author: Geiger, J.

text:
    Young, Appellant, v. Miami Conservancy District, Appellee.
    (No. 1851
    Decided May 16, 1945.)

      Mr. Ralph A. Argabright, for appellant.

      Mr. Alfred 8. Franh and Messrs. Turner £ Turner, for appellee.
   Geiger, J.

Tliat we may readily understand the matters now before this court, it appears advisable to note briefly the issues raised by the several pleadings.

Plaintiff alleges that he is a freeholder and taxpayer in The Miami Conservancy District as established; that the matters involved are of common and general interest to all freeholders in such district and the taxpayers are interested and proper parties; and that the plaintiff brings the action for himself and on behalf of all other parties similarly situated and having a common interest.

It is alleged that The Miami Conservancy District is a public corporation organized under the Conservancy Act of Ohio, designated as Sections 6828-1 to 6828-79, General Code; that Edward A. Deeds, George A. Rentschler and Walter H. Coles are the present members of the board of directors of such district; and that Ezra M. Kuhns is the present secretary.

It is alleged that the district was established for the purpose of preventing floods in the valley of the Great Miami river and its tributaries, pursuant to the decree of the Common Pleas Court of Montgomery county, Ohio, made on the 28th day of June,- 1915, in the matter of The Miami Conservancy District.

It is stated that the district, acting through its- board of directors, has accepted title, from The National Cash Register Company, to a tract of 35 acres of land located in the city of Dayton, Ohio; that the conveyance was made for a consideration of $1 and other valuable considerations, subject to and upon the express conditions that the district should develop and use the premises as and for a public parking and recreational area for the use of all people forever; that the chief engineer of the district has prepared plans for the park development together with an estimate of the cost of the development; and that the named directors, purporting to act for the district, have approved the plans and accepted the estimates and have determined to proceed and are now proceeding with the proposed development.

Plaintiff says that the directors, purporting to act in pursuance of the provisions of Section 6828-24», General- Code, propose to expend funds, and pledge the credit of the district to the extent of $100,000 for the development of the park and recreational area, and will do so unless restrained.

Plaintiff says that the directors on the 27th day of September, 1940, made application to the Common Pleas Court of Montgomery county, Ohio, sitting as a conservancy court, for authority to proceed with the project; that no notice of or opportunity to be heard upon this application was given to the plaintiff or to any other person; that upon ex parte hearing’, such court did, upon the same date and practically at the time the petition was filed, make its order in the case purporting to authorize the directors to proceed with ihe project and expend funds belonging to the district in an amount not to exceed $100,000; that Section 6828-24a, General Code, is without application to and confers no power upon the district; that the purposes and powers of the district can be enlarged only by the same procedure as provided for the original establishment of the district; that the procedure has not been followed wherefore the attempted enlargement and alteration of the purposes and power of the district to include the establishment of a park or recreational area are null and void; that the district does not have such power and is attempting to exercise such powder; and that the directors are exercising their powers under the Conservancy Act of Ohio in such manner as to deprive the plaintiff and others of their property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States, and of Section 16, Article I of the Constitution of Ohio.

Plaintiff further says that in any event Section 6828-24«, General Code, purports to confer authority to levy taxes or special assessments without providing for such notice and hearing.as are necessary to constitute due process of law; and that the section, in its entirety, is in conflict with the provisions of the federal and state Constitutions as enumerated and is void.

Plaintiff further says that by virtue of the premises, neither he nor any person in the district has airy remedy at law against such purported misapplication of the corporate funds of the district; that the directors are parties to the misapplication of the funds; and that it was futile for plaintiff or any Qther person to demand of such directors that they take appropriate legal action to prevent such misapplication.

Plaintiff says that the directors, purporting to act under the provisions of Section 6828-24a, General Code, with the approval of the Common Pleas Court of Montgomery county, Ohio, sitting as a conservancy court, propose to defray the costs of the park improvement by the levying of special assessments upon certain public corporations having land in the district; that the levy of such assessments will constitute an unwarranted interference with the local self-government of such public corporations in contravention of Sections 2, 3 and 7, Article XVIII of the Constitution of Ohio; that upon the failure of such special assessments the cost of the improvement will be borne by plaintiff and others similarly situated by way of levy of taxes upon all taxable property within the district; that, by virtue of the premises, the proposed and threatened acts of the directors are an unwarranted and unconstitutional exercise of their powers; and that, by virtue of the premises, Section 6828-24a, General Code, is in conflict with the above-mentioned provisions of the Ohio Constitution.

Plaintiff prays that the directors of the Miami Conservancy District and their successors in office be permanently enjoined from expending any funds or money belonging to the district for the purpose of establishment or maintenance of a park' or recreational area and from pledging the credit of the district for such purpose; and that upon final hearing, the court award to the plaintiff his costs.

The defendant filed an amended answer to the amended petition of the plaintiff; admits that the district is a public corporation organized under the Conservancy Act of Ohio; avers that it is a political subdivision of the state of Ohio; admits that the law of Ohio under which it was organized is the “Conservancy Act,” later designated by the sections mentioned in the petition; and admits that the parties mentioned are directors.

Defendant admits that the district was established for the purpose of preventing floods, pursuant to the decree of the Court of Common Pleas of Montgomery county, Ohio, in case No. 36847, on the docket of such court, entitled: “In the Matter of The Miami Conservancy District”; but defendant alleges that such Court of Common Pleas was the Court of Common Pleas of such county as defined by Section 6 of the Conservancy Act as originally enacted.

Defendant admits that, acting through the board of directors, the conservancy district has accepted title to a tract of 35 acres in the city of Dayton; that the stated consideration in the deed was ‘ ‘ $1 and other valuable considerations,” but avers that there was actually no money or other consideration paid or promised by the grantee, except the grantee agreed to assume and pay the taxes and assessments upon the premises due and payable thereafter; and that the conveyance was made to the district subject to and upon the express condition that it should develop and use the premises for a public park for the use of all the people.

Defendant avers that there were no other provisions in the deed pertaining to the development and use of the premises by the grantee, and admits that the chief engineer prepared a plan for park development together with an estimate of the cost thereof, and that such district, through the board of directors, has approved such plan and has accepted the estimate of costs and has determined to proceed.

Defendant admits that the district, on September 27, 1940, made application to the Court of Common Pleas of Montgomery county, Ohio, sitting as a conservancy court, but denies that the application prayed for the authority of the court to proceed with the project; alleges that the prayer of the application was as hereinafter set forth; admits that no notice was given; and admits that on the same date the court entered certain journal entries granting the application.

Defendant admits that the directors named, acting as a board of directors of the district and under provisions of Section 6828-24», General Code, with the approval of the Common Pleas Court of Montgomery county, Ohio, sitting as a conservancy court, propose to defray a part of the park cost by the levying of a special assessment upon certain public corporations having land in the district, but denies that they propose to defray all the cost in same manner, and alleges that a larger part of the cost has been and will be borne by federal and private agencies.

Defendant further denies all other allegations of the amended petition.

■ Defendant alleges that on or about February 29, 1916, a plan for the improvement, for which the district has been created, was filed in the office of the district, which plan was pursuant to the provisions of the Conservancy Act of Ohio and was adopted as the official plan of the district approved by the Conservancy Court; and that such official plan provided for a system of dams and retarding basins on the Great Miami river and certain of its tributaries.

. Defendant alleges that, pursuant to the recommendation of the engineer, by proper resolution, it deter-mind to excavate an island in the river down the stream from the 35-acre tract and from the city of Dayton; and that this act was to accomplish the purpose of flood prevention and was in pursuance of the official plan of the district.

Defendant alleges that a large area of land outside the channel had been acquired as a “spoil bank” for the disposal of the earth constituting the island; that' the board of directors accepted the gift of the tract described in the petition for such use, the gift being conditioned, upon the .use of the land for public park and recreational area, and thereupon proceeded with the removal of the island and the placing of the earth therefrom upon the tract of land, the use being not inconsistent with the provisions' of the deed, but as agreed upon by the grantor thereof; and that all expenditures to cover the cost of the undertaking have been and are being made solely from the funds of the district applicable to such purposes.

Defendant says that at the meeting of the board of directors in July 1940 its chief engineer presented a plan for park development together with an estimate of the district’s share of the cost thereof; that the estimate includes an item of approximately $15,000 for contingencies; that the board of directors, by proper resolution, decided to proceed with the park developmént in co-operation with other civil agencies under the second method of financing the same, as set forth in Section 6828-24o, General Code, a part of the Conservancy Act of Ohio as enacted in 1937, subject to the approval of the Conservancy Court.

Defendant further alleges that in 1940 the Court of Common Pleas of Montgomery county, Ohio, as presided over by the judges provided for in section 5 of the Conservancy Act, heard and considered the application of the district praying for the court to approve the payment of obligations to be incurred through its part in the development of the park by the levying of special assessments upon such public corporations as would be benefited thereby, not in excess of such benefits, as determined by the board of appraisers of the district, and as approved by the court; that the application was heard on plans prepared by its enginéer and approved by the board, and his estimate of the cost; and that the court found that the development of the park would be a benefit to such public corporations having land in the district in such amount as would probably exceed the cost thereof, and adjudged that the proposed improvement be undertaken by the district, that the obligations incurred in so doing by the district, not to exceed $100,000, be met by the levying of special assessments upon the public corporations having land within the district which would be benefited thereby, and that the board of appraisers should proceed with the appraisal of benefits in accordance with Section 6828-24a, G-eneral vCode, and other provisions of the act.

Defendant says that the board of appraisers has proceeded with the appraisal of the benefits and is ready to make its report to the court; that upon filing the report, defendant proposes to proceed to give notice in each county as provided by law; that the matter will be brought before the Conservancy Court, together with any exceptions filed thereto; and that, if and only in the case the court approves the appraisers’ report and finds the appraised benefit to the corporation exceeds the part of the cost to be borne by the district, defendant proposes to levy an assessment against the public corporations.

Defendant then proposes to report the assessment to the court for confirmation and, if the same is confirmed, to give notice and opportunity to interested parties to file exceptions. If the assessment does not produce a sufficient amount, under the provisions of section 46 of the Conservancy Act, the defendant proposes to issue bonds. Defendant does not propose to incur any obligations or expend any money for the park development and in no event does it propose to expend therefor any money acquired by the district for any other purpose, or in any other way to obligate or expend the general funds of the district.

Defendant alleges that all proceedings in reference to the park will be deemed in pursuance of Section 6828-24a, General Code, and of the Constitution of the state and of the United States and in conformity with further rulings of the Conservancy Court, which it may lawfully do.

Defendant prays that the amended petition be dismissed.

Plaintiff, for reply, admits and denies various allegations of defendant’s answer, denies that the proposed and threatened action of the defendant will be pursuant to the provisions of the Constitutions of the state of Ohio and of the United States, and avers that the proposed and threatened action will be violative of the Constitutions in the manner set forth in the petition.

A certain stipulation of facts has been agreed to between the parties and has been embodied in the order of the court as its finding of facts.

It is stipulated that the court shall, for the purpose of the case, consider the facts included, subject to the rights of the plaintiff to object on the ground that the Common Pleas Court judges of each of the nine counties included in the conservancy district, sitting “en banc” as provided by Section 6828-5, General Code, and otherwise known as the “Conservancy Court,” lack jurisdiction in this action, and subject to the rights of the parties to object to the relevancy or materiality of any facts set forth herein.

The agreements are epitomized as follows:

(1) Agreement as to the fact that the plaintiff, Young, has a right to bring the action and that the questions involved are of common and general interest of all freeholders.

(2) The district is a public corporation and a political subdivision, organized under the Conservancy Act of the state of Ohio, consisting of nine enumerated counties, and was organized in 1914 under present Sections 6828-1 to 6828-79, General Code.

(3) The lands within the city-of Dayton are included in the district.

(4) In 1915, the judges designated to sit as a Court of Common Pleas of Montgomery county, Ohio, established the Miami Conservancy District for, and held that the same would promote, the public safety, health and welfare, etc.

(5) In 1916, a general plán was adopted pursuant to the provisions of the Conservancy Act and approved by the court.

(6) By the plan so adopted and approved, it was contemplated that the island shown on the aerial photograph should be removed, but the same was not done within a period of ten years. In 1939, the chief engineer recommended that the same be removed by excavating and for that purpose a “spoil bank” be acquired. In 1940, by proper resolution, the engineer was directed to proceed with the plan to accomplish the removal of the island, and the engineer advised that the owner of the 35-acre- tract described in the petition would convey the land for a nominal consideration, and in pursuance of the plan, had'made a deed to the district with the conditions enumerated, which the directors accepted.

(7) In 1940, the engineer presented the plan for the park development of the tract, together with an estimate of $70,770 as the district’s share of the cost, other costs being borne by several civic organizations.

(8) On the 27th day of December, 1940, the Court of Common Pleas of Montgomery county, Ohio, sitting as a conservancy court, met and considered the application of the district praying for the approval of the payment of the obligations to be incurred as its part of the development of the park area by the levying of special assessments upon each public corporation as would be benefited by more than the extent of such benefits as determined by the district board of appraisers and approved by the court. The application was heard and the plan as prepared by the engineer and approved by the board was found by the court to be of benefit to the public corporations having land in the district .in such an amount as would exceed the cost thereof, and it adjudged that the proposed improvement be undertaken by the district at a cost not to exceed $100,000, to be met by the levying of a special assessment on public corporations having land within the district as would be benefited thereby, and that the board should proceed with the appraisal of the benefits in accordance with the conservancy laws.

(9) The conservancy district has expended no money for the establishment of the development of the park and has not obligated itself to expend any money therefor.

(10) The district proposes to make expenditures for the development of the park or recreational area in accordance with the plan as provided by the engineer and as approved by the board of directors. Such intention of the directors is conditioned upon the finding of the Conservancy Court that the total cost to the district will not exceed the benefits to be derived therefrom as found by the board of appraisers. Such district proposes to make expenditures for the purpose of notices, etc., and all expenditures will be confined solely to the proceeds of levies made against appraisals of benefits.

(11) The board of appraisers has proceeded with its appraisal and is ready to make a report to the court.

On December 4, 1943, the Conservancy Court made an order setting the cause for hearing for December 7, 1943. On December 6,1943, a motion was made by the plaintiff to set aside and vacate such assignment. On April 3, 1944, the matter came on before the Conservancy Court upon the motion of the plaintiff to vacate the assignment, and the court held that the Conservancy Court had exclusive jurisdiction. On April 25, the matter came on further to be heard upon the application of the plaintiff to vacate the assignment of the cause for hearing before the Common Pleas Court judges of the nine counties included within the district, and the court, so sitting, found that it has exclusive jurisdiction of the subject matter of this proceeding and overruled the motion of the plaintiff.

The plaintiff made a motion for new trial' and rehearing, and on the 19th day of December, 1944, the court overruled such motion and ordered that the amended petition of the plaintiff be dismissed at plaintiff’s cost.

Thereupon the plaintiff gave notice of appeal to-this court from the judgment and finding of the Common Pleas Court of Montgomery county, sitting as a Conservancy Court of the Miami Conservancy District, the appeal being on questions of law. The plaintiff filed eight assignments of error, which we epitomize as follows:

1. The court erred in overruling the motion of the plaintiff to vacate the assignment of the above entitled cause for hearing before the judges of the Common Pleas Court of the nine counties included within the district.

2. The court erred in finding that Section 6828-24a, General Code, grants additional powers to the board of directors of the conservancy district, irrespective of the purposé of the district.

3. The court erred in holding that the obligations incurred under the provisions of that section may be paid by the levying of special assessments upon public corporations.

4. The court erred in holding that, under the facts in the case, the levying of special assessments, as provided in that section may be properly confined to public corporations having land within the district.

5. The court erred in finding that the subdistricts, as provided for in that section, cannot be organized for the purpose of creating and developing parks, and that such subdistricts can be organized only for one or more of the purposes set forth in Section 6828-2, General Code.

6. The court erred in finding that, under the facts in the instant case, Section 6828-24a, General Code, provides (by reference) adequate notices under the federal and state Constitutions; that the political subdivisions within the district and taxpayers individually are not deprived of such notice of hearing as is necessary to constitute due process of law under the federal and state Constitutions; and that such section is not in contravention of Sections 2, 3 and 7, Article XVIII of the Constitution of the state of Ohio pertaining to “home rule.”

7. The court erred in holding that such section is not in contravention of the Constitution of the state of Ohio, even though the court finds that such section grants to the conservancy district, organized for a specific purpose unrelated to the creation of parks, an additional power to create and develop parks and to pay the obligations incurred under the authority of such section by assessment against public corporations having lands in the district that are benefited thereby.

8. The court erred in dismissing the amended petition of the plaintiff.

Counsel for defendant have, since filing their brief, made the following suggestions:

“We respectfully suggest that, in order to aid the court, the Court of Appeals request counsel for plaintiff to assume the burden to specifically relate by supplemental brief the issues, the conclusions of law, and the assignments of error. This will enable counsel for the defendants to distinctly and separately answer the points of law thus clarified. If counsel for the plaintiff fails to comply with the request within a reasonable time to be fixed by this court, counsel for defendants are willing to assume the burden of so doing.”

So much space has already been used in stating the issues in this case that the court must, of necessity, restrict the limits to which it will go in determining the issues raised by counsel. Both sides have filed interesting briefs, which we have studied with care, and we have read the cases cited and have especially relied upon a limited number.

The original Conservancy Act of Ohio is found in Section 6828-1 et seq., General Code. Section 6828-2, General Code, in the original apt, stating the purposes for which a conservancy district is organized, enumerates six specific purposes, none of which definitely covers the activities of the district now being considered by the court, to wit, that which relates to the improving of land for park and other recreational purposes. In 1937, an amendment to the original act was passed which provides, in what is now Section 6828-24a, General Code, for the establishment and maintenance of recreational facilities, and for an annual levy.

The amended act provides that the board of directors of the district may construct parks and other recreational facilities upon the lands owned or controlled by the district, may acquire, by purchase or appropriation, property additional to that required for the purpose for which the district was incorporated, and may provide for certain development of the land. It is provided that the board, with the approval of the court, may provide for payment of obligations incurred under authority of the section, by either or both of the methods as determined by the court, i. e., (1) the levying of taxes upon all taxable property of tlie district, or (2) the levying of special assessment upon public corporations having lands within the district, but in no case shall such obligations levied be paid from the proceeds of special assessments levied under certain other enumerated statutes.

The section provides that if the first method bo approved by the court, the board may levy certain taxes not exceeding a certain amount and, in anticipation of the collection of such taxes, may issue bonds of a definite character.

In case the second method provided by the statute is approved by the court, the board of directors shall appraise the benefits to be conferred on each public corporation having lands within the district by reason of the acquisition and construction of the property and improvements authorized by the board under the section, and shall appraise the damages accruing to persons and public corporations therefrom.

The provision of the chapter with- reference to the determination of benefits and damages shall apply in such appraisals, but shall be separate from other appraisals of benefits and damages made under the chapter and separate records shall be prepared. After the appraisal of benefits has been approved by the court, within the amount of benefits so determined, the board of directors may levy assessments on the public corporations benefited to pay the cost of the property and improvements acquired and constructed under the section, may issue bonds in anticipation of the collection of such assessments and may annually levy a maintenance assessment for the purpose of the section.

The provisions of the chapter, relating to assessments for the conservancy district purposes and to bonds issued in anticipation thereof, shall apply to the assessments authorized under the section and bonds issued in anticipation thereof. Improvement, bond retirement and maintenance bonds shall be established for recreational purposes in conformity with Section 6828-42, General Code, which shall be separate from one another and from other funds in -the district and no transfers shall be made from the other funds and assessments authorized.

Counsel for plaintiff has stated in his petition or in his brief the objections which he asserts against the attempt of the board to proceed with the improvement for recreational purposes of the land donated by The National Cash Register Company upon the conditions already mentioned in this opinion. Counsel for plaintiff, among other things, asserts most strenuously that the proceeding now sought to be pursued by the board of directors is unconstitutional and violative óf both the federal and state Constitutions.

We might note in passing, that the land acquired by the district and now sought to be improved for recreational purposes by the board, became the land of the district before any attempt was made to improve it by parking. It was necessary for the proper construction of the district, that the land be acquired as a “spoil bank” to receive the excavation taken from the island which, being in the middle of the stream, impeded the rapid flow of the water in the case of excessive drainage requirements by reason of storms. Whatever objection counsel for plaintiff may have made to the proceedings by the conservancy board of directors must, necessarily, be confined to the improvements for recreational purposes now sought to be projected under the provisions of Section 6828-24a, General Code, as the power of the board of directors to make this improvement did not exist under Section 6828-2, General Code, in the original act, and it became necessary to provide therefor by the amendment.

It will be noted that in the very first part of the section providing for recreational purposes, it is stated that it shall be “upon the lands owned or controlled by the district.” No matter how the district may acquire the lands, whether by purchase, condemnation or gift, the prerequisite of the improvement for recreational purposes is that the land shall belong to or be controlled by the district when the improvement is begun.

We are of the opinion that many of the objections now advanced by counsel for the plaintiff are answered in the two original conservancy cases touching the Miami Conservancy District, to wit, Snyder v. Deeds, 91 Ohio St., 407, 110 N. E., 1068, and especially County of Miami v. City of Dayton, 92 Ohio St., 215, 110 N. E., 726.

The latter case contains much in its syllabus which answers directly the complaint of counsel for plaintiff, which is further elaborated in the very illuminating opinion of Judge Wanamaker. We refer to that case in particular.

At a later date, the court in deciding the case of State, ex rel. Silvey, v. Miami Conservancy District, 102 Ohio St., 690, 130 N. E., 943 (error to the Court of Appeals of Miami county, 1921, prior to the date of the amendment), states simply:

‘ ‘ This court finds that the questions involved in this case were involved in and disposed of in The County of Miami et al. v. The City of Dayton et al., 92 Ohio St., 215.”

We are equally of the opinion that the Dayton case decides the questions involved in this case, even though it was decided before the amendment of 1937. There is nothing that counsel advances against the power of the district to make the recreational improvement and to provide for its payments that was not decided in the Dayton case. The only new thing is that under the present statute the district is empowered to do certain things which it did not have the power to do prior to the amendment. The levies provided for by the amendment provide the means by which the directors may improve certain isolated pieces of property, especially adapted for recreational purposes, by assessing the cost thereof upon the public corporations especially benefited. With a long narrow strip of land along a flowing stream extending half way across the state, it is quite apparent that there will be many spots which can be and should be improved at the cost of the public corporations especially benefited by such improvement. It would not be just to assess against the property owners in the upper portion of this basin, the cost of beautifying 35 acres lying within the boundary of Dayton. No doubt as time goes on, many other spots will be selected as subject to beautification for the general benefit to the people in the vicinity, the cost of which improvement should not be charged against the property within the limits of remote public corporations, but only against the property of those public corporations having land within the vicinity of the improvement and having land within the district.

Counsel for the plaintiff urges that, due to the condition of the deed made by The National Cash Register Company to the conservancy district, it is necessary for the directors to use the funds of the district to improve the land so granted by parking. The provision of the deed is “subject to and upon the express conditions that the district should develop and use the premises as and for a public parking and recreational area for the use of all people forever.”

There is nothing in that condition attached to the deed making it obligatory upon the board of directors to expend the funds of the district in the improvement. The provision is merely that the directors improve the property so conveyed. Where the directors get the money for that purpose is of no concern of The National Cash Register Company, it being only interested in' its improvement for recreational purposes, which the board agreed to do. We cannot discover that tbe paying for this under tbe method provided by the statute, and which the board follows, in any way violates the obligation of the board to The National Cash Register Company.

We are of the opinion that the court below, consisting of nine Common Pleas Court judges, made a proper finding and did not commit any error in such finding. Other assignments of error are not well made. The order of the court below is affirmed.

Order affirmed.

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


source: Caselaw Access Project

author: Guernsey, J.

license: Public Domain

text:
    In re Estate of Thrush : Thrush, Appellant, v. Thrush, Admr., Appellee.

      (No. 144
    Decided July 11, 1945.)

      Messrs. Lippincott <£ Lippincott, for appellant.

      Mr. Emmett D. Lusk, for appellee.
   Guernsey, J.

This- is an appeal on questions of law from a judgment of the Probate Court of Auglaize county made in the matter, of the estate of William Elmer Thrush, deceased, on exceptions filed by Jennie Thrush, widow of William Elmer Thrush, deceased, to the inventory of his estate.

William Elmer Thrush died on May 20, 1944. Burden W. Thrush was appointed administrator of his estate on May 24, 1944. The inventory and appraisement of his estate was filed on June 1, 1944. The exceptions were filed on June 12,1944.

In the inventory to which the exceptions were filed the following property is inventoried and appraised:

Schedule A.

Personal goods and chattels, $ 1,707.00

In the schedule are included, among other items, the following:

% interest in about 700 bushels corn in crib $406.00

% interest in 15 acres growing oats 10.00

% interest in about 3 tons hay in mow 18.00

% interest in about 3 tons straw in mow 6.00

Schedule B.

Money, $59.00

Schedule C.

Stocks, bonds, mortgages, notes, certificates of deposit and other securities.

1 series Gf government bond M1292325G $978.00 •

1 series G No. C2041713G 98.80

1 series G No. C1503598G 98.80

Certificate of deposit, Welfare Finance Corporation for $200.00, interest at 3% 201.05

Certificate of deposit, Welfare Finance Corporation for $300.00, 3 % 303.52

Certificate of deposit, Welfare Finance Corporation, $151.54, 3% 153.05

Certificate of deposit, Welfare Finance Corporation for $1,000.00, 3% 3-24-44 1,000.00

Note of J. E. and Cleo Sprague, dated August 15, 1942, for $3,232.95, 5% 3,521.23

Note of A. G. Thrush, dated September 24,1940, for $1,230.90, 5% 1,457.09

Note of Wilbert Thrush, dated February 25,1940, for $472.85, at 5% 573.45

Note of Burden W. Thrush, dated September 14, 1942, for $325.00, at 5% 352.67

Total, 8,737.66

Schedule D.

Accounts and debts receivable.

Homer Klopfenstein, St. Johns,. Ohio, R. 1 acct. 55.00

Schedule E.

Real estate, 17,500.00

Total 28,058.66

Under schedule G the following recital appears: “No allowance or amount set off to Jennie Thrush, widow, by reason of the provisions of antenuptial contract between "William Elmer Thrush and Jennie Baker, dated March 28, 1941.”

The antenuptial agreement above referred to was introduced in evidence and is attached to the bill of exceptions, and reads as follows-:

“This agreement made and concluded this 28th day of March, 1941, by and between William Elmer Thrush of Saint Johns, Ohio, and Jennie Baker of Wapakoneta, Ohio, witnesseth:
“That whereas, the parties hereto, contemplate a marriage with each other, and the said William Elmer Thrush is seized and possessed of property of value, both real and personal, and has children, the issue of a former marriage, and desires to make suitable provision for said Jennie Baker in lieu of her dower in his real property, and in place of any year’s allowance, homestead or other share in or distribution of his estate, either real or personal, and of any and all other rights or claims of said Jennie Baker, as his widow, heir, distributee, survivor or next of kin.
“Now, therefore, in consideration of said marriage and of the covenants of the said Jennie Baker, hereinafter contained, the said William Elmer Thrush hereby promises and agrees to give the possession and title to all cows now in his possession, together with all the chickens, immediately after the solemnization of the intended marriage, the same to become her individual property.
“As a further consideration, the parties hereto, agree that all moneys and other property now belonging to the said William Elmer Thrush, shall be and remain his absolutely and in fee simple, without any claim from the aforesaid Jennie Baker. It is also further agreed as a consideration herefore, that all increase and property hereinafter accumulated between said parties, shall be owned jointly by them or survivor including the profit on the rent of the farm, and all revenues derived therefrom shall be placed in a joint account in the names of the parties hereto.
“In consideration of the payment to her of said property as aforesaid, and of the agreements to be performed, the said Jennie Baker hereby covenants and agrees that the same shall be in lieu of any and all rights or claims of dower, inheritance and descent in and to the real property of the-said William Elmer Thrush, now owned by him, and in lieu of any and all rights and claims to a distributive share of his property now owned by him and for all claims of an allowance for a year’s support, and in lieu of any and all rights and claims of the said Jennie Baker as widow, heir, distributee, survivor or next of kin, and any and all other rights or claims in, to or against the estate of the said William Elmer Thrush which may in any manner arise or accrue by virtue of said marriage.
“And the said Jennie Baker for the consideration aforesaid, agrees that the said William Elmer Thrush shall be at full liberty to dispose of all his property, real and personal, which he now owns, either during his life time or by last will and testament, and that upon his death, in the event of his failure to so dispose of the same, his property shall descend to, vest in and be distributed to such person'or persons as would be entitled thereto by the statutes of descent and distribution, then in effect had the said Jennie Baker died during the life of the said William Elmer Thrush.
“And the said Jennie Baker further agrees that during their' married life, she will provide for, and keep up the table, providing the necessary food and victuals at her own expense, and hereby acknowledges receipt of all the cows and chickens.
“And the said Jennie Baker, for the consideration aforesaid, does relinquish unto the said William Elmer Thrush, his heirs, personal representatives and assigns forever, all the rights and claims hereinbefore mentioned and set forth.
“And the said Jennie Baker further agrees to execute and acknowledge, upon request of said William Elmer Thrush, any and all proper instruments of release or conveyance to enable' the said William Elmer Thrush to bargain, sell and convey or otherwise dispose of any and all real estate now owned by him, free and clear of any apparent right or contingency therein.
“Witness the hands of the parties hereto, the day and year first above written.
“Signed and acknowledged in the presence of:
“Karl Timmermeister
“Lela Kentner.
“William Elmer Thrush
“Mrs. Jennie Baker.”

Omitting the caption and signature, the- exceptions are in the words and figures following, to wit:

“Now comes Jennie Thrush, widow of decedent herein and excepts to the inventory thereof herein filed by Burden W. Thrush, administrator, on the 1st day of June, 1944 on the following grounds, to wit:
“1. The appraisers failed and neglected to set off to said widow a sum as and for year’s allowance.
“2. The appraisers failed and neglected to set off to said widow her statutory exemptions, provided by law.
“3. The appraisers and the administrator failed and neglected to take into account and set off to said widow the increase and property accumulated by the decedent and the said widow after their marriage, but included same in the inventory.
“4. The appraisers and the administrator failed and neglected to take into account and set off to the widow one-half of the revenue derived 'from the sale of crops on the farm which revenues were or should have been deposited to the joint account of the decedent and said widow, throughout their entire married life, but included same in the inventory.
“5. The appraisers and the administrator failed and neglected to set off to the widow one-half of the increase in profits derived from money loaned and money invested in bonds and other securities of the decedent during their married life, but included the same in the inventory.
“6. The appraisers and administrator failed and neglected to take hito account the fact that the accumulation consisting of interest, dividends, crops and other items from the farm of decedent should in the event of his death be paid to the survivor, but included the same in the inventory.
“7. The appraisers and the administrator failed and neglected to set off to the widow any of the crops and increase produced on said farm during the period of the married life of decedent and said widow, save and except the corn now in the crib, but included the returns from the same in the inventory.
“Wherefore, Jennie Thrush, as such widow, prays that a hearing may be had thereon and the court make such order as may be proper.”

Upon hearing the exceptions the Probate Court, on September 29, 1944, rendered judgment as follows :

“This cause having heretofore, to wit, on July 19 and 20,1944, been submitted to the court on the matter of exceptions of Jennie Thrush, widow, to the inventory heretofore filed herein by Burden W. Thrush, as administrator, and was submitted to the court.
“And the court, on careful consideration of the evidence and the law, does find that by reason of the fact that in order to properly pass upon the exceptions to the inventory, it is necessary that the court pass and construe the terms and legal effect of an antenuptial contract between William Elmer Thrush, now deceased, and Jennie Baker, now Jennie Thrush, widow, and the further fact that in addition thereto it would be necessary for the court to determine the 'title and ownership of property involved therein, the court is of the opinion that such matter is discretionary with the court and by reason thereof the court should not pass upon said exceptions to inventory.
“The court does further find that other legal remedies exist for the determination of questions now involved in the exceptions to inventory heretofore filed and that it would be for the best interests of said estate that other legal remedies be pursued with reference to the construction and legal effect of said ante-nuptial contract and the title to property involved in this estate by reason thereof. The court, under its discretionary power, makes no determination thereof and finds that the exceptions to said inventory should be dismissed.
“It is therefore ordered, adjudged and decreed by the court that the exceptions of Jennie Thrush, widow, to the inventory heretofore filed herein by Burden W. Thrush, as administrator, be and the same are hereby dismissed and the costs of this proceeding be taxed against said exceptor.
“And it further appearing to the court that Burden W. Thrush, as administrator of said estate, has fully complied with the orders of the court to him issued and has made and returned a true inventory of said estate, as required hy law, it is ordered that said inventory be and the same is hereby approved.
“To all of which findings and rulings of the court, exceptor, by her counsel, at the time excepted, and still excepts.”

That is the judgment from which this appeal is taken.

In addition to the antenuptial agreement above referred to other evidence was introduced by both the exceptor and the administrator. This evidence showed conclusively that no funds were placed in a joint account in the names of the parties to the antenuptial agreement as- therein prescribed; that the corn in crib, hay in mow, straw in mow (the undivided one-half of which is inventoried as part of decedent’s estate) and the undivided one-half interest in fifteen acres of growing oats (the one-half of which was inventoried as part of such estate) constituted proceeds in kind, accruing during the existence of the marriage of William Elmer Thrush and Jennie Thrush, of the crop rental of the farm of the decedent; that the decedent during such period had derived a considerable amount of other property and income and revenue therefrom; that the decedent had also derived considerable income and revenue from bonds, notes, certificates of deposit and other securities he had owned at the time of the marriage; that a portion of the same had been expended by the decedent during his lifetime for expense in connection with the rental of the farm and for household and other purposes; and that the balance had been commingled with other personal property of the decedent.

The appellant assigns error in the following particulars :

1. The court had ample authority and it was his duly to pass upon the exceptions to inventory.

2. The court cannot in one breath refuse to pass upon the question and in the next make a final decision of the question.

3. This court has a right to enter the judgment which the Probate Court should have rendered.

As the contention of the appellant, under all the assignments of error, is 'the same we will consider them together.

Under Section110512-3, General Code, an antenuptial agreement is deemed valid unless an action to set it aside is brought within six months after the appointment of the executor or administrator, or unless the validity of the agreement is otherwise attacked within that period. The filing of exceptions to an inventory and appraisement, on the ground that the appraisers failed to allow the statutory setoff and a year’s support to the widow, does not constitute such an attack within the purview of the statute. Juhasz v. Juhasz, 134 Ohio St., 257, 16 N. E. (2d), 328, 117 A. L. R., 993.

As the filing of the exceptions in the instant proceeding did not constitute an attack upon an antenuptial agreement, under the provisions of Section 10512-3, General Code, and as it does not otherwise appear that an attack on the agreement was made within the period prescribed by sucli section, the agreement, for the purposes of this case, must be deemed valid.

The agreement being deemed valid the first two grounds of the exceptions are without merit, so our further consideration of these exceptions will be limited to the other grounds set forth. These grounds are all predicated on the rights acquired by the exceptor, Jennie Thrush, under the antenuptial agreement.

Under this agreement the parties agreed, among other things, that all moneys and other property then belonging to William Elmer Thrush should be and remain Ms absolutely and in fee simple, without any claim from Jennie Baker, now Jennie Thrush. They further agreed that all increase and property thereafter accumulated between the parties, including the profit on rent of the farm, should be owned jointly by them or the survivor, and that all revenues derived therefrom should be placed in the joint account in the names of the parties to the agreement.

- The word “increase” as used clearly means increase in or of the money and property then owned by the decedent, as his money and property is the only money and property referred to in the preceding clause of the agreement. Under the provision, “that all increase and property hereinafter accumulated between said parties, shall be jointly owned by them or survivor including the profit on the rent of farm,” the parties jointly owned any increase by way of income or otherwise accruing from any of the personal property owned by William Elmer Thrush subsequent to and during such marriage, all property accumulated by the parties during their marriage and all profit on the rent of farm, that is, all profit realized from rent of farm after deducting Thrush’s share of expenses in connection therewith.

As used by the parties, the term “increase” comprehends all that remains of such income and revenues of the personal property after the payment of taxes on the principal from which it is derived and the income and revenues therefrom.

Although it appears from the conduct of the parties that each may have assumed the other, under the terms of the agreement, had the right without the consent of. the other to use the joint property, during the existence of the marriage, for the payment of household and personal expenses, such construction is not warranted by the terms of the agreement which in this respect are not ambiguous.

As survivor of the parties, Jennie Thrush, under the agreement, is entitled to all the jointly owned property remaining after the payment of such taxes and Thrush’s share of expenses in connection with the rental of the farm, including the taxes thereon.

The fact that J ennie Thrush did not place' the accumulations, made by her during the marriage, in such joint account does not in any way affect her right to such jointly owned property, as she, as survivor, is entitled to such property, whether she placed it in the account or not.

Under the evidence the only parts of the property she is entitled to as survivor, which are capable of specific identification in kind, are the corn in the crib, growing oats, and hay and straw in mow constituting a portion of the proceeds of rent of farm, the balance of such joint property being commingled with the personal property of the decedent and incapable of specific identification in kind.

The personal property with which the joint and survivorship property is commingled constitutes a part of the estate of the decedent and, as the survivorship property is not capable of specific identification in kind, the whole is subject to administration by the administrator of the estate, but subject to the rights of the exceptor therein.

The purpose of exceptions to an inventory is to correct the same by causing it to reflect proper statutory allowances and the items of property which are subject to administration by an executor or administrator of a decedent, and to exclude therefrom the specific items of property owned by others which are not subject to administration. It is not a substitute remedy for the impression or enforcement of a trust in, for an accounting of, or the recovery of money or damages from, the decedent’s estate.

In this situation, the appellant was entitled to have such of the property to which she was entitled as survivor and which was specifically identified in kind excluded from the inventory as her separate property, but was required to resort to other remedies for the enforcement of her rights to other jointly owned property which she was entitled to as survivor, but which was commingled with various items of property of the estate.

The Probate Court has constitutional jurisdiction of probate and testamentary matters and the accounts of executors and administrators. Such constitutional jurisdiction necessarily comprehends jurisdiction of inventories of administrators and executors and exceptions thereto, as inventories are essential to the accounting of executors and administrators. Incident to the constitutional jurisdiction in the premises, the Probate Court has plenary power to dispose of any. matter properly before it, including the power to adopt and apply remedies which are legal or equitable in their nature. The exercise of such 'jurisdiction by the Probate Court is mandatory and not discretionary.

Thus the Probate Court in the instant case had jurisdiction, for the purposes of the proceeding, to pass upon and construe the terms and legal effect of the antenuptial contract between William Elmer Thrush, now deceased, and Jennie Baker, now Jennie Thrush, his widow, and to determine the title and ownership of the property involved in the exceptions to the inventory insofar as necessary for the purposes of this proceeding, and it was the duty of the court to exercise such jurisdiction.

The Probate Court, for the reasons above mentioned, erred in the particulars assigned in refusing to exercise such jurisdiction and in making the order it made. For these errors the judgment will be reversed and this court, rendering the judgment the Probate Court should have rendered, renders final judgment sustaining the exceptions as to the inventoried items of corn in the crib, growing oats, and hay and straw in the mow, excluding such items from the inventory, as the property of the exceptor, and overruling the exceptions to the other items in the inventory, without prejudice to the right of the exceptor to pursue such other remedies as may be available to her to recover the balance of the property she is entitled to as such survivor, or money or damages in lieu thereof, all at the costs of the appellee.

Judgment reversed.

Middleton, P. J., and Jackson, J., concur.


author: Gillen, J.

text:
    In re Estate of Rothenbuecher: Evatt, Tax Commr., Appellant, v. The Security Central National Bank of Portsmouth, Exr., Appellee.
    (No. 514
    Decided March 20, 1945.)

      Mr. Joseph F. Ford and Mr. Parker L. Snyder, for appellant.

      Messrs. Miller, Searl $ Fitch, for appellee.
   Gillen, J.

This appeal upon questions of law is from a judgment of the Probate Court of Scioto county, Ohio, exempting proceeds of life insurance from the payment of inheritance tax and overruling appellant’s exceptions with respect thereto. It appears from the record that Joseph J. Rothenbueeher, decedent, during his lifetime, from 1909 to 1932, contracted for nine policies of insurance of varying amounts and types. The named beneficiaries at the time of issue of the policies were either the estate of decedent or his sisters, Elizabeth C. Rothenbueeher and Anna M. Rothenbuecher. From time to time certain changes were made with respect to the beneficiaries and during the month of January 1933, decedent, by notice to the various insurers, caused the named beneficiaries in the various policies to be changed to The Security Central National Bank of Portsmouth, Ohio, a corporation, as trustee. In all the policies except two, in designating The Security Central National Bank of Portsmouth as trustee, reference was also made to the trust created by the provisions of decedent’s will. On the 29th day of December 1932, decedent executed his last will and testament, item III of which reads in part as follows:

“I give, bequeath and devise all the residue and remainder of my estate to The Security Central National Bank of Portsmouth, as trustee, in trust, as a trust estate, for the uses and purposes and to be administered as herein set out.
“I direct that said trustee, upon my death, make proper proof of my death and collect all moneys due under any life insurance policies upon my life, the beneficiaries of which are said trustee or my estate, and collect all moneys due under any life insurance policies upon my life, to any of the proceeds of which my estate may be entitled. # * *”

The item further provides for the distribution of the trust estate. The Security Central National Baiik of Portsmouth was also appointed executor of the will. The value of the residuary gift to the trust was $10,133.08 and the proceeds of insurance policies amounted to $17,766.29. The question thus presented is whether the proceeds of insurance are subject to the payment of inheritance tax. Section 5332, General Code, provides in part as follows:

“A tax is hereby levied upon the succession to any-property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases:
“1. When the succession is by will or by the intestate laws of this state from a person who was a resident of this state at the time of his death.
“2. When the succession is by will or by the intestate laws of this state or another state or country, to property within this state, from a-person who was not a resident of this state at the time of his death.
“3. When the succession is to property from a resident, or to property within this state from a nonresident, by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:
“(a) In contemplation of the death of the grantor, vendor, assignor, or donor, or
“(b) Intended'to take effect in possession or enjoyment at or after such death.”

Section 5332-4, General Code, effective July 24,1931, provides:

“Proceeds of policies of life insurance payable on the death of the insured otherwise than to the estate of the insured, shall not be considered as property passing within the meaning of Section 5332, whether paid directly by the insurer to the beneficiaries designated in such policies' or to a trustee designated therein, and to be beld and managed by snob trustee and distributed to designated beneficiaries under an agreement or declaration of trust in tbe manner as may have been prescribed by tbe insured in said agreement or declaration of trust.”

Prior to tbe enactment of tbis statute tbe proceeds of life insurance where paid to a named beneficiary \yere not subjected to tbe payment of inheritance tax in Ohio, on advice of tbe Attorney General. See Yol. 2, Opinions of Attorney General (1919), 1142, No. 638. However, where tbe proceeds were made payable to tbe estate of tbe insured there was beld to be a taxable succession. The reason for tbe distinction is obvious. Under Section 5332, General Code, tbe conveyance in order to be within tbe act must be by will, tbe intestate laws or by deed, grant, sale, assignment or gift, made in contemplation of death. Where tbe proceeds are paid to tbe beneficiary named in tbe policy of insurance tbe transaction is based upon a contract entered into for valuable consideration. Where tbe proceeds are paid to tbe estate of a decedent the-recipients take by virtue of one of tbe means of conveyance mentioned in Section 5332, General Code. Prior to tbe enactment of Section 5332-4, General Code, tbe taxing authorities in tbis state followed tbe advice of tbe Attorney General of Ohio (Yol. 2, Opinions of Attorney General [1921], 1082, No.' 2651) to tbe end that a taxable succession arose where insurance policies were payable to a trustee, and by him distributed in accordance with tbe decedent’s will. Tbe Legislature undoubtedly bad knowledge of tbis procedure at tbe time of tbe enactment of Section 5332-4, General Code. We do not consider tbe language of tbis statute to be ambiguous. It merely provides for two classes of exemptions and clearly sets forth the terms of those exemptions. First, it excludes from taxation proceeds from policies made payable to a named beneficiary. Second, it excludes from taxation proceeds from policies paid directly by the insurer to a trustee designated therein, and to be held and managed by such trustee and distributed to designated beneficiaries under an agreement or declaration of trust in the manner as may have been prescribed by the insured in such agreement or declaration of trust. It is with the latter class of exemptions that we are here concerned. The statute contemplates the creation of a trust inter vivos and does not exempt a trust to be established at some later date pursuant to the provisions of decedent’s will. The language of the statute clearly says that the designated trustee shall hold, manage and distribute the proceeds under an agreement or declaration of trust in the manner as may have been prescribed by the insured in the agreement or declaration of trust. In the instant case no agreement or declaration of trust existed until after the death of testator. Item III of the will provided for the commingling of the proceeds of the insurance with the residue of the estate. The entire fund was held and distributed by the trustee under the same arrangement. The result of this plan was exactly the same as though the proceeds had been made payable to the estate. The ultimate beneficiaries received the benefits under the terms of the will and not by virtue of an agreement or declaration of trust as specified in Section 5332-4, General Code.

A similar conclusion was reached by the court in the case of Myers’s Estate, 309 Pa., 581, 164 A., 611, where the statute under consideration reads as follows:

‘ ‘ The proceeds of policies of life insurance, payable otherwise than to the estate of the insured, and whether paid directly by the insurer to beneficiaries designated in the policies, or to a trustee designated therein, and held, managed, and distributed by such trustee to or for the benefit of such persons or classes of persons under such plan and in such estates as may have been prescribed by the insured under agreement with such trustee, shall not be included in imposing any tax under this section.”

Applying the statute to the facts under consideration which are very similar to those in the instant case, the court held that only where the trust instrument is complete in itself by naming the beneficiaries of the proceeds of the policies is the fund realized from the policies free of tax. The policies of insurance issued to Joseph J. Rothenbuecher merely named The Security Central National Bank of Portsmouth as trustee and in order to determine the nature of the trust to be created at a later date it is necessary to turn to the will. Such a situation does not operate to create an existing trust within the contemplation of Section 5332-4, General Code. The proceeds from the policies are, therefore, taxable pursuant to the provisions of Section 5332, General Code.

The trial court committed prejudicial error by exempting the proceeds from inheritance tax and overruling appellant’s exceptions. The judgment below will, therefore, be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Metcalf, P. J., and McCurdy, J., concur.


author: Stuart, J.

text:
    Burke, Appellant, v. Burke, Appellee.
    No. 4104
    Decided June 25, 1945.)

      Messrs. Cline & Bischoff, for appellant.

      Messrs. Holloivay, Peppers & Romanoff, for appellee.
   Stuart, J.

The pertinent facts shown by the record ' herein are as follows:

On April 27, 1933, the plaintiff filed her petition in the Court of Common Pleas of Lucas county, Ohio, in which petition she alleged, among other things, that one child, Gloria Lee, then six years of age, was born the issue of the marriage of plaintiff and defendant and prayed for an allowance of temporary alimony for her support and the support of the minor child of the parties, together with a reasonable sum to the attorneys for the plaintiff, and that plaintiff be awarded permanent alimony for her support and the support of their minor child.

On September 18, 1933, plaintiff was divorced from the defendant, who was “ordered to pay to the plaintiff for her support and for the support of the minor child of the parties hereto, the sum of ten dollars per week,” until further order of the court. The custody, control and education of the child was awarded to plaintiff, and an allowance of fees was made to plaintiff’s attorneys.

On December 28,1933, the following entry was made:

“On oral motion this day and on due consideration by the court, said cause is hereby certified to Juvenile Court. ’ ’

From the transcript of the docket and journal entries it appears that all the foregoing proceedings were had and entered in the cause upon appearance docket I, Court of Common Pleas of Lucas county, Ohio, Division of Domestic Relations, No. 398, and that the last entry so entered was:

“1945,'Feb. 5. Motion to withdraw and strike from the files filed by plaintiff.”

All other and further proceedings were had and entered in the cause upon appearance docket 14, Juvenile Court, No. 23743, and therein it appears that a judge of the Court of Common Pleas of Lucas county, Ohio, on January 29, 1945, overruled the motion of the plaintiff to increase the amount of alimony and support required to be paid by the defendant, and ordered that the previous alimony and support order be terminated and the defendant “not be required to pay to the plaintiff as and for alimony or for the support, of the minor child of the parties any further sums from and after January 15, 1945.”

It is from this order and judgment that plaintiff appeals on questions of law, the notice of appeal being captioned: “In the Court of Common Pleas of Lucas county, Ohio, Domestic Relations Division” and “In the Juvenile Court of Lucas county, Ohio” and being numbered “C. P. No. 398” and “Juv. Ct. No. 23743.”

The plaintiff contends that the case having been' certified to the Juvenile Court, the Court of Common Pleas was thereafter without authority to make any order therein affecting the maintenance and support of the plaintiff or of the minor child.

It is provided by Section 1639-7, General Code, as follows:

“Sec. 1639-7. The Juvenile Court, or Court of Common Pleas, Division of Domestic Relations of any county, separately and independently created, established and functioning as such by law, shall have and exercise the powers and jurisdiction conferred in this chapter. Except in counties in which there now is, or may hereafter be created, a separate and independent Juvenile Court or Court of Domestic Relations, there is hereby established and created within the Probate Court, a Juvenile Court, presided over by the probate judge, which shall be a court of record, and which shall exercise such powers and jurisdiction.”

Jurisdiction in juvenile cases is thereby conferred on three established courts in this state, vis.:

1. The Juvenile Court;

2. Court of Common Pleas, Division of Domestic Relations;

3. A Juvenile Court within the Probate Court in all counties in the state wherein neither of the above named courts have been created.

No “separate and independent Juvenile Court” has ever been created in Lucas county, but in 1923 the Legislature passed an act (110 Ohio Laws, 157 — Section 1532-6, General Code) providing for the election of an additional judge of the Court of Common Pleas in Lucas county and defining his duties and jurisdiction. It was provided therein (which provisions in substance and effect are incorporated in and now appear as a part of Section 1532, General Code) as follows:

“lie shall exercise the same powers and have the same jurisdiction as is provided by law for judges of the Court of Common Pleas. He and his successors shall, however, be elected and designated as a judge of the Court of Common Pleas, Division of Domestic Relations, and all the powers provided for in title four, chapter eight, of the General Code, relating to Juvenile Courts, shall be exercised in Lucas county by such judge of said Court of Common Pleas, and on and after the appointment of such judge, there shall be assigned to said judge and his successors, elected or appointed in pursuance of this act, all cases under the Juvenile Court Act, all bastardy cases and all divorce and alimony cases in said county. And whenever said judge of the Court of Common Pleas, Division of Domestic Relations, shall be sick, absent, or unable to perform his duties, the duties of said office shall be performed by another judge of the Court of' Common. Pleas of said county, assigned for said purpose, according to law.”

In Lucas county, the tribunal authorized to administer and charged by law with the administration of the provisions of the General Code relating to juveniles is the Court of Common Pleas, Division of Domestic Relations, and not the “Juvenile Court.”

Section 1639-13, General Code, requires such court to maintain records of all juvenile cases brought before it, including an appearance docket, a journal and a cash book, and provides that such records shall be open only by order of the court to persons having a legitimate interest. To effectuate the purpose of this section and to preserve the privacy of the records involving juveniles, the trial court, after granting the divorce, may well have transferred the ease to the docket of juvenile cases, and this is the only legal effect that can be given to the order of that court made on December 28, 1933, above set forth.

All other orders and judgments made in the case recite that they were based upon evidence, and there being no bill of exceptions herein, we cannot determine the sufficiency thereof.

Disregarding the caption, “In the Juvenile Court,” it appears from the record that all orders and judgments entered in this case were in fact made by the Court of Common Pleas, Division of Domestic Relations.

The judgment is affirmed.

Judgment affirmed.

Carpenter and Conn, JJ., concur.


author: Carpenter, J.

text:
    Merriam, a Minor, Appellant, v. Bonded Oil Co., Appellee.
    (No. 4100
    Decided May 28, 1945.)

      Mr. J. W. Starritt, for appellant.

      Messrs. Welles, Kelsey, Cobourn & Harrington, for appellee.
   Carpenter, J.

From a judgment entered upon a verdict directed against this child-plaintiff at the close of her evidence, she took this appeal on questions of law. The principal assignment of error is the direction of the verdict.

It is undisputed that on July 29, 1944, the defendant, Bonded Oil' Company, operated a gasoline and oil service station in Toledo on Detroit avenue at the corner of Horace street. As a part of its equipment, there were on its premises two concrete-lined pits about seven feet deep with a coping six inches above the surface which was painted white. These were used in greasing automobiles. It also had a soft drink stand, and oh that day plaintiff, Audry Ann Merriam, six years of age, came there and purchased a bottle of soda pop, and, while there, played about the pits and fell into -one, sustaining some injuries for which she seeks damages.

The residence of plaintiff fronted on Horace street adjacent to the rear of defendant’s premises. In going to the pop stand from Horace street, plaintiff had to pass within two or three feet of the front end of the pits, and no covers, barriers or other warnings of danger were maintained at them. The evidence tended to prove that plaintiff and other children from the neighborhood were accustomed to go there to buy pop, and, at times, played about the premises.

It is conceded by defendant that plaintiff entered upon defendant’s place of business as an invitee to purchase its pop, and that as such customer it owed to her the duty to use ordinary care for her safety. Such is the rule stated in Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St., 175, 147 N. E., 86, paragraph one of the syllabus:

“One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees.”

However, the defendant contends further that when plaintiff went about the pits, which was unnecessary in her mission to purchase and drink pop, she was no longer an invitee but became a mere licensee or a trespasser, and its only duty was not to wilfully or wantonly cause her injury.

It is recognized that the attractive nuisance or turntable doctrine does not apply in Ohio. Wheeling & L. E. Rd. Co. v. Harvey, 77 Ohio St., 235, 83 N. E., 66, 122 Am. St. Rep., 503, 19 L. R. A. (N. S.), 1136; Sharp Realty Co. v. Forsha, 122 Ohio St., 368, 171 N. E., 598.

And in Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504, the “playground doctrine,” recognized in some jurisdictions, was rejected for Ohio. That was followed in the recent decision of Carter v. Penn. Rd. Co., 75 Ohio App., 156, 61 N. E. (2d), 230.

In both the “turntable” and “playground” cases, the injured children came upon the premises in question as licensees or trespassers.

The status of the plaintiff in the case at bar differs from that of the child-plaintiff in each of those decisions in that she came upon the defendant’s premises as an invitee, and as such it owed her the duty of ordinary care. The trial court must have concluded, as a matter of law, that when she fell into the pit she had become a licensee or trespasser. No decisions by an Ohio court dealing with a state of facts like this has come to the attention of this court. It has had consideration in many other jurisdictions.

In Crane v. Smith, 23 Cal. (2d), 288, 144 P. (2d), 356, a small child came into defendant’s store with its mother, a customer, and was injured by getting her hand in a coffee grinder. It was there contended that the child became a trespasser when it put its hand in the grinder. In sustaining the recovery, the court said the child was an “invitee” or “business visitor” and that “where the proprietor invites children upon the premises, he has a duty to keep his property reasonably safe so far as they are concerned. * * * The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration in determining whether ordinary care for the safety of a child has been exercised under particular circumstances. ’ ’

In the opinion, there are cited many similar decisions in the courts of California and Missouri, including Hillerbrand v. May Mercantile Co., 141 Mo. App., 122, 121 S. W., 326, which was followed in Kemp v. Doe Run Lead Co. (Missouri), 57 S. W. (2d), 758.

That principle was applied in: Armstrong Co. v. Adair, 112 Tex., 439, 247 S. W., 848; Grogan v. O’Keeffe’s Inc., 267 Mass., 189, 166 N. E., 721; Walec v. Jersey State Electric Co., 125 N. J. Law, 90, 13 A. (2d), 301; Burdine’s v. McConnell, 146 Fla., 512, 1 So. (2d), 462; Dorsey v. Chautauqua Inst., 203 App. Div., 251, 196 N. Y. Supp., 798.

On the record as it stood at the close of the plaintiff’s evidence, jury questions were presented as to the status of the plaintiff, and as to the liability of the defendant for her injuries. The court erred when it directed a verdict, and the judgment entered thereon is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Stuart and Conn, JJ., concur.


text:
    Benson, Admx., Appellee, v. Rosine, Appellant.
    (No. 4110
    Decided June 11, 1945.)

      Mr. Mark Winchester, for appellee.

      Mr. Faber J. Dr-ukenbrod and Mr. Dudley F. Smith, for appellant.
   Carpenter, J.

On sustaining a demurrer to a third amended cross-petition, the trial court dismissed it, and from that judgment this appeal on questions of law was taken.

The petition alleged that on March 29, 1944, the plaintiff, Helen Benson, was appointed administratrix of the estate of Russell Benson, who died on March 24, 1944. As such,'she brought this action to recover $3,685.65 which she claims was the balance due to the estate from the defendant on a contract made on June 1,1943, between her decedent and the defendant whereby Benson sold to the defendant “his business, equipment and franchise for the distribution of a soft drink known as ‘Seven-Up’ ” in Toledo and vicinity. The purchase price was $11,500.

The answer, filed on May 10, 1944, admitted the contract, but alleged that in some details it was not performed by Benson and that defendant had paid $3,000 more than the value of the property he had received. By cross-petition, he asked a judgment for that amount.

On June 3, 1944, an amended answer and a cross-petition were filed. That answer admitted the making of the contract and alleged that Benson had misrepresented the volume of the business, and had failed to deliver the franchise for the territory and certain equipment. The cross-petition alleged that defendant had paid $9,066.07 of the purchase price and that he had been damaged $5,000 by reason of the failure to receive the franchise; $2,525 by the misrepresentation as to the number of customers; $345 as to the value of the equity in the real estate; and $170 by delay in the delivery of a truck included in the deal. For all of this he asked judgment for $8,040 as damages.

A demurrer to the amended cross-petition was sustained fqr the reason that it did not allege the claim contained therein against the estate had been presented to the administratrix within four months of her appointment as required by Section 10509-112, General Code.

A second aiíd a third amended cross-petition alleged substantially the same claims, and alleged further that the answer and cross-petition filed on May 10, 1944, was a presentation of the claim to the administratrix, and that on November 29, 1944, defendant had made demand in writing on the .administratrix to allow the claim within five days, which she failed to do.

Demurrers to each of these were sustained for the same reason the demurrer was sustained to the amend-' ed cross-petition, and defendant not wishing to try again, the third amended cross-petition was dismissed.

That judgment was based upon certain sections of the Probate Code, the material parts of them being as follows:

Section 10509-112, General Code:

“All claimants shall present their claims to the ex-eeutor 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. Every claim presented hereunder shall set forth the claimant’s address. In the absence of any prior demand for allowance, the executor or administrator shall allow or reject all claims within thirty days after their presentation; * * *”

■ Section 10509-113, General Code:

“The executor or administrator shall reject a claim by giving the claimant written notice of the disallowance thereof * * *. A claim shall be deemed rejected if the executor or administrator, on demand in writing by the claimant for an allowance thereof within five days * # ® fails to give to the claimant, within such period, a written statement of the allowance of such claim. # * *”

Section 10509-133, General Code:

.“When a claim against an estate has been rejected in whole or in part, but not referred to referees, or when a claim has been allowed in whole or in part and thereafter rejected, the claimant must commence an action on the claim or that part thereof rejected, within two months after such rejection * * * or be forever barred from maintaining an action thereon; * * *.”

The defendant contends that his cross-petition and amended cross-petition, both of which were filed within four months of the appointment of the administratrix, constituted a compliance with Section 10509-112, General Code. This would put ‘ ‘ the cart before the horse. ’ ’ The presentation of the claim and its rejection are conditions precedent to the bringing of the action, and the assertion of the claim on a cross-petition for a judgment was a bringing of an action. The court did not err in sustaining the demurrer to the cross-petition as such.

But this did not dispose of the only problem in the matter. Although the defendant’s claim as stated in his third amended cross-petition was not available to him for an independent judgment against the estate, could it stand as an affirmative defense to all or any part of plaintiff’s claim?

Section 11345, General Code, requires that “The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.”

If the third amended cross-petition could not. stand as such, it did state a cross-demand as described in Section 11321, General Code, and “with a view to substantial justice between tbe parties,” defendant was entitled to have it so regarded.

Paragraph one of tbe syllabus in City of Cincinnati v. Cameron, 33 Ohio St., 336, says:

“Tbe character of a pleading is determined by tbe averments it contains and not by tbe name given to it * *

Following that authority, tbe Court of Appeals in Continental Automobile Mutual Ins. Co. v. Morton, 23 Ohio Law Abs., 311, treated as a counterclaim a cross-petition which, like this one, alleged a claim “arising out of tbe transactions set forth in tbe petition as tbe foundation of plaintiff’s claim.” In Virginian Joint Stock Land Bank v. Null, 21 Ohio Law Abs., 471, another Court of Appeals, and in McClaskey v. Barr, 48 F., 130, 137, an Obio Federal Circuit Court likewise applied tbe principle laid down in City of Cincinnati v. Cameron, supra.

Looking to tbe cross-demand statute, Section 11321, General Code, it says:

“When cross-demands bave existed between persons under such circumstances that if one bad brought an action against the other a counterclaim or set-off could bave been set up, neither can be deprived of tbe benefit thereof by assignment by tbe other, or by bis death. Tbe two demands must be deemed compensated so far as they equal each other.”

In other words, to whatever extent tbe claims of the defendant equalled those of tbe plaintiff, they “must be deemed compensated.”

“Defenses are not barred by tbe statute of limitations, and cross-demands must be deemed compensated as soon as they mature insofar as they are equal to each other.” In re Estate of Butler, 137 Ohio St., 96, paragraph five of syllabus, 28 N. E. (2d), 186; Nasby Bldg. Co. v. Walbridge Bldg. Co., 6 Ohio App., 104, 108.

No reported decision in Ohio has given consideration to that statute as to unpresented claims against an estate, but in other states having that identical statute and similar probate laws, such cross-demands have been sanctioned as defenses to the extent they had extinguished or satisfied the estate’s claim.

In Huffman v. Wyrick, 5 Ind. App., 183, 31 N. E., 823, the court commenting on this statute said, at page 824:

“This statute gives the right to the holder of any such claim to treat it as having liquidated an equal amount of the other claim upon the death of the holder of the latter. No one would question the right of the appellee, if he had actually paid the notes to the decedent during her lifetime, to plead such payment in this action, and the statute above quoted gave him the right to treat the notes as paid by his claim upon the death of the decedent. We think there is no question upon his right to plead and prove such constructive payment after the settlement of the estate. He was not entitled to judgment for the excess of his claim, and the court did not give him such judgment.”

Another consideration is suggested in Murphy v. Colton, 4 Okla., 181, 44 P., 208, when the court said:

“Suppose the Coltons [defendants] considering the accounts were even, should have let the matter rest in that way as the parties no doubt would have done had McKelmon lived, and the time for presenting claims against the estate had expired, and the estate had then sued the Coltons on the note. Could it be claimed that under these statutes they could not show that the note was in fact settled by the account of McKennon due to them, and that it in fact bad been settled long before McKennon’s death? Such a position would be absurd as well as absolutely untenable, not only in the face of these statutes, which would protect rather than injure the Coltons, but without them.”

That decision was followed in First Natl. Bank of Ada v. Jackson, 140 Okla., 282, 283 P., 242, 68 A. L. R., 900.

In the recent case of Dallas Dome Wyo. Oil Fields Co. v. Brooder, 55 Wyo., 109, 97 P. (2d), 311, the Indiana and Oklahoma decisions were cited and followed.

While our cross-demand statute was not present in the following decisions as it was in those above cited, it was followed in principle in Browning v. Eiken, 189 Minn., 375, 249 N. W., 573; McDonald v. McDonald, 119 Wash., 396, 206 P., 23, and cases there cited.

Giving the defendant the benefit of the liberal construction and cross-demand statutes, the parties were each entitled to have their respective claims determined, and, to the extent the defendant could establish .his claim up to the amount of that established by the plaintiff, he had the right to have plaintiff’s claim ‘ ‘ deemed compensated. ’ ’

The Court of Common Pleas erred in sustaining the demurrer to and dismissing the third amended cross-petition, and its judgment is reversed and the cause is remanded to it for further proceedings in conformity with this opinion.

Judgment reversed and cause remanded.

Stuart and Conn, JJ., concur.


author: By the Court.

text:
    In re Joint County Ditch: King et al., Appellants, v. Stringfellow et al., Appellees.
    (No. 470
    Decided September 2, 1944.)

      Mr. A. G. Fuller and Mr. E. V. Bop.e, for appellants.

      Messrs. Betts S Betts and Mr. G. L. Newcomer, for appellees.
   By the Court.

The notice of appeal in this cause prescribes an appeal on questions of law and fact. The cause is a ditch proceeding pursuant to provisions of Section 6442 et seq., General Code.

This proceeding was started by a joint county ditch petition filed by the appellants, Edwin King and others, before the joint board of county commissioners of Hancock and Wyandot counties. Remonstrances were filed by the appellees, Don Stringfellow and others. The joint board of county commissioners found in favor of the ditch petitioned for.

Pursuant to provisions of Section 6467 et seq., General Code, Don Stringfellow and others appealed from the order of the commissioners to the Court of Common Pleas of Hancock county. In that court the ditch petition was dismissed at the costs of the petitioners for the ditch.

This appeal is from the judgment of the Common Pleas Court dismissing the petition.

A motion has been filed by the appellees, Don String-fellow and others, to dismiss the appeal for the reason that the case is not a chancery case within the meaning of Section 6 of Article IV of the Constitution of Ohio and is, therefore, not a cause in which an appeal on questions of law and fact may be had to the Court of Appeals.

It is obvious that this case is a special proceeding, purely statutory in character, not coming within the class of cases over which courts of chancery have heretofore exercised jurisdiction. However, it is contended by the appellants that by reason of the provisions of Section 6472, General Code, in respect to the hearing of the appeal from the joint board of county commissioners by the Common Pleas Court, the proceeding is, by the Legislature, made a chancery case in which an appeal on questions of law and fact may be had to the Court of Appeals pursuant to the constitutional provision mentioned.

Section 6472, General Code, provides as follows:

“The Court of Common Pleas, on appeal, shall hear the matters appealed to, de novo; the proceedings shall be had under the rules of law and procedure for civil cases. An appeal shall bring into the Court of Common Pleas all the owners of land who in any way may be interested in or affected by the matter appealed. The court, sitting as a court of equity, shall hear all matters appealed, save and except an appeal from an order allowing or refusing to allow compensation or damages. The court may view the premises the same as views in other civil cases; and shall make such judgment, order, or decree as may be warranted by the evidence. Any party aggrieved by such judgment, order, or decree, shall have the right to file a bill of exceptions, and to file a petition in error to review said proceedings, the same as in other civil cases. On appeal, the burden of proof shall be on the owner having the affirmative of the proposition, who shall have the opening and closing. The court sitting as a court of equity shall bring the entire proceedings before it in order that the court may determine all the issues raised in the proceedings and enter a final judgment, order or decree for or against the improvement, petitioned for, and for or against the assessments to be levied.”

It will be noted that this section, among other things, provides that the Common Pleas Court, sitting as a court of equity, shall hear all matters appealed save and except an appeal from an order allowing or -refusing to allow compensation or damages, and shall make such judgment, order or decree as may be warranted by the evidence; and the court, sitting as a court of equity, shall bring the entire proceedings before it in order that the court may determine all the issues raised in the proceedings and enter a final judgment, order or decree for or against the improvement petitioned for and for or against the assessments to be levied. And it further prescribes that any party aggrieved by such judgment, order or decree shall have the right to file a bill of exceptions and to file a petition in error to review the proceedings the same as in other civil cases.

It is the settled law that appeals to the Court of Appeals on questions of law and fact may be had only in chancery cases, the jurisdiction of the Court of Appeals in respect to appeals being fixed by Section 6 of Article IV of the Constitution of Ohio. It is also settled that the jurisdiction conferred on the Court of Appeals by this section cannot be modified, enlarged or diminished by the Legislature. Snyder v. Deeds, 91 Ohio St., 407, 110 N. E., 1068; Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159; Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397; Haas v. Mutual Life Ins. Co. of New York, 95 Ohio St., 137, 115 N. E., 1020; Marleau v. Marleau 95 Ohio St., 162, 115 N. E., 1009; Thompson v. Denton, 95 Ohio St., 333, 116 N. E., 452; Colby v. Price, 39 Ohio App., 198, 177 N. E., 382.

Since the terms “equity” and “chancery” are synonymous and interchangeable in meaning, appeal-able cases under Section 6 of Article IV of the Constitution of Ohio, providing that the Court of Appeals shall have “appellate jurisdiction in the trial of chancery cases,” are those which are equitable in their nature and recognized as chancery cases prior to the adoption of the Code of Civil Procedure. Ireland v. Cheney, 129 Ohio St., 527, 196 N. E., 267.

If, as contended by the appellants in this case, the Legislature has the right to provide an equitable remedy and make it.the basis of appeal as a chancery case, it would follow that it would be in the power of the Legislature to materially change the jurisdiction of the Court of Appeals. Crowley, Admr., v. Crowley, 124 Ohio St., 454, 459, 179 N. E., 360.

As hereinbefore stated, the Legislature is without such power and an examination of the provisions of Section 6472, General Code, clearly shows that the Legislature was not attempting to exercise such power, since, by prescribing .in such section that “any party aggrieved by such judgment, order, or decree, shall have the right to file a bill of exceptions, and to file a petition in error to review said proceedings, the same as in other civil cases,” the Legislature clearly intended that the remedy of an aggrieved party on appeal is limited to an appeal on questions of law.

As this causo is not a chancery cause within the meaning of Section 6 of Article IV of the Constitution of Ohio, as interpreted and construed by the Supreme Court, the motion to dismiss the appeal on questions of law and fact is sustained. It is accordingly determined by the court that the appeal stands as an appeal on questions of law only. Pursuant to the provisions of Section 11564, General Code, the court fixes thirty days from the entry hereof as the time within which a bill of exceptions may be prepared and settled, and fifteen days from the settlement of the bill of exceptions as the time within which the appellants shall file their briefs and assignments of error, and fifteen days from the date of the filing of appellants’ brief as the time within which appellees shall file their answer brief, and five days from the time of the filing of appellees ’ brief as the time within which appellants shall file their reply brief.

Motion sustained.

Guernsey, P. J., Jackson and Middle-ton, JJ., concur.