EMERY V. OHIO CANDLE COMPANY.

[47 OHIO STATE, 320.]

"TRUST" AND "COMBINATION AGAINST TRADE, AGREEMENT IN AID OF, UNENFORCEABLE. An agreement under which an association is formed,

for the purpose of increasing the price and decreasing the manufacture of candles within a certain territory, is void as being contrary to public policy, and is not enforceable in the courts.

AN unincorporated company was formed in 1880, to continue for six years, and called the Candle Manufacturers' Association. Its object and effect were to increase the price and decrease the manufacture of candles within the territory. covered by the agreement under which it was formed. The receipts of the company were placed in bank to the credit of the executive committee of the association, and could only be paid out on a check signed by at least two of them. The Ohio Candle Company joined the association in 1883, and withdrew therefrom in 1884. It had paid into the association $22.40, and there was due it, as profits under the agreement, $2,151.17. The committee offered to repay the sum paid in, but refused to pay the sum due as profits, claiming a violation of the agreement by such withdrawal. The Ohio Candle Company brought suit against the committee to recover the sum due as profits, and recovered judgment. The case was appealed by writ of error.

Perry and Jenny, for the plaintiffs in error.

Ramsey, Maxwell, and Ramsey, for the defendants in error. The COURT. We are of the opinion that the suit cannot be maintained, for the reason that the objects of the association. were contrary to public policy, and in no way to be aided by the courts. No recovery can be had except by giving effect to the terms of the agreement. The action is, in substance, a suit against the association to recover a sum due the plaintiff under the terms on which the association was formed. The committee represent the association, and a judgment against them is a judgment against it. If, as claimed by the defendants, a member could not withdraw from the association until the six years had expired, then the committee, as representing the association, had a defense on which they might have relied, had the objects of the association been perfectly legitimate. But should a court be called on to consider any defense, so long as the claim itself is based upon an agreement to which

it can give no countenance? It must be observed that the withdrawal of the plaintiff was not at a time, nor under circumstances, that could give to it the merits of repentance. It had passed beyond where it might, by withdrawal, have secured the aid of a court in recovering what it had advanced in furtherance of an illegal object. Its suit is to recover its portion of the ill-gotten gains. The case of Norton v. Blinn, 39 Ohio St. 145, can have no application here, for this is a suit between parties to enforce the terms of the illegal agreement. See Texas & Pac. R'y Co. v. Southern Pac. R'y Co., 41 La. Ann. 970, 17 Am. St. Rep. 445, where Brooks v. Martin, 2 Wall. 70, is accurately distinguished, and shown to have no application to a case such as this.

Judgment reversed, and petition of plaintiff below dismissed.

CONTRACTS TO STIFLE TRADE AND IMPEDE FAIR AND REASONABLE COMPETITION are invalid as being against public policy: Texas etc. R'y Co. v. Southern Pac. R'y Co., 41 La. Ann. 970; 17 Am. St. Rep. 445, and note; People v. Chicago G. T. Co., 130 Ill. 268; 17 Am. St. Rep. 319; Gulf etc. R'y Co. v. State, 72 Tex. 404; 13 Am. St. Rep. 815; Santa Clara etc. Co. v. Hayes, 76 Cal. 387; Moses v. Scott, 84 Ala. 608; People v. North River Sugar R. Co., 121 N. Y. 582; 18 Am. St. Rep. 843, and note.

BEHRENS V. BEHRENS.

[47 OHIO STATE, 323.]

WILLS- CONTEST OF LOST, DESTROYED, OR SPOLIATED WILL-BURDEN OF PROOF. - Where the contents of a lost, destroyed, or spoliated will have been found, admitted to probate, and recorded by the probate court, the record is prima facie evidence in a future proceeding to contest the validity of the will, not only of its due execution and attestation, but also of its contents, and the burden of proof is then upon the contestant of the will to establish its invalidity, by evidence that it had been revoked by the testator by tearing, canceling, obliterating, or destroying it with intention to revoke it.

WILLS LOST WILL PRESUMPTION OF REVOCATION DECLARATIONS OF TESTATOR AS EVIDENCE. - Where a will is proved to have once existed, and the testator retained custody of it, or had ready access to it, and it cannot be found after his death, a legal presumption is raised that it was destroyed by him, with the intention to revoke it, and his declarations are admissible to destroy such presumption or to support and strengthen it.

WILL contest. Plaintiff recovered judgment in the court of common pleas admitting the will to probate. This judgment was reversed by the circuit court on appeal, and an appeal

from the judgment of the circuit court was taken to this court by writ of error.

Benjamin B. Kingsbury and Henry Newbegin, for the plaintiffs in error.

J. R. Tyler, Peaslee and Enos, and Stephenson and Knapp, for the defendants in error.

DICKMAN, J. It is conceded that Daniel Behrens, on the thirty-first day of October, 1882, made and executed in due form of law his last will and testament. On the twentyeighth day of November, 1884, he died, leaving real and personal property, and as his heirs at law, Frederick Behrens and Henry Behrens, the plaintiffs herein, and George Behrens, the defendant, his only sons. After his decease, it was discovered that his will had been lost or destroyed, and the question arose whether the will was lost or destroyed prior or subsequent to the death of the testator, and if before his death, whether or not it was destroyed by the testator himself, with the intention of revoking the same. On the application of George Behrens, the probate court found that the will was not revoked by the testator, but that it had been lost or destroyed subsequent to his death, and thereupon established its contents to be as in the alleged copy produced in court, and admitted the same to probate.

In the action to contest the validity of the will, the order of probate was prima facie evidence of its due attestation, execution, and validity. By section 5948 of the Revised Statutes, last wills and testaments which have been lost, spoliated, or destroyed, when established as to their contents, and admitted to probate, are, in all respects, to be governed by the laws in force relating to other wills, not only as relates to the contents of the same, but in all other matters. In a proceeding to contest the validity of such a spoliated will admitted to probate, the burde of proof is on the contestants to invalidate it: Haynes v. Haynes, 33 Ohio St. 598; 31 Am. Rep. 579; Mears v. Mears, 15 Ohio St. 90. In Banning v. Banning, 12 Ohio St. 437, it is held that where the contents of a spoliated will have been found, admitted to probate, and recorded, in a proceeding duly had for that purpose in the probate court, such record is prima facie evidence, in a future proceeding to contest the validity of such will, not only of the due attestation and execution of such will, but also of its contents; and on the trial of the issue whether the will admitted to probate is the last will of the testator or

not, the same must stand, unless the jury are satisfied, by a preponderance of proof, that it is not, in substance, the will of th testator.

In assuming the burden of establishing by a preponderance of evidence that the will admitted to probate was not the last will of Daniel Behrens, it became material for the contestants to prove that his last will was not in existence at the time of his death, but had been revoked by the testator tearing, canceling, obliterating, or destroying the same, with the intention of revoking it. Section 5944 of the Revised Statutes authorizes the probate court to admit to probate an unrevoked last will, when the original has been lost, spoliated, or destroyed subsequent to the death of the testator, or after the testator has become incapable of making a will by reason of insanity. The court, in the matter of Sinclair's Will, 5 Ohio St. 291, in construing the same statutory provision then in force, held that the legislation of the state as it then existed did not permit a will lost or destroyed to be established, unless it was in existence subsequently to the death of the testator. "The general assembly," said Swan, J., "deemed it either impolitic, as opening the door to imposition and perjury, or unnecessary to permit wills lost or destroyed before the decease of the testator, to be established."

The court, therefore, as an essential fact to be determined, charged the jury as requested by the plaintiffs: "Before you can find that it was the last will and testament of the said Daniel Behrens, you must find that it existed and had not been revoked at the death of the testator, or at such time prior to his death when he ceased continuously after that to be of disposing mind and memory; and unless you find from the evidence that the said will was actually in existence at the time when the said Daniel Behrens ceased to be of disposing mind and memory, at or prior to his death, then the conclusion of law follows that the testator destroyed the will, with intent thereby to revoke it."

If the will did not exist at the time of the testator's death, and had been destroyed prior to that time, it could not be established under the statute as a will of which the original had been lost, spoliated, or destroyed subsequent to the death of the testator.

And here it may be inquired what, if any, conclusion of law or presumption arises from the fact of the non-existence, at the time of the testator's death, of his last will and testament

proved to have been made and executed. As requested by the plaintiffs, the court gave the following charge to the jury: "The presumption is, that if a will be not found after the death of an alleged testator, it was destroyed with intention of revoking it. This presumption may be strengthened by the declarations made by the testator before his death, to the effect that he intended to destroy the will; and if you believe from the evidence that the will alleged to have been made on the 31st of October, 1882, by Daniel Behrens, was not in existence after his death, you are at liberty to believe from this fact alone that the said will was destroyed by said Behrens with the intention of revoking it; and you may consider, as strengthening this presumption, any declarations made to persons before his death, by the said Daniel Behrens, that he would destroy the will, or had destroyed the will, or intended his children should share equally in his property."

In giving the foregoing instructions to the jury, and in admitting in evidence the declarations of the testator as to destroying his will, and dividing his property equally among his three sons, we find no error for which the judgment of the court of common pleas should have been reversed.

In general, it may be assumed that a will is kept in the custody of the testator himself, or under his control, to be changed, modified, or revoked according to his good pleasure. If at his decease it cannot be found, it is more reasonable to presume that he himself has destroyed his will, than that some other person has committed the crime and incurred the penalty of secreting or destroying it. In Betts v. Jackson, 6 Wend. 181, it is said by Chancellor Walworth: "Legal presumptions are founded upon the experience and observation of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances, and the result being thus ascertained, whenever such circumstances occur, they are prima facie evidence of the fact presumed; and I have no doubt that five wills, made with all due formality, have been destroyed by the testators either in secret or when no one was present to be a witness to prove the fact, to where there has been one destroyed or suppressed by fraud, or lost by time or accident, before the death of the testator." Indeed, it is now well settled, and is a principle of universal acceptance in both the English and American courts, that where a will is proved to have once existed, and the testator retained custody of it, or had ready access to it, and it cannot be found after his