text:
    RIGHTS IN THE PERSONALITY OF A DECEASED CONSORT.
    Samuel Whyde v. John Lunn.

    Court of Appeals for Muskingum County.
    Decided April 28, 1921.

      Distribution of Estate of Wife — Husband Takes under Section 10571, When.

    1. Under the Ohio Statutes provision is made for a widow or widower out of the estate of the deceased consort, notwithstanding the estate has been otherwise disposed of by will.
    2. A widower, electing not to take under ihe will of his wife who died testate but leaving no children or their legal representatives, is entitled to one-half of the'first four hundred dollars and one-tbird of the remainder of the personal property belonging to the estate o£ his said wife.

      O’Neal, Pugh, Bibble <& Bainter, for plaintiff in error.

      Thad E. Thompson and Tannehill <6 Weber, for defendant in error.

       Motion to certify record in this case overruled by the Supreme Court, October 4, 1921.

   Houck, J.

It is agreed by tbe parties hereto that the following statement of facts shall be considered as applicable to this action:

“The decedent, Etta S. Whyde, executed her last will and testament January 22, 1916, at which time she was unmarried, being then a widow.
“She was married to Samuel Whyde, October 4, 1917, and died July 15, 1919, leaving no children nor their legal representatives, but leaving the said Samuel Whyde her widower, for whom no provision was made in said will, but by the will all of her estate was disposed of to others to the exclusion of her said husband.
“Said will was duly probated.
“Said Etta S. Whyde died owning both real and personal property. Said Samuel Whyde filed in probate court his election not to take under the will.
‘ ‘ Said Samuel Whyde, as administrtor with the will annexed of the estate of his said deceased wife, filed in the probate court his final account showing distribution of all the proceeds of the personal estate, lo-wit, $2,525.22, to himself as widower of said decedent.
“Exceptions to said account were filed by John D. Lunn, trustee and beneficiary under the will, September 9, 1920, which exceptions were sustained by the probate court, the said court holding that said Samuel AVhyde, as widower, was only entitled to one-half of the first four hundred dollars and one-third of the remainder of the personal property for distribution.
“Thereupon said Samuel Whyde appealed the cause to the common pleas court, which court entered the same judgment as the probate court.”

Question — Under these facts and the law applicable to same, is the plaintiff in error entitled, as he claims, to all of the personal estate of his deceased wife, on distribution, or is the judgment of the probate and common pleas courts right?

General Code 8592 (R. 8., 4176) reads:

“When a person dies intestate and leaves no children or their legal representatives, the widow, or widower, as next of kin, will be entitled to all the personal property which is subject to distribution upon settlement of the estate. If the intestate leaves any children or their legal representatives, the widow or widower, will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. ’ ’

General Code 10571 (R. S. 5964) reads:

“The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, she or he shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in ease the deceased consort had died intestate, leaving children.”

General Code 10572 reads:

“If the widow or wddower elects to take under the will, she or he shall be thereby barred of dower in such share of personalty, and shall take under the will alone; unless as provided

General Code 10572 reads:

in Section 10569. But an election to take under the will does not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year’s allowance for the support of herself and children, as provided by law, unless the will expressly otherwise directs.”

General Code 10569 (R. S. 5963) reads:

“No widow or widower shall be entitled both to dower and the provisions of the will in her or his favor, unless it plainly shows that such provision was intended to be in addition to dower and a distributive share of the estate. ’ ’

Counsel for the plaintiff in error rely wholly and entirely for a reversal of this judgment, upon the decision in the case of Doyle v. Doyle, 50 O. S., page 330.

The material facts in the Doyle ease are in substance as follows:

William S. Doyle, having executed his last will and testament, died August 6th, 1890, leaving quite a large estate in real and personal property. By his will, after making a bequest of $1,000 to a daughter and a like sum to the children of his brother, he disposed of all the residue of his estate, real and personal, to his other children, making no provision for his wife, Louise E. Doyle, who survived him. The will was admitted to probate and the widow “refused to take under the will” and thus it was so recorded in the probate court.

It was claimed by some of the children that, as no provision was made for her in the will, the widow was entitled to no part of the personalty, on distribution. The widow claimed all of the personal estate under the provisions of General Code 8592 CR. S. 4176).

In a suit to construe said will, the common pleas court held that the widow was entitled to the same portion of his personalty that she would have been had her husband died intestate, namely: one-half of the first four hundred dollars, and one-third of the balance on distribution. On appeal, the circuit cotirt held otherwise, and ordered distribution under the provisions of the will. Error being prosecuted to the Supreme Court of Ohio, the judgment of the circuit court was reversed and that of the common pleas affirmed.

Learned counsel for plaintiff in error in their brief say:

“The court will notice that in the Doyle case, the widow received one-half of the first four hundred dollars and one-third of the remainder, for the reason that the decedent in that case left children or their legal representatives, consequently, the last clause of Section 8592, General Code, properly applies to the facts therein. But, as above stated, in the case at bar, the-first clause of said section applies, for there were no children or their legal representatives.”

But it must be remembered that, in the case before us for review, the decedent died testate. True, she made no provision in her will for the plaintiff in error, but, as her surviving widower, he exercised his legal right and refused to accept the terms of the will, and thereby elected to take under the law.

It seems to us clear and about which there should be no disagreement, that it is the intention of our statutes to provide for a widow or widower, out of the estate of the deceased consort, even though the decedent provided otherwise by will.

Here the wife executes her will, subject to the law in force at the time it becomes effective. She had a legal right to cut her-children off, if she had any, if she saw fit to do so, but not so as to the husband, as his rights are fixed by statute.

The wife made no provision for the husband, and he had his option to abide by the will or take his portion of her estate as provided by law. He chose the latter by “electing not to take under the will,” under favor of General Code 10571, “and retained in the estate of his deceased wife * * # , and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children,” thus making his distributive share of the personal estate, as provided by the latter part of General Code 8592, to-wit, “one-half of the first four hundred dollars and one-third of the remainder of the personal property.”

While the wife made her will under the law, yet by the provisions of the same she could not, in law, abridge the right of her surviving husband to dower and a distributive share of her personal estate as provided by statute, unless he consented to same. His election to take under the will and receive nothing or to take his legal allowance was for him to determine; and having refused to accept the terms of the will, he, by reason thereof, took his statutory rights in his wife’s estate.

There being no children or their legal representatives, and had there been no will, then the estate in question,, would have passed to the surviving widower, Samuel Whyde, under the provisions of Section 8592, General Code. But Etta S. Whyde died testate, and her widower elected not to take under her will. Question: Did he then take the widower’s portion of said personal estate, under the provisions of Section 8592 or under favor of Section 10571 General Code? The unanimous answer of this court is, under Section 10571 General Code.

We are of the opinion that the ease of Foster et al v. Clifford, Executor et al, reported in 87 Ohio State, page 294, is decisive of of the case at bar in favor of the defendant in error.

In that case, like the one under review, Thomas Foster, the testator, died testate, leaving a widow, Mary Foster, but no child or children, never having had any children. The syllabus reads:

“A testator gave to his wife all that part and interest in his estate, personal and mixed, which is secured to her, as his widow, by the laws of distribution of estates of the state of Ohio, in cases where wives survive husbands who die intestate, and gave, absolutely the remainder of his property, real, personal and mixed, to his brother. Held:
“That, under this will, the widow took her dower interest in the real estate of the testator, situated in Ohio, one-half of the first four hundred dollars, and one-third of the remainder of the personal property subject to distribution, the use of the mansion house, under the provisions of Section 8607 General Code, and the year’s allowance provided for in Section 10656, and that the remainder of the estate, real, personal and mixed, went to the brother.”

It is our judgment that the ease of Doyle v. Doyle, supra, which is relied upon by counsel for plaintiff in error, is clearly in point, but is decisive of this case in favor of the defendant in error instead of the plaintiff in error.

We have given the issue here raised careful consideration and have examined all the authorities cited by counsel, and many others. In addition to the decisions already referred to and commented upon, as governing the question here presented, we call attention to the following as being also clearly in point as well as decisive of the ease now under consideration: Seney, Admr., v. Schroth, Admr., 25 C.C. (N.S.), p. 185; Hutchings v. Davis, Excr., 68 Ohio State, p. 172; Geiger, Excr., v. Bitzer, 80 Ohio State, p. 65.

We find the order of distribution and judgment as entered in the probate court to be sound in law and in accordance with all statutory provisions governing same; and the judgment of affirmance of said order and judgment by the common pleas court, in this case, being sound in fact and law, the same is hereby affirmed.

Shields, J., and Patterson, J., concur.


source: Caselaw Access Project

author: Shohl, J.

license: Public Domain

text:
    ACCOUNT STATED CONCLUSIVE AS TO THE PARTIES BUT NOT AS TO SURETIES.
    The Judges of the First District Sitting by Designation in Place of the Judges of the Second District.
    Court of Appeals for Franklin County.
    Sturgell v. Grand Union Tea Co. et al.

    Decided, April 2, 1920.

      Accounts and Accounting — What Constitutes an Account Stated — Binding Character of Against the Parties — Surety May Disprove Under General Denial Accotmt Stated by His Principal.

    1. A statement sent by one of two contracting parties to the other showing the total indebtedness of the latter to the former, with credits for remittances, showing indebtedness as per ledger account and a written certification by the latter that the statement is correct, constitutes an account stated and is conclusive upon the parties unless impeached for fraud or mistake.

      2. Such written certification by one oí the contracting parties that the statement is correct is an admission against his surety that he has made default of his obligation, and is receivable in evidence as against the surety, but is not conclusive.
    3. An account stated between two contracting parties, of their mutual dealings and transactions under a certain contract, is not binding upon the sureties to a bond of one of the contracting parties, conditioned upon the faithful performance of the contract. Such sureties under a general denial, may introduce evidence to disprove the net amount due as given in the account stated.

      Watson, Stouffer & Davis, for plaintiffs in error.

      Henry G. Binns, for defendant in error.
    Heard on error.

       Motion to require Court of Appeals to certify its record in this case overruled by the Supreme Court, December 6, 1920.

   Shohl, J.

The Grand Union Tea Company entered into an agreement with Chris Sturgell whereby they agreed to consign certain goods, chiefly coffee, tea, spices and groceries, which he was to sell for it on commission. To guarantee his faithful performance of the contract he gave a bond in the sum of $500, which Gableman, Myers and Douglas executed as sureties. It was conditioned upon the faithful performance by him of the agreement.

After the termination of his employment in February, 1915, an action was brought in the municipal court of Columbus. It was taken to the court of common pleas of Franklin county on appeal.

The petition in the court of common pleas may be said to have a double aspect. It alleges the bond and the breach thereof, and further states that “on or about the 13th day of February, and prior to the termination of said contract, February 15th, an account was stated between said plaintiff, and said defendant Sturgell of their mutual dealings and transactions under said contract, on which a balance of $509.45 was found, and is, due to plaintiff from said defendant Sturgell from the proceeds of the sales made by said Sturgell of goods consigned,” etc.

It. will be seen that the petition charges a breach of the bond against all of the defendants and alleges an account stated as between plaintiff and defendant Sturgell. • The defendants Myers and Douglas denied the allegations of the petition, except the execution of the bond.

Defendant Sturgell filed a separate answer, admitting the making of the contract, execution of the bond, and denied the other allegations. For a second defense and cross-petition he alleges a breach of the agreement on the part of plaintiff and prays for a judgment against it.

Before the case came to trial Gabelman died, but the action was not revived as against him.

The case was tried to a jury, but at the conclusion of all the evidence all parties moved for an instructed verdict and consented to the submission of the ease to the court. The court rendered judgment in favor of the plaintiff against all of the defendants for the full amount of the bond with interest.

We are of opinion that the judgment against Sturgell was valid and must stand. A.t the trial it appeared that statements were sent to him by the plaintiff showing the total amount of his net indebtedness, with a statement as to the net amount of his last shipment, with credit for the amount of his last remittance, showing his indebtedness to the corporation as per its ledger account. He made written certification that the above statement was correct. That was the practice in the dealings between the parties in the course of his employment. It constituted an agreement between them that the items of the account, representing the transactions and the balance struck, were correct, and that there was due on the account the amount therein specified. It became an account stated and is conclusive upon the parties unless impeached for fraud or mistake. 1 Corpus Juris, 678, 705, 709; Deering & Co. v. Miller & Wikel, 9 C. C. (N. S.), 392, Wikel v. Deering Co., 64 Ohio St., 548, and Cincinnati v. Cincinnati Street Ry., 9 Dec. 235 (6 N. P. 140).

No fraud or mistake was pleaded by him, and, therefore, so far as Sturgell was concerned in the claim on the account stated, he can not complain of the rejection by the court of proof offered to dispute the amount of the account stated.

The other parties to the cause stand in a different position. They were not parties to the agreement, whereby the company and Sturgell stated and agreed to the account. Their liability could be based solely upon the bond, as they had no other connection with the company, nor with Sturgell. He was not their agent, and so far as they were concerned he had no authority to consent on their behalf to any extension or modification of their obligation, which was fixed solely by their written contract. They are to pay only in case of a breach of the bond. Unless the plaintiff established that Sturgell did not perform his obligation, which they had undertaken to guarantee, they were not liable. Their liability is for his acts, not his language. Cook County Liquor Co. v. Brown, 31 Okla., 614 [122 Pac. 167].

No authority has been cited, nor has any been found, which warrants us in holding that the stating of an account between the obligor and the obligee of a bond is conclusive upon the sureties. His written statement constituted an admission which was receivable in evidence to establish as against the sureties that the principal had made default of his obligation. 2 Wigmore, Evidence, Sec. 1077; Jones, Evidence (2 ed.), Sec. 238; 16 Cyc. 1034; 32 Cyc., 137; United American Fire Ins. Co. v. American Bonding Co., 146 Wis., 573, 579 [131 N. W. 994]; Capital Fire Ins. Co. v. Watson, 76 Minn., 387 [79 N. W. 601]; Dietrich v. Dr. Koch Vegetable Tea Co., 156 Pac. 188; Federal Union Surety Co. v. Indiana Lumber & Mfg. Co., 176 Ind., 328, 333 [95 N. E. 1104], and Sanders v. Keller, 18 Idaho, 590 [111 Pac. 350].

But, while the evidence was admissible, it is not conclusive. 1 Elliott, Evidence, Sec. 253; Bissell v. Saxton, 66 N. Y. 55, and McShane et al v. Howard Bank, 73 Md., 135 [20 Atl. 776; 10 L. R. A. 552],

The sureties are liable only for the actual conduct of the principal, and not for whatever he might say he had done or omitted. (1 Greenleaf, Evidence [16 ed.], See. 187). The court treated the account stated as conclusive upon all the parties defendant, and rejected evidence offered by them tending to show that the company owed money to Sturgell and that the admission by him of the amount due, as shown by the account stated, was correct.

As we have seen from the foregoing an account stated consists of mutual admissions, and an express or implied promise to pay the balance due. To the extent that it constitutes a promise or agreement, the sureties were not parties to it. So far as it is an admission, they are entitled to refute it. They are not seeking to avoid the agreement made when Sturgell and the company stated their account. They are only seeking to disprove a breach of the bond, and their evidence to disprove the net amount due may be given under a general denial, like any other evidence tending to disprove a breach of their contract. It was error to exclude the evidence offered, by Myers and Douglas. See United States v. Bundle, 107 Fed., 227 [46 C. C. A. 251], and Moses v. United States, 166 U. S., 571 [17 S. Ct. 682],

As to the plaintiffs in error, other than Sturgell, the judgment will be reversed and a new trial ordered.

Hamilton and Cushing, JJ., concur.


author: Shohl, P. J.

text:
    FINDING THAT A CHILD IS DEPENDENT NOT APPEALABLE.
    Court of Appeals for Hamilton County.
    The State, ex rel Fortini, v. Hoffman, Judge.
    Decided January 5, 1920.

      Juvenile Court — No Appeal from the Judgment of — Finding a Child to he a Dependent.

    A proceeding in a juvenile court to have a child adjudged to he a “dependent,” is not a chancery case within the meaning of Article 4. Section 6, Constitution of 1912, and therefore appeal does not lie to the court of appeals from an order committing a child to custoday.

      Walter M. Loche, for relator.

      John G. Price, Attorney General, and John W. Weinig, for defendant.
    In Mandamus.
   Shohl, P. J.

This is an action in mandamus brought to determine the right of appeal to this court by a child found by the juvenile to be a “dependent.”

The petition recites that the defendant is a judge of the court of common pleas, division of domestic relations, in and for Hamilton county, Ohio; that an affidavit was filed in said court in August, 1919, against Rosena-Fortini, charging among other things that said Rosena Fortini was a dependent child, and on October 31, 1919, the defendant, after a hearing of the case, found her to be a “dependent” and committed her to the Santa Maria Institute; that thereupon her counsel gave notice of appeal and asked the court to fix the amount of the appeal bond to be given; and that defendant refused and still refuses to fix the amount of the appeal bond, denying the right of the relator to appeal from the order aforesaid. Relator prays for a writ of madamus commading defendant to fix the sum of the appeal bond.

To this petition the defendant demurs on the ground that this court has no jurisdiction of the subject of the action and that the petition does not state facts sufficient to constitute a cause of action.

Is the order of the juvenile court appealable? The absence of statutory provision for au appeal in the juvenile court act is of no moment. The jurisdiction of this court is fixed and determined by the constitution as amended in 1912. and can neither be enlarged nor curtailed by the general assembly. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415; Wagner v. Armstrong, 93 Ohio St., 443; Robinson v. Wagner, 95 Ohio St., 300, 304, and United Distillers Co. v. Zeisler, 97 Ohio St., 62.

Section 6, Article IAr of the Constitution as amended, provides:

“The Court of Appeals shall have * # * appellate jurisdiction in the trial of chancery cases, and to review, affirm, modify, or reverse the judgments of the court of common pleas, superior court, and other courts of record within the district as may be provided by law.”

AYhat constitutes a chancery case has been discussed in a series of decisions. The Supreme Court, while admonishing against an attempt to find an all-embracing definition, has laid down certain rules for the guidance of courts and litigants. In Wagner v. Armstrong, 93 Ohio St., 443, 456, the court stated, what eases were surely included, as follows:

“A chancery ease is one in which, -according .to the usages and practices in courts of chancery prior to and at the time of the adaption of the code of civil procedure, remedies were awarded in accordance with the principles of equity and not in accordance with the rules of law ”

AYhat, then, is the nature of a proceeding under the juvenile act? Is it a proceeding that was exercised by chancery courts prior to the code of civil procedure (March 11, 1853, 51 Ohio Laws, 1), or is it something different?

There are some early laws relating to juvenile criminals, dating back to 1863 in Massachusetts and 1877 in New York. Children’s courts were introduced as early as 1890 in South Australia by ministerial order and were subsequently legalized under an act of 1895. The modern movement with reference, to juvenile courts began with the introduction in the Illinois legislature of a bill creating such a court for the state of Illinois and the establishment of the court in Chicago in July, 1899. See Flexner & Baldwin, Juvenile Courts and Probation, and 1 Wharton Criminal Law (11 ed.), Section 366.

The fundamental principle of the juvenile acts is conservation of the child, and to accomplish this it has been deemed expedient to do away with the characteristic features of an ordinary trial. If the proceedings are criminal, the constitutions of the several states require a jury trial, and it is in the effort to show that the proceedings are not criminal that we find constant reiteration of the claim that the proceedings are in the nature of a case in chancery. (See article by Judge Julian W. Mack entitled The Juvenile Court, 23 Harvard Law Review, 104, and 37 L. R. A., 783, 787). It is often stated that the custody of children is a proper subject of chancery jurisdiction. (22 Cyc., 519, 520, and eases cited; Varsey v. Varsey, 25 C. C. (N. S.), 229, and Bispam on Equity, Section 542). This is the foundation of the argument of the relator.

The jurisdiction of chancery over minors appears historically to be a portion of the king’s executive power as parens patriae. In England it is probable, that, like jurisdiction over persons of unsound mind, jurisdiction over minors did not belong to the court of chancery by virtue of its inherent and general functions. This branch of regal authority was originally delegated to the chancellor as the personal representative of the crown. (Wellesley v. Wellesley, 2 Bligh N. S., 124, 130, 131). At any rate, in the United States, according to our system of government, the power of parens patriae belongs exclusively to the legislature of each state and is not possessed by the courts. 3 Pomeroy, Equity Jurisprudence (4 eel.), Section 1304, note 1, and Section 1311; Van Walters v. Board of Children’s Guardians, of Marion County, 132 Ind., 567, 569.

In this state part of this power is lodged by the statutes with the judge of the juvenile court.

There are instances of delegation of the power of parens patriae referred to in the reported decisions.' In the case of Prescott v. State, 19 Ohio St., 184, a minor had been committed to the state reform farm. The court held that the commitment wqs neither a criminal prosecution nor a proceeding according to common law, saying:

“The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishm >nt for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority.”

In Cincinnati House of Refuge v. Ryan, 37 Ohio St., 197, a petition in habeas corpus was filed to secure the liberty of certain children committed to the house of refuge, to which they had been committed by a justice of the peace of Hamilton counts' •without notice to the father. In the course of the opinion the court say at page 202:

“The paramount object is the good of such infants as are destitute of parental care. It is the exercise of that parental guardianship which the stale has assumed. The proceeding is, in its nature, special.”

Elsewhere in the same opinion the court obsérve: ‘ ‘ The proceeding is purely statutory.”

In Matter of Frank Januszewski, 196 Fed. Rep., 123, Judge Sater, after reviewing the act at length, states at page 127: “ It is of the same nature as statutes which authorize compulsory education of children,” and in conclusion says:

“The statute is neither criminal nor penal in its nature, but an administrative police regulation.”

A proceeding to declare a child “dependent” under the juvenile act is of a character unknown to the law prior to and at the time of the adoption of the code of civil procedure. It is not, therefore, within the class of cases included in the rule laid down by the Supreme Court in the case of Wagner v. Armstrong.

In Marleau v. Marleau, 95 Ohio St., 162, it was determined that a proceeding for alimony does not invoke the equity powers of the court. It is controlled by statute authorizing the court to exercise only such power as is expressly granted. The ease was, therefore, not appealable.

In West v. West, 100 Ohio St., 33, there ivas a controversy between the divorced parents of certain minor children about their custody and support. The .judgment- ivas held to be not appealable because the proceedings were merely statutory and not by virtue of the chancery powers of the trial court. Although an adjudication that a child is “dependent” in some of its aspects is akin to chancery, the powers thereby exercised by the juvenile court are likewise statutory. They are special and part of the exercise of the parental guardianship of the state. They do not include control over the property of the minor.

The determination by the juvenile court that Rosena Fortini was a “dependent” is not in a chancery case and therefore is not appealable. The action of tha-t court in refusing to fix an appeal bond wras proper.

The demurrer to the petition wall be sustained, and writ of mandamus denied.

Hamilton and Cushing, JJ., concur.


author: Patterson, J.

text:
    UNREASONABLE REQUIREMENTS IN ACCIDENT POLICY.
    Court of Appeals for Stark County.
    Emma C. Gibbs v. The United Commercial Travelers of America.

    Decided, November 20, 1920.

      Life Insurance — Legal Effect of Certain Conditions Incorporated in Policy — Notice of Happening of Accident — Autopsy.
    1. The requirements in an insurance policy, under which a certificate of insurance was issued to a member, were that, in case of an accident “he shall within ten days after the date of said accident send notice, in writing” to the officers of the company and that in case of death “notice of said death must be given, in writing within ten days, which death notice shall be in addition to the notice of the accident.” Held, the giving of the notice of the accident by the insured was not a condition precedent to the right of the beneficiary to recover in case of the death of the insured.

      2. A condition of forfeiture, that in case of an autopsy, when not requested by the company, “notice thereof being first given in writing at least seven days in advance thereof” is unreasonable and unwarranted and a forfeiture of the policy will not be declared on account of failure to give such notice.
    Reversing Gibbs v. United Commercial Travelers of America, 65 W. L. B., 250.

      Eerbruck é Black and McCarty, Armstrong & Bainsberger, for plaintiff in error.

      Webber & Turner, for defendant in error.

       Motion for an order directing the Court of Appeals to certify its record overruled by the -Supreme Court, March 29, 1921.

   Patterson, J.

The parties in this court stand in the same relation as they did in the court below.

The plaintiff in her petition alleges that AYilliam H. Gibbs was her son, and that on the 13th day of July, 1917, he became a member of the defendant order in good standing, and that the defendant issued to the said William II. Gibbs its certain certificate or policy of insurance thereby agreeing to pay to the plaintiff, as the beneficiary in ease of his death from bodily injury through external, violent and accidental means and independent of all'other causes, the sum of $6,300; $5,000 of which was to be paid within ninety days from the receipt by the supreme executive committee of satisfactory final proofs of the death of said William PI. Gibbs, and $1,300 to be paid in weekly installments of $25 each, beginning within ninety days from the receipt of said final proofs. Said certificate or policy being for such period of time as said William PT. Gibbs might be a member of said order in good standing, and should pay when and as the same became due and payable all dues and assessments charged and levied against him; that at all of the times hereinafter mentioned, said William IP Gibbs was a member of said defendant Order, in good standing, and that he had paid when and as the same became due and payable all dues and payments charged against him.

Plaintiff further alleges that while said policy was in full force, and on or about the 8th day of October, 1917. the said William II. Gibbs, on account of an accident, .was bodily injured in his abdomen from which said bodily injury," effected through external, violent and accidental means, and independent of all other causes, the said William H. Gibbs on the 17th day of December, 1917, died.

That this plaintiff; was named in said policy, at the request of said William IT. G-ibbs, as the beneficiary thereof, and that by reason thereof the sum now due on said policy is payable to her.

Plaintiff further alleges that after the death of said William IT. Gibbs, she, as the beneficiary named in the said policy, caused notice thereof to be furnished said defendant in accordance with the terms of said policy, and thereafter caused formal proofs of the death to be furnished to said defendant company at its home office in Columbus, Ohio, and that her said claim was rejected by the company on February 6th, 1918; and in her petition she prays judgment for $5,000 with interest from December 17th, 1917.

In a supplemental petition the plaintiff alleges that the weekly installments of $25 are now all due and payable, and in said supplemental petition prays judgment for an additional sum of $1,300.

To this petition the defendant files an answer setting forth three' defenses, in the first of which it admits the issuing of the policy to the said William IT. Gibbs for the sum named in the petition upon the receipt of satisfactory final proofs of the death of the said William IT. Gibbs, but upon express condition that the decedent was at the time he received such bodily injuries, and at the time of his decease as the result of such bodily injuries through external, violent and accidental means independent of all other causes; a member in good standing of the said Order of United Commercial Travelers of America; and upon express condition that he had complied with all the terms and conditions of said policy of insurance, and had observed and complied with the constitution and by-laws of said Order, and that all and singular the terms and conditions of said contract and policy of insurance had been kept and complied with by the said William H. Gibbs, and the beneficiary named in said policy, or those claiming through or under them on account thereof.

The defendant admits that the decedent died on December 17th, 1917, and that sometime after his death the plaintiff, claiming as his beneficiary, gave notice to the defendant of the death of the decedent and has filed with the defendant certain proofs of death, and that defendant has notified the plaintiff that it disclaimed all liability thereunder, and the defendant denies all and singular the other averments of the petition.

Further answering the defendant sets forth the purpose for which the Order was founded; that the executive, legislative and judicial functions under its constitution are invested in a Supreme Council, and subordinate and branch Councils are provided for under its Constitution, and that under its constitution and by-laws, contracts of insurance shall be written and certificates of insurance issued only in favor of those W'ho are members of the Order, and that such certificates of insurance shall be subject to the terms of membership in said Order and to all of the conditions and provisions embodied therein.

The answer further sets forth the provisions of Section 12, Article VII;

“Nor shall benefits under this Article be payable unless external, violent and accidental means, producing bodily injury, is the proximate, sole and only cause of the death, disability or loss.”

That Section 14 of Article VII of said Constitution, among other things, provides as follows:

“Any insured member who shall sustain an accident covered by this Article, shall, within ten (10) days after the date of such accident, send a notice in writing of said accident (not the results) to the Supreme Secretary, stating his full name and address, and full particulars of his accident.
“If death shall result under the conditions covered by this Article, a notice of said death must be given in writing to the Supreme Secretary within ten (10) days after said death, which death notice shall be in addition to the notice of the accident and
“Any failure to give or furnish the notices, preliminary proof or final proofs, as hereinbefore required, each within the time limited therefor, shall be deemed a waiver of any and all claims against the Order and said claims shall be deemed forfeited by said failure.”

. The defendant further alleges that the certificate of membership, constitution and by-laws and articles of incorporation of the Order, together with the application for insurance signed by the decedent, constituted the contract between the Order and the said decedent, and that the same are binding upon his beneficiaries. The defendant further says that it has no knowledge of any alleged accident occurring to the decedent in October, 1917, and expressly denies the allegations of the petition in this respect.

For a second defense the defendant alleges that there was no notice given by the decedent within ten days of the happening of the accident, nor any notice given by him whatever as to the alleged accident or injury, as set forth in the petition, and that by reason thereof the decedent forfeited all claims for benefits under the policy either on behalf of himself or on behalf of his beneficiaries in ease of his death.

For a third defense the defendant alleges that the constitution of the order also provides as follows:

“Any claim for death alleged to have been caused by accident shall be forfeited and rendered null and void should an autopsy not requested by the supreme executive committee or any representative authorized by it be held without notice thereof being first given to the supreme secretary at least seven days in advance of the intended autopsy.”

The defendant further alleges that it had no notice of the death of the decedent until several days after his decease and burial; that before any such notice of his death had been received by the defendant an autopsy was held upon his body without the knowledge or consent of the defendant, and that said autopsy was not requested by the supreme executive committee, or any representative thereof, and that by reason of the violation of this provision' of the constitution the plaintiff is not entitled to recover.

To this answer of the defendant the plaintiff files a reply admitting that there were certain provisions in the policy and in the constitution and by-laws of the order which were made condi ■ lions of said policy upon which the same was accepted; and admits that the defendant notified this plaintiff that it disclaimed all liability and rejected her claim; further alleges that the defendant is an incorporated association under the laws of Ohio, and that the provisions of the constitution of the order, as set forth in the answer, are correctly stated; and admits that no notice of any accident was given to the defendant prior to the death of the said William H. Gibbs.

But the reply avers that the provision that on failure to give said notice said certificate shall be forfeited and be rendered null and void and says that in that respect that the same is not a valid, reasonable or legal provision and is of no effect or binding force as a defense against the plaintiff herein; admits that an autopsy was held and no notice of the holding thereof given to the defendant. And plaintiff avers that she did not kow of the existence of any such provision in the policy relating to an autopsy until after the same had been held upon the body of decedent, and denies each and every other allegation of the answer.

To this reply the defendant filed a demurrer upon two grounds;

First. The facts and allegations set forth in said reply constitute no defense as against the averments of defendant’s answer and upon their face on account of admissions therein cpntained, show that plaintiff has no cause of action against defendant.

Second. Because of the admission in the reply that the certificate of insurance contained the provisions, stipulations, covenants and conditions set out in defendant’s answer and because of the further admission in said reply that no notice of the alleged accident to William H. G-ibbs mentioned in the petition was given to the defendant company, and the further admission that no notice of autopsy, or intended autopsy, was given, as required by the provisions of said certificate of insurance and constitution, it is clear upon the face of the reply and the pleadings that plaintiff has no cause of action against the defendant.

This demurrer was sustained by the court below, and plaintiff not desiring to plead further judgment was rendered against her and error proceedings prosecuted to this court seeking a reversal of the judgment below.

The real question in this ease is of very narrow limit; it is admitted that no notice of the accident was sent to the company by William II. Gfibbs, but that, on the other hand, within the time required by the policy notice was given to the company of his death by the beneficiary. And the question presented involves a construction of that part of the policy which reads as follows;

“If death shall result under the conditions covered by this article, notice of said death must be given in writing to' the supreme secretary within ten (10) days after said death, which death notice shall he in addition to the notice of the accident and shall state the cause of the death.”

It is the claim of the plaintiff in error that according to the terms and conditions of the policy, and in order that she might recover from the defendant as a beneficiary, it was not imperative that notice of the accident be given to the defendant, but if notice of the death of the decedent be given within ten days . that the defendant is liable. ...... . . :

It is further contended on the part of the plaintiff that the language of this policy insofar as the giving of the notice jh concerned is divisible into two parts, one of which relates to the insured and the other to the beneficiary. And that even should the failure to give notice to the company by the insured within ten days after the happening of the accident result in a loss of the benefits thereunder to him, yet in case of his death as a result of such injury that such action does not bind the beneficiary; that the beneficiary can not possibly have any interest in the policy until after the death of the holder, and that it is not incumbent upon the beneficiary as a condition precedent that she should give both of these notices; the one within ten days after the happening of the accident, and the other within ten days after the death, for the reason that she would not be a. beneficiary under the policy under any circumstances or conditions prior to the death of the policy holder; and that having complied with all that is required of her, namely, to give notice of death Avithin ten (10) days that the company is liable to her as such beneficiary for the full amount of the policy.

And it is further contended that should the decedent have Avaived all his claim to any benefits, this waiver does not estop ■ the beneficiary from claiming under the policy. ■.

Very exhaustive and voluminous briefs have been filed in this ease, and we will not attempt to review or distinguish the authorities cited therein. Our attention has been called to the case of Hammill v. Order of United Commercial Travelers of America, reported in the 164 New York Supplement 815, and the facts in that ease show that on April 6th, 1914, Hammill sustained an injury and died as a result thereof on April 22,1914; that no notice of the accident was given within ten days, and the only notice given to the company was the notice of the death within ten days thereafter.

At page 816 the court say:

“The appellant argues that the words “which death notice shall be in addition to the notice of the accident” implies that there must be two notices in all cases where death results from an accident more than ten days thereafter. We think it means rather than when notice of the accident is given by the insured member and he thereafter dies as the result of such accident, a notice of death must again be given notwithstanding the first notice. An injured member might consider his injuries trivial, and might have no intention of making a claim therefor against the order. But death unexpectedly overtakes him as a result of the accident. The beneficiary under the certificate is not in such a case, precluded from making a claim because of want of previous notice. But if on the other hand, the injured member had given notice of his injury and made claim for compensation under this certificate and subsequently dies, the notice thus- given is not sufficient, but a notice of death must also be given, which death notice shall be in addition to the notice of the accident. ’ ’

It is contended on the part of the defendant in error that this case has been overruled by the Supreme Court of New York in the case of Sasse v. Order of United Commercial Travelers of America, 226 New York, 669; but we are unable to find that this is the same case or that this holding of the New York court has been overruled or modified.

In that New York case the language of the policy was identical with the language of the policy in this case. The defendant being the same in the New York case as in the instant case.

Other cases cited and relied upon by counsel for plaintiff in error are — 85 Federal Reporter 405; 186 Fed. Rep. 271; 130 Fed. Rep. 985; 113 Arkansas 174; 173 North Carolina 532; 96 Kansas 679; 56 Missouri Appeals 301.

In Missouri Appeals 163 at page 628 the syllabus is as follows:

“The beneficiary in an accident insurance policy is not required to give any notice to the company of an injury to the insured until a claim matures by the death of the latter. It would be unreasonable and absurd to require the wife of the insured, who is the beneficiary of the death indemnity in an accident insurance policy, to notify the company of a possible death claim every time her husband receives an injury.”

In 77th, Kansas at page 561 it is held:

“Where an accident insurance policy provides for the payment of a weekly indemnity to the insured if disabled by an accidental injury to the extent described, and also provides for the payment to a beneficiary named in the policy, of a stipulated indemnity in case of the insured’s death from such an injury, and stipulates that written notice of claim must be given by the beneficiary to the company fifteen days from the date of the accident causing the loss, for which claim is made. The time within which notice must be given by the beneficiary, does not begin to run until the death of the insured.”

The court discussing the case on page 569 uses this language:

“It is also contended that, if this right of action existed, it has been lost by failure to give notice as required by clause four above set out. No notice was given to the company until more than fifteen days after the insured was injured. If such notice was necessary, the failure to give it worked a forfeiture of all rights under the policy. It will be seen from clause four that notice of the claim must be given by the insured or by the beneficiary. These parties can not both have a claim at the same time. It would be a useless thing for the beneficiary to give notice of a claim which is not in existence and which may never arise. Such a proceeding can not be fairly assumed to have been contemplated by the parties, and it does not seem to be clearly expressed by the language of the policy. Until the death of the insured the beneficiary had no interest in or claim to the policy and no rights under its provisions. A claim in favor of the insured arose after he received the injury and to preserve that claim it was incumbent upon him to give the required notice. But the beneficiary, during the life of the insured, had no claim against the company nor any right under the policy to be protected. The language of the clause evidently contemplates that this duty will, in some eases, rest upon the insured, and in others upon the beneficiary for they are both mentioned.”

A large number of cases are cited on behalf of the defendant-in 'error, and on- behalf of its contention perhaps the strongest case is the one reported in 197 Mass., page 101. This case commonly known as the Hatch case is somewhat analogous to the instant case. The policy contained a provision that a notice of injury, fatal or non fatal, must be given to the company within ten days of the event causing the injury. In this case the -injured and deceased was injured on July 7th, which caused his death on August 11th. No notice of the accident was given to the company, but within four days after his death the plaintiff, the beneficiary, gave notice of the death, and the court held, in substance, that the requirement that the insurer should be given notice within ten days of the event causing the injury is a condi • tion precedent to the creating of liability under the policy and that under the facts of that ease the plaintiff could not récover.

At page 105 the court say:

"After his death it was not in the power of the beneficiary to revive the right lost by the insured in his life time. While it is true that the contract provided in case of death of thé insured from any risk insured against, the indemnity was to be paid to her, if surviving, still her rights as beneficiary rest upon the contract, and the failure of the insured to fix the liability of the defendant by a notice was a failure to complete the contract not only so far as concerned any benefit to him but also so far as concerned any to her.”

An examination of the authorities outside of Ohio show great divergence in the opinions in cases similar to the instant case. The question is not without its difficulties, and we think that the cases may be divided into two general classes, one class of cases holding to a strict construction of the policy, and another class of cases holding a reasonable construction of the policy. And we are inclined to the opinion that in Ohio the courts are inclined to a reasonable rather than a strict construction of the terms of a policy such as are set forth in the instant case.

These questions have been before the Supreme Court to a certain 'extent, in two cases recently decided by the Supreme Court, Employers Liability Assurance Corporation v. Roehm, 99 O. S., 343 and American Casualty Company v. Roehm, 99 O. S., 350, and the syllabus in the first above mentioned case is as follows:

“A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualifications, that if at the' time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately «upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury. ’ ’

At page 346 the court say:

“The question for determination is: Do the facts alleged in the petition justify the holding that as a matter of law the plaintiff is to be denied recovery, or are they such as to require the submission of the cause to a jury for its solution?
AVe are of opinion that the failure of the plaintiff to notify the company of the fact that he had suffered a blow over the eye, within the thirty-day period, will not necessarily operate to defeat a recovery. His conduct between the day that the blow was inflicted and the day that the terrible possibility fell on him like a thunderbolt was highly commendable, if not exceptioned. It showed a high regard for the rights of the insurance company, for, all too often, very slight injuries are made the basis of a claim for indemnity. It would seem a poor reward for virtue, if conduct of this character were to be made the groundwork for a successful defense against recovery for a grievous loss. It would penalize a decent regard for the rights of others and put a premium on that sort of conduct that carries insurance for profit rather than protection. ’ ’

In the last above cited ease, at page 351, the court say:

“In Employers’ Liability Assurance Corporation case supra, the notice clause contained a provision to the effect that notice must be given “unless such notice may be shown not to have been reasonably possible.” Such exception is not written in the notice clause in the ease at bar.'
“The failure to specifically include the exception mentioned is of little or no importance, for manifestly such exception must be read into any provision of this character. The law does not require, in circumstances of this kind, that a party do the impossible thing; or, to put it in another way, in the case at bar the insured must be held to have the same right to justify and explain his failure to give the notice within ten days, as we have held that he had in the case where the excusing clause was actually written in the policy.
“The judgment in this case must be affirmed, for the reason that John Roehm did not have, within ten days from the time of the accident, any knowledge whatever that he had suffered an injury of the character he afterwards discovered, nor any injury at all for that matter, upon which a claim for damages could be based. Situated as he was during the passage of the period stipulated for notice, unaware that any harm had Defallen him, the giving of notice then must have appeared to John Roehm, as it would have appeared to any other reasonable and prudent man under like circumstances, as a foolish and futile thing. At any rate, he is entitled to the judgment of a jury as to the reasonableness of his conduct under the circumstances. ’ ’

Entertaining the views that the terms and conditions of this policy with respect to notice should receive a reasonable construction, we are of the opinion that the demurrer should have been overruled so far as it relates to this branch of the case.

There is also a condition of forfeiture prescribed in the policy that unless notice is given in writing of an autopsy at least seven days in advance to certain officers of the company, the policy should be forfeited. And upon this branch of the case we hold that the terms and conditions in the policy with reference to an autopsy are unreasonable and unwarranted, and that forfeiture of the policy can not be declared for failure to give such notice, and the demurrer should be overruled as to this branch of the case.

The judgment of the court below in sustaining the demurrer will be reversed and this cause remanded to the court of common pleas with instructions to overrule the demurrer, and -‘ur further proceedings according to law.

Judgment reversed.

Houck and Shields, JJ., concur.


author: Winch, J.

text:
    BREACH OF LEASE WARRANTING FORFEITURE.
    Court of Appeals for Cuyahoga County.
    The Koblitz Brothers Realty Company v. John D. Rockefeller, Laura S. Rockefeller, The Abeyton Realty Company and Clarence E. Terrill.

    Decided, March 26, 1914.

      Landlord and Tenant — Construction of Nine'ty-nine Tear Lease with Reference to Erection of New Building — Right of Forfeiture for Failure to Erect New Building within Ten Tears Upheld.

    An option to terminate a ninety-nine year lease at the end of the first ten year period, if in the meantime the old building has not been removed and a new- one erected at a cost of $150,000, is not repugnant to a provision in a previous clause of the lease giving to the lessee, upon obtaining the consent of the lessor, the privilege of removing the old and erecting a new building at any time during the ninety-nine year period.

      F. C. Scott aDd W. W. Hole, for plaintiff in error.
    Iiolden, Hasten, Duncan & Leckie, for defendants in error.

       Reversing Koblitz Bros. Realty Co. v. Rockefeller et al, 15 N. P. (N. S.), 161. Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 2, 1914; petition in error alleging a constitutional ground dismissed by the Supreme Court, June 23, 1914.

   Winch, J.

This is an action to enjoin the defendant from enforcing a forfeiture of a 99-year lease to certain premises in the city of Cleveland and from taking possession of the demised premises.

The defendants claim forfeiture of the lease on several grounds, but only one of them need be examined and that is the failure of the plaintiff to erect a new building upon the premises within the first ten years of the term of the lease.

Upon this subject the parties, by the indenture of lease, covenanted as follows:

‘ ‘ And. it is further mutually agreed and understood between the said lessor and the said lessees that said lessees shall have and are hereby granted' the right and privilege at any time they see fit to repair or remodel the building and improvements now upon said premises at their own expense, provided, however, that said changes, remodeling and improvements on said land shall not impair or lessen the present value of the buildings and improvements now thereon. And said lessees shall have and are hereby granted the right and privilege at any time they may see fit to remove or destroy the buildings and improvements now upon said premises, or any part thereof, but only on condition that said lessees will proceed without delay thereafter to erect in their place and stead and at their own expense a new building or buildings and improvements upon said premises, to cost not less than one hundred and fifty thousand dollars ($150.-000). Provided, however, that said lessees shall not exercise such right without having first obtained the lessor’s consent in writing for the removal of said buildings or any part thereof, and furnishing and delivering to the said lessor a good and sufficient bond to said lessor’s satisfaction to secure the erection of a new building or buildings and improvements on said land to cost not less than one hundred and fifty thousand dollars ($150,000).
‘ ‘ But in case the lessees shall fail to erect a first class, modem building not less than eight stories in height upon said premises costing not less than one hundred and fifty thousand dollars by or before the expiration of said first period of ten years, i. e., by or before October 1st, 1913, it shall then be optional with the lessor to terminate this lease at that time by giving written notice to said lessees of his election so to do, or to continue the same in force without regard to the erection of such new buildings. If this lease shall be terminated by the election of said lessor on or before October 1st, 1913, on account of the failure of said lessees to erect new building and improvements upon said premises before said date at a cost of not less than $150,000 as aforesaid, then and'in that event all the buildings and improvements upon said premises shall revert to and remain the property of the lessor without compensation therefor' to said lessees.”

It is conceded not only that the old buildings have not been tom down and new buildings erected, but that the ten-year period elapsed without the lessees requesting the lessor’s consent to the removal of the old buildings, without tender of any bond to secure the erection of new buildings and without any intention on the part of the lessees to construct new buildings during said ten-year period or thereafter, either conceived by the lessees or communicated to the lessor.

The lessees’ claim is that the lease is to be construed as granting the lessees the privilege of tearing down the old buildings and erecting new buildings at any time during the 99 years of tin lease, but that it does not require them to do so and that the second paragraph quoted from the lease is repugnant to the first paragraph and can only be harmonized with the first paragraph by limiting its application to the contingency only that if, during the first ten years the lessees should elect to erect new buildings, should obtain the lessor’s consent to tear down the old buildings, upon giving bond as required, and then having torn down the old buildings should fail to erect new buildings within the first ten-year period, then the lessor might exercise the option reserved to terminate the lease.

This claim is hard to understand and difficult to express in words. It is so forced that recourse to plaintiff’s brief must be had to obtain any conception of it.

In said brief it is expressed as follows:

“It is clear that a clause allowing lessor (lessees) to build at his (their) option at any time during a period of 99 years is so entirely repugnant to a clause which requires him (them) .to build within 10 years, on terms to be dictated by the lessor, that neither law nor equity will enforce a construction so detrimental to the rights of the lessee.”

In this sentence, as indicated, counsel confuse the words lessor and lessees, but the brief goes on to say:

“While it is clear that the two clauses are too repugnant to allow a forfeiture, the claim of plaintiff is that they may be so construed as to fairly and equitably protect the rights of both the lessor and the lessees.
“The lease clearly gives the lessee a privilege to build, at his option as to time, but only on condition that before tearing down give bond to lessor’s satisfaction to proceed with the new buildings. Then follows the clause relied on by defendant, stating that if lessee fails to erect such building within ten years, the lessor may elect to terminate the lease.
“This clause may be entirely harmonized with the former clause, giving the option to build to lessee, if we simply interpolate the words, ‘after lessee has so elected to build and given bond therefor,’ immediately following the words ‘October 1,1913.’
“This interpretation is entirely reasonable and absblutely equitable in that it still gives the lessee the option to build as stated in the lease, and yet gives the lessor, in addition to the bond, a further security and a different remedy to be exercised at his option, during the first ten year period of said 99 year term.”

This insertion of words, the parties never thought of adding to their contract, may be “entirely reasonable and absolutely equitable” in the minds of the lessees, but is it what the lessor intended when he drafted the lease and the lessees assented to when they accepted it as drafted ? If it is not, the court cannot make a new agreement for the parties, nor will it hold the two clauses of the lease repugnant and the forfeiture therefore unenforceable, unless they are clearly so.

It is not unusual for a lease to be made for a term of years, 'but to terminate sooner upon the option of either lessor or lessee either for cause or upon the mere will of the one for whom the option is reserved.

Contracts for employment- are made in the same manner, with option to either party to terminate the employment upon giving notice. Contracts for sale or purchase of goods with delivery in installments are made with similar options.

It is, then, not unusual to reserve the right to terminate a contract upon notice and such right- when contracted for by the parties, is uniformly enforced by the courts, unless circumstances have arisen before notice is given which should, in equity, prevent the assertion of the right.

The terms of the lease before the court for construction in this ease are not difficult to understand, íp?.e a valid and reasonable exercise of the right to contract, and must be construed with a view to effectuate the intention of the parties, if that can be gathered from them. As said by Judge Spear in a case involving the forfeiture of a 99-year lease, Rock v. Monarch Building Co., 87 O. S., 244, at page 252:

“Courts are required, by the application of known rules ox law, to enforce valid and reasonable contracts of parties, with the view of carrying out'their clear intent, rather than, by resort to technical construction, to render such contracts void.”

In this case both parties agree that: “The first part of this stipulation clearly gives the lessees the right and privilege to erect a new building or ¡buildings, but does not obligate them to do so, unless they remove or destroy the old buildings. This privilege may be exercised by lessees at any time they see fit, during the entire period of 99 years.”

Now as to the second paragraph, the plaintiffs concede that if it stood alone it might be construed as a condition subsequent and so enforceable.

But it does stand alone and the evidence shows that it was drafted by the architect of the lessor and required to be inserted in the lease after the original draft of the lease, without it, had once been approved by the parties, but before signing.

Let us read the second paragraph again and see if it is a “ valid and reasonable” provision to insert in a 99-year lease which contains a privilege to the lessee to tear down old buildings and erect new buildings at any time within the term, upon certain conditions:

“But in case the lessees shall fail to erect a first class, modern building not less than eight stories in height upon said premises costing not less than one hundred and fifty thousand dollars by or before the expiration of said first period of ten years, i. e., by or before October 1st, 1913, it shall then be optional with the lessor to terminate this lease at that time by giving written notice to said lessees of his election so to do, or to continue the same in force without regard to erection of such new building. ’ ’

This seems clear enough to require no construction. It means what it says: if the lessees fail to erect a new building before October 1st, 1913, the lessor may then terminate the lease.

The sentence opens with the word “but”, and much stress is put upon this by both parties, but the meaning- of the word in this connection is simple enough. It means, “notwithstanding— yet”; “notwithstanding” I have given you the privilege to erect a new building on the premises at any time you may see fit during the 99 years, “yet”, if you don’t erect a new building during the first ten-year period, I reserve the right to terminate the lease.

This the lessor certainly had a right to do, and his reason for doing it is apparent. Having exacted no security for payment of rent, having made no requirement that new ¡buildings must be erected, he was content to let this arrangement go for ten years, but as the buildings were then old (the evidence shows they were erected in the fifties of the last century), he thought it wise to have ten years in which to make up his mind whether the lease was a safe one to continue without the erection of new buildings on the premises as security for continued payment of rent during the next 89 years.

The ten years went by; the. lessees paid no heed to this clause of the lease which was manifestly for the protection of the lessor; he deemed it wise to exercise the option which the lease reserved to him and having plainly contracted for it, why should this right be denied him?

We hold, then, that the option to terminate the lease is valid and reasonable — not repugnant to the privilege granted in the first clause, any more than the further specification in the second clause that the new building shall be “a first class, modern building not less than eight stories in height” is repugnant to the phrase “new building or buildings and. improvements” used in the first clause. The second clause more fully describes the kind of building which the first clause authorizes to be built. That is perfectly proper. The two clauses should be read together and effect given to both. The rules of grammar do not determine the effect to be given to a contract; it is the intention of the parties that is to control. It is reasonable that this should be so. otherwise the school teacher and lawyer would have a monopoly of drawing contracts.

Having found the two clauses of the lease to be harmonious and reconcilable, valid and reasonable, it follows that the lessor had a right to exercise his option to terminate the lease and that the court cannot interfere with this right unless the lessor, by some act of his own prevented the lessees from complying with the condition subsequent, as it has been termed, or waived compliance therewith, or there has been some fraud, accident or mistake on account of which the court ought to relieve against the forfeiture.

There is nothing of the kind in this case, so far as the lessor is concerned. On the other hand, an examination of the record does not commend the conduct of the lessees to a court of equity. They admit they never intended to build and they did many things in an effort to circumvent the lessor in his right to terminate the lease.

Sixty days before October 1st, 1913, notice in writing was served on the lessees that it was the intention of the owner of ihe premises “to take advantage of and exercise the option to terminate said lease on October 1, 1913, as provided in the clause or said lease quoted above,” the clause quoted being the one in question.

Then the lessees got busy, not in an effort to obtain the lessor’s written consent to the erection of a new building and extension of time in which to complete it, but in the invention of traps anct subterfuges in order to bewilder the lessor and prevent his exercising his option, through the interposition of technicalities.

The lease provided, among other things:

“All notices to be observed hereunder upon said lessees shall be served by leaving them at their offices upon said premises.”

The notice of intention to terminate the lease should have been served at such office, if they had one, upon the premises, but the lessees sub-let the entire premises and never maintained any office there. .They received the written sixty-day notice and then delayed until September 27, 1913, which was a Saturday and only three days before October 1st, when they put of record an assignment of tlieir lease to the Koblitz Brothers Realty Company, of which company the lessees owned all the stock except four qualifying shares held by members of their families, who served as directors of their Realty Company. They gave no notice of this assignment to the lessor.

The Koblitz Brothers Realty Company also pretended to open an office “on the premises,” by arranging for the use of a table in a restaurant in the building when the table was not in use at meal times and hanging a cardboard sign with the name of the company on it on a clothes rack in the dining room and pasting a typewritten, notice on a small piece of paper in a window of a restaurant over which hung a lace curtain. Of these steps they gave the lessor no notice, and so when the lessor, on September 29, 1913, gave his final written notice that he thereby elected to terminate the lease and requested that the premises be vacated by October 1st, he gave it to the original lessees and not to their assignee, the Koblitz Brothers Realty Company.

These facts are related to show that the plaintiffs do not by their conduct commend themselves to a court of equity, which is interested in substantial claims and disregards technicalities, but their relation does not require a consideration of whether the notice to forfeit was regularly given, for plaintiffs concede that they had actual notice thereof and are bound thereby. and it is a rule that “after notice lias been properly given by the landlord, it -binds all who come into possession subsequently under the tenant.”

Captious objection is also made by the lessees to the fact that the notices of termination of the lease were given by an employee of the owner, not shown to be qualified to act so as to bind the owner. Such objection comes from the wrong side. The owner adopted the act of the employee and stands by it.

The conclusion is that defendants were wholly within their rights in declaring the lease terminated and in taking possession ol! the demised premises on October 1, 19.13, and that plaintiffs' petition for an injunction must be dismised.

Such results as this are sometimes reached with reluctance, where forfeitures are involved. It is one of the functions of a court of equity to relieve against forfeitures, but that is because forfeitures frequently result in hardships to the innocent or unfortunate. Plaintiffs are neither innocent nor unfortunate, nor is there any hardships here involved. The lessees brought themselves deliberately into their present situation by disregard-the plain terms of their lease; they never intended or desired to rebuild on the premises; they never invested any money in the property which they haven’t received back; what repair» they made have been fully repaid to them by sub-tenants and every year of the ten they were in possession of another man’s property, they made a handsome profit out of it. The record shows the rent reserved under the lease was $6,000, and the income of the lessees from the property was oyer $10,000; out of this they paid the rent, taxes, insurance and repairs and pul a comfortable profit into their own pockets. Their gold mine has slipped from their grasp, but through no fault of the owner thereof.

The petition is dismissed and judgment is rendered for the defendants. What affirmative relief defendants ask we do not know, for it appears from the transcript that they filed an amended answer but it is not in the files. Whether said amended answer prays such relief as can be granted in this action and in this court, we were not advised on the argument, and that matter will be taken up when we come to the settlement of the journal entry.


author: Houck, J.

text:
    INSTRUCTIONS TO A JURY IN A WILL CASE.
    Court of Appeals for Coshocton County.
    James H. Ross v. Alex. P. Stewart, as Executor of the Will of Elizabeth Ross, Deceased et al.
    Decided July 6, 1921.
    1. Where no evidence has been offered in support of a question of fact, there is nothing to submit to the jury on that point, and it is therefore not error for the trial judge to say to the jury in a will case, if such ibe the fact, that “there is no evidence of duress, coertion or undue influence.”

      2. It is not error for the court to charge in a will case that “the paper itself may be considered with all the other evidence in the case in determining whether the testatrix was of sound mind and memory.
    3. The charge that “testamentary capacity is a rational understanding on the part of the testatrix at the time of making her will of the business she was engaged in, the kind and value of the property devised, the persons who were the natural objects of her bounty, and of the manner in which she wished to dispose of her property, embodies the necessary and proper elements of testamentary capacity and is not open to the criticism that it is indefinite and misleading.
    4. The testimony of an expert witness, like that of every other witness, should be accorded by the jury that degree of weight or influence, much or little, as appeals to their intelligence and impartial minds in view of all the facts and circumstances developed during the trial; and it is not error for the court to say to the jury in a will case, “for whether the testimony'of medical men is entitled to more weight than that of the other witnesses is a matter entirely with you.”
    5. Use by the court of the word’s prima facie without definition, taken in connection with the fact that the words were underscored by the stenographer in a copy of the charge but which the record does not show was ever seen by the jury, does not warrant the inference that the jury was thereby caused to believe the probate of the will was of first and prime consideration and in effect changed the .rule as to the degree of proof required to rebut .the prima facie case made by the probate of the will.

      Shepler & BurUew and C. Homer Durand, for plaintiff in error.

      T. H. Wheeler and Lloyd Leech, contra.
   Houck, J.

This is an error proceeding, and is here from the common pleas court of Coshocton county, Ohio.

The suit is one to set aside a paper writing, which was admitted to probate in the probate court of Coshocton county, Ohio, as the last will and testament of Elizabeth Ross, deceased.

The cause was submitted to a jury, and a verdict was returned sustaining said will.

To the overruling of a motion for a new trial, and the entering of a judgment on said verdict by the trial judge, error is here prosecuted.

The claim of plaintiff is that the paper writing in question is not the last will and testament of Elizabeth Ross, deceased, and predicates same upon two grounds:

(a) Duress, undue influence, and coercion.

(b) Lack of sufficient mentality.

We have read the bill of exceptions and carefully examined and analyzed the testimony of each and all of the witnesses testifying in the trial below. We have given the charge of the court special attention, for the reason that learned counsel for the plaintiff in error make many complaints and charges of prejudicial error therein, which affect, as they urge, the sudstantial rights of .their, client. We have carefully examined each and all of the claims set forth in the thirteen grounds of error, as set out in the petition in error, by reason of which it is sought to reverse the judgment of the common pleas court. However, we deem it necessary to refer only to the following:

1. Did the trial judge err in instructing the jury, “There is no evidence of duress, coercion, or undue influence?” We find, from a very careful reading of all the testimony offered in the ease, no evidence to sustain this claim of plaintiff in error.

It was the duty, in law, of the trial court, to submit these questions to the jury for its determination, if there was any evidence offered tending to prove the claim of duress, coercion or undue influence, or either of them. These are questions . of fact for the determination of the jury, but if no evidence was offered to establish same, then there was nothing to submit to the jury as to them, or either of them.

“Where the plaintiff offers no proof as to a material and necessary allegation of fact, which must- be established before recovery can be had, there is nothing for the jury to pass upon, and on proper motion it is the duty of the trial judge to direct a verdict for the defendant.” See second syllabus. Gilmore v. Alberry, Admr., 11 Ohio Appellate Reports, page 337

2. Was it prejudicial error to charge the jury as follows:

“The paper itself may be considered with all the other evidence in the case, in determining whether the testatrix was of sound mind and memory.”

We answer this inquiry in the negative. The will itself is an important factor in aiding the jury to reach a proper conclusion as to the mental capacity of the testatrix at the time of the execution of her will. The fact that a will is unjust, absurd, or inequitable, does not, standing alone, prove the incapacity of the testatrix to make a last will and testament; yet we find and hold it to be an element of evidence for the jury to consider, as bearing upon the question of mentality, and therefore is proper to go to the jury to determine what weight, if any, shall be given it.

3. Was the following charge erroneous:

“If Elizabeth Ross, at the time she executed the paper writing,- had sufficient mind and memory to enable her to know and understand the extent of her property; her just relations to the natural objects of her bounty; the business in which she was engaged, she was of sound mind and memory within the meaning of the law. and possessed testamentary capacity. Testamentary capacity as used in these instructions is a rational understanding on the part of the testatrix at the time of making her will of the business she was engaged in; of the land and value of the property devised; of the persons who were the natural objects of her bounty; and of the manner in which she wished to dispose of her property.”

It is insisted that this instruction is indefinite, misleading, and not applicable to the facts in the present ease. We are not in accord with this criticism. The language used is clear, and there is no indefiniteness in same. It embodies all the necessary and proper elements defining testamentary capacity— the one question of fact to be passed upon and determined by the jury, and upon the proper determination of same is decisive of the ease.

4. Dr. E. C. Carr was the only medical witness examined, and with reference to same the court said to the jury, “for whether the testimony of medical men is entitled to more weight than that of other witnesses is a question entirely with you.”

While it is true that a physician, by reason of his special training, may be and no doubt is better able to determine the nature and extent of physical and mental manifestations in a particular individua] than a layman, yet after all the weight to be given such testimony is a matter for the jury, in the light of all the other evidence. Therefore, the testimony of the expert, like the evidence of every other witness, is to be considered by the jurors, who are to accord to it influence, much or little, and in such a degree as it appeals to their intelligent and impartial minds, in view of all the facts and circumstances developed in the trial.

5. It is seriously urged that the court was in error in un- ' derseoring the Latin phrase “prima facie”; also neglected and failed to define it to the jury, and thereby caused the jury to believe that the probate of the will was of first and prime consideration, and-in effect changed the rule as to the degree of proof required to rebut the prima facie case made by the probate of the will.

The underscored phrase was not the work of the trial judge, but of the stenographer. There is nothing in the record showing that the written charge was seen or read by the jury, and therefore they could in no way have been prejudiced in the premises. We further hold that the phrase under consideration is of such common usage that it did not require special explanation to the jury. It will further be observed that counsel being present, if the trial judge omitted anything in his charge to the jury, it was their duty to call the court’s attention to such omission; and not having done so, they can not now properly complain.

“Where the court inadvertently omits to charge in respect to certain matters, it is the duty of counsel to call the attention of the court to such omission, and the omission to direct the jury must be in reference to a controlling question.” Clark v. Clark, 24 C. C. R., p. 103.

6. Complaint is made that certain lay witnesses were not permitted to testify as to the mental capacity of testatrix. An examination of the record discloses that the proper predicate had not been laid for such inquiry of such witnesses. A lay witness, who has theretofore given testimony upon which an opinion can reasonably be based, may give his opinion as to the soundness or unsoundness' of mind of the testator. But the witnesses in the present case, not permitted to testify, had not qualified, and therefore were not within the rule, and their testimony was properly refused by the trial .judge.

7. Was the verdict against the weight of the evidence? The weight and sufficiency of the evidence are questions to be passed upon and determined by the jury. A reviewing court is not authorized to set aside and hold for naught the verdict of a jury on the ground that its finding is against the weight of the evidence, unless upon a careful review of all the evidence such court is fully satisfied that the verdict is clearly against the weight of the evidence. The jury saw the witnesses, and had an opportunity to and did pass upon their credibility, their interest or lack of interest in the case, the reasonableness or unreasonableness of the facts to which they testified, and from all these found upon the facts in favor of the defendant in error.

This finding and the judgment thereon by the common pleas court will not be disturbed by us, because upon a most careful review of the whole case we are of the unanimous opinion that the judgment is sound in fact and law.

None of the alleged errors being of such a character as to warrant or authorize a reversal of the judgment below, the same is affirmed.

Shields, J., and Patterson, J., concur. •


author: By the Court.

text:
    DETERMINATION OF VALUE OF IMPROVED REAL ESTATE.
    Court of Appeals for Hamilton County.
    Linesch et al v. Board of Education of St. Bernard et al.
    Decided, June 1, 1920.

      Eminent Domain — Condemnation of Property for School Purposes— Value of Improvements may he Separated from the Value of the Land.

    1. In determining the value of improved real estate in an appropriation proceeding a property owner may offer evidence as to the value of the improvements separate from the land and show the value of the land separate from the improvements.
    2. In an action by a board of education to appropriate for school purposes private property consisting of lots on which stand brick and frame dwellings, part of which were built but four years prior to the commencement of the proceedings, and no question being raised as to the improvements not being adapted to the land, it is error for the trial court to exclude testimony of contractors and builders, who had made an examination of the houses a short time before the trial, as to the value of the improvements independently of the value of the land.

      B. T. Archer and Edouard H. Jones, for plaintiffs in error.

      Wilson, Fitzpatrick & Quane, for defendants in error.
    Heard on error.
   By the Court.

The board of education of the school district of St. Bernard instituted an action in the court of insolvency of Hamilton county, Ohio, to appropriate for school purposes certain real estate owned by John H. Linesch and Rudolph Schumacher. The property of Schumacher consisted of three lots, on which stand two brick dwellings. The property of Linesch consisted of four lots, on two of which stands a frame dwellinghouse built four years prior to the commencement of the action. No question is raised of the improvements in question not being adapted to the land.

At -the trial the property owners offered testimony of contractors and builders who had made an examination of the houses a short time before the trial. They testified to the value of the improvements, independently of the value of the land. Later this testimony was. on motion, stricken out by the court, and other similar testimony offered was not permitted to be introduced. Objection and exception were duly taken. Evidence had been offered of the value of the land without the buildings. Under the rule in Ohio a property owner has the right to show the value of his land separate ‘from the building, and the value of the building separate from the land. Cleveland Terminal & Valley Ry. v. Gorsuch, 8 C. C. (N. S.), 297, 302, affirmed, Gorsuch v. Cleveland Term. & Val. Ry., 76 Ohio St., 609. 2 Nichols, Eminent Domain, (2 ed.), Section 447; also Blackwell’s Island Bridge Co. v. New York, 198 N. Y., 84 [9 N. E. 278].

This method of valuing real estate is that recognized by the tax laws of Ohio, and all improved property is assessed for taxation.

Reliance was placed by the defendants in error upon the decision in Devou v. Cincinnati, 162 Fed,, 633 [89 C. C. A. 425]. In that case the property sought to be condemned was’ a four-story stone and brick building in a portion of the city which at the time the building was constructed had been a fashionable one. In the course of years the situation changed, the locality deteriorated, and the structure became a tenement house occupied by negroes. It was attempted to- show the cost of the original construction. The court points out that under the circumstances of that ease, where that character of building was no longer adapted to the purposes for which it was used, the evidence of the cost of construction would not enlighten the jury, but rather tend to confuse and mislead. Moreover, the report of that case shows that there was an abundance of testimony as to the market value of the land and building as it stood. The ruling of the trial court there, while apparently proper under the precise state of facts shown, is not a safe guide for all cases, and was not fairly applicable to the situation disclosed in the case at bar.

The court erred in excluding the testimony as to the value of the buildings.

The judgment will be reversed and the cause remanded for a new trial.

Shohl, Hamilton and Cushing, JJ., concur.