author: Matthews, P. J.

text:
    The State, ex rel. Wright, Appellee, v. Morrison et al., Appellants.
    (No. 6743
    — Decided February 17, 1947.)

      Mr. Wm. Jerome Kueriz and Mr. Harold M. Baron, for appellee.

      Mr. John D. Ellis, city solicitor, and Mr. Edward F. Alexander, for appellants.
   Matthews, P. J.

This is an appeal from a judgment awarding a writ of mandamus ordering the Board of Trustees of the City of Cincinnati Retirement System to pay to the relatrix a pension based on. the court’s finding that her husband’s death on June 5,, 1941, was “the natural and proximate result of personal injuries, accidentally sustained by him on October 10, 1934, while in the performance of his duties as-assistant engineer of the sewer department of the defendant, the city of Cincinnati, and without willful negligence on his part. ’ ’

At the outset, we take notice of the motion of the appellee to dismiss the appeal on the ground that the notice of appeal was not filed within twenty days of the overruling of the motion for a new trial.

An examination of the transcript discloses that the trial was concluded on May 15, 1946, and on June 19, 1946, there was placed upon the journal the “conclusions of fact and of law” in the preamble to which it is recited that at the conclusion of the trial the court had announced “in open court its decision in favor of the relatrix” and that “thereupon the city solicitor upon behalf of the defendants orally requested the court to state in writing its conclusions of fact, found separately from its conclusions of law,” and it was because of that request that the findings were made. There then followed very detailed findings of fact and conclusions of law ending with the conclusion of law that “a per-, emptory writ of mandamus should issue as prayed for in said amended petition herein.”

On June 28, 1946, the defendants filed a motion to set aside those findings and for a new trial. That motion was overruled on September 23, 1946, and, oil the same day, by separate entry a “judgment granting-writ of mandamus” was journalized. On September 26, 1946, a motion was. filed to set aside that judgment .and for a new trial. That motion was overruled on October 1, 1946.

The notice of appeal was filed on October 10, 1946.

It is urged that the entry of June 19, 1946, is a judgment and that as the motion to set it aside and for a new trial was not filed within three- days thereafter it did not have the effect of postponing the running of the time within which the notice of appeal could be filed.

We do not stop to consider the effect of the pendency •of that motion upon the running of the time for an appeal, because we are clearly of the opinion that the entry of June 19, 1946, is just what the court, in the entry, said it was, that is, a separate finding of facts .and conclusions of law. That was what the city solicitor requested and the- court’s action, as expressly stated in the journal, was a compliance with that request. The fact that on the same day the motion to set it aside was overruled a “judgment granting writ of mandamus” bearing the endorsed approval of relatrix’s counsel was journalized shows they did not consider that a judgment had already been entered.

The final conclusion of law, as found by the court on -June 19, 1946, was that a “peremptory writ of mandamus should issue” and counsel cite State, ex rel. Curran, v. Brookes, 142 Ohio St., 107, 50 N. E. (2d), 995, as authority for treating such an entry as a judgment. We think the case is inapplicable. In that •case there was no request for a separate finding of facts and conclusions of law. There was no caption . styling the entry as a finding of facts and law. There was no statement by the court in the journal entry ■ or otherwise that what it was doing was making a finding of facts and law. In that case there was no ■formal judgment awarding the writ based on any : separate finding of facts and conclusions of law. Purthermore, the language is entirely different. In the conclusions of law in the case at bar the language is that a peremptory.writ “should issue,” whereas in State, ex rel. Curran, v. Brookes, supra, the language is ^‘Peremptory writ of mandamus allowed and defendant ordered to grant relator the right to participate in the police relief fund” etc. (Italics ours.)

In the case at bar there was no awarding of the writ in the entry of June 19, 1946. It was a finding that he was entitled to'the writ, not that the court ordered the issuance of the., writ. In State, ex rel. Curran, v. Brookes, supra, the writ was allowed in express terms.

We find that the notice of appeal was filed within twenty days of the judgment appealed from, and the jurisdiction of this court was properly invoked.

Robert E. Wright had been an employee of the city of Cincinnati for about 27 years and was so employed at the time of his death on June 5, 1941. He was a member of the retirement system of that city and was entitled to the benefits as provided in the ordinances by which it was established and administered. One of the provisions required the employees to pay from their salaries certain amounts into the retirement fund. That Wright did.

It is undisputed that on October 11, 1934, Wright was severely injured while in the actual performance of his duties and that such injuries were accidentally received, without willful negligence in his part. While there is evidence that he never completely recovered from those injuries and that they eventually caused his 'death, he did continue as an employee of the city until November 26,1940, with only a few short leaves on account of sickness shown in his record. On that date, he. was taken to a hospital and was never able thereafter to perform his duties as an employee-, although he tried for a day or so to do work not requiring any .great physical activity, to which work he was transferred because of his condition.

On May. 6, 1941, Wright made application.for disability retirement allowance in accordance with a provision of the ordinance authorizing such retirement and allowance when an employee had become totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time . and place without willful negligence on the part of the employee. 1 In making that application Wright attributed his incapacity to the injuries he had received ■on October 10, 1934. The board of trustees, through its benefit committee and medical examiner made an investigation and reached the conclusion that Wright’s incapacity was not attributable to the injuries received by him on October 10, 1934, and on June 3, 1941, approved and confirmed the report of its committee that the application be denied. Two days thereafter, Wright died.

On May 27, 1944, the relatrix filed her application with the board of trustees for accidental death benefits which are greater than “ordinary” death benefit as defined in Sections 20-45c and 20-45d of the ordinance, which we quote:

“Sec. 20-45e. Ordinary death benefit. Upon the receipt of proper proofs by the board of the death of a member in service which is not the result of an accident in the actual performance of duty, as defined in Section 20-45d, there shall be paid to such person having an insurable interest in his life as he shall have nominated by written designation duly executed and filed with the board, or if there be no such designated person then to his legal representative:

“(a) His accumulated contributions.

“(b) A lump sum death benefit equal to fifty per cent of the compensation received by him during the twelve months immediately preceding death. If, during all or part of said twelve months, he is prevented by illness from receiving compensation, an equivalent-preceding period of compensated time shall be added and the' death benefit payment shall be calculated on the adjusted basis. For the case of members employed on an hourly, daily, or other irregular basis, the board may adopt rules for the payment of the lump sum death benefit on the basis of fifty per cent of what the board may determine to be an average year’s compensation for the deceased basing such average on a period of not to exceed five years prior to his death.

“Sec. 20-45d. Accidental death benefit. If upon the receipt of proper proofs by the board of the death of a member in service indicating that such death was the natural and proximate result of an accident occurring at some definite time and place while the member was in the actual performance of duty the board shall decide that the death was the result of an accident in the performance of duty and not caused by willful negligence on the part of the member, there shall be paid:

“(a) The amount of his accumulated contributions to such person having an insurable interest in his life as he shall have nominated by written designation drily executed and filed with the board, or if there be no such designated person then to his legal representative and

“(b) A pension of one-half of the average final compensation of such employee to be paid to his widow, if he leaves a widow, to continue during her widowhood; or

“(c) If there be no widow, or if the widow dies or remarries before the youngest child of such deceased ihember shall have attained the age of eighteen, then to his child or children, divided in such manner as the board in its discretion shall determine to continue as a joint and survivorship pension for the benefit of the child''or children under such age until every child dies or attains said age; or

“(d) If there be no widow or children under the age of eighteen years surviving such deceased member, then to his dependent father or dependent mother as the deceased member shall have nominated by written designation duly executed and filed with the board;»or

“(e) If there be nb such nominatibn, then tb his dependent father or to his dependent mother as the board in its discretion shall direct to continue for life. ’ ’

The board of trustees rejected the application for accidental death benefit, but allowed her ordinary death benefit in the sum of $1,936.84, in payment of his accumulated contributions with interest and $1,590, representing one-half of a year’s salary. -On June 7, 1944, the relatrix was notified of the action of the board, and the checks for the amounts of the award were sent to her shortly thereafter. She has not cashed those checks.

It is conceded that there was no formal hearing of that application of which prior notice had been given,, and also that the ruling rejecting the application was based- solely on the report of the benefit committee submitted on the application of Wright in his lifetime and an oral report made by the medical director that Wright’s incapacity -was not attributable to the injuries received by him on October 10, 1934. It is also admitted that the board of trustees had no rule or rules providing for hearings of applications or for notice of such hearings or regulating the proceedings on the filing of applications. The board did have printed proofs of death forms, and furnished them to anyone desiring to make application for a pension.

In the interval between Wright’s death and the filing of the application by the relatrix, she had applied to the Industrial Commission of Ohio for compensation as his widow and on March.6,1944, an award of $2,000 and amount of funeral, medical and hospital bills was made. That, of course, was based on a finding that death had resulted from an injury received in,the course of employment.

-Those, are the admitted facts. The defendants, have consistently denied that Wright’s death was the natural and direct result of his injuries of October 10, 1934.

Evidence in proof of those facts which we have described as admitted was introduced at the trial of this case in the Common Pleas Court. There were also introduced the “claim and proofs of death,” which had been filed with the board of trustees, and also copies of the ordinances creating the retirement system and providing for its administration.

The “claim and proofs of death” is in the form of a questionnaire to be filled in and executed under oath by the claimant (in this case the widow), the physician who attended the employee in his last sickness, the undertaker, and a disinterested friend of the deceased. That form carried some printed instructions as to the facts which it was intended to be developed and as to the manner of its execution.

One of the provisions of the ordinances introduced provided that the board of trustees should consist of the mayor, the city manager, the chairman of the civil service commission, and the chairman of the finance committee of council as ex officio members, and three persons elected by the members of the system, one of whom should be from the police department, one from the fire department, and one from the other departments.

Another provision was that the board “shall from time to time establish rules and regulations for the administration of the funds created by this ordinance and for the transaction of its business.”

In view of the fact that the cause of death, to wit, coronary occlusion, was attributed to an injury which had been received more than six years prior to death, evidence was introduced tending to establish the chain of causation as natural and proximate.- That evidence included the testimony of two physicians, who, in answer to a hypothetical question based on data assembled from other testimony, gave as their opinion that the coronary occlusion from which Wright died was the natural and direct result of the injury which he had received more than six years before his death.

The foregoing outline of the facts is sufficient, we think, to indicate the disposition which should be made of this appeal.

(1) The disposition of the relatrix’s claim" upon the evidence assembled in another case and the proof furnished through the questionnaire form provided by the board, stripped from the proceeding the necessary elements to give to the ruling a binding effect. It lacked due process. Speaking of the constitutional requirements of due process as applied to procedure before administrative boards, affecting private rights, the Supreme Court of the United States in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S., 292, 81 L. Ed., 1093, 57 S. Ct., 724, said at pages 304 and 305:

“Ind'eed, much that they do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the ‘inexorable safeguard’ (St. Joseph Stock Yards Co. v. United States, 298 U. S., 38, 73) of a fair and open hearing be maintained in its', integrity.' Morgan v. United States, 298 U. S., 468, 480, 481; Interstate Commerce Comm. v. Louisville & N. Rd. Co., supra. The right to such a hearing is one of ‘the rudiments of fair play’ (Chicago, M. & St. P. Ry. Co. v. Polt, 232 U. S., 165, 168) assured to every -litigant by the Fourteenth Amendment as a minimal requirement. West Ohio Gas Co. v. Public Utilities Comm. (No. 1), (No. 2), supra ; Brinkerhoff-Faris Co. v. Hill, 281 U. S., 673, 682. Cf. Norwegian Nitrogen Co. v. United States, supra. There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when the minimal requirement has been neglected or ignored. ’ ’

On that subject, it is said in 12 American Jurisprudence, 303, that:

“The proceeding or hearing requisite to due process' must be appropriate and such as is practicable and reasonable in,the particular case. It must be an orderly proceeding, in which one sought to be' affected has an opportunity to be heard and to defend, enforce, and protect his rights.

“A full hearing is one in which ample opportunity , is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the step asked to be taken.

“There is no1 hearing when the party does not know what evidence is offered or considered and is not given ,an opportunity to test, explain, or refute.”

In the absence, of rules and regulations promulgated by the board, the relatrix had no means of knowing what she was required to do in order to assert her right to a full and fair hearing of the issue of fact as to whether the coronary occlusion which caused her husband’s death was caused naturally and proximate-ly by the injury which he had sustained in 1934 in the course of Ms duty as a municipal employee. Having complied with all the known requirements of the board, the relatrix cannot be precluded by delay on her part in demanding that the board promulgate other rules under which she could obtain the hearing to which she was entitled under the due process provision of the Ohio Constitution and the 14th Amendment of the United States Constitution.

We have no difficulty in reaching the conclusion that the rejection of the relatrix’s claim by the board under the circumstances was void and of no effect.

(2) Having reached the conclusion that the relatrix had the right to have her claim to a pension determined upon a full and fair hearing, the question remains as to whether the failure of.the proceedings before the board to conform to a full and fair hearing has the effect of transferring the jurisdiction from the board to the judiciary to be invoked by a proceeding in mandamus.

The relatrix claims that it does and the trial court heard the ease on that assumption and awarded a pension to her and ordered the defendants to pay her. To do that the court was required to, and did decide, on evidence from which conflicting inferences could be drawn, the issue of fact as to whether the cause of death was the natural and proximate result of an injury received in the course of the decedent’s duty as an employee. It certainly was not required to draw that inference. Expert witnesses called by the relatrix gave as their opinion that the coronary occlusion was the natural and proximate result of the injuries of 1934 — but the trier of .the facts was not bound to adopt their opinion. A contrary conclusion based on data in evidence would not be unreasonable.

The relatrix relies upon several cases as justification for the court’s action in assuming jurisdiction to decide that issue of fact. Perhaps the case chiefly relied on is State, ex rel. Dieckroegger, v. Conners, 122 Ohio St., 359, 171 N. E., 586, but that case was disposed of on demurrer to the petition and, of course, presented no issue of fact. The sole issue was one of law as to the meaning of statutes and the rules of the pension board.

That no issue of fact was involved in the other cases relied on is equally clear. State, ex rel. Juhlman, v. Conners, 123 Ohio St., 670, 177 N. E., 633, and Shinnick v. State, ex rel. Bowers, 101 Ohio St., 246, 128 N. E., 91, were disposed of on demurrer. State, ex rel. Mansfield, v. Turnbull, Mayor, 132 Ohio St., 235, 6 N. E. (2d), 971, Dragonette v. Brandes, 135 Ohio St., 12, 18 N. E. (2d), 496, and State, ex rel. Little, v. Carter, 111 Ohio St., 526, 146 N. E., 56, were heard, on the pleadings and agreed statement of facts. In State, ex rel. Delaney, v. Holmes, Pres., 5 Ohio App., 1, the question, was whether the rules empowered the trustees to revoke a pension. There was no dispute about the rules. . The question was whether the_ trustees were following them and that involved only a matter of interpretation. Likewise, in Mell et al., Trustees, v. State, ex rel. Fritz, 130 Ohio St., 306, 199 N. E., 72, the only question presented related to the rules of the board and the effect of a change of rules.

It is manifest that none of those eases is an authority for the proposition that a disputed issue of fact upon which the Tight to a pension depends can be determined in a mandamus proceding against a board of trustees to which the issue has never been presented, or which has decided adversely in good faith upon substantial evidence, even though such adverse finding, because of some procedural defect, is not binding.

Now, reverting to that part of the rules relating to “accidental death benefit”-for which the relatrix applied, we find it provides that “If upon the receipt of proper proofs, * * * the hoard shall decide that the death was the result of an accident in the performance of duty and not caused by willful negligence on the part of the member, there shall be paid” etc. Now who is to decide what are proper proofs? And who is to decide whether the death was the result of an accident in the performance of duty? By necessary implication as to the first and by express statement as to. the second, that duty is imposed upon the board. And unless the proofs submitted by the claimant are to be accepted as conclusive, the decision involves the exercise of judgment and discretion. It is not claimed that thfe board is so bound. Such an interpretation would expose the pension fund to the uncontrolled depredations of the predatory.

“It is well settled that the lawful discretion vested in an individual, officer, or corporation cannot be destroyed, controlled, or limited by the .writ of mandamus. ’ ’ 25 Ohio Jurisprudence, 1003.

We are of the opinion that the principles applied in the case of Karb v. State, ex rel. Pirsig, 54 Ohio St., 383, 43 N. E., 920, are equally applicable to the facts of the case at bar. The cases are very similar as is indicated by these quotations from the second, third, sixth and seventh paragraphs of the syllabus :

“2.' Under section 17 of the act granting pensions to members of the fire department, 89 Ohio Laws, 259, the board of trustees of the pension fund is charged with the duty of determining whether the ■ disability of the claimant was caused in, or induced by, the actual performance of the duties of his position as such member, and such vdetermination, when made in good faith, is final.

“3. If the board of trustees refuses, upon proper application, to make such determination, it can be compelled by a mandamus to do so; but if the result of such determination is against the applicant, the board cannot be compelled to further act on the case.

“6. In a case where the board of trustees has not determined that the alleged disability of the applicant was ‘caused in, or induced by, the actual performance of the duties of his position as such member,’ and no order has been made by the board for his examination by such medical officer, and there has been no examination under any such order, it is error for a court to grant a peremptory writ of mandamus against such board, commanding the admission of such applicant to the- benefits of the pension fund, even though the chief engineer of the fire department may have relieved such applicánt from actual service at fires, and recommended him to the board for a pension.

“7. In such case the mandamus should command the performance of the first act which is left unperformed by those administering the statute, and as to the performance of which they have no discretion.”

Karb v. State, supra, was followed in Roth v. Trustees of Firemen’s Pension Fund, 62 Ohio St., 659, 58 N. E., 1101.

And in State, ex rel. Dawn, v. Kyle, 75 Ohio App., 30, 60 N. E. (2d), 733, this court had occasion to apply the same principle! We held:

‘‘A writ of mandamus to compel the board of trustees of a police relief'fund to increase a retirement allowance will not lie where it is not shown that refusal to make the increase was made after a hearing-provided'for in such cases by the rules of such board.”

In the light of what we have said, we think it clear that failure to accord to the relatrix an adequate hearing, at which her claim was denied, cannot be treated as the equivalent of an affirmative finding in her favor. The board has not exercised its discretion after a full and fair hearing. Only when the board accords such a hearing and makes an affirmative finding in her favor, or arbitrarily, and unreasonably, and in bad faith refuses to do so, when in actual fact she .is entitled, does a nondiscretionary duty arise to pay her 'the pension.

For these reasons, we are of the opinion that the judgment of the trial court should be reversed, and a judgment rendered awarding a writ, commanding the members of the board of trustees to perform their duty to accord to the relatrix a hearing with full opportunity to offer any evidence she may have in proof of her claim, and to thereafter render a fair and judicious decision upon the merits of her claim.

For these reasons, the judgment of the trial court is reversed and a judgment rendered by this court in accordance with this opinion.

Judgment accordingly.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    De Wolf et al., Appellees, v. Frazier et al., Appellants.

      (No. 139
    — Decided May 10, 1947.)

      ■Mr. Philip G. Ebeling and Mr. R. E. Boiler, Jr., for appellees. . .

      Mr. E. K. Forsyth and Mr. Urbcin E. Doorley, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law and fact from a judgment of the Probate Court of Shelby county* rendered in an action for a declaratory judgment, in which the court construed the will of Ella Miller, deceased.

Ella Miller died testate, a resident of Shelby county, Ohio, on October 18,1940, Jeaving a last will and testament, which was duly admitted to probate in the Probate Court of Shelby county, Ohio, on October 29, 1940, on which date Jesse L. Frazier duly qualified as executor of the will.

The chief beneficiary under the will of Ella Miller was her sister, Agnes Frazier, who died testate, a resident of Shelby county, Ohio, on October 24, 1945, leaving a last will and testament, which was duly admitted to probate in the Probate Court of Shelby county, Ohio, on, November 8, 1945 and in which Jesse L. Frazier, the surviving spouse of Agnes Frazier, was named the chief beneficiary.

The plaintiffs, Jean Bull De Wolf and Georgia'lee Bull Furniss, are the children of Sleeter Bull, who is a nephew of Ella Miller, deceased, and resided in Urbana, Illinois, on March 2, 1935, the date on which the will of Ella Miller was executed.

The will of Ella Miller, in item 5, provides as follows:

“Item 5. The balance of my estate both real and personal of every description be given to my sister, Agnes Frazier, of Sidney, Ohio, if she still be living, to do with and use as she see best fit to do. And after her death what is left if any be given to my nephew’s children which are now living, of Urbana, Illinois, to share and share alike.”

■In the will of Agnes Frazier the substantial part of the estate is disposed of in item 4, which is as follows:

“Item 4. I give, devise, and bequeath the remainder of my property, real and personal, of every kind and description wheresoever situate, which I may own or have the right to dispose of at the time of my decease, to my husband, Jesse L. Frazier, absolutely and in fee simple.”

Under the will of Ella Miller, there passed to Agnes Frazier certain personal property and a piece of real estate. During her lifetime Agnes Frazier possessed all the personal property and- occupied the real estate. At the time of the death of Agnes Frazier there remained in her possession certain personal property and the real estate.

The plaintiffs claim that, under the will of Ella Miller, a life estate with power to consume was given to Agnes Frazier, and the remainder in fee simple to the plaintiffs; and that upon the death of Agnes Frazier they became the absolute owners in fee simple of all the property which was unconsumed. The defendants contend that Agnes Frazier took a fee simple estate in all the property under the will of Ella Miller, and that the attempted disposition of the property unconsumed by Agnes Frazier was void.

What estate vested in Agnes Frazier under item 5 of the will of Ella Miller? If she was vested with an estate in fee simple, upon her death such property passed under her will to the defendant, Jesse L. Frazier ; if she was vested with a life estate with power to consume, upon her death such property as remained unconsumed passed to the plaintiffs.

In a will construction suit the cardinal rule, for the court to follow is to ascertain and give effect to the intention of the testator. The intention of the testator must be gathered from the four corners of the will. Rules of construction are to be followed only as they are found to be aids to a determination of that intention.

We recognize the rule that where a fee simple estate is clearly given any attempt to give a limitation over of a remainder is void. 41 Ohio Jurisprudence, 742, Section 626. However, the difficulty which the court experiences in all such cases is in determining whether a fee simple estáfeos given. It is conceded that the .will of Ella Miller was drawn by a layman, and not by a skilled draftsman. Thus, in arriving at the intention of the testatrix the court is required to give the words used their usual and ordinary meaning. In the use of the words “to my sister, Agnes Frazier, of Sidney, Ohio, if she still be living, to do with and use as she see best fit to do,” did Ella Miller intend to pdss a fee simple estate? If there were -no other provisions in the will to be taken into consideration it may be construed to pass a fee simple estate. However, the words “to do with and.use as she see best fit to do” do not clearly and definitely show an intention to devise a.fee simple estate. The fact that the testatrix used those words'at all shows an intention to devise an estate less than a fee simple. If a fee simple estate were intended to be given, no such words were required, for the reason that a fee simple estate carries with it the absolute power of disposal. Had these words been omitted, the situation would have required the application of the rule that where an estate is devised to a person, generally, with no power of disposal expressed, but'followed by devis'e to another person of what shall remain undisposed of at the death of the first taker, the first devisee takes a fee simple estate. While an unlimited power of disposal is an essential element of a fee simple estate, an unlimited power of sale is consistent with a grant of the life estate if the will as a whole is susceptible of such a construction. In order to ascertain the intention of the testatrix the two clauses granting an estate must be construed together. The remainder clause is as follows:

“And after her death what is left if any be given to my nephew’s children which are now living, of Urbana, Illinois, to share and share alike. ’ ’

The language used in the second clause is as clear, plain and unequivocal as that used in the first clause. Thus, this case does not fall in that category of cases which hold that where a fee simple estate is granted in one clause in plain and unequivocal language, such estate eánnot be cut down by a subsequent clause of doubtful meaning. The plain and unequivocal language used in the remainder clause reflects the purpose of the testatrix as to the character of the estate which she intended to devise to Agnes Frazier. In ascertaining the intention of the testatrix we have a right to assume that if the testatrix had intended to devise a fee simple estate to Agnes Frazier she would not have provided for a disposition of the remainder; neither would there have been a necessity for the use of a qualifying clause. We are required to give meaning and effect to both clauses, if possible. If the remainder clause is given that construction and effect which a reasonable interpretation and plain and unequivocal words require, the court must conclude that the testatrix did not intend to pass a fee simple estate to Agnes Frazier, but rather a life estate with power to consume.

The rule that a remainder limited upon an estate in fee simple is void is applied only where it clearly appears that the chief beneficiary is to get an absolute interest. 41 Ohio Jurisprudence, 742, Section 626. In the instant case it does not clearly appear that the testatrix intended to give an absolute estate in fee simple to Agnes Frazier. Consequently, > the remainder clause does not fall because of repugnancy. We are required, in the instant case, to reconcile, if possible, the devise to Agnes Frazier with the devise of a remainder, and if the language is susceptible of a construction which will give effect to both provisions the will must be so construed. In 41 Ohio Jurisprudence, 742, Section 626, the rule is stated :

“Where it is possible to reconcile two grants by construing the first as a life estate only, this will be done. If the first provision of a will only prima facie imports an absolute estate, and the circumstance's warrant, the conclusion that the testator did not intend to give to the first devisee an absolute estate in fee simple, then the intention of the testator, as ascertained from the whole will, fairly construed in the light of all its provisions and the surrounding circumstances, should be carried out. ”

Only a few cases require our consideration. The plaintiffs rely chiefly on the case of Krumm, Exr., v. Cuneo, 71 Ohio App., 521, 47 N. E. (2d), 1001 (opinion, by Judge Barnes, Second Appellate District), to support their contention. The-syllabus of that case is as follows:

■“Where, under one item of a will, all of testator’s personalty is bequeathed to a named person, followed by disposition to other named persons of any unconsumed or undisposed of portion remaining at the death of the first-named legatee, such legatee takes an absolute estate; the attempted disposition of any undisposed of portion, being repugnant to the original bequest, is void.”

The opinion in that case is exceedingly well written and reviews all the important cases in Ohio bearing on this question, and cites the case of Steuer v. Steuer, 8 C. C. (N. S.), 71, 18 C. D., 145, which divides wills of this character into four classes. On page 526 the court .sets forth four examples, the third and fourth being as follows:

“Under example 3, where there is a devise to ¡A generally, but with qualified power of disposal and with a devise to B of what shall remain’ undisposed of at A’s death, A takes a life estate and the remainder over is good.

“Under example 4 there is a devise to A generally, with no power of disposal expressed or with an absolute power but followed by a devise to B of what shall remain undisposed of'at A’s death. A takes an estate in fee simple and the attempted limitation over is impossible and void.”

In that case the will under construction contained this provision:

“I give and bequeath to my wife, Caroline Peirano, all my personal property of every kind and description, wheresoever situate, but in case she should die and leave any part of the personal property unconsumed, or undisposed of, then in that event, the part so remaining shall be divided equally between my nephews,” etc.

It is noted that the provision which was construed to give a fee simple estate to the first devisee, differs from the provision of the will under construction in the instant case, in that the devise to Agnes Frazier is followed by a qualifying clause.

In Baxter v. Bowyer, 19 Ohio St., 490, where the testator devised all his property to his wife, and expressly provided that ‘ ‘ she shall have unlimited power in the possession of all property, heal and personal, thus bequeathed to her; to sell at public or private sale, on such terms as she may think best, or use in any manner as she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee simple,” and in a subsequent clause provided that at the death of his wife after funeral expenses were paid “all the property then remaining” be devised to the Presbytery of Cincinnati, the court held that the wife took only a life estate and life support, with power of sale. In its opinion the court uses language which may be applied with much force in the instant case. On page 498 the court says:

“These last two items constitute a very important part of the will, and are not to be rejected if they can at all be reconciled with the provisions in the first item. * * * The provisions as to the ‘possession’ and ‘use’ of the property add nothing to the word “property,” and certainly do not import an absolute estate. Indeed, their introduction at all, after the clause devising the ‘property,’ would seem to negative the idea that the testator supposed he had already vested the property absolutely in his wife. If he supposed he had already made her the absolute owner, why make any provision as to her manner of using or possessing it.”

On page 499 the court says:

“The only thing, therefore, in the first item, which is actually, or even apparently, repugnant to the limitation over, is this word ‘property.’ The testator gives to his wife all his ‘property.’ If he had added the words ‘for life’ after the word property, all parts of the will would harmonize, and nothing -need be rejected.”

In Johnson v. Johnson, 51 Ohio St., 446, 38 N. E., 61, where the testator devised to his wife the remainder of his property “with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters,” etc., the court held that the widow took only a life estate in the property with power to dispose of the same as she may think proper for consumption in her life support, and that what remained at the time of her death, unconsumed, passed to the remainder-men. We quote from the court’s opinion, on page 458, as follows:

“The fact that after using words which in themselves would give a fee, full power to bargain, sell, convey, exchange or dispose of the estate as she may think proper is expressly given to her by the testator, at once creates a slight inference that something less than a fee was intended; because a fee of its own force carries with it, and confers upon her the power, without express words from him to that effect, to bargain, sell, exchange, or dispose of the property as she may think proper.

“While the express addition of these powers to’ words giving a fee, would not hav.e the effect in themselves to destroy the fee, yet when these express powers are taken in connection with what follows the part of the will above quoted, the intention of * the testator to give to his wife only a life estate in his property becomes clear and manifest.” ■

In Tax Commission v. Oswald, 109 Ohio St., 36, 141 N. E., 678, where the testator bequeathed to his wife “whatever, property I am possessed at my decease, both personal and real. She to have full power to sell, deed and transfer, any or all of it, as she may deem best to better her condition,” and in a later item provided that ‘ ‘ after the death of my wife whatever property remains of my estate I will and bequeath as follows,” the court held that the widow took a life estate in the property, coupled with the power- to sell any or all of it “as she may deem best to better, her condition,” and that the gift over of what remained unconsumed was a vested remainder, subject to be divested by the exercise of the power. While' the qualifying clause, ‘ ‘ as -she may deem best to better her condition,” more clearly shows the intention of the testator than does the qualifying clause in the will under' construction; nevertheless, in the court’s opinion, language is used which assists this court in determining the issue in the case at bar. On page 48, the court says:

“Now, it is rudimentary in the construction of wills that the intention of the testator is to be ascertained,' and the whole will given force and effect, if such a construction can be reached consistent' with the application of legal principles, and that, ivhen an instrument is open to two constructions, one of which ivill give effect to the whole instrument and the other will destroy a.part of it, the former must ahuays be adopted.” (Emphasis ours.)

On page 49 the court says:

“ * * * conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either should be rejected. And ivhere, by one■ clause in a ivill, property is de vised or bequeathed, by words prima facie importing an absolute estate, and by subsequent clause is given in remainder to another person, the first, devisee or legatee takes only a life estate, and the limitation over is valid.” (Emphasis ours.)

Again, on page. 51, in distinguishing between the power granted and the estate devised, the court says:

“A power is not property, but a mere authority, and an absolute poiver of disposal is not inconsistent with an estate for life only. The gift of such power will not enlarge the life estate previously given, but confers an authority in addition thereto. One may have a life estate and yet be empowered to convey an estate in fee simple.” (Emphasis ours.)

(The court, in that opinion on pages 43 and 44, sets forth the provisions of the wills in cases in which the judgments therein have been affirmed by the Supreme Court without opinion on the authority of Johnson v. Johnson, supra. In those cases the first devise, and the clause granting power to the first devisee are all broader in scope than the provisions of the will under construction.

An examination of the authorities is cogent proof of the truth of the oft-repeated statement that there are no precedents to follow in a will construction suit. However, in the instant case, in ascertaining the intent of the testatrix, we have applied the principles of law and rules of construction found in the authorities cited.

It is evident that the testatrix desired to keep her property descending in the Miller line. This general intent is manifest if the words used are given their usual and ordinary meaning. The language in the first devise only prima facie imports an intention to grant a fee to Agnes Frazier; upon giving effect to the devise of the remainder, it becomes reasonably clear that it was the intention of the testatrix to give to Agnes Frazier a life estate, with power to consume for her benefit, and the remainder, in fee simple, to the plaintiffs; and that upon the death of Agnes Frazier, the plaintiffs became the absolute owners in fee simple of all the property which was unconsumed. By such a construction all the provisions of the will harmonize and are given effect. It is so decreed.

Decree accordingly.

Miller and Hornbeck, JJ., concur.


author: By the Court.

text:
    Geiger, Appellant, v. Geiger, Appellee.

      (No. 1922
    — Decided April 17, 1947.)

      Messrs. Dyers, Leyland & Patterson, for appellant.

      Mr. Irvin C. Dels camp, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, in an action for divorce, in which the plaintiff, appellant herein, charged the defendant, appellee herein, with gross neglect of duty. The defendant, in her" cross-petition, asked for an allowance of alimony on the ground that the plaintiff had abandoned her without just cause. The trial court dismissed the plaintiff’s petition, awarded custody of the two minor children of the parties to the defendant and ordered the plaintiff to pay to the defendant $15’ per week for the care and maintenance of the children, until the further order of the court. .

Plaintiff assigns as error that the judgment of the . trial court is contrary to law and is against the manifest weight of the evidence.

The petition charged the defendant with gross neglect of duty. In support of that allegation the plaintiff introduced evidence tending to prove the defendant guilty of. adultery or undue intimacy with other men. Such evidence was clearly admissible under the charge of gross neglect. Arnold v. Arnold, 110 Ohio St., 416, 144 N. E., 261. See 14 Ohio Jurisprudence, 395, Section 14. Other evidence introduced in support of the charge of gross neglect was found to be insufficient to justify a decree.

The plaintiff introduced evidence of admissions made by tbe defendant to the plaintiff and other persons, 'from which an inference conld reasonably be drawn that she had been guilty of adultery. Other evidence was presented which plaintiff claims corroborated such admissions.

The plaintiff raises the question of the legal effect and sufficiency of the admissions of the defendant.

Section 11988, General Code, provides in part:

“A divorce, or a judgment for "alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence. No admission shall be received which the court has reason to believe was obtained by fraud, connivance, coercion or other improper means. ’ ’

That section is designed to prevent collusion in obtaining a decree of divorce. In the instant case the defendant vigorously resisted the action. When the party making an admission resists the action for divorce the court is justified in finding that no collusion exists. No claim is made that the admissions were made through “fraud, connivance, coercion or other-improper means.” Under the provisions of Section 11988, General Code, the court has no authority to grant a decree unless the admissions; if believed by the court to be true, are corroborated by other evidence. Lesh v. Lesh, 138 Ohio St., 492, 37 N. E. (2d), 383; Hanover v. Hanover, 34 Ohio App., 483, 486, 171 N. E., 350. The provisions of Section 11988, General Code, do not require corroborative testimony of each and every material fact testified to by the plaintiff. Groff v. Groff, 33 Ohio App., 309, 169 N. E., 39; Kleinhenz v. Kleinhenz, 22 Ohio Law Abs., 658; Detrick v. Detrick, 33 Ohio Law Abs., 155; 14 Ohio Jurisprudence, 436, Section 50.

In the instant case the trial court was required to consider all the facts and circumstances under which the admissions were made and any evidence tending to corroborate the admissions. The trial court was required to weigh such evidence against the explanation of the defendant as to her reason for such admissions, and the denial of the defendant of the truth of the charge.

The evidence shows that the plaintiff and the defendant were married at Dayton, Ohio, on January 10, 1942. Two children were born as the issue of the marriage, one on April 7, 1943, and the other on September 16, 1944. On April 3, 1944, the plaintiff entered the service of the United- States Navy. He was released from service on February 15, 1946. The separation occurred on March 13, 1946, on which date the plaintiff filed his petition for divorce. The evidence shows that for a few months after their marriage the plaintiff and the defendant lived with the plaintiff’s parents. Á few months after the marriage the plaintiff was assigned by his employer to work in Erie, Pennsylvania, where the' plaintiff and the defendant resided for a period of two months.

The defendant testified, and the plaintiff admitted, that during their entire married life he had constantly and' repeatedly accused her of infidelity. The plaintiff began making these accusations immediately after their marriage. During their stay in Erie, Pennsylvania, where they had no acquaintanceship, he continued to harass the defendant with such charges. From the evidence, it may be reasonably concluded that he based these charges on the, fact that she refused at times to have sex relations with him. The evidence shows that the plaintiff and the defendant had many petty differences and quarreled constantly. The defendant left the plaintiff several times prior to the time he entered the Navy, but always returned to him after a few day’s absence.

The evidence shows that on the night prior to the separation he accused her of infidelity. She testified that she had been constantly harassed by such accusations, and, in desperation and for the purpose of relieving his mind, according to her statement, she stated to him on that evening that she had been at Le Sourdesville Lake three days and three nights. She stated: “I wanted to hurt him so bad.”

A police officer testified that on the day of the separation when the plaintiff, his father and mother came to take the two small children from the custody of the defendant, the defendant became hysterical and made the admission that she had done wrong, and stated that she had been at Le Sourdesville Lake with a man. That such admissions were made, although denied by the defendant, may be conceded. Whether such admissions were true and sufficiently corroborated by other evidence was a. matter for the trial court to decide. The defendant denied any misconduct and explained her purpose in making such admissions. No evidence was introduced to prove that she had stayed at Le Sourdesville Lake or at any other place ■at any time with a man other than her husband.

The evidence shows that during the recent war she was employed at a war plant, which was located several miles from her home, and that she was picked up at her residence by another employee of the plant and returned to her home at times by her foreman, in their respective automobiles. The evidence shows further that at one time she was employed at the restaurant in the Miami Hotel in Dayton. Her hours of employment were from 11 p. m. until 7 a. m. On one occasion she was invited to ride home in the morning with a young man with whom she was acquainted, and ■on the way home the automobile in which she was riding was involved in an accident. . She reported the incident to her husband. There was other' evidence introduced of like probative value from which the plaintiff contends the court could have drawn' an inference that the defendant had been • guilty of adultery or of such misconduct as would have justified a decree. There was no direct or positive testimony of misconduct, except that of the admissions-of the defendant. The trial court held that the accusations made by the plaintiff were not well founded,, and that the corroborative evidence was insufficient to sustain a finding of infidelity. .

The principal question for the court to determine is what weight or probative value should the court give to the admissions of the defendant in light of the corroborative evidence introduced. The court must determine whether the admissions were true and whether the admissions were sufficiently corroborated to justify granting a decree. Under the provisions of Section 11988, General Code, it was incumbent on the plaintiff to prove his case by a preponderance of the evidence. In 27 Corpus Juris Secundum, 737, Section 139, the rule is stated:

“Proof of adultery must be clear, positive, and sufficiently definite .to show the circumstances under which it was committed; but it may be sufficiently established by a preponderance of the evidence.”

■ However, where adultery is charged, the court will carefully scrutinize such evidence and act upon it with caution: The charge will not be sustained except upon the most satisfactory proof. 14 Ohio Jurisprudence, 433, Section 48. If the court is not reasonably satisfied upon the preponderance of the evidence, the court must find that the charge has not been sustained by sufficient evidence. In the instant case, if the admissions were removed from the case there would be little or no evidence to support the charge. The charge cannot be sustained, neither can the admissions be sufficiently corroborated, by mere sus-"' picion, however strong it may be, or by innuendoes. The evidence must be of a substantial character, worthy of belief.

In 40 A. L. R., 630, in the annotation to the case of Marshall v. Marshall, 3 F. (2d), 344, 40 A. L. R., 624, there appears a discussion of the principle of law applicable to this case. Numerous cases are cited from different states, some of which have statutory provisions similar to those in Section 11988, General Code. Other states, without statutory provisions on the subject, follow the rule that a divorce will not be granted on an admission or confession of a party unless it is supported by corroborative evidence. The plaintiff iq this case relies on the rule which is followed in some jurisdictions and is stated on page 643 (40 A. L. R.) as follows:

“Many cases, however, view the rule as one 'subject to qualification where the circumstances attending the confession, or the circumstances of the case generally, though furnishing no corroborative evidence, do repel all suspicion of collusion or other improper motive, and leave in the mind of the court no doubt as to the truth of the confession or admission, and under such circumstances no corroboration is required, but the confessions and admissions are regarded as, themselves, sufficient to authorise a decree.” (Emphasis ours.)

In view of the provisions of Section 11988, General Code, we are of the opinion that this principle of law has no support in Ohio. Under our statute we are of the opinion that the true rule in Ohio is concisely stated on page 637 as follows:

“Under a mandatory statute which prohibits the granting of a divorce upon the uncorroborated ‘statement, admission, or testimony of the parties,’ there must be some other and different corroboration of' the main fact in issue than the ‘statement, admission,, or testimony of the parties.’ ”

On page 638 a statement in support of the rule is as follows:

“It has been said to be an undoubted principle of law that a divorce will not be granted solely upon the confession of one /of the parties to any act of marital disloyalty; that the frailty of human nature which prompts such a confession for the purpose of arousing the jealousy or ire of the other party to-the marital state, or for the more sinister purpose of driving the other party to seek a divorce, has caused the courts to scrutinize such confessions with great caution, to ascertain whether or not they were obtained by fraud, coercion, or collusion, and to avail in a case such as presented by this record, it should be clear and free of any uncertainty as to words used by the party or the meaning-intended to be given to them. ’ ’

Additional reasons for the rule aré stated On page-641, as follows:

“The reason usually assigned as the basis of the rule is that it was designed to prevent collusive - divorces. But there are other sinister designs, and perhaps honest mistakes, on the part of parties to divorce proceedings which the rule operates equally to prevent; for example, confessions made under coercion, as through fear or hope of forgiveness; mistakes as to marital incapacity, etc.”

In view of the provisions of Section 11988, Greneral Code, this court holds that as a matter of law a decree of divorce cannot be granted solely on the admissions of a party, unsupported by other evidence. The corroborative evidence must be of sufficient weight and have snch probative value as to convince the court of the truth of the admissions, and, together with such admissions prove the grounds for divorce .alleged in the petition, by a preponderance of the evidence.

Was the judgment of the trial court against the manifest weight of the evidence ? Much of the evidence was in conflict. The trial court saw and heard the witnesses and was the judge of their credibility. Obviously the trial court believed the testimony of the defendant and evidence introduced in support of her defense and her claim to support. The trial court found, after considering the evidence, relative to the admissions made by the defendant, her purpose in making the statements, all the other evidence introduced by the plaintiff for the purpose of corroborating the admissions of the defendant, and evidence introduced by the defendant in her defense, that the plaintiff had not sustained the burden of proof by a preponderance of the evidence. There is sufficient evidence in the case to support the judgment of the trial court. A reviewing court cannot reverse the judgment of the trial court on the weight of the evidence unless the judgment is manifestly against the weight of the evidence. After a review of all the evidence in this case we cannot say that the judgment of the trial court was manifestly against the weight of the evidence.

As we find no error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


text:
    The State, ex rel. Pengelly, v. McClelland, Judge.
    (No. 3948
    — Decided November 20, 1946.)

      Messrs. Binns S Tresemer, for relator.

      Mr. John F. Carlisle and Mr. W. B. McLeskey; for respondent.
   By the Court.

This cause is submitted on demurrer by the respondent upon the following grounds, to wit:

1. That the court has no jurisdiction of the subject matter of the action;

2. That the relator has not legal capacity to sue; and

3. That the petition does not state facts sufficient to constitute a cause of action or to legally justify the relief prayed for therein.

• The action is one in mandamus seeking to require this respondent to entertain, hear and determine the cause of Emma Pengelly, Plaintiff, v. Cora I. Thomas, et al., being case No. 55273 on the dockets of the Probate Court of Franklin county, Ohio.

The petition alleges that on September 9, 1946, relator appeared in the open court of the respondent, who is the qualified and acting probate judge of Franklin county, Ohio, .for further proceedings in the above ■stated cause in accordance with mandates theretofore issued to such Probate Court by the Court of Appeals for Franklin county, Ohio, and the- Supreme Court of Ohio; that the Court of Appeals for Franklin county, Ohio, ruled that Section 10501-17, General Code, effective January 1, 1932, “is determinative and grants .jurisdiction to the Probate Court in this matter,” and in its journal entry filed on April 4, 1946, held “that ■said Probate' Court has jurisdiction to vacate on the ...ground of constructive fraud the order confirming the -final account made and entered in said estate on the 2nd day of October 1929, and that to grant the relief prayed for in this proceeding, based on Section 10501-17, General Code, would violate no provision of the Constitution,” and ordered the cause remanded for further proceedings according to law, and further •ordered that a special mandate be sent to the Probate Court of Franklin county, Ohio, to carry the judgment into execution.

The petition alleges further that the Supreme Court ■of Ohio dismissed an appeal as of right, overruled a motion to certify-and ordered a special mandate sent to the Probate Court of Franklin county, Ohio, to carry its judgment into execution; that the respondent probate judge, on September 9, 1946, on motion, rendered .a decision from the bench intimating his intention to rule that the cause No. 55273 should be dismissed for the reason that he did not have jurisdiction under Section 10501-17, General Code, to entertain the action; that the decision from the bench of respondent is arbitrary, capricious and contemptuous of the judgments .and mandates of the. reviewing courts, and unless an alternative writ of mandamus issue from this court, respondent will journalize a dismissal of the cause No. -55273.

It will be noted that the petition does not definitely allege that the respondent refused to carry out the mandate issued by this court, but merely alleges that he “intimated his intention to rule that said cause No. 55273 should be dismissed.” The right to invoke the aid of a court to compel the performance of an official duty as a general rule cannot arise until the officer is in actual default. Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is, therefore, incumbent upon the relator to show an actual omission on the part of the respondent to perform the act required before the writ may be issued. See 25 Ohio Jurisprudence, 1000, 1001, Section 26.

We are, therefore, of the opinion that this action is prematurely filed and the writ is denied.

Writ denied.

IIornbeok, P. J., Wiseman and Miller, JJ., concur.


author: Matthews, J.

text:
    Klein, Appellant, v. The United Theaters Co., Appellee. Shubert, Appellant, v. The United Theaters Co., Appellee.
    (Nos. 6748 and 6749
    — Decided January 13, 1947.):

      Mr. Charles P. Taft, for appellants.

      Messrs. Paxton & Seasongood., for appellee.
   Matthews, J.

These actions were filed by dissenting shareholders, under favor of Section 8623-72, General Code, for judgments for the fair cash value of their, shares as of the day before the meeting at which the sale was authorized.

The question presented is whether the plaintiffs have performed the conditions essential to give rise to their causes of action. There is no claim of double dealing or other species of fraud and, therefore, the rights of the parties must depend on the construction of the relevant statutes and of the acts of the plaintiffs to determine whether the causes of action have come into being.

Now what are the provisions, of the applicable statutes? The section specifically applicable is 8623-72, General Code, although it incorporates by reference the whole G-eneral Corporation Act of 138 sections. By Section 8623-72, General Code, it is enacted that upon the authorization of the sale-of all or substantially all the corporate assets or upon a consolidation > or reorganization, a shareholder who has not voted for the sale, consolidation or reorganization shall be paid the fair cash value “if 'such shareholder within twenty days after the day on which the vote was taken, shall object in writing to the action so taken and shall demand in. writing the payment of such fair. cash value of his shares.” It is required by the section that the objection and demand shall state the number and kind of shares held by the dissenter and the amount which he claims is the fair cash value. It is provided also that the right of the dissenter to the fair cash value shall •cease if the corporation' abandons the sale, etc., but the dissenter is not permitted to withdraw his demand without the consent of the corporation. The corporation is required to notify the dissenter within ten days in writing whether it will pay the demanded amount and if it will not pay that amount, state the amount it will • pay. If the dissenter and the corporation do not agree on the amount, the dissenter, to preserve his right, must file an action to lave the fair cash value determined, and if he does not his right is limited to the amount offered by the corporation, or if the corporation has made no offer, then the amount demanded by the dissenter. If the court finds that the dissenter is entitled to the fair cash value, the method of determining it is set forth. It is provided also that the right to vote and other rights as a shareholder shall be either in abeyance or suspended from the time the dissenter makes his demand and so long as the proceeding is pending. Upon abandonment of the sale, the rights of the dissenter as a shareholder are revived. And it is expressly declared that “any shareholder who does not object and demand in writing the payment of the fair cash value of his shares, in the manner and at the time hereinbefore provided, shall be concluded by the vote of assenting shareholders.”

We are indebted to counsel for information as to the status of similar legislation in other states. Some few states have no statutes providing for withdrawal of dissenters from the course outlined by the majority. Most, however, have some statutes on the subject, although many make a distinction between a consolidation or reorganization and a sale of all or substantially all the assets. See Report on the Study and Investigation of Reorganization Committees, made pursuant to Section 211 of Securities Exchange Act of 1934, “Part VII,” page 591 et seq. See, also, Ballentine on Corporations (Rev. Ed., 1946), where it is said at page-675:

“It is a debatable question of policy whether minority dissenting shareholders should be given the privilege of demanding payment in cash of the appraised value of their shares as a safeguard against possible unfairness. This remedy is more commonly given in case of merger or consolidation.”

However, the General Assembly of Ohio has declared the policy for this state to be that in cases not only of consolidation and reorganization, but also in cases of the sale of all or substantially all the assets, a dissenting shareholder shall be entitled to be paid the fair cash value of his shares by complying with the statutory requirements.

Both because they are in pari materia and because the entire chapter is incorporated into Section 8623-72, G-eneral Code, that section must be construed in the light of all relevant provisions of the chapter. -One section that influences the meaning of this section is 8623-2, General Code, which defines certain terms used in the chapter, and particularly the definition of the term “shareholder,” as follows:

“The term ‘shareholder’ means a person whose name appears on the books of the corporation as the owner of a share or shares of such corporation, and .■shall include a subscriber to shares whose name appears on the books of the corporation as a subscriber, -.unless the contest otherwise requires, or unless the articles, the regulations or the contract of subscription otherwise provide. ’ ’

Another section that requires attention in determining the meaning of Section 8623-72, G-eneral Code, is 8623-53, General Code, by which it is provided:

“Any shareholder of record who is entitled to attend a shareholders’ meeting, or to vote thereat or to ássent or give consents in writing, is entitled to be represented at snch meeting or to vote thereat or to assent or give consents in writing, as the case may be, or to exercise any other of his rights, by proxy or proxies appointed by a writing signed by such shareholder.

“A telegram, cablegram, wireless message or photo-gram appearing to have been transmitted by a shareholder, or a photograph, photostatic or equivalent reproduction of a writing appointing a proxy or proxies shall be a sufficient writing. * * *

“(1) In case two or more persons are appointed and but one attends the meeting, he may exercise all the authority, subject, however, to the provisions of sub-paragraph (4) hereof: * * V’

. No.w what was done by these plaintiffs to .disassociate themselves from the action of the majority under which they would be on a parity with them in, the selling price, and to create in themselves the right to have the fair value of the corporate assets determined in the manner prescribed and to receive their proportionate share, based on that valuation?

Klein attended the meeting of shareholders and voted against the sale, and,. without presenting^ proxy from Shubert, notified the persons at the meeting that Shubert was opposed to the sale. Thereafter, on April 27,1946, and within 20 days of the time of the meeting, Klein’s attorney objected in writing to the sale and demanded in writing the payment of the fair cash value of Klein’s shares and stated the amount which he claimed as the fair cash value. At that time a letter from Klein to his attorney was in the mail, but had not been delivered, and the attorney acted in pursuance of authority conferred in a telephone conversation, in which he was told the letter was in transit. This letter signed by Klein arrived two days later and, Avithout quoting it, we think it is sufficient to say that it authorized the law firm of Klein’s attorney to object and demand the fair cash value, and fixed the cash value at $210 per share. In a postscript it Avas stated that such law firm could make the same demand on behalf of Shubert.

On the same day that the foregoing letter was received in Cincinnati, a conference was held in New York City between Klein and his Cincinnati' attorney, at which conference Klein' on behalf of himself and Shubert orally authorized such attorney to protest and demand $240 per share for the shares. There was no direct communication with Shubert. , '

On the same day letters signed in the firm name were addressed to the defendant on behalf of * both Klein and Shubert, protesting against the sale and demanding $240 per share for their shares. These letters were received by defendant within 20 days of the resolution authorizing the sale. Within a week the defendant wrote to each plaintiff denying the validity of the notices, but stated a Avillingness to pay $150 per sharé.

There was no personal interview between Shubert and plaintiffs’ attorney during the 20 days following the sale’s resolution and no written authority from Shubert until June 26, 1946, when he and Klein joined in executing formal poAver of attorney confirming the authority theretofore given to their attorneys to protest against the sale and demand on their behalf the fair cash value of their shares and authorizing them to institute actions to obtain the appraised value of the shares. In the meantime, these actions had'been filed.

The sufficiency of the foregoing proceedings as a compliance with the statutory requirements is assailed on three grounds: (1) That no notice in writing, signed personally by the shareholder or on his behalf by his agent or attorney acting under his written authority, filed with the defendant within the 20-day period, was given; (2) that as to Shubert, there was no written authority signed by him; and (3) as to Klein, the attorney, by demanding more than that stated in the writing, exceeded his authority, and invalidated the protest and demand thus made in his name.

The plaintiffs assert that there has been a substantial compliance with the statute.

Which is right depends upon the true construction of the statutes' on the subject.

We have found no Ohio case that furnished any light on their meaning, and have been furnished with none through the diligence of counsel.

It seems too clear for' argument that the statute requires a written protest and demand to be made— and, indeed, there has been no argument on that point.

Inasmuch as a shareholder acts solely in his own interest and in no sense in a fiduciary capacity in deciding whether to take the sale price or the appraised value, it is equally clear that there is no principle of public policy against the delegation of the authority to another to act for him. '

However, it seems that at common law, according to the weight of authority, there was no right to vote corporate stock by proxy. 13 American Jurisprudence, 533 et seq. That such a right is conferred by statute is not questioned by any one, and it is not questioned that it is within the legislation competence to authorize a shareholder to exercise his rights as such through an agent in all respects.

The main issues between the párties are whether the delegation of authority must be in writing and whether the written authority must accompany the written protest and demand, or, at least, be delivered to the corporation within the period allowed for the filing of .the protest and demand.

By Section 8623-53, General Code, already quoted, a shareholder is authorized to vote or exercise any-other of his rights by proxy or proxies appointed by a writing signed by such shareholder. This would seem to be susceptible of a construction broad enough to permit the shareholder to act through an agent in making the objection and in making the demand authorized by Section 8623-72, General Code. Perhaps by a strict construction it might be possible to give it a more limited operation. 'However, whether it be given a broad or more limited field of operation, it would seem that whenever it authorizes a delegation it requires that it be evidenced by a writing signed by the shareholder.

In the recent case of Era Co. v. Pittsburgh Consolidation Coal Co., 355 Pa., 219, 49 A. (2d), 342, the Supreme Court of Pennsylvania construed the statutes of that state relating to the rights of dissenting shareholders upon a merger of corporations. The court stated the rule for its guidance to be: “Where a remedy or method of procedure is provided by an act, its provisions shall be strictly construed and exclusively applied.” The following quotation from the opinion sufficiently indicates the facts and the ruling of the court:

“The learned counsel for appellant concedes that under the act it is the registered owner who must act, but earnestly maintains that it was the registered owner who was acting, ‘through his agent.’ With this we do not agree. A letter from a New York bank stated that an undisclosed client held 250 shares of the coal company stock and wished to vote against the merger; that the certificates are registered ‘in the name of (the bank’s) nominee’ and under separate cover the bank was forwarding a proxy to vote against the merger. Such a letter cannot be construed as a written objection from the registered owner. What authority did a stranger to the corporation have to declare that its undisclosed client was the true owner of the shares? The corporation was under no duty to ignore its stock registry and pass upon the equitable ownership of the shares. An objection by an alleged agent of an undisclosed principal cannot be regarded as that made by the registered oioner. The corporation properly ignored such an irregular objection. The petition by the alleged beneficial owner for an appraisement and payment of fair value, likewise is not the act of the registered owner as required by the act.”

There are two cases decided by the Court of Chancery of Delaware that shed light upon the proper construction of similiar statutes and the reasons therefor. The first of those cases is In Re Universal Pictures Co., Inc., — Del. Ch., — 37 A. (2d), 615. The statutes under consideration related to the rights of dissenting shareholders upon a consolidation or merger. The statutes did not apply to a sale of the assets as do the Ohio statutes. In all other respects, the statutes, while differing in detail of procedure, do not differ in substance. As we view it, there is probably greater opportunity for overreaching by the majority upon a consolidation or merger than upon a sale of the assets. Upon the necessity of written objections, the court there said:

“From the statute, it seems to me beyond dispute that the burden falls upon a dissenting stockholder to establish his right to an appraisal and payment. This right is dependent upon the performance of prescribed conditions by a stockholder; written objection, written demand (within certain periods), and non-voting of shares in favor of the merger. It is but logical, absent any contrary direction, that a person asserting the right should show that he is á stockholder within the statutory meaning, and that he has satisfied those conditions required of him for the perfection of that right.”

After holding that stockholders could act through agents in making their objections and demands the court, on the subject of the necessity of having and furnishing evidence of authority at the time, said:

“I shall proceed to the contention that the objections and demands were defective, in that no evidence of the purported agents’ authority was furnished the corporation when these documents were presented to it. The corporation urges that ‘it was vital for the corporation to know whether, at the time when the objections were filed, the objections were by bona fide stockholders or were the acts of interlopers who, for collateral reasons, desired to.be obstructive.’ As has already been indicated, objections and demands are' calculated to induce important action by other stockholders, (approval or disapproval of a merger) and by the corporation (action relating to the disenfranchisement and dividend disqualifications). It is well settled that the existence of an agency is not presumed; that, in general, an ‘agent cannot establish his own authority, either by his representations or by assuming to exercise i.t’; and that ‘every authority must find its ultimate source in some act or omission of the principal.’ Jordan Piano Co. v. Lewis, 4 W. W. Harr., 423, 433, 154 A., 467, 472; see also 2 C. J. S., Agency, Section 16, p. 1041; 1 Restatement of Agency, Sections 8, 27; 2 Restatement of Agency, Section 285. In several instances, the only evidence of the existence of an agency before the stockholders, or the corporation, when the objections and demands were filed, was the representation of the purported agent (a stranger to the corporation in so far as the shares in question were concerned), and'his assumption to exercise it. Under such circumstances, it would seem manifestly unreasonable to require consenting stockholders, or the corporation, to assume the existence of an agency and take action upon that assumption. ’ ’

That case was followed in the second case, Friedman v. Booth Fisheries Corp., — Del. Ch., —, 39 A. (2d), 761, m which an attorney at law assumed to act for the dissenting shareholder. It was contended that the authority of an attorney at law was presumed, but while conceding that the authority of an attorney at law to appear and represent his client in a court proceeding may be presumed, the court, nevertheless, held that “where, as here, the.asserted agency is not one which can be performed only by an attorney at law, the authority of a lawyer is no more presumed than that of a layman. ’ ’ In that case one of the dissenting shareholders had given a proxy in which he specifically directed that his shares should be voted against the merger, but the court held that this was not an express written objection to the merger, that “it is reasonable to believe that many shareholders might desire to vote against a merger without any intention of proceeding under section 61, if the merger should receive the requisite approval of other shareholders at the meeting.”

In the earlier case of Schenck v. Salt Dome Oil Corp., 34 A. (2d), 249, the court held, under a former statute, that the actual owner of stock, having made the objection and given the written notice and otherwise complied with the statute, was entitled to the rights of a dissenting shareholder to have an appraisal of his stock. However, no such question is presented in the case at bar.

Nor are we presented here with any question of waiver of compliance with any provision of the statutes. The only personal contact or communication between either of the plaintiffs, and the defendant was when Klein attended the shareholders’ meeting, at which the resolution to sell was adopted, and at that meeting the necessity for the presentation of written authority from the shareholder of record was called to his attention by the refusal of the assembled shareholders to perrpit him to vote the Shubert shares against the sale.

In the light of the authorities and statutory provisions, and especially of the express language of Section 8623-53, General Code, giving to the shareholder the right to exercise “any other of his rights” than those enumerated “by proxy or proxies appointed by a writing signed by such shareholder,” it is our conclusion that only in that way can authority be conferred.

We hold also that such written evidence of the agent’s authority must be submitted to the corporation within the statutory period within which the objection and demand must be given.

As neither of the plaintiffs complied with those statutory requirements necessary to give rise to the right to have the appraised value of their shares, the judgment in each case is affirmed.

Judgments affirmed.

. Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.


text:
    Henry et al., Appellants, v. Reich, Appellee.
    (No. 3942
    — Decided February 11, 1947.)

      Mr. Charles J. Ghastang, for appellants.

      Mr. Dale D. Rapp and Mr. George T. Tarbubton, for appellee.
   By the Court.

This is an appeal on questions of law from the Court of Common Pleas of Franklin qounty. The action is on a cognovit note and was instituted by H. E. Henry and IT. J. Loechler, plaintiffs,appellants herein, against P. F. Reich, defendant, appellee herein.

The record discloses that on July 12,1945, a cognovit judgment was entered iñ favor of the plaintiffs in the amount of $489.02. Thereafter the defendant filed a motion to vacate the judgment, which motion was sustained and the defendant was permitted to file an answer setting up two defenses, (1) failure of consideration for the note upon which the judgment was based and (2) the note upon which-the judgment was based was secured from the defendant by fraud and deceit of the plaintiffs.

Upon the trial of the cause, the jury returned a verdict for the defendant and a judgment was entered by the court on such verdict.

The record discloses that on or about May 31, 1944, the defendant submitted a written application to the plaintiffs, who are life insurance underwriters, for life insurance, the amount being left in blank. Some difficulty was encountered in passing the medical examination and, as a result of this, the policies were not issued until November 14, 1944. On that date three policies of insurance on the life of the defendant, in the total amount of, $25,000, were delivered to the defendant and accepted by him. .The premiums due The New York Life Insurance Company for the policies totaled $1,011.25, and in consideration of the delivery of the policies the defendant gave the plaintiffs a check in the sum of $511.25 and a cognovit note to the order of the plaintiffs in the principal amount of $500. The defendant at that time decided that he desired double indemnity clauses in the policies and for this reason they were given back to the plaintiffs to have the changes made ip the policies by the insurance company. The changes were made as requested on two of the policies and \they were again delivered to the defendant on January 19, 1945. The first note given was' then duo and a new cognovit note was given in the sum of $486.59 instead of in the original sum of $500, due to some adjustment in the total premiums. This note was to become due on March 15, 1945. When it became due another cognovit note was issued for the same amount and was to be due on April 15, 1945, which note is the subject of this action. 1

At the close of all the evidence the plaintiffs moved for a directed verdict, which motion was overruled, and after the verdict was returned the plaintiffs moved for a judgment notwithstanding the Verdict, which motion was also overruled. The plaintiffs, being content to rely on those two motions, did not file a motion for a new trial.

The first assignment of error is that the trial court committed prejudicial error in overruling plaintiffs? motion for a directed verdict. The plaintiffs contend that there was no evidence to support either of the defendant’s affirmative defenses.

We shall consider first whether there was a failure of consideration. Failure of consideration, in law, is just what the plain meaning of the words implies, that is to say, it is the neglect, refusal and failure of one of the contracting parties to perform or furnish, after making and entering into the contract, the consideration in substance and in fact agreed upon. 29 Ohio Jurisprudence, 922, Section 139.

The record discloses that these policies were issued upon the application of the defendant, which was dated May 31, 1944. This application, signed by the defendant, contained, among other things, the following statements: “Age nearest birthday, 43; Write policy to take effect as of March 15, 1944.”

Each of the policies issued has on the cover the following: “Payable on the 15th day of March.”

On the first page of each of the three policies is the following, with the exception of differing amounts:

“This contract is made in consideration of the application therefor and of the payment in advance of the sum of $404.30, the receipt of which is hereby acknowledged, constituting the first premium and maintaining this policy for the period terminating on the 15th day of March, 1945, and of a like sum on said date and every twelve calendar months thereafter during the lifetime of the insured. ’ ’ .

Now, the record discloses that these policies were delivered to the defendant on November 14, 1944; that the premiums were paid on the same date; and that the life of the defendant was not insured until the premium was paid.

It is the contention of the defendant that, since he was not insured from the 15th day of March 1944, but only from the 14th day of November 1944, there was a failure of consideration for the note. The record discloses that the reason the policies were to become effective on March 15, 1944, was that after such date the defendant’s age changed and he would become one year older and the rate would be higher. Henry testified that there was an increase in policy rates effective June 1, 1944, and that by taking advantage of this and also of the age change on March 15,1944, the defendant would save approximately $3,000 in premiums during the life of the policies. In view of those facts, we believe it cannot be said that there was a failure of consideration. There is no evidence whatsoever to support such a failure of consideration. The policies were issued in accordance with the defendant’s application and he testified that he read the first pages of the policies when they were delivered to him on November 14, 1944. He, therefore, knew when the premiums became due and accordingly accepted the policies and paid the first annual premiums. He is bound by the terms of the policies which he accepted. These policies state that the premiums he paid would maintain them for the period terminating on the 15th day of March 1945. Prom those facts we are of the opinion also that there is no evidence whatsoever to support the claimed defense of fraud and deceit.

In 19 Ohio Jurisprudence, 335, Section 24, the essentials of fraud and deceit are set forth as follows: ■

“In order to maintain an action for damages for deceit, certain elements must be present. First of all, there must be actual or implied representations or concealment of a matter of fact which relates to the present or past, and which is material to the transaction; secondly, the representation must be false; thirdly, the representation must be made with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; fourthly, it must be made with the intent of misleading another into relying upon it; fifthly, this other person must have relied upon it with a right to so rely; and lastly, injury must have resulted as the consequence of such reliance. All of these ingredients must be found to exist, and the absence of any one of them is fatal to a recovery. «The grounds of the action of deceit are fraud and damage, and when both concur the action will lie. Moreover, both" must concur to constitute actionable fraud.”

The defendant contends that the fraud and deceit of the plaintiffs are found in the facts that were withheld from the defendant, and that no thought of fraud and deceit was ever expressed until all the facts had been revealed and defendant discovered that his insurance policies had been dated back and that he was liable to .the insurance company for additional premiums. The ■defendant testified that he thought the premiums would start to run on November 14, 1944, and contends that the failure of the plaintiffs to advise him-that the premiums started to run from the effective date of the policy constitutes a fraud and deceit. He testified that he did not know of anything they said leading up .to the matter of all these things, that was false exactly. In the light of this testimony and the fact that the defendant applied for insurance to be effective on March 15,1944, that the policies issued to him conformed with the application, and that they stated on their covers and on the first ppges that the premiums became due on March 15, we cannot find there was any evidence of fraud or 'misrepresentation concerning the premiums on .these policies. Such being the fact, there was no question for the jury to pass upon, it became'the mandatory duty of the trial court to sustain plaintiffs ’ motion for a directed verdict, and the trial court’s failure to sustain such motion constitutes reversible error.

The judgment is reversed and the cause is ordered remanded with instructions that judgment be rendered for plaintiffs as prayed for in the petition.

Judgment reversed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.