author: Wiseman, J.

text:
    Hosterman, Jr., Trustee, Appellant, v. The First National Bank & Trust Co. of Springfield, Ohio, Appellee.
    (No. 459
    Decided June 18, 1946.)

      Messrs. Keifer & Keifer, for appellant.

      Messrs. Gorry, Durfey <& Martin, for appellee.
   Wiseman, J.

This is an appeal on. questions of law from a judgment of the Common Pleas Court of Clark county, overruling a demurrer to the first defense and overruling a motion to the second defense of the second amended answer.

The demurrer to the first defense raises the question whether the defendant had not waived the statute of limitations as a defense by failing to demur to the petition which on its face showed that the cause of action was barred by the statute of limitations. During the pendency of plaintiff’s motion to strike certain allegations from the defendant’s first amended answer, the Supreme Court of Ohio decided the case of State, ex rel. Lien, v. House, 144 Ohio St., 238, 58 N. E. (2d), 675, in which it held:

“An action against trustees of an express trust for loss of funds arising from a breach of trust involving tortious conduct such as bad faith, negligence and double-dealing, is one at law, the cause of action accrues, in the absence of undiscovered fraud, when the trusteeship as to such trustees is terminated, and the action is barred in four years by virtue of the provisions of Section 11224, General Code.”

After that case was announced, the defendant here made an oral application for leave to withdraw its first amended answer and to file a demurrer to the petition, setting up the bar of the statute of limitations. The application was denied by the court which granted leave to the defendant to withdraw the first amended answer and file a second amended answer in'which, as a first defense, the statute of limitations was pleaded as a bar. To the first defense, the plaintiff filed a demurrer and to the second defense a motion to strike. Such demurrer and motion were overruled.

In permitting the defendant to withdraw its first amended answer and file a second amended answer, did the trial court act in the exercise of a sound discretion? We think so. In 34 American Jurisprudence, 350, the rule is stated:

“Although it is a general rule that the defense of the statute of limitations is deemed to be waived unless it is taken advantage of by plea or demurrer, generally, a defendant will be permitted to amend his pleading so as to set up the bar of the statute where such procedure appears to be justified in the mind of the court as being in furtherance of justice, such a plea being said to be one to the merits, and its allowance by amended pleading not to be discriminated against.”

On page 351 of the same work, the rule is stated as follows:

“In accordance with the established general rule relating to the amendment of pleadings generally, the question of the allowance of an amendment setting up the defense of the statute of limitations is one largely dependent upon the exercise by the court of its discretion, in view of the attendant circumstances, and the trial court’s determination in this respect will be disturbed upon appeal only in case it appears that there was an abuse of discretion.”

In 31 Ohio Jurisprudence, 836, Section 247, the rule is staled as follows:

“As a general rule the question of the withdrawal of pleadings is addressed to the discretion of the court; in the exercise of such, discretion courts may allow the withdrawal of statements mistakenly made in pleadings, or of particular pleas, or of entire pleadings, as the exigencies of the case may seem to warrant."

In Hawke v. Noyes, 62 Ohio App., 186, 23 N. E. (2d), 508, the court, on page 191, said:

“Whether a pleading may be withdrawn rests in the sound discretion of the court. 31 Ohio Jurisprudence, 836, Section 247.”

We hold that the trial court in'the instant case did not abuse its discretion in permitting the defendant to withdraw its first amended answer and file its second amended answer setting up the statute of limitations as a bar.

The plaintiff, appellant herein, contends that the statute of limitations is one of the grounds of demurrer (Section 11309, General Code), and that under the provisions of Section 11311, General Code, the objection must be taken by demurrer if the defect appears on the face of the petition, and if objection is not so taken the right to object is waived and the defect is not available as a special defense.

Section 11311, General Code, provides:

“When, on the face of a petition, no ground of demurrer appears, the objection may be taken by answer. If the objection is not made in either way, the defendant shall be deemed to have waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.”

In applying the provisions of the statute to a case where the statute of limitations constitutes a bar to the cause of action, if it does not appear on the face of the petition that the cause of action is barred, the objection may be raised by answer. The plaintiff contends that the converse of this proposition is also true, vis., if it appears on the face of the petition that the cause of action is barred, the objection cannot be taken by answer, bnt must be taken by demurrer, or if not so taken, tbe objection is waived. We do not hold to that view.

For some years after tbe adoption of tbe Code of Civil Procedure, it was held that tbe statute of limitations could be invoked only by answer and it was not avail aide on demurrer. In 1900, tbe bar of tbe statute of limitations was made by statute a specific ground of demurrer. Thus Section 11309, General Code, provides as follows:

“Tbe defendant may demur to tbe petition only when it appears on its face either: * *

“9., That the' action was not brought within tbe time limited for tbe commencement of such actions.” Sections 11309 and 11311, General Code, are in pari maierla and must be construed together.

Tbe issue herein raised may be stated as follows:

Is it mandatory that tbe defendant raise the bar of tbe statute of limitations by demurrer, if the defect appears on tbe face of tbe petition? We do not think so. If tbe defendant fails to demur, may the bar of tbe statute of limitations be interposed as a special defense? Although a strict adherence to a technical rule of pleading would require a demurrer to a petition which is demurrable, and we conceive that to be tbe better practice, nevertheless we are of tbe opinion that tbe provisions of Section 11309, General Code, are permissive and not mandatory.

We are of the opinion that when tbe defect appears on the face of tbe petition tbe statute of limitations may be invoked either by demurrer Or special defense. Tbe provisions of Section 11311, General Code, do not preclude tbe defendant from following that course of procedure. Tbe defendant is deemed to have waived the objection only if be fails to demur or set up tbe bar as a special defense.

In 31 Ohio Jurisprudence, 684, Section 125, the rule is stated as follows:

“If any of the matters specified by G-. O. Section 11309, as causes of demurrer to a petition appear on the face of the petition, objection thereto should, of course, be taken by demurrer, pointing out the defect. The mere fact, however, that objection is not taken by demurrer, does not preclude objection being taken by answer. If, however, objection is taken neither by demurrer nor answer, then it is to be deemed to have been waived except as to the objection that the court has no jurisdiction of the subject of the action, or that the petition does not state facts constituting a cause of action.”

On page 737 of the same work, the text is as follows:

‘ ‘ The fact that a special ground of demurrer appears upon the face of the petition does not preclude the defendant from taking objection by way of answer rather than by way of demurrer.”

Following the text, reference is made to the case of Collins v. Mansfield, 13 C. C., 258, 7 C. D., 445 (affirmed without opinion in 54 Ohio St., 621, 46 N. E., 1156), which holds:

“Where there is a misjoinder of parties plaintiff, and defendant fails to take advantage of that fact by special demurrer under Section 5064, Rev. Stat., such defect is not waived, but defendant may raise the objection in his answer.”

Section 5084, Revised Statutes, is now Section 11312, General Code. That legal principle is supported by the following cases: B. & O. Rd. Co. v. Lersch, 58 Ohio St., 639, 51 N. E., 543; Rothweiler, Admr., v. Ryan, 4 C. C., 338, 340, 2 C. D., 582; Hamilton, Exr., v. Saffin, 11 Ohio Law Abs., 429 (Court of Appeals, Second Appellate District).

In support of his contention, plaintiff cites the following cases: Calvin v. State, 12 Ohio St., 60; Vose v.

Woodford, 29 Ohio St., 245; Sears & N. Corp. v. Squire, 132 Ohio St., 140, 145, 5 N. E. (2d), 486; Heller v. Greenberg, 16 C. C. (N. S.), 561, 25 O. D., 603; Williams v. Ederer, 18 C. C. (N. S.), 515, 516, 33 C. D,, 172; and Zieverink v. Kemper, Recr., 10 Dec. Repr., 229. An examination of those authorities shows that they are not applicable to the issues raised in the instant case. In Calvin v. State, supra, the defendant having answered after filing a demurrer which was not disposed of, the court held that the filing of the answer was regarded as a waiver of the demurrer. In Vose v. Woodford, supra, a general demurrer was filed, hut afterward, and before the demurrer was determined, the defendant answered to the merits and failed to raise the statute of limitations as a bar. The court held' that the demurrer was waived or withdrawn and it was too late on error to raise the bar of the statute. In Scars S N. Corp. v. Squire, supra, the defendant demurred to the petition on the ground that the facts alleged were not sufficient to constitute a cause of action. The demurrer was overruled and, thereupon, the defendant answered. In the Supreme Court the question of defect of parties defendant was raised. The defendant having failed to demur on the ground of defect of parties defendant, and the question not having been raised in the answer, the court held that the objection was waived under the provisions of Section 11311, General Code. In Heller v. Greenberg, supra, the court held that by answering to the merits, the defendant waived the right to demur. In Williams v. Ederer, supra, the court had under consideration a demurrer to a counterclaim and the provisions of Sections 11323 and 11324, General Code, applicable thereto. The court pointed out the distinction made by the Code provisions between a demurrer to a counterclaim and a demurrer to a petition. In Zieverink v. Kemper, Recr., supra, the court held:

.“Where a petition was demurred to because it showed on its face that the cause of action was barred by the statute of limitations, and the demurrer was erroneously overruled, and defendant answered without pleading the .statute, such defense was not thereby waived. ”,

The court, in its opinion in that case, held also:

“It is hardly permissible to repeat a defense in an amended answer which has been held bad upon demurrer, and the principle would seem to apply to a defense such as this, which may be raised either by answer or by demurrer, where the facts as to lapse of time appear in the petition.” (Emphasis ours.)

We note that the court, in the case of Vose v. Woodford, supra, on page 250, said:

“The law, since the Code, as it was before, is that a statement of facts otherwise sufficient to constitute a cause of action will support a judgment, although upon the face of the pleading it appear that the time of the statute had run against it, unless the bar of the statute is insisted upon either by the demurrer or answer.” (Emphasis ours.)

The trial court in the instant case did not commit error in overruling the demurrer to the first defense of the defendant’s second amended answer.

The ruling on the demurrer is dispositive' of the case. However, we proceed to dispose of the other assignment of error.

Did the trial court commit error in overruling the plaintiff’s motion to strike from the second defense of the second amended answer certain portions thereof? We think not. The motion to strike raised the question as to the sufficiency of the allegations to constitute separate special defenses. But for the fact that a general denial was interposed, the question would have been' properly raised by demurrer. A pleading is properly tested on motion to strike, which is in effect a demurrer. 31 Ohio Jurisprudence, 677,, 854, Sections 116, 269. The allegations which are-sought to be stricken present for consideration the question whether the plaintiff would not be precluded from recovering by reason of res judicata, laches and estoppel. In 1929, the defendant, then acting as trustee under the will of Jane D. Bacon, deceased, exchanged stock in the defendant bank for stock in BaneOhio. Shortly after that transaction took place, the value of such stock greatly declined. Plaintiff alleged the exchange of stock constituted a breach of trust. On an ex parte hearing, application for approval of the exchange of stock was granted in the Probate Court of Clark county and the order was filed December 20, 1929. The defendant in its answer alleged :

“The beneficiaries of said trust, prior to the order-entered on December 20, 1929, had actual notice and knowledge of the proposed exchange of 70 shares of stock of the First National Bank and Trust Company for 420 shares of stock of BaneOhio Corp.; that they consented to such exchange and approved and confirmed the same. ’ ’

The order approving the exchange of the stock recites :

“The court finds that said transfer and exchange will be for the best interest of said trust; and that the beneficiaries of' said trust have consented to and approved said exchange.”

It is alleged further that on May 29,1931, the trustee filed its second account in the Probate Court and in the schedule showed receipts and disbursements of dividends received by it, as trustee, upon the shares of stock in BaneOhio, and showed in a separate schedule of investments the shares of stock in BaneOhio as assets of such trust. The account was duly set for hearing on June 30, 1931, and, no exceptions having been filed thereto, the account was duly approved on such date. On June 20, 1933, the defendant’s third account was settled in Probate Court, which account accounted for dividend receipts and disbursements and showed the investment of assets in BancOhio stock. The fourth and final account of defendant was settled on November 13, 1934, at which time defendant resigned. On December 17, 1934, A. D. Hosterman was appointed successor trustee. On March 26, 1937, his first and partial account was settled and approved, which account showed receipts and disbursements of dividends and assets of the trust invested in BancOhio stock. Upon the death of A. D. Hosterman, on February 6, 1939, the administrator of his estate, A. D. Hosterman, Jr., filed for decedent a second and final account which was settled on June 30, 1939, and which showed receipts and disbursements of dividends and assets of the trust invested in BancOhio stock. On April 3, 1939, A. D. Hosterman, Jr., was appointed successor trustee. This action was instituted on January 26, 1940.

At the time of the exchange of bank stock, Section 11214, General Code, was in full force and effect and authorized the trustee to invest “in such other securities as the court having control of the administration of the trust approves.” It is urged in this case that the provisions of the will restricted the authority of the trustee in making investments. However, the will is not made a part of the record and it must be assumed that the court acted within its authority and approved the exchange of bank stock under the provisions of Section 11214, General Code. True, there are certain allegations set forth in plaintiff’s petition which show a limited authority given to the trustee on reinvestment of trust funds, but such allegations are denied in the answer. Since the motion is in effect a demurrer, all allegations well pleaded are admitted to he true. The Probate Court had jurisdiction under Section 11214, General Code, to authorize the investment. If the investment for any reason was irregular at the time it was made, the approval of the trustee’s second account on June 30, 1931, was tantamount to an approval of the investment. In re Trusteeship of Tischer, 46 Ohio App., 405, 188 N. E., 876; Warner v. Hoffman, 18 Ohio Law Abs., 403, 405. The approval of accounts filed after January 1, 1932, the effective date of the new Probate Code, was tantamount to an approval of the investment at the time it was made even though such investment was made prior to January 1, 1932.

In the case of Warner v. Hoffman, supra, on page 406, the court said:

“In our judgment the Probate Court had the right though subsequent to the date when Section 10506-41 G. C. became effective to approve an investment made at any time prior to the effective date of the statute and that the action in approving the account of the guardian showing the character of the investment was tantamount to an approval as of the date when made.”

The appeal in the Warner case was dismissed. 132 Ohio St., 136, 5 N. E. (2d), 338. See, also, Schick v. Kroeger, 22 Ohio Law Abs., 389.

We conclude that the second defense of the second amended answer contained allegations which properly-presented issues of res judicata, laches and estoppel. We are of the opinion that the trial court did not commit error in overruling the motion to strike.

The judgment of the trial court is affirmed.

Judgment affirmed.

Horhbeck, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Scudder, Appellant, v. Wallace, Appellee.
    (No. 6710
    Decided November 25, 1946.)

      Mr. B. Wm. EeidTtamp, for appellant.

      Mr. Irwin I. Aronoff, for appellee.
   Matthews, J.

This is an appeal from a judgment for the defendant ih an action to recover an agreed commission for services as a selling agent.

In the plaintiff’s amended bill of particulars he alleged that the defendant entered into a contract with him, whereby he was given the exclusive agency for six months to sell a certain store and business at 2032 Western avenue, Cincinnati, Ohio, and that defendant agreed that should he, plaintiff, negotiate a sale during that period she, the defendant, would pay him a commission of ten per centum of the selling price. The-plaintiff alleged that he procured a purchaser and that the defendant entered into an agreement with such purchaser to sell the store and business for $3,-800, but that the defendant refused to pay the agreed commission of $380.

The answer contained a general denial and by way of explanation averred that the plaintiff had agreed to reduce his commission to $300 to induce defendant to reduce the selling price from $4,000 to $3,800, that the defendant was not to be liable for the commission unless the purchaser consummated the transaction by payment of the entire purchase price according to the terms of the contract, and that the purchaser had refused to perform.

The case went to trial upon those pleadings. The plaintiff introduced the written contract of agency and while some of its printed provisions are irrelevant, resulting from ■ the use of a form more appropriate where the subject matter is real estate, it is perfectly clear that the plaintiff was employed by the defendant as her sole agent for six months from November 7, 1945, and was authorized to sell the store for not less than $3,500 net to the defendant and, subject to that, agreed to pay the commission established by The Cincinnati Real Estate Board, which was ten per cent of the selling price.

Acting under that authority, the plaintiff obtained a written offer of $3,800 for the store and business. This offer was presented to the defendant and she signed the written acceptance printed at the bottom of the offer, which also included an agreement to pay the plaintiff the commission for his services.

The evidence conclusively shows that the purchaser was able to pay the purchase price and' was ready and willing, except that there was some slight delay in raising money by mortgage upon real estate owned by her due to the usual time required to examine the title, and, as a result, the 30-day period provided in the contract for consummating the sale expired, whereupon the defendant at once notified the purchaser that she would not complete the sale. Had the defendant not given this notice to the purchaser and the hank from which she was arranging to borrow the required amount of money, the purchaser would have been ready in a few days to pay the entire purchase price.

Notwithstanding the defendant’s refusal to complete the sale, she still regarded the purchaser as bound and 17 days later, through her attorney, threatened to sue the purchaser unless she paid damages for breach of the contract. It also appeared from the defendant’s own testimony that within the six-month period during which the plaintiff had the exclusive selling agency the defendant sold her store and business.

There was some oral testimony proferred and some admitted in evidence that tended somewhat to prove the commission was not to be paid unless and until the selling price was actually paid. That evidence was clearly incompetent, as tending to contradict the terms of the written contract, but as will be pointed out later, even if competent, it would not have affected the rights of the parties.

Upon that evidence, we are of the opinion that the plaintiff was entitled to judgment for $300, for the following reasons:

(1) When the plaintiff submitted a written offer and the defendant accepted it, the right to the commission accrued. The contract required plaintiff only “to procure a purchaser.”

In Carey v. Conn, 107 Ohio St., 113, 140 N. E., 643, the Supreme Court held, as stated in the first paragraph of the syllabus, that:

“Where a real estate agent or broker makes a contract with the owner of property ‘to find a buyer for his real estate at a commission of two per cent, for his services,’ and pursuant thereto performs such services by producing the buyer, and the owner enters into a written contract of sale with such buyer, the real estate agent or broker, in the absence of fraud, is entitled to his commission for his services.”

At page 116 of the opinion the court said:

‘ ‘ The financial responsibility of the prospective purchaser was open to question by Carey until the contract of sale was agreed upon and completed. After the contract was duly executed by the parties, such contract constituted a waiver so far as Conn was concerned in regard to the purchaser being ready, willing, and able to purchase the property. Whatever infirmities may have arisen out of the contract and conduct of the parties thereafter did not and could not in any wise prejudice the rights of Conn to recover upon his contract to find such purchaser and make such sale.”

(2) The fact that - the contract between the seller and buyer fails for any reason, not relating to the binding quality of the contract, when entered into, is no defense to the action of the agent for his commission. A judgment in an action on the contradi by the seller against the buyer in favor of the buyer would be no bar to an action by the agent for his commission. Second paragraph of syllabus of Carey v. Conn, supra.

(3) In this case it was the defendant who repudiated the contract. Although she threatened to sue for damages she did not do so. Because of the fact that the subject matter of this contract was a business, including a lease for five years of the real estate where it was conducted, she without doubt could have enforced specific performance against a resisting purchaser — which the purchaser was not in this case— just the contrary. Instead of resorting to one or the other of these remedies or of co-operating with the buyer in consummating the transaction, defendant chose to treat the delay of a few days as justification for refusal to proceed. The delay did not justify this attitude even against the buyer and certainly not against the agent. Time was not the essence of this contract as to either the seller or buyer. 12 American Jurisprudence, 863.

(4) The plaintiff’s- contract gave him the exclusive right for six months to sell this store and business. Even assuming that the buyer’s contract required her to pay the entire purchase price within 30 days and that failure to do so would prevent her from enforcing the contract, still the plaintiff had produced her as a purchaser and notwithstanding her failure to pay within the 30 days specified in the contract, she was ready, willing, and able to perform long before the expiration of the plaintiff’s agency contract and was prevented by the defendant’s refusal.

(5) Furthermore, the defendant sold this property within the period of the’plaintiff’s sole agency, which prevented him from selling to the purchaser whom he had already obtained. That fact violated the plaintiff’s rights and is an additional reason for recovery in this case.

For these reasons, the judgment is reversed and the cause remanded to the Municipal Court of Cincinnati with instructions to render final judgment for the plaintiff for $300 and costs.

Judgment reversed.

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


author: Miller, J.

text:
    Pengelly, Appellant, v. Thomas, Appellee.
    (No. 3869
    Decided March 8, 1946.)

      Messrs. Binns c& Tresemer, for appellant.

      Mr. Waymon B. McLeskey and Mr. John F. Carlisle, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment rendered in the Probate Court of Franklin county, Ohio, on August 22,1945. The action was a statutory one brought by a widow to open up the administration of her husband’s estate, to set aside the confirmation of the final account therein, to give her an opportunity to file exceptions to the account, to require the defendant to account for the assets of the estate, to impress a trust thereon for the benefit of the widow and other heirs, and to have an administrator de bonis non appointed. The final account referred to was confirmed on October 2, 1929, and this action was instituted on August 4, 1937, because of the “fraudulent'administration” of the estate.

No bill of exceptions was filed with this appeal and the plaintiff is relying solely upon error in the court’s conclusions of law, a motion for a separate finding of facts and conclusions of law having been allowed. The finding of facts discloses that the plaintiff, Emma Pengelly, and Joseph Pengelly were married in the city of London, England, on September 16,1893. Those parties and their three children lived together in England until November 5, 1907, when Joseph Pengelly deserted his wife and family and migrated to South America, where he assumed the name of Arthur Joseph Goddard, which name he continued to use for the rest of his life. On November 4, 1910, he “married” the defendant herein with whom he lived until his death on December 27,1927.

He went into business at Columbus, Ohio, with money loaned to him by the mother of the defendant and then later the defendant came into a small inheritance which she pnt into the business, which was a going concern at the time of his death.

As Arthur Joseph Goddard he left a will which was duly admitted to probate on January 3, 1928. By the terms of the will the decedent named as his “wife,” Oora I. Goddard (Thomas), the defendant herein, and designated her as executrix, who qualified and performed lier duties as such. She elected to take under the will as the widow of Arthur J. Goddard, deceased, and received the widow’s allowance as authorized by Ohio law. In his will decedent devised and bequeathed all his property to the defendant absolutely in fee simple, naming her as his wife. The defendant, either as an individual or as executrix, had no knowledge whatever- that the decedent had ever been married before and knew nothing whatsoever of such marriage until sometime in July 1932 which was 34 months after the confirmation of the final account. The court found that the property administered in the Probate Court under the last will of Arthur J. Goddard was accumulated after his “marriage” to the defendant and was so accumulated without any knowledge whatsoever on her part that he was not her husband. The action seeks to vacate the final account confirmed by the Probate Court on October 2, 1929, on the alleged ground that the defendant knowingly perpetrated a fraud on the court.

The first assignment of error is that the court erred in sustaining a demurrer to the amended petition for failure to allege scienter in connection with the fraud, and for mistake and manifest error therein pleaded. The petition failed to allege that the defendant knowingly perpetrated a fraud, so a demurrer was filed, which was sustained. The plaintiff elected to plead further in accordance with the ruling on the demurrer. This assignment of error cannot be considered by this court for two reasons: First, it is not the judgment upon which this appeal is predicated; and, second, since the plaintiff elected to plead further, no judgment was entered against her in the entry sustaining the demurrer.

The second assignment of error is that the court erred in finding (No. 22) as a matter of law “that there was no tendency to deceive any person, and that there was no person in existence within the knowledge of Coi-a I. Goddard whom she could have deceived.” We are of the opinion that such finding is not only a finding of fact but it also contains a conclusion of law which was wrongfully made. The defendant’s repeated representations to the court in connection with the administration of decedent’s estate that she was the decedent’s widow not only had a tendency to deceive the judge of the Probate Court, whose existence was within defendant’s knowledge, but did actually deceive him, because it was in reliance upon these false representations on her part that the court confirmed her account as executrix of decedent’s estate, giving her the assets to the injury of the plaintiff, the lawful widow. The defendant was acting in a fiduciary capacity requiring the exercise of the highest degree of good faith toward the court, and it would be inequitable to permit her to profit by any false representations however innocently made due to mistake, inadvertence or error on her part.

The third assignment of error is that the court erred as a matter of law in the conclusion (No. 2) that “should we set aside the confirmation of the account and permit the lawful wife in England, or her estate, to receive a wife’s interest as given by the law * * * we would unjustly enrich her estate. ’ ’ With this theory of the trial court we are not in accord. The laws of this state grant to the widow of the deceased a certain interest in his estate and which if legal cannot be unjust. It is true the record shows that the deceased accumulated his fortune while separated from the plaintiff and while living with the defendant who no doubt assisted him to some extent, but while the deceased was doing this, the plaintiff, probably, had the burden of supporting the family which he had deserted and which support was his obligation. Under this theory of the trial court, if carried to its logical conclusion, it would have availed the plaintiff nothing to have appeared in open court during the administration of this estate and presented her widow’s claim, for the reason, as the trial court said in its judgment entry, “should we set aside the confirmation of the account and permit the lawful wife in England, or her estate, to recover a wife’s interest as given by the law, it is our opinion that we would unjustly enrich her or her estate.” That conclusion is not in accordance with the principles of equity and is contrary to law.

The fourth assignment of error is that the court erred as a matter of law in concluding (No. 3) “that the Supreme Court of Ohio has held an actual fraud must be pleaded where the allegation is perpetration of fraud on the court.”

We hre of the opinion that the power of the court to vacate of modify a judgment is not limited to a showing that the judgment was procured by fraud, collusion and misrepresentation, but sufficient cause for vacation or modification exists if there is a showing that the rights of interested parties are prejudicially affected by the judgment and if there was inadvertently a withholding from the court of matters which should have been properly before it, but for which withholding the judgment would, not have been rendered. State, ex rel. Hussey, v. Hemmert, 34 Ohio Law Abs., 348, 37 N. E. (2d), 668. That fraud as a ground for vacating a judgment may be either actual or constructive has been held in numerous Ohio cases as elsewhere.

In Rote v. Stratton, 2 N. P., 27, 3 O. D. (N. P.), 156, the court said:

< c * * constructive fraud, by one standing in a fiduciary and confidential relation to the person affected, will avoid the settlement of any final account of a trustee, executor or administrator induced thereby. Any such final settlement may be attacked in a court, of equity in an independent action, upon a complaint that the final settlement was obtained by constructive fraud, or fraud in fact.”

In McAfee v. Phillips, 25 Ohio St., 374, the court held:

“The settlement of an account of an executor or administrator, by the Probate Court, is conclusive, as against parties with actual-notice of the settlement, of all matters set out and specified therein, and as to such matters, the party rendering the account cannot be required to account a second time, unless the same is impeached for fraud or manifest error” (Emphasis ours.)

In Griffith v. Godey, 113 U. S., 89, 93, 28 L. Ed., 934, 5 S. Ct., 383, Judge Field, who delivered the opinion of the court, said:

“It is well established that a settlement of an administrator’s account, by the decree of a Probate Court, does not conclude as to property accidentally or fraudulently withheld .from the account. If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased or to the creditors of the estate may require, even if the Probate Court might, in such case, open its decree and administer upon the omitted property.” (Emphasis ours.)

In Kuchner v. Johnson, 33 Ohio Law Abs., 401, 34 N. E. (2d), 996, this Court of Appeals, Judge Barnes writing the opinion, said:

“Constructive fraud may exist where there is no intent to do a wrong, but the act in contemplation of law is a wrong which makes the contract voidable at the instance of the other contracting party.”

A case very similar to the case at bar is In re Estate of Shive, 65 Ohio App., 167, 29 N. E. (2d), 565, where it was held that a representation by a husband’s administrator that the husband left no surviving spouse, when, in fact, his wife lived for seven months after his death, was a misstatement of fact, sufficient to constitute a fraud on the Probate Court within the meaning of the statute authorizing the Probate Court to reopen the decedent’s estate so as to permit the administrator of the estate of the wife to obtain a widow’s exemption and allowance as part of the wife’s estate.

The defendant contends that actual fraud must be pleaded and proven before the Probate Court can' reopen a final account. She cites Woodward v. Curtis, 19 C. C., 15, 10 C. D., 400, and Crawford v. Zeigler, 84 Ohio St., 224, 95 N. E., 743.

The syllabus in the Crawford case is:

“After the expiration of the eight months allowed by Section 6187, Revised Statutes, for filing exceptions when the account is settled in the absence of a person interested and.without actual notice to him, the judgment of a Probate Court settling the final account of an executor or an administrator becomes absolute and conclusive and cannot be attacked except for fraud of the prevailing party.”

We have examined that case and find that the question of constructive fraud was not raised. Either actual fraud had been perpetrated or there was no fraud at all. In discussing the case, the court did say: “The judgment of the Probate Court imports absolute verity and can only be avoided by proof of actual fraud. ’ ’

We are of the opinion that the words, “actual fraud,” were used because such fraud was the only kind of fraud the court had under consideration, and such words were not used for the' purpose of distinguishing actual fraud from constructive fraud. However, should we be wrong in our conclusion, we feel that the weight of authority in Ohio is against the holdings of those cases that actual fraud must be pleaded and proven.

We have considered and passed upon the question of constructive fraud as the basis for the relief sought. We recognize that the trial court entertained and sustained a demurrer to the petition which was based on constructive fraud, and that, thereafter, if the issue had been restricted to the pleadings it might be said that constructive fraud was not involved. However, it becomes apparent from an examination of the findings of fact and conclusions of law that the court and counsel by common consent did consider and present the issue of constructive fraud. In this situation we are of opinion that, the appeal is controlled by the principle announced in Younger & Farmer Co. v. Halliday, 107 Ohio St., 431, 140 N. E., 340, and particularly by the second paragraph of the syllabus:

“2. Where a case is tried upon a given theory, and evidence is introduced pro and con upon such theory without objection, it is too late after trial and judgment to raise the question for the first time whether the pleadings warrant such a theory. ’ ’

The defendant also contends that the Probate Court had no jurisdiction of the subject matter of this action, and even if it did its power to vacate the judgment confirming the final account was controlled by the old Probate Code and not by the new. This is based on the fact that the account was confirmed 27 months before the new Probate Code became effective. The defendant contends also that, if the new Code did apply, it is unconstitutional. It is conceded that prior to the adoption of the new Probate Code on January 1, 1932, the Probate Court had no jurisdiction to vacate this order.

However, the Probate Code of 1932 contains Section 10501-17, General Code, which reads as follows:

“The Probate Court shall have the same power as the Common Pleas Court to vacate or modify its orders or judgments. ’ ’

That section was relied upon by this court in Abicht, Exr., v. O’Donnell, 52 Ohio App., 513, 3 N. E. (2d), 993, in which case Judge Barnes wrote the opinion holding that the Probate Court has jurisdiction to vacate-its orders. The syllabus of that case reads as follows:

“A Probate Court can, by virtue of Section 10501-17, General Code, vacate or modify its orders and judgments the same as. a Common Pleas Court, and as its jurisdiction in that respect is not limited either by the Constitution or legislative enactment to statutory grounds only, such jurisdiction includes equitable grounds as well.”

Judge Barnes in the opinion in that case very clearly points out the added jurisdiction of the Probate Court by virtue of such section of the General Code, but counsel for the defendant contend that the Abicht case is authority only for a case arising under the 1932 Prohate Code, and that to apply the statute to this case, where the order confirming the account was made long before the effective date of the 1932 Probate Code, would be running counter to Section 26, General Code, and to the Constitution. However, it must be borne in mind that Section 10501-17, General Code, is purely remedial and as such is not affected by Section 26, General Code. See Smith v. New York Central Rd. Co., 122 Ohio St., 45, 170 N. E., 637, which cites the second paragraph of the syllabus in Elder v. Shoffstall, 90 Ohio St., 265, 107 N. E., 539, which reads as follows:

“2. This amended section relates to the remedy only and applies to all actions commenced in the common pleas courts of this state on and after the 14th day of May, 1913, regardless of the time when the cause of action arose.”

The amended section referred to in the above paragraph of the syllabus provided that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of its members, whereas the former rule required a unanimous verdict.

As to the constitutional question raised by counsel for the defendant, we find ample authority to support our view that, to grant the relief prayed for in this proceeding, based on Section 10501-17, General Code, would violate no provision of the Constitution. A late authoritative case, where the constitutionality of an amendment to the statutes concerning remedial rights was questioned, is that of Smith v. New York Central Rd. Co., supra, the first paragraph of the syllabus of which reads as follows:

“1. A statute which relates exclusively to remedial rights is not within the purview of the constitutional inhibition against the legislative enactment of retroactive laws.”

We refer, also, to the case of Hatch, Exrx., v. Tipton, 131 Ohio St., 364, 2 N. E. (2d), 875, wherein the constitutionality of Section 10510-10, General Code, was attacked by cotenants of the real estate sought to be sold by the executrix under the authority of such section, a part of the new Probate Code. The court, in holding that the Probate Court in the exercise of the added jurisdiction conferred upon it by the section was not violating the constitutional rights of the co-tenants of the real estate, said in its opinion:

“Remedial rights may be modified, altered or entirely extinguished by legislative enactment even though they be retroactive in character and operation.

“Defendants’ contentions are based on the assumption that their right to statutory partition is a basic and vested property right. However, there is no property in remedial rights. The contention being based upon a false premise, the reasoning is necessarily fallacious and the conclusion erroneous.

“In the enactment of the statute in question the General Assembly did not exceed its constitutional power, nor does the statute destroy vested rights.”

Section 10510-10, General Code, increased the jurisdiction of the Probate Court to such an extent that it could force a sale of the whole interests of the cotenants in the real estate which was owned by them before the enactment of such section of the Code, whereas before its enactment the Court of Common Pleas was the only tribunal which had the jurisdiction to grant such relief. It has been generally recognized that the Common Pleas Court had jurisdiction to grant relief against fraud where there was no other relief available. The relief sought by plaintiff could have been obtained in the Common Pleas Court before the enactment of Section 10501-17, General Code. Therefore, this is not a case where the Legislature provided the plaintiff with a remedy where none existed before.

See, also, In re Estate of Chambers, 30 Ohio Law Abs., 420, 36 N. E. (2d), 175.

For the foregoing reasons we hold that Section 10501-17, General Code, effective January 1, 1932, is determinative and grants jurisdiction to the Probate Court in this matter.

The defendant contends further that the action was not brought within the time limit for the commencement of such actions. The amended petition states the time when the plaintiff first discovered the alleged fraud, and as her action was commenced within four years after the discovery of the fraud, the action was seasonably brought. See Section 11224, General Code.

For the foregoing reasons the judgment is reversed and the cause ordered remanded for further proceedings.

Judgment'reversed.

Hornbeck, P. J., and Wiseman, J.,-concur.


author: Hornbeck, P. J.

text:
    Frey, Appellant, v. The Queen City Paper Co., Appellee.

      (No. 435
    Decided March 29, 1946.)

      Mr. Michael E. Norris, for appellant.

      Mr. Robert A. Prince and Messrs. Shipman & Ship-man, for appellee.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment for defendant after the trial judge had sustained a demurrer at the conclusion of plaintiff’s case.

The action originally proceeded as one for an injunction restraining the continuance of a nuisance and for property damages and damages hy reason of personal inconvenience. Upon the trial of the cause plaintiff withdrew his prayer for injunction and the cause proceeded on his claim for damages. The nuisance of which plaintiff complained and upon which he predicated his cause of action was the operation, on and after March 4, 1943, by defendant of a furnace and heating plant, installed November 15,1942, which plant it was claimed was fed by a certain type of very fine coal which was forced or drawn into the furnace by a fan or blower and particles of coal, both burned and unburned, by reason of this forced operation, were released and drawn into the outside atmosphere by way of a smokestack on a building of defendant company.

The amended petition averred and the evidence tended to support the claim that particles of matter emanating from the stack of defendant company’s plant were blown over and upon the premises of which plaintiff was joint owner and onto the roof, spouting, window sills and roof channels of the buildings on such premises; that the fly ashjpenetrated window ledges and entered the living room and sleeping quarters of plaintiff’s home; that the sediment was deposited on the porches, walks, curbs and gutters; that it fell upon the persons and clothing of plaintiff and members of his family; that it was blown and carried into the home and accumulated on the* furniture, floors, carpets and linoleum; that it was deposited on the ground and in the grass and vegetation of plaintiff’s premises; that it prevented the growing of garden produce; and that it had reduced the value of plaintiff’s real estate.

Plaintiff’s evidence consisted not only of testimony of an expert witness who had made chemical tests of material which he testified came from one source and which he stated an analysis showed to be fly ash, but of plaintiff, his wife and neighbors who had observed the conditions about plaintiff’s premises. Among other testimony, it developed that plaintiff had placed storm windows on one side of his house and they had not been taken off or raised for years because of the soot from the stack on defendant’s plant; that it was necessary to sweep the porches and walks several times a day; that the residue would accumulate to a depth of one and one-half inches or more in places during a period of a few hours; that the fly ash was present in the grass and because of the ash the earth had become brittle as one would walk over it; that the ash was in all parts of the house including the dining room and bed rooms, and had even penetrated into food; that it was unbearable to sit on plaintiff’s porch without something on the head; and that plaintiff at one time during the period involved had carted away 10 wheelbarrow loads consisting mostly of .the fly ash. The only testimony as to the extent of the pecuniary damage to the realty was proffered by a real estate agent who said that the sale value of the property had been, by reason of the deposit upon the land, reduced from 15 to 20 per cent, but there was-no proof of the market value of the land at any time prior to the acts complained of or during the period covered by the amended petition.

The trial' judge sustained the demurrer upon the - theory that there was no measuring stick by which he could determine the extent of plaintiff’s damage.

As we understand, the claim of defendant in this court is that defendant does not question the right of plaintiff to recover damages if it could be determined that the material, the deposit of which it is claimed caused the damages, had come from the stack of defendant’s plant. This position is taken largely because it developed that there was a railroad some two squares from plaintiff’s premises and there was alsp a switch engine which moved upon the premises of defendant and it appeared that these locomotives would discharge material like that- which came from defendant’s stack.

It is true that Williams, the expert, stated that a locomotive does send out fly ash and material that would resemble the material in the containers. He stated also that the similarity in shape of the deposits indicated that they came from a common source and that the locomotive would throw off fly ash only when operated under full draft. Without respect to this testimony alone, plaintiff and other of his witnesses stated that none of the ill effects which they had noted by reason of the deposit upon the lot and the buildings, outside and inside, had been caused from any deposit coming from locomotives.

The effect of the testimony offered by plaintiff is such that, giving to it that favorable intendment which was required upon the demurrer, it clearly tended to prove that the deposit of fly ash of which complaint is made in the amended petition came from the stack of defendant’s plant. The rule well recognized is that upon motion to direct a verdict, which is analogous to the demurrer in this case, the evidence must be given the most favorable interpretation in behalf of plaintiff and will not support a judgment against him unless he has failed to provide evidence tending to establish an essential element of his case and failed to prove any fact from which a reasonable inference tending to prove that element may be drawn. Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501; Babbitt v. Say, Admr., 120 Ohio St., 177, 165 N. E., 721; Cleveland Ry. Co. v. Krofta, 125 Ohio St., 126, 180 N. E., 641; Martin, Jr., v. Heintz, 126 Ohio St., 227, 184 N. E., 852.

The judgment entry recites that the court finds:

“First, that any inconvenience of detriment which may have occurred to affect the property of the plaintiff was removed before the hearing of the case; second, that the plaintiff failed to establish any damages. ’ ’

The first ground is not supported by the record because at least two witnesses brought evidence into court, on the day they testified, that the deposit was still being thrown upon the premises of plaintiff. However, if that statement in the entry was in accord with the record it would not support the sustaining of the demurrer because the period of time covered by the averments of the amended petition would extend from March 5,1943, the beginning of the complaint of plaintiff, to the date when the amended petition was filed. Had it been the purpose of plaintiff to rely upon a condition existing up to and subsisting at the time of trial a supplemental petition should have been filed.

Upon the second part of the finding in the judgment entry, we might support the conclusion of the trial judge that there was insufficient proof of the measure of damages to the real estate as such and likewise to the furniture or household effects of the plaintiff. Such a finding as to the household effects is supported by Beiser v. Grever & Twaite Co., 8 N. P., 398, 11 O. D. (N. P.), 444, upon which the trial judge relied.

However, there is a third element of damage pleaded, which the evidence tended to support and which, in our judgment, should have been considered and determined in favor of the plaintiff upon the case made when the demurrer w^s interposed. This element is the damage by way of physical discomfort to the plaintiff in the enjoyment of his home and premises.

We are not without authority in Ohio on this question. In McClung v. North Bend Coal & Coke Co., 9 C. C., 259, 6 C. D., 243, second paragraph of the syllabus, the court said:

“A private nuisance may be created by casting either smoke, soot, or gases upon the property of another to his physical discomfort or injury while in lawful possession thereof, or to the substantial injury of vegetation, trees, or buildings thereon. ’

In Graham & Wagner, Inc., v. Ridge, 41 Ohio App., 288, 179 N. E., 693, the action, was restricted, to damages for injury to property and health occasioned by the creation and maintenance of a private nuisance. Judge Slierick, at pages 292 and 293, quoting from 20 Ruling Case Law, 470, said:

“In assessing the damages for the maintenance of a nuisance in the neighborhood of a residence or dwelling, the jury may look to such injury as occurs to the use of the property as a residence, taking into consideration the discomfort and annoyance which the owner has suffered from the nuisance.”

Indeed that case affords some support for the claim that the plaintiff here had a right to have the trial court consider the extent of his ,-damage to his real property although there was no express testimony as to the measure of this damage in dollars and cents. See page 293 of the opinion.

But, the nuisance in the instant case being continuing and one that can be abated, the measure of damages is not the decrease in value of the fee but the impaired value of the use of the premises.

In Dieringer v. Wehrman, 12 W. L. B., 222, 9 Dec. Rep., 355, the action was by the owners who were not the occupants. It was there held the measure of damages would be whatever they sustained in the diminution of rents, in the failure to rent the property, and for injury to the property or the cost of repairs.

In City of Mansfield v. Hunt, 19 C. C., 488, at page 497, 10 C. D., 567, at page 573, it is said:

“In a case for injury to the comfortable enjoyment of property, by the owner and occupant thereof, no precise rule for ascertaining the damage can be given, as, in the very nature of things, the subject matter affected is not susceptible of exact measurement; therefore the jury must be left to say what in their judgment the plaintiff ought to have in money, and what the defendant ought to pay, in view of the discomfort or annoyance to which the plaintiff and his family have been subjected by the nuisance * *

In Ohio Stock Food Co. v. Gintling, 22 Ohio App., 82, 153 N. E., 341, third paragraph of the syllabus, the court says:

“The owner of a homestead is entitled to damages for annoyances and inconveniences suffered by him which have been occasioned by a nuisance, though he shows no damage to the dwelling house or improvements upon said property.”

Outside Ohio the weight of authority supports the right of the plaintiff in this case to have the court pass upon the extent of his damage upon the evidence which he presented. See 39 American Jurisprudence, 398, Section 136, wherein it is stated:

“The owner of a residence or dwelling house occupied by him as a home is entitled to just compensation for annoyance, discomfort, and inconvenience caused by a nuisance on adjoining property.” Recovery is not limited to damages to plaintiff’s property and its rental value.

In an annotation in 142 A. L. R., 1316, it is said: “The authorities strongly preponderate in support of the doctrine that an occupant of real estate (whether owner or not) may recover damages for personal discomfort, annoyance, etc., resulting to him from a nuisance, in addition to, or separate from, damages suffered in respect of the market value of the premises, or injuries to or destruction of buildings, crops, etc., thereon. ’ ’

Cases are cited from 12 states of the United States, including the base of Olpp v. Hocking Valley Ry. Co., 22 N. P. (N. S.), 433, 31 O. D. (N. P.), 453.

A leading case is Judson v. Los Angeles Suburban Gas Co., 157 Cal., 168, 106 P., 581, 26 L. R. A. (N. S.), 183, which held that, for the nuisance there pleaded, damages may be awarded although it did not appear that the value of the property was depreciated, the rental value impaired, or the health of the occupants injured, and although the discomfort caused is not constant. The damages awarded were for discomfort or annoyance caused in the use of plaintiff’s property. Upon the question of the nature of proof as to the extent of damages it was said in the opinion at page 172:

“In the very nature of things the amount of detriment sustained is not susceptible of exact pecuniary computation. It is for the court to say what sum of money the plaintiff should receive ixi view of the discomfort or annoyance to which he has been subjected.”

In the Juclson case, which was predicated upon a nuisance created by the operation of a gas-manufacturing plant in the creation of smoke, odor and noise interfering with the comfortable enjoyment of plaintiff’s property, it was urged defensively that the main line of an electric railway passed very near plaintiff’s studio and the tracks of two steam railways were within a few hundred feet of his property. The court there said:

“The fact that other sources of possible discomfort to plaintiff existed in the neighborhood of his property is no defense to an action of this kind.” Citing Robinson v. Baugh, 31 Mich., 290.

In Dauberman v. Grant, 198 Cal., 586, 246 P., 319, 48 A. L. R., 1244, the sixth paragraph of the syllabus is:

“In such action [nuisance], it was not necessary to the recovery of damages caused by the nuisance of smoke and soot to prove actual damages to plaintiff’s property. She was entitled to recover for the personal discomfort and annoyance to which she had been subjected and it was a question for the trial court to determine the amount of the compensation which she should receive.”

Without further discussion of the authorities, we are satisfied that upon the state of the record at the conclusion of plaintiff’s case there was sufficient proof of damage in the particulars hereinbefore discussed to require that the court overrule the demurrer to the evidence and to put the defendant upon proof of its defense.

Judgment reversed and cause remanded for new trial.

Judgment reversed.

Miller and Wiseman, JJ., concur.


author: Ross, J.

text:
    The Fifth-Third Union Trust Co., Exr., Appellee, v. Wilensky et al., Appellees; National Jewish Hospital et al., Appellants.
    (No. 6690
    Decided December 2, 1946.)

      Mr. Conrad Magrish and Messrs. Jackson & Woodward, for appellees.

      Mr. Leonard U. Freiberg, for appellants.
   Ross, J.

This is an appeal on questions of law from a declaratory judgment of the Probate Court of Hamilton county, whereby it was found .that the decedent of the plaintiff died intestate except to the extent such plaintiff was appointed executor of such decedent’s estate. The plaintiff, after setting out the terms of the will and other pertinent instruments, prayed for construction of the will and determination of heirs.

The will provides in part as follows:

“I, Sol Williams, of Cincinnati, Ohio, do hereby publish this as and for my last will and testament:

“First: I direct that all my just debts be paid.

“Second: All the rest, residue and remainder of my estate of which I may die possessed, whether real, personal or mixed, I give, bequeath and devise to The Fifth-Third Union Trust Company, as trustee under a certain trust agreement entered into on the 10th day of September, 1931.”

The third item of the will nominated and appointed the plaintiff executor of the estate with full power to act.

This trust agreement was executed with all the statutory formalities required by law to complete a testamentary disposition of the estate.

The will was executed on September 11, 1931; the trust agreement, on September 10, 1931. The testator died .on September 15, 1943.

The trust agreement was delivered to the plaintiff and the trust accepted by it.

The trust agreement gives the trustee the widest powers over the estate covered by the trust, reserves a life interest in the income in the settlor, and provides for full power of direction and revocation in the settlor. The agreement provides for several specific bequests to charitable institutions, and then directs that certain percentages of the estate go to other individuals, including relatives of the decedent. The agreement also contains provisions against alienation of income by beneficiaries. Provision is further made for quarterly accounts to beneficiaries and compensation is also provided for the trustee. Division of the corpus of the estate is postponed until the several beneficiaries reach various ages. The trust agreement constitutes a full testamentary disposition of the estate of the settlor and, as said before, conforms to all the statutory requirements for testamentary disposition of an estate, even to including the formal clause providing that it be signed by the testator in the presence of the witnesses, who, at his request, and in his presence, and in the presence of each other, signed as witnesses.

At the time this trust agreement was executed the testator-settlor deposited with plaintiff as trustee under this agreement the sum of $500. The testator and plaintiff agreed that the original amount so deposited might be'increased from time to time, at the option of the settlor. ■ No additional assets were so deposited.

One clause in the trust agreement requires quotation in full:

“(d) I direct that any and all property (including the property constituting the trust estate, in case the trust should for any reason fail) acquired by said The Fifth-Third Union Trust Company under any will executed by me shall be held, managed, controlled and disposed of by it, as trustee, under the powers and for all the purposes set forth in this trust, unless and insofar as the terms of the will otherwise specifically provide. The execution of this instrument by said The Fifth-Third Union Trust Company shall constitute its agreement to administer all property so received by it in trust for such purposes.”

On August 25, 1934, the testator executed the following so-called ‘/revocation.”

“In accordance with the.right reserved to me under my trust agreement with The Fifth-Third Union Trust Company dated September 10, 1931, I, Sol Williams, of Cincinnati, Ohio, do hereby revoke said agreement in its entirety and acknowledge receipt from said The Fifth Third Union Trust Company of the sum of five hundred ($500) dollars being in full settlement of all property held by said The Fifth-Third Union Trust Company under said agreement.

“Signed in duplicate at Cincinnati, Ohio, this 25th day of August, 1934.

(Signed)

Sol Williams.

“Signed in the presence of

“Clara Marriott

“Cincinnati, Ohio, August 27, 1934.

“The Fifth-Third Union Trust ’Company hereby consents to the foregoing revocation.

“The Fifth-Third Union Trust Company,

“By A. J. Bick,

“Assistant Trust Officer.”

It is to be noticed that the document is not executed with testamentary formality, and therefore, does not have the effect of a duly and legally executed codicil of a will.

It is the claim of the plaintiff (and was the conclusion of the trial court) that the last instrument not only revoked the trust and withdrew administration of the trust from plaintiff during the life of the plaintiff, but rendered the clause in the will incorporating by reference the trust agreement, completely ineffective, resulting in intestacy of the decedent except fox the sole purpose of appointing an executor, and the more or less unnecessary clause providing for payment of debts.

The earnest vigor with which the executor under the will urges the intestacy of its decedent is somewhat confusing, when the obligations of an executor are considered.

It seems clear when all these circumstances are considered that the decedent had in mind possibly three ways of disposing of his estate, all perfectly legal.

He might have, according to his agreement, physically incorporated his entire estate in the corpus of the trust placed in the possession of the trustee. Realizing the completeness of the trust disposition, he might have (as he did do) adopted that instrument fully and legally executed as a will and as his testamentary disposition of his entire estate, incorporating it by reference in his will.

He might have used it in this manner and still have used the reference clause in the will to dispose of any property which he might have overlooked or failed to* include in the trust.

General rules of testamentary construction are frail aides to final determination of the problems presented by conflicts of opinion as to the effect of testamentary instruments.

One rule, however, does seem to have continued merit and should be one of the guiding stars of all those called upon to interpret what the dead have written.

In. 41 Ohio Jurisprudence, 646 and 647, it is stated:

“It is a settled rule of construction that a testator is never presumed to intend to die intestate as to any part of his estate to which his attention seems to have been directed. A court will put such a construction upon equivocal words as to prevent such a result, and particularly in this the case where there is language used in a will which seems to refer to the residue.”

See, also, Fitzgerald v. Bell, 34 Ohio Law Abs., 631, 39 N. E. (2d), 186; Anderson v. Gibson, 116 Ohio St., 684, 691, 157 N. E., 377, 54 A. L. R., 92.

It is to be noted that the testator failed to make any change in the will for 12 years, and this in view of the so-called “revocation” of the trust agreement. It must be supposed, therefore, in order to sustain the contention of the executor, plaintiff, and the trial court, that he left a will for the sole purpose of appointing an executor, dying intestate as to his entire estate, although he had taken the greatest pains to minutely distribute his estate among many beneficiaries in the trust agreement to which he specifically and definitely referred in his will.

It is true that the trust agreement, as it affected a living trust, was revoked, and that the custody of the plaintiff trustee over the meager $500 was removed, but not by a formal testamentary revocation having the effect of a codicil.

Is the testator to be deprived of the complete testamentary disposition which he had so painstakingly made in the trust agreement merely because he saw fit to remove the $500 from the trustee and determine the living trust features? No basis in logic or rules of construction require such a result.

A deed, a.contract, or any other instrument may be incorporated in a will by reference, and its terms employed as testamentary clauses, although such instrument may have lost its force as to the peculiar original purpose of the document.

The statutory rules of incorporation were substantially met. Section 10504-4, General Code.

The Probate Court found that when the plaintiff executor filed its petition, with the trust agreement attached, in the Probate Court, the requirements of the statute as to filing were met.

Prom all the circumstances surrounding this matter, and the language of the will, it appears that the obvious intent of the testator was to employ the testamentary disposition contained in the trust agreement as the terms of his will, as fully and completely as if incorporated therein verbatim.

An additional consideration requires the same conclusion.

The trust agreement was executed with full testamentary formality — in all respects complying with the requirements of the statutes as to the execution of wills. The so-called revocation did not attain this dignity and was, therefore, ineffective to nullify or revoke such testamentary disposition, although effective to revoke the instrument as a provision for a living trust. See Central Trust Co. v. Watt, 139 Ohio St., 50, 60, 38 N. E. (2d), 185.

The will is not inconsistent with the trust agreement. It adopts it. '

Whether the trust agreement be accepted as a testamentary disposition through reference, or as an independent testamentary instrument, the same result is obtained and the decedent dies testate and not intestate as urged by the plaintiff executor.

’ The petition of the executor prayed also for a determination of heirs. Such prayer was predicated upon the basis that an intestate disposition of the estate would occur. Under the will as now construed, no such result is involved and there appears no reason for such determination.

For these reasons, the judgment of the Probate Court is reversed, and a judgment may be presented, reversing the judgment of the Probate Court, and declaring a construction of the will in conformity to this opinion, and finding also that there is no occasion for a determination of heirs.

Judgment accordingly.

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


author: Stevens, J.

text:
    The Akron Commercial Securities Co., Appellee, v. Ritzman, Admx., et al., Appellees; Levin, Appellant.

      (No. 3706
    Decided June 25, 1945.)

      Messrs. Foust & Holden, for appellees Dale B. Ritz-man and Jean L. Ritzman.

      Messrs. Levin & Levin, for appellant.
   Stevens, J.

This is an appeal on questions of law and fact.

The facts, as disclosed by the evidence, are as follows :

Jennie Bolender died testate on June 5, 1934. At 'the time of her death she was seized of a homestead property in Manchester village, and a 129-acre farm located about one mile northeast of Manchester village in Summit county.

By the terms of her will, Jennie Bolender devised all of her property to The Commercial Savings & Trust Company, of Akron, as trustee for the benefit of her two grandchildren, Dale B. and Jean Lucille Ritzman, with the provision that, as they respectively reached the age of majority, the trustee should transfer one-half of the trust fund to each.

The Commercial Savings & Trust Company became defunct, was taken over for liquidation by the Superintendent of Banks of the state of Ohio, and never qualified *as trustee under the terms of said will by procuring an appointment from the Probate Court.

On July 25, 1934, Iiazel R. Ritzman was appointed by the Probate Court of Summit county as administratrix w. w. a. of the estate of her mother.

On June 13, 1935, the Superintendent of Banks of the state of Ohio, in charge of the liquidation of The Commercial Savings & Trust Company, filed a suit in case No. 111806 in the Court of Common Pleas of Summit county, seeking a judgment for $4,200 and interest' against the administratrix w. w. a., upon a note signed by decedent, and a foreclosure of the mortgage on the homestead property of decedent, which mortgage was given to secure said note.

The petition filed in said action contained no allegation that the claim of the bank had ever been presented to and rejected by the administratrix.

Summons was served upon the administratrix, but no answer was filed by her.

On February 27,1937, a default decree of foreclosure was entered in the case, which contained a purported judgment against the administratrix for $5,264.32 and interest.. This decree contained no mention of presentation of plaintiff’s claim to the administratrix w. w. a., or of rejection thereof by her.

Thereafter the property which was the subject of the foreclosure was sold for $2,125; and on June 30, 1937, that sale was confirmed by the court. After application of the proceeds of said sale, there remained on the purported judgment a balance due to plaintiff' of $3,322.75.

On January" 31, 1939, a certificate of judgment for the balance claimed due upon such judgment was filed in the clerk’s office of Summit county, and a levy was also made on the 129-acre farm.

On July 8, 1937, The Akron Commercial Securities dompany, holder of a mortgage on the 129-acre farm, filed the petition herein, asking foreclosure of its mortgage on the 129-acre farm. The Superintendent of Banks was therein named a party defendant.

To plaintiff’s petition the Superintendent of Banks filed an answer setting up a deficiency judgment for $3,322.75 and interest, and claiming a lien therefor.

On May 3, 1939, Ernest Elmer Eitzman was appointed trustee under the will of Jennie Bo'lender, deceased, and on October 17, 1941, he filed a reply to the answer of the Superintendent of Banks, and a cross-petition seeking to have his title quieted as against the claimed lien of the Superintendent of Banks.

Thereafter, the defendant Jacob Levin purchased tlfe rights of the Superintendent of Banks in said judgment, and was permitted to adopt the answer of the Superintendent of Banks as his own.

In this court it is agreed that Dale B. and Jean Lucille Eitzman are both now of the age of 21 years or more.

The first matter to be considered is the assertion of appellees Dale B. and Jean L. Eitzman, now substituted for appellee Ernest Elmer Eitzman, as trustee, that, because of the failure of the plaintiff in case No. 111806 in the Court of' Common Pleas to allege and prove the presentation to the administratrix and rejection by her of the claim upon the note for $4,200, secured by the mortgage on the homestead property, the default judgment rendered against Hazel E. Eitzman, administatrix w. w. a., for the amount of the deficiency remaining after'application of the proceeds of the sale of said premises, is void.

The Superintendent of Banks, under Section 10509-138,' General Code, had the right to foreclose the mortgage on the homestead property.

Did he, however, have the right in law to a money judgment against, the administratrix w. w. a. for any deficiency remaining after the mortgaged property had been sold and the proceeds applied to the satisfaction of the mortgage indebtedness?

As to said administratrix, the Superintendent of Bank’s action was one seeking the recovery of a money judgment. The statutes of Ohio provide as follows:

“All claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator. * * **” Section 10509-112, General Code, as amended, effective August 22, 1941.

This section, as effective on January 1, 1932, provided :

“Creditors shall present their claims, whether due ' or not due, to the executor or administrator within four months after the date of his appointment. * * *”

The latter quoted section was in effect at the time. of the occurrences here under consideration.

The amended section is quoted as shedding some light upon the intention of the Legislature when the original section was enacted.

The Supreme Court of Ohio, in the case of Prudential Ins. Co. v. Joyce Building Realty Co., 143 Ohio St., 564, 56 N. E. (2d), 168, wherein the earlier enactment was under consideration, stated in paragraph two of the syllabus:

“2. The requirements of Section 10509-112, General Code, that ‘creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment ’ are mandatory and may not be waived by Mm. ’ ’

This court, in Breen, Admx., v. Conn et al., Exrxs., 64 Ohio App., 325, 28 N. E. (2d), 684, decided that, even as to a suit broug’M by or for a minor against an administratrix, an allegation of presentment of tbe claim must be made; otherwise the petition does not state facts sufficient to constitute a cause of action.

Applying these rules to the facts under consideration, it is apparent that the Superintendent of Banks procured what purported to be a default judgment for money only against an administratrix, on a petition which on its face and as a matter of law, did not state a cause of action against the administratrix.

Is a judgment of such character — vis., for the deficiency remaining after sale of the mortgaged premises and application of the proceeds of such sale to the mortgage debt — void or voidable?

Section 10509-112, General Code, as originally enacted, has been construed by the Supreme Court in Beach, Recr., v. Misner, Exr., 131 Ohio St., 481, 3 N. E. (2d), 417, to be what is known as a nonclaim statute — that is, one which requires an act to be done as a prerequisite to the accrual of a cause of action.

We have here, then, the entry of a purported judgment against an administratrix on a petition which, as to any deficiency, not only failed to state a cause of action, but where, as against said administratrix, no cause of action existed, because of failure to present said claim.

Such purported judgment for the deficiency remaining after sale of the premises foreclosed, and application of the proceeds of sale, is not merely voidable, but is void, because the court had no jurisdiction of the subject matter of the action.

In such a situation, the judgment may be attacked in this proceeding, and such attack is not collateral in nature; likewise, Section 11603, General Code (the statute of limitations), has no application.

Our conclusion in this respect disposes of appellant’s claim of a valid judgment, and of a right to a lien on the premises under foreclosure, because of said purported judgment.

But even if the purported deficiency judgment of Levin against said administratrix were a valid judgment, it does not follow that he would acquire a valid lien on the 129-acre farm by filing a certificate of judgment or by making a paper levy.

Upon the death of the decedent, title to said premises passed to the devisees under her will and not to the administratrix.

The statutes governing judgment liens in Ohio are Sections 11656 and 11656-1, General Code, and they provide for a lien upon “lands and tenements of a judgment debtor.”

The judgment debtor, the administratrix, never was the owner of the land under consideration, and hence no lien could attach thereto because of a judgment against her.

There is one other reason why the appellant cannot prevail in this action.

The real property of a decedent is within the exclusive jurisdiction of the Probate Court for administration by that court. While the title to the real property passes to the devisees under the will of the decedent immediately upon the death of the testator, it does so subject to the right of the Probate Court to order its sale for the purpose of paying debts of the decedent. A proceeding such as here attempted, if given the effect claimed, would oust that court of its exclusive jurisdiction to administer estates, contrary to tlie provisions of Section 8, Article IV of the Constitution of Ohio.

For the foregoing reasons, a decree may be drawn clearing the title of said 129-acre farm from any judgment lien in favor of defendant Levin, the appellant herein, and quieting the title thereto in the owners thereof as against said lien. Appellant to pay the costs of this appeal.

Decree accordingly.

Washburn, P. J., and Doyle, J., concur.


author: Hildebrant, P. J.

text:
    Hull, Exrx., Appellee, v. City of Cleveland, Appellant.
    (No. 20224
    Decided June 12, 1946.)

      Messrs. Docker & Schivarts, for appellee.

      Mr. Lee C. Rowley and Mr. Charles W. White, for appellant.
   Hildebrant, P. J.

This is an action for money only, instituted in the Municipal Court of the city of Cleveland, for a claimed deficiency of $1,500, under the minimum required, by Section 1579-3, General Code, in salary as municipal judge for the year 1934.

Defendant interposed a demurrer, specifically setting up as a bar to the action the six-year statute of limitation, Section 11222, General Code, or the ten-year statute, Section 11227, General Code. The court overruled the demurrer, and the defendant declining to plead further, entered judgment for plaintiff for the full amount.

The appeal is here on questions of law.

The petition shows on its face plaintiff’s fiduciary capacity, the election, qualification and service of plaintiff’s decedent as municipal judge for a six-year term, beginning January 1, 1933, and ending December 31, 1939, and pleads that part of Section 1579-3, General Code, requiring the city to pay its municipal judges “not less than six thousand dollars per annum payable .in monthly instalments out of the treasury of the city of Cleveland, as the council may prescribe.” It further alleges that in the year 1934 only $4,500 in salary from the city was paid, leaving the deficiency of $1,500 sued for here.

This suit was filed July 2, 1945. Viewing the facts most favorably to plaintiff, the deficiency consists of the salary instalments due for the last three months of the year 1934,.so that the cause of action accrued at the latest on January 1, 1935.

It is contended for the demurrer that the suit being for a deficiency of salary required by the statute, it forms the basis of plaintiff’s claim and is obviously barred by Section 11222, General Code, providing as follows:

“An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.”

It is further claimed that if Section 11222, General Code, be not applicable, then the claim is also obviously barred by Section 11227, General Code, providing:

“An action for relief not hereinbefore provided for, shall be brought within ten years after the cause thereof accrued. This section does not apply to an action on a judgment rendered in another state or territory.”

Plaintiff makes the bare, unsupported contention that neither of the above statutes is applicable, but contends that if any statute of limitation may be applied it is Section 11221, General Code, as follows: “An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.”

Plaintiff’s theory is that the relationship between the public official and the municipality is contractual, and plaintiff relies solely on the following statement contained in the body of the opinion in City of Cleveland v. Luttner, 92 Ohio St., 493, at page 494, 111 N. E., 280, supporting that theory and as being the law of Ohio:

“A public officer is a public servant, whether he be a policeman of a municipality or the president of the United States. His candidacy for appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office constitute the contract between him and the public he serves.”

It is further* argued that the statute of limitation as to contracts in writing applies, because the judge was elected by written ballot and certified as elected and commissioned in writing:

Plaintiff’s contractual theory of public office, while long ago advanced, in fact never became established but the contrary view has become universally recognized and long followed by the Ohio courts. 22 Ruling Case Law, 379, Section 11; 32 Ohio Jurisprudence, 869, Section 11, and 872, Section 14. Again, at pages 875 and 876, Section 15, the following is stated:

“A public office, on the other hand, is never conferred by contract, but finds its course and limitations in some act or expression of the governmental power.”

■ In State, ex rel. Attorney General, v. Hawkins, 44 Ohio St., 98, 5 N. E., 228, it is stated at page 110:

‘ ‘A public office and its creation is a matter of public, and not of private, law.”

In City of Steubenville v. Culp, 38 Ohio St., 18, at page 23, 43 Am. Rep., 417, it is stated:

“Offices are held, in this country, neither by grant nor contract, nor has any person, a vested interest or private right of property in them. ’ ’

This court will reiterate here that a public office is a public trust, to which the compensation attaches but as an incident toNthe office tending to promote the better performance of duty in the interest of the public, and .that no vested right to the office or the emoluments thereof exists in the officer. That legal title to the emoluments or the right thereto accrues only after service rendered.

In Fisk v. Jefferson Police Jury, 116 U. S., 131 (29 L. Ed., 587, 6 S. Ct., 329), the following appears at pages 133 and 134:

“We do not assert the proposition that a person elected to an office for a definite term has any such contract with the government or with the appointing body as to prevent the legislature or other proper authority from abolishing the office or diminishing its duration or removing him from office. * * *

“But, after the services have been rendered, under a law, resolution, or ordinance which fixes the rate of compensation, there arises an implied contract to pay for those services at that rate.”

In Mississippi, ex rel. Robertson, v. Miller, 276 U. S., 174 (72 L. Ed., 517, 48 S. Ct., 266), at page 179, Justice Butler states:

“But after services have been rendered by a public officer under a law specifying his compensation, there arises an implied contract under which he is entitled to have the amount so fixed. * * * This case is ruled by Fisk v. Jefferson Police Jury, 116 U. S., 131.”

The Luttner case, relied upon by'plaintiff, turned on the fact of wrongful discharge of the officer, and, while in the body of the opinion the word “contract” is gratuitously used, by reading on, we find the court attempting to vindicate the principle that for every wrong a remedy must exist, and using the terms “wrongful,” “wronging,” and “wronged” and “wrong,” which is the language of tort, as distinguished from that of contract. It, therefore, appears that the use of the word “contract” in the statement, supra, was merely a resort to the language of contract to describe a relationship having many incidents similar to a contractual relationship, but loosely used and without the necessity or intention of determining the technical status of a public officer. In Ecker v. City of Cincinnati, 52 Ohio App., 422, 3 N. E. (2d), 814, the Court of Appeals for the First Appellate District, through Judge Hamilton, discussed the Luttner case, coming to a similar conclusion.

In Hansen v. City of Cleveland, 132 Ohio St., 625, 9 N. E. (2d), 619, the Supreme Court indicates its dissatisfaction with the language used in the Luttner case.

It appearing on the face of the petition that the right to compensation here claimed grows out of the statute, and that an implied contract arose after services performed, the six-year statute of limitation applies and the demurrer should have been sustained, the ten-year statute not being applicable.

Wright v. City of Lorain, 70 Ohio App., 337, 46 N. E. (2d), 325, is approved and followed.

Judgment reversed and cause remanded with instructions to enter final judgment for defendant.

Judgment reversed.

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

Hildebrant, P. J., Matthews and Boss, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.