Linke v. Walcutt. Picket v. Picket, 6 Ohio St. 525; 18 Am. & Eng. Enc. Law (2 ed.) 298; McAdam, Landl. & Ten. Sec. 94, p. 406; 11 Am. & Eng. Enc. Law (2 d.) 482; Boreel v. Lawton, 90 N. Y. 293, 297; Edgerton v. Page, 20 N. Y. 281; Wood, Landl. & Ten. 1100, 1120; 8 Am. & Eng. Enc. Law (2 ed.) 98; Bedlow v. Dry Dock Co. 112 N. Y. 263 [19 N. E. Rep. 800; 2 L. R. A. 629]; Taylor, Landl. & Ten. Secs. 306, 308, 309, n. 5; Pier v. Carr, 69 Pa. St. 326; Whitbeck v. Cook, 15 Johns. 483; Sedgwick, Damages 956; 4 Kent's Commentaries 471; 17 Com. B. 30; Dickson v. Hunt, 9 Re. 408 (13 Bull. 13); affirmed by Supreme Court, January 25, 1885; Mills v. Hamilton, 49 Iowa 105; 5 Am. & Eng. Enc. Pl. & Pr. 375. Lessor not bound by his covenant where the lessee has neglected to perform the conditions with which it was coupled. Taylor, Landl. & Ten. 317, 339; 12 Am. & Eng. Enc. Law (1 ed.) 1006; Behrman v. Barts, 54 Cal. 131. Defendant's plea should show that his claim against the plaintiff was in existence at the time of the commencement of the suit. 19 Am. & Eng. Enc. Pl. & Pr. 760; Hill v. Butler, 6 Ohio St. 207, 218; Picket v. Picket, 6 Ohio St. 525. The unlawful eviction of a tenant by his landlord does not entitle him to recover profits which he would have made but for the eviction. Dennison v. Ford, 10 Daly (N. Y.) 412; Rhodes v. Baird, 16 Ohio St. 573, 580, 581; Gaar v. Snook, 1 Circ. Dec. 142 (1 R. 259); Pendleton v. Myers, 1 Re. 282 (7 W. L. J. 39); Sutherland, Damages 864; Dickson v. Hunt, 9 Re. 408 (13 Bull. 13); affirmed by the Supreme Court, January 25, 1885; McAlpin v. Woodruff, 11 Ohio St. 129; Wetzell v. Richcreek, 53 Ohio St. 62, 74 [40 N. E. Rep. 1004]. WILSON, J. It was not error to sustain the demurrer to the supplemental answer or plea in bar. The recovery of damages as for mesne rents and profits in the action for possession and to declare a forfeiture, was no bar to a recovery in this action for rents under the lease. There was no error in sustaining the demurrer to the second answer and cross-petition filed November 10, 1899, for the reason that the defendant did not stand upon this pleading, but filed another answer and cross-petition in which he availed himself of all its material averments; and for the further reason that the pleading did not state a defense or cause of action. Nor was it error to sustain the demurrer to the third defense, for no special damages are pleaded and no eviction is averred. We find no error in the admission and exclusion of evidence, and Franklin County. no prejudicial error in the charge of the court, looking to the state of the proofs to which the charge must be applied. We find no error on the record, and the judgment is affirmed and cause remanded. Sullivan and Summers, JJ., concur. LEASE-SPECIFIC PERFORMANCE. [Hamilton (1st) Circuit Court, 1904.] Giffen, Jelke and Swing, JJ. KEPPLER BROS. Co. v. OTTO HEINRICHSDORF. SPECIFIC PERFORMANCE OF LEASE RENEWAL REFUSED WHEN CONDITION PRECEDENT NOT PERFORMED. Equity will not decree specific performance by lessor of his covenant to renew when lessee, in consequence of his own ignorance, negligence and default, to which lessor in no way contributed, failed to perform his covenant, which was a condition precedent to renewal, to give lessor written notice of his intention to accept cr decline the additional term six months before the expiration of the lease. APPEAL from court of common pleas of Hamilton county. GIFFEN, J. This action was brought to enforce specific performance of the following covenant of a lease: "Lessor agrees at the expiration of the present lease to give lessee an additional five years upon the same terms and conditions mentioned in this lease, lessee agreeing to give lessor, six months before the expiration of the present lease, a written notice of his intention to accept or decline the additional five years' lease." The notice was given less than five months before the expiration of present lease. The covenant to give notice was a condition precedent to the granting of an additional term of five years, and not being performed within the time prescribed, equity will not aid the lessee to avoid the consequences of his own negligence or ignorance, to which the lessor in no way contributed. The lease was in the possession of the plaintiff and if consulted would have disclosed that a written notice was required. The evidence fails to show that the defendant or his agent misled the plaintiff, or waived the provision of notice. The petition will be dismissed. Jelke and Swing, JJ., concur. Benham v. Cincinnati. * ASSESSMENTS INJUNCTION COURTS. [Hamilton (1st) Circuit Court, 1904.] Giffen, Jelke and Swing, JJ. MARY H. BENHAM V. CINCINNATI. 1. COURT MAY HEAR EVIDENCE AS TO SPECIAL BENEFITS FROM STREET IMPROVE MENTS. The court has power to hear evidence as to the amount of special benefits when the collection of assessments, made against property abutting on a street improvement to pay the cost thereof, is sought to be enjoined. 2. FINDING OF BENEFITS BY ASSESSING BOARD PRIMA FACIE CORRECT-NOT DISTURBED, WHEN. A finding of benefits by the assessing board, and the making of an assessment on that basis against properly abutting on a street improvement to pay the cost thereof, is prima facie correct, and will not be lightly disturbed or inquired into when plaintiff, in an action to enjoin the collection of the assessment, fails to allege some of the grounds usually invoking equitable intervention. ERROR to court of common pleas of Hamilton county. F. M. Coppock, A. T. Brown and O. W. Kuhn, for plaintiff. JELKE, J. The conclusion reached in Thornton v. Cincinnati, post 33, is applicable to this case also. As to the power of the lower court to hear evidence as to the amount of special benefits, we said in the case of Cincinnati v. Shoemaker, 25 0. C. C. 256, 257: "If the benefits conferred are equal to the assessment, there is nothing to move a court of equity to intervene by injunction.' . This was approved by the Supreme Court. Of course a court cannot make the finding and decree an injunction on that ground without hearing evidence as to the special benefits. A corollary of the above is that a trial court may hear evidence of special benefits, find the same, and then say that up to this point we will not enjoin, beyond it we will, which is practically fixing the assessment. See Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156]; Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120]; Shoemaker v. Cincinnati, 68 Ohio St. 603. Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention. Giffen and Swing, JJ., concur. 2 O. C. C. Vol. 26 Lucas County. WILLS-JOINT TESTAMENTARY DISPOSITION. [Lucas (6th) Circuit Court, January 25, 1904.] Parker, Hull and Haynes, JJ. AMEDIUS M. COGHLIN V. JOHN T, COGHLIN ET AL. 1. HUSBAND and Wife May Make Same TESTAMENTARY DISPOSITION. Husband and wife may make the same testamentary disposition of their property, so that their respective estates may take the same course and be distributed in the same way after death; and where each, by separate will, undertakes to create the same trust in their respective estates for a certain number of years, the validity of the trust so created by the husband is not affected by, nor will it be terminated by reason of, the invalidity of the wife's will which is invalid on account of its defective execution, the wife dying before the husband and probate of her will being refused. 2. EXECUTION OF SEPARATE AND DISTINCT WILLS AT DIFFERENT TIMES DOES NOT CREATE JOINT WILL, WHEN. A joint will is not created by the execution of separate and distinct wills at different times, and the making of separate and distinct codicils to such wills at the same time, by husband and wife wherein disposition is made of the separate property and estate of each (it not appearing that the wills were in the nature of a compact), notwithstanding the will of each refers to the will and to the property and estate of the other, and that the disposition in both is practically identical. APPEAL from Lucas common pleas court. Smith & Beckwith and Cole, Whitlock & Milroy, for plaintiffs. A codicil or will when attacked must stand or fall as a whole. Walker v. Walker, 14 Ohio St. 157, 166 [82 Am. Dec. 474]. Joint wills by the great Underhill, Wills 18, 19, 20; Walker, 14 Ohio St. 157, 167 weight of authority, are not invalid. 1 Page, Wills Secs. 65 to 69; Walker v. [82 Am. Dec. 474]. Holding joint wills invalid in Ohio, has been weakened as an authority by Betts v. Harper, 39 Ohio St. 639, 641 [48 Am. Rep. 477]; Reformed Church (Tr.) v. Wise, 6 Circ. Dec. 653 (17 R. 659). The question whether there was a joint will should have been raised at time of probate or by contest under Sec. 5858 Rev. Stat. et seq. Walker v. Walker, supra. HULL, J. This action was brought in the court of common pleas to set aside certain portions of the will of Dennis Coghlin, especially the part of the will creating a trust and putting all of his real estate in trust for a certain period of time and to partition such real estate among his legal heirs. The action was brought by certain of the legal heirs of Dennis Coghlin v. Coghlin. Coghlin, making all of the other heirs and their representatives defendants, and also The Ohio Savings Bank & Trust Company, defendant, as administrator with the will annexed, the bank acting as administrator with the executor, John T. Coghlin, who is named in the will as such. executor. A demurrer to the petition was filed in the court below by the bank, the administrator with the will annexed, and that demurrer was sustained by the court of common pleas, and the plaintiffs not desiring to plead further, judgment was entered in favor of the defendants dismissing the petition. Thereupon the case was appealed to this court and was argued here upon the demurrer to the petition. The claim made by the plaintiffs in substance, is, that about the same time that Mr. Coghlin made his will-about a year later-Mrs. Coghlin made a will, which is in effect a counterpart or duplicate of the will of Dennis Coghlin, for the disposition of her estate, and subsequently, in June, 1896, a codicil was added to each of these wills, these codicils being identical with each other except so far as it was necessary to change them to make them applicable to the wills and property of these two persons, and the claim is that the result is, in effect, a joint will-an attempt to dispose of the estates of Dennis Coghlin and of Ella Coghlin as one estate as a joint fund and joint property-and that although they are written separately and executed separately, the effect is, it is claimed, the same as though they had been written upon the same paper and executed and attested together, and that they, therefore, fall within the inhibition of the law of this state as laid down by the Supreme Court against joint wills, and that this objection is especially applicable to the trust which is created for the disposition of the property named in these two wills, and was to continue before final distribution was made until the year 1910. It is claimed by counsel for the demurrer that the two wills do not constitute a joint will, and that under the law of this state as announced by the Supreme Court, in the more recent decisions at least, there is no legal objection to these dispositions of this property and that, therefore, the demurrer to the petition should be sustained. The petition discloses that Mr. Coghlin's will was made in the year 1893 and Mrs. Coghlin's will was made in the following year, and in June, 1896, a codicil to each will was made and executed. Mrs. Coghlin died May 6, 1900, three months before her husband's death, which occurred August 6, 1900, he having survived her about three months. Upon her death (presumably immediately upon her death), as stated in the petition, her will was offered for probate; but probate was refused, on the ground that it had not been properly attested, so that the paper writing signed and executed by her never in fact took effect as a testamentary disposi |