the estate must be made parties. Gen. Code 12080 (R. S. 5859). And I take it any one or more of the necessary parties prescribed by the statute may be plaintiff in his own right; and even when the estate consists entirely of personalty, the successor to one who was an “interested person" at the death of the testator, may maintain the action in his own name and not through the medium of the personal representation of the deceased interested person. In my opinion the action was properly revived in the names of the legal representatives of Magdalena Heimrich; and this ground of the motion is not well taken. The motion is therefore overruled. Exceptions may be noted. And the clerk may make such notation on the trial docket. COMPENSATION-OFFICES AND OFFICERS-PAY MENT. [Hamilton Common Pleas Court, 1909.] *STATE EX REL. RULISON V. WALTER B. WEAVER. 1. ILLEGAL FEES DRAWN BY CORONER, THOUGH PAID IN COMPROMISE OF ILLEGAL SALARY, RECOVERABLE. The amount of fees and mileage illegally paid to a coroner under Gen. Code 2866 may be recovered in an action brought by the prosecuting attorney under Gen. Code 2921. The fact that the money allowed him as fees and mileage was in compromise of a demand by the commissioners to repay a slightly larger sum paid him as salary under an unconstitutional law is no bar to such action. *Affirmed, Weaver v. State, 32 O. C. C. 151; no op., Weaver v. State, 83 O. S. 508. State v. Weaver. TO PUBLIC OFFICERS' 2. VOLUNTARY PAYMENT RULE NOT APPLICABLE Alfred Bettman, Asst. Pros. Atty., for plaintiff. GORMAN, J. This is an action by the prosecuting attorney of Hamilton county to recover for the county, under the authority vested in him by R. S. 1277 (Gen. Code 2921), $1,743.65 from the defendant Weaver for fees and mileage alleged to have been illegally drawn from the county treasurer by said Weaver while acting as coroner of the county, during his term from January 1, 1903, to January 1, 1905. The answer of the defendant admits the drawing of the amount of money alleged and for the purposes alleged, but denies that the sums so drawn were illegally drawn, because he avers that he was entitled to all the fees and mileage charged and paid, and secondly, he avers that he drew from the county treasury during said period as salary expenses the sum of $5.888 under a law which was declared unconstitutional about the close of his said term, and upon being requested by the county auditor and commissioners to and repay said salary so drawn and his refusal, the whole matter was compromised and settled by the commissioners and himself by agreement with full knowledge on the part of the commissioners of all the facts and the law, and by said agreement he was allowed for fees and mileage as provided in R. S. 1239 (Gen. Code 2866), $5,870, being $18 less than his salary and expenses drawn under said unconstitutional law, and that he Paid into the county treasury upon said settlement with said commissioners said sum of $18 to balance the account. And he pleads this settlement in bar of a recovery in this action. The demurrer to this answer is on the ground that the allegations thereof do not constitute a defense. L The demurrer is sustained on the authority of: Jones v. zecas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. Hamilton Common Pleas. St. Rep. 710]; Higgins v. Logan Co. (Comrs.) 62 Ohio St. 621 [57 N. E. Rep. 504]; Richardson v. State, 66 Ohio St. 108 [63 N. E. Rep. 593]. I have read with care and given full consideration to the very able and exhaustive briefs of Mr. Bettman, assistant prosecuting attorney, and Mr. Robert Pugh for defendant, and having examined the authorities cited, have come to the conclusion that the answer of defendant does not present a defense to the action. The money drawn from the county treasury as salary by the defendant was under an unconstitutional law and the prosecutor might have brought suit to recover the entire amount thus paid because no act under that law was valid, or as said by the Supreme Court in the case of Findlay v. Pendleton, 62 Ohio St. 80 [56 N. E. Rep. 649], on page 88: "It (the unconstitutional law) was void not only from the time it was declared unconstitutional, but it never had any validity, and could not be invoked as a foundation of a right to be enforced in a court of justice." Therefore there could have been no defense interposed to an action by the prosecuting attorney against the defendant to recover the entire salary drawn by him under said unconstitutional law. He might have counterclaimed for his fees and mileage in lieu of his salary, but in that event he could not have been allowed more than the amount of fees and mileage as fixed by the statute, R. S. 1239 (Gen. Code 2866). This amount would be $1,743.65 less than the amount he had drawn out as salary and expenses, and therefore on consideration of the petition and the counterclaim the plaintiff would have been entitled to a judgment against the defendant in the sum of $1,743.65. The court is of the opinion that a full and careful reading of the three cases cited will disclose that every objection raised by defendant's counsel in his brief is met and answered in those cases. On the question of the settlement with the commissioners and its conclusiveness upon the county prosecutor or the county it will be seen that this question was raised and settled against defendant's contention in the case of Higgins v. Logan Co. (Comrs.) supra. There the county sued one of the State v. Weaver. ex-commissioners to recover for mileage and expenses in excess of what he was entitled to by the statute. He pleaded that the accounts were examined by the prosecuting attorney and probate judge of Logan county and duly certified and approved by them, and that thereupon the county commissioners of said county adjudicated upon and allowed said claims and ordered the county auditor to issue his warrant upon the county treasurer, which was done. Nevertheless the trial court charged the jury that if they should find that the defendant drew moneys from the county treasury either as mileage or expenses or both for days while he was exclusively engaged in the office of the board in the discharge of his duties as commissioner * other than mileage for one day each month, then such allowance and receipt by him was illegal and in violation of the statute of Ohio and for such illegal mileage and expenses so received the plaintiff is entitled to recover. The Supreme Court sustained this charge and on page 629 say: 'The recovery in this case was for moneys received by the plaintiff in error as a county commissioner in excess of any allowance that might lawfully be made to him by the terms of this section (897), and the claims should therefore not have been allowed to him by the commissioners." The cases of voluntary payment cited by counsel for defendant in his brief mostly relate to individuals or private cor.porations dealing with one another or with public corporations, and not transactions of one public servant dealing with another public servant in reference to their compensation or salaries. Note what Judge Spear says in Jones v. Lucas Co. (Comrs.) supra, on pages 211 and 212: "It is urged that as a condition of avoiding the conclusive effect of the commissioners' allowance, there must be shown either fraud or mistake, and neither is averred. This claim. seems to rest upon the idea that the board of commissioners is practically the county, and that its official acts necessarily conclude the county. The assumption is fallacious." He then proceeds to cite authority to show the character of the commissioners and that the board of commissioners no |