author: Hunsicker, P. J.

text:
    Bonewit, Admr., Appellant, v. Weber, Appellee.
    (No. 4308
    Decided October 15, 1952.)

      Messrs. Myers, Myers £ Myers, for appellant.

      Mr. James Olds and Mr. H. A. Walts, for appellee.
   Hunsicker, P. J.

This court has before it an appeal on questions of law from the following judgment of the trial court of Summit county, Ohio:

“This case having been regularly assigned for trial upon the 22nd day of October, 1951, it was thereupon agreed by and between the parties, and with the consent of the court, that the parties would submit to the court, without the intervention of a jury, the question as to whether or not Robert Alan Malazo is a child or next of kin of the plaintiff’s decedent, Roy Bonewit, within the meaning of General Code, Section 10509-167, as set forth in the amended supplemental petition of the plaintiff, and that such determination should be made by the court upon the submission of the evidence supporting the allegations contained in said amended supplemental petition. Upon such determination of said issues the court should instruct the jury in accordance with his findings, as to whether or not, in determining the amount of damages found by them in their verdict if such verdict should be in favor of the plaintiff, they should include therein any damages accruing to the said Robert Alan Malazo. Thereupon, said issue was submitted to the court upon the pleadings and the evidence and the arguments of counsel.

“Upon consideration thereof, it is the finding of the court, as a matter of law, that the said Robert Alan Malazo, the alleged illegitimate, posthumous child of Roy Bonewit, would be a beneficiary within the meaning of General Code Section 10509-167 if it were shown that the said Roy Bonewit was the father of said child, and that Roy Bonewit recognized or acknowledged said child to be his during Roy Bonewit’s lifetime.

“The court further finds, upon the evidence, that the plaintiff has failed to show that Roy Bonewit was the father of said child or that Roy Bonewit recognized or acknowledged that said child was his child, during his lifetime.

“It is therefore ordered that the said Robert Alan Malazo is not entitled to share in any amount recovered in this action for the benefit of the next of kin of the said Roy Bonewit.

* ‘ To all of which the plaintiff excepts. ’ ’

The question dispositive of the issue in this court is: Can a child born ont of wedlock after the death of the reputed father be a beneficiary under the statutes (Section 10509-166 et seq., General Code) providing for an action for wrongful death? Such question may also be stated as follows: Does Section 10509-167, General Code, which provides that a recovery in an action for wrongful death “shall be for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent, ’ ’ contemplate a child born out of wedlock after the death of the reputed father?

Roy L. Bonewit, the deceased, and Julia Malazo, the mother of the child Robert Malazo, were not husband and wife but were engaged to be married.

As a result of a collision between two motor vehicles on October 12, 1946, Roy Bonewit died on October 18, 1946.

Robert Malazo, the claimed child of Roy Bonewit and who seeks to be a beneficiary herein, was born to Julia Malazo on June 26, 1947. However, the fact that Roy Bonewit knew that Julia Malazo was pregnant, that such pregnancy was caused by him, and that he admitted to his friends and relatives that he was the one who caused such pregnancy, is not the issue in this case. The matter which is the chief concern is the meaning of the word “children” as used in the wrongful death act.

Does the word “children” as used in the statute (Section 10509-167, General Code) mean a child born to a woman as in the instant case ?

We think not. We do not have the situation where, after pregnancy, a marriage is contracted, and then a child is born in lawful wedlock; nor do we have the situation where a man marries a woman, the mother of a child born before such marriage, and thereafter the husband acknowledges the child to be his, as in Eichorn v. Zedaker, 109 Ohio St., 609, 144 N. E., 258; nor the case of a child born as the result of a void marriage, as in Garner, Gdn., v. B. F. Goodrich Co., 136 Ohio St., 397, 26 N. E. (2d), 203; nor the case of a child born to parties married under the common law, as in Umbenhower v. Labus, 85 Ohio St., 238, 97 N. E., 832.

We do not have the situation where a child born out of wedlock seeks a recovery as a result of the wrongful death of its mother, as in the case of Muhl’s Admr. v. Michigan Southern Rd. Co., 10 Ohio St., 272.

The Legislature of Ohio has provided a way through Section 10503-15, General Code, by which a child otherwise illegitimate may be deemed legitimate. If the word “children” as used in Section 10509-167, General Code, is meant to mean both legitimate and illegitimate, then a construction contrary to the rule laid down in the workmen’s compensation case of Staker, Gdn., v. Industrial Comm., 127 Ohio St., 13, 186 N. E., 616, and the Juvenile Court case of Creisar v. State, 97 Ohio St., 16, 119 N. E., 128, must be adopted.

In the case of Creisar v. State, supra, the court at pp. 17 and 18 said:

“The terms, ‘minor,’ ‘child’ or ‘children,’ utilized in the juvenile act, are used interchangeably and have the same legal signification. At common law wherever such terms have been employed they have been held to apply only to those children who are legitimate, and, whether utilized in the statutes of descent and distribution or in connection with criminal offenses, unless such terms have been so enlarged as to include illegitimate offspring, they have invariably been held as applicable only to children born in lawful wedlock.”

A similar construction of the word “child” found in former Section 10581, General Code (now repealed), was adopted in the case of Owens v. Humbert, Exrx., 5 Ohio App., 312, 25 C. C. (N. S.), 522, 27 C. D., 307.

When we examine the construction of statutes of other states where the words “child” or “children” are used, we find that, unless there is something in the statute itself which shows a contrary intent on the part of the Legislature, the courts have held the word to mean legitimate descendants. Brinkley v. Dixie Construction Co., 205 Ga., 415, at p. 416, 54 S. E. (2d), 267, at p. 268; In re Estate of Cady, 257 App. Div., 129 at p. 130, 12 N. Y. Supp. (2d), 750, at p. 751, affirmed, 281 N. Y., 688, 23 N. E. (2d), 18; In re Estate of Vincent, 189 Misc., 489, at p. 491, 71 N. Y. Supp. (2d), 165, at p. 167; Jung v. St. Paul Fire Department Relief Assn., 223 Minn., 402, at p. 404, 27 N. W. (2d), 151, at p. 153; Hiser, Admx., v. Davis, Director-General of Railroads, 234 N. Y., 300, at p. 305, 137 N. E., 596, at p. 598; Hall v. Fivecoat, 110 Ind. App., 704, at p. 709, 38 N. E. (2d), 905, at p. 907.

See also: 30 A. L. R., 1075.

We therefore determine that the word “children” as used in Section 10509-167, General Code, refers to legitimate children. In such situation, Robert Malazo is not a beneficiary under the statute.

We find no error prejudicial to the rights of the appellant.

The judgment of the trial court is affirmed.

Judgment affirmed.

Doyle and Stevens, JJ., concur.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    S. A. Ruebel & Co., Appellant, v. Morr et al., Appellees.
    (No. 7794
    Decided November 9, 1953.)

      Mr. Sanford A. Headley and Mr. Walter K. Sibbald, for appellant.

      Mr. C. Watson Hover and Mr. Carl B. Rubin, for appellees.
   Matthews, P. J.

This is an action to recover a balance dué on a contract with the defendants, as the Board of County Commissioners of Hamilton County. The issues were submitted to the court without a jury. There was a finding and judgment for the defendants. The plaintiff’s motion for a new trial was overruled and thereupon, in due time, this appeal was filed.

On November 23, 1949, the plaintiff entered into a written agreement with the defendants for “Furnishing the necessary labor and material to improve North Bend road No. 142 from Colerain avenue west to Vogel road, by grading, constructing a 40-foot concrete roadway, having concrete curbs integral with the pavement, also necessary drainage structure on North Bend road and Vogel road, together with construction of retaining walls, all of which shall be done and performed in accordance with the general conditions, drawings, surveys, plats, eross-seetions, profiles, plans and specifications, including all modifications thereof, if any, incorporated in the documents before their execution and by reference hereby become part of this contract.

“The provision contained in the ‘Legal Notice,’ in ‘Information for Bidders,’ and in the ‘Specifications’ as well as the surveys, plats, cross-sections and profiles for this work on file in the office of the county commissioners are also hereby combined and incorporated by reference thereto as part of this agreement. ’ ’

The county agreed to pay to- the plaintiff for this labor and material “Under the conditions and in the manner provided in the specifications and in full of all compensation — at the unit prices, stated in the proposal, the sum of approximately $118,789.80.”

Under the same cover and attached to one another were the “Notice to Contractors,” the “Contract,” the contractor’s “Bond,” “Engineer’s Estimate,” and “Specifications,” and various other documents of no importance here.

The “General Construction and Material Specifications for Highways and Sewers” of the city of Cincinnati were not attached or referred to in the main contract document.

The plaintiff’s proposal is referred to in the main contract document and it makes the prices therein control the standard of the plaintiff’s compensation for the labor and material furnished by it. Upon this basis, the defendants have paid the plaintiff slightly in excess of the estimated amount, but a controversy arose as to whether the plaintiff was entitled to any compensation for labor and material furnished by it in the restoration of the surface of Vogel road. The defendants contended and contend now that the plaintiff was obliged to make the restoration at its own expense, or, perhaps, that its compensation therefor was to be found in the unit prices for the other labor and material. It is not disputed that the plaintiff furnished the labor and materials for the restoration.

The defendants’ contention is predicated on the claim that the “General Construction and Material Specifications for Highways and Sewers” of the city of Cincinnati are a part of this contract of the plaintiff with the county and that they contain a provision casting the entire burden of restoration of the surface of the street, wherein a sewer is laid, upon the contractor.

Counsel for the defendants argued that the city of Cincinnati was, in effect, a party to this contract, and they point out that the county specifications attached to the contract were so modified as to provide that wherever in the county specifications the phrase, ‘ * Board or City Manager, ’ ’ was used, it would be held to mean the “Board of County Commissioners of Hamilton County, Ohio.” However, we find only one other place in the specifications in which the city manager is mentioned. It is our conclusion, therefore, that the provision is meaningless. We are also of the opinion that had the city manager been thereafter mentioned, such mere mention would have been ineffective to make the city of Cincinnati a party to this contract. The city of Cincinnati did not sign the contract. It was a contract between the plaintiff and Hamilton county within its powers — and with no one else.

But as we understand the defendants’ argument, it is that regardless .of whether the city of Cincinnati was a party to the contract, the entire volume composed of 294 pages of “General Construction and Material Specifications” was incorporated in .this county contract by reference. This results, so the argument runs, not from any provision in the main contract document, but from a provision in the county specifications attached to the main document. Let us examine this provision. It is found in the 46th paragraph of the county specifications. It is as follows:

“Specifications. Specifications covering the proposed work shall conform to the city of Cincinnati General Construction and Material Specifications for Highways and Sewers, dated June 1, 1941, and supplements or changes thereto and in accordance with special notes set forth herein.”

Reliance is placed entirely upon this provision, found on page 39 of the General Construction and Material Specifications of the city of Cincinnati:

‘ ‘ G-10.15 Restoration of Streets: Where it is necessary for the contractor to open streets which are not to be paved under the contract, he shall first obtain the necessary permits from the Division of Records, room 345 City Hall. The contractors shall exhibit said permits to the engineer before he begins excavation. On such streets, openings shall be made and the pavement shall be restored in strict accordance with the ‘Rules and Regulations Governing Openings in Public Ways’ adopted by the city manager, and subsequent amendments thereto.

“As soon as openings have been backfilled, the contractor will be required to temporarily restore the surface so that the street is safe for travel. Permanent restoration of the pavement will be made by the Division of Highway Maintenance except that the contractor shall be permitted to make such restoration as is covered by contract items. Inspection of restoration work done by the contractor shall be made by the inspector assigned to the improvement.

“The prices to be charged the contractor for street restoration work will be those set forth in said ‘Rules and Regulations, etc.’ The preliminary ‘Estimated Amount of Restoration’ for sewer improvements is based on the minimum area to be opened and is indicated in the Proposal, but it is expressly understood and agreed that the contractor shall pay the entire cost of restoration regardless of any variance between the estimated cost and the actual cost.

“It is further expressly understood and agreed that all restoration charges (including sufficient allowance for any increase over the estimated amount), for the restoration of street paving, sidewalks, and/or other areas opened under permit, have been included in the unit prices bid on the various items in the proposal.

“Before final payment for the work is made, a written release stating that all restoration charges have been paid must be obtained from the Division of Records. ”

Before taking up the analysis of this section, it should be stated that the plaintiff was employed for the specific purpose of making a trench in Vogel road, laying a sewer in the trench, and then restoring the surface of the street to its former condition. That, it seems to us, would be sufficient authority to proceed with the work, and that no other permit was necessary. As a matter of fact, no permit was obtained and the plaintiff was allowed to proceed. It opened the trench, laid the sewer and restored the street to its former state, to the knowledge of municipal and county engineers, and without any protest.

The provision just quoted is not applicable to this situation. It seems to us it is expressly excluded by the exception that “The contractor shall be permitted to make such restoration as is covered by the contract items.’’

It is urged that the plaintiff’s compensation is to be found in the unit prices referred to in the next to the last paragraph of the quoted provision. But how could that provision apply to a contract to do the restoration itself? To determine the aggregate price on a unit price basis, two factors are present — the number of units and the price per unit. Reducing the number of units and making a compensating increase in the price per unit would produce the same aggregate. Applied to this situation, the provision would seem to be meaningless.

That the parties recognized the inappropriateness of this provision seems to be indicated by the fact that they canéelled the provision in the county specifications relating to this subject. It was provided thereby that “The estimated amount of street and sidewalk restoration for this improvement is ($....).” If the contractor was expected to enhance his unit price to cover the cost of street restoration, it would be important to him to know what that cost would be. Elimination of the provision would seem to indicate that the cost of street restoration was provided for in some other way. The only other way that it could be provided for under the terms of this contract was by applying the unit price to the labor and materials used in the restoration.

Manifestly, the defendants prepared this contract, and, under the familar rule that the terms of a contract must be construed most strongly against the author, we are of the opinion that, even assuming the incorporation of this provision in the contract, it does not control the other provisions and deprive the plaintiff of the compensation provided by them.

The incorporating provision found in the county specifications is that “Specifications shall conform to the city of Cincinnati — specifications. ” Does that provision bring into the county contract all the provisions contained in the volume issued by the city of Cincinnati? Is this provision that relates to liability only incorporated?

Courts have had occasion to consider the meaning of the word, “Specifications,” in many cases. We refer to a few of them. In Glens Falls Indemnity Co. v. American Awning & Tent Co., 55 R. I., 284, 180 A., 367, the court held, as stated in the first paragraph of the headnotes in 180 A. :

“Where contract for road construction between contractor and state contained reference to state’s manual of specifications for road construction, reference to term ‘specifications’ held to refer to requirements regarding construction details and materials rather than to division relating to legal formalities, and not to incorporate provisions relating to legal formalities into bond executed to state by contractor and his surety which would make surety liable to unpaid materialmen. ’ ’

In Ingersoll-Rand Co. v. United States Fidelity & Guaranty Co., 92 N. J. Law, 403, 105 A., 236, the question was whether a provision in a sales contract, reserving title in the vendor until paid, found in specifications referred to and attached to the contract was a part of the contract. The court held it was not. At page 405, the court said:

‘ ‘ The word ‘ specifications, ’ when used in such a contract, ordinarily means a specific and detailed description of the thing to be furnished or the work to be done. The specifications in question were of that character. True they concluded with the statement that the title and right of possession to the compressor ‘remain in the Rand Drill Co. until the compressor has been fully paid for in cash.’ But that is not a ‘specification’ within the meaning of the term.”

We quote the first paragraph of the headnotes to State Bank of Freeport v. Cape Girardeau & Chester Rd. Co., 172 Mo. App., 662, in 155 S. W., 1111, as sufficient to indicate its applicability to the case at bar:

“A motor car company’s offer to sell a car to defendant was accompanied by a separate list of specifications designating the details of the construction of the car, and by reference to its letter to defendant it guaranteed renewal of every part of the mechanism on the car which proved defective during the first year of service, and it also sold a second car to defendant by an instrument providing that the car was ‘to be built in accordance with specifications heretofore agreed upon.’ Held, that the word, ‘specifications,’ as used in the last contract, was not intended to include all the terms and conditions specified in the first contract, including the guaranty, but referred only to the separate list of particulars respecting the construction of the first car by which the second car was to be built, so that there was no warranty as to the second car.”

We are of the opinion that the reference to the city of Cincinnati specifications must be held to mean only those provisions contained in the book descriptive of the materials and work to be done, and did not bring into the county contract any provision purporting to impose or release liability.

For these reasons, the judgment is reversed, and final judgment is entered for the plaintiff.

Judgment reversed.

Ross and Hildebrant, JJ., concur.


author: Doyle, P. J.

text:
    The Beacon Mutual Indemnity Co., Appellant, v. Stalder, Jr., Admr., Appellee.
    (No. 4438
    Decided April 21, 1954.)

      Mr. Fred J. Livingstone, for appellant.

      Messrs. Smoyer S Smoyer, for appellee.
   Doyle, P. J.

Section 10509-112, Genera] Code (119 Ohio Laws, 394), provided for the presentation of the claims of creditors to the executor or administrator of the estate of a deceased person. It was in part:

“All claimants shall present their claims to the executor or administrator in ivriting, 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.” (Emphasis ours.)

(With several changes the section now appears as 2117106, Revised Code.)

Section 10509-134, General Code (now Section 2117.07, Revised Code), permitted a claimant, who had failed to present his claim within the period of time prescribed in the above Section 10509-112, General Code (now Section 2117.06, Revised Code), to petition the Probate Court for authority to present his claim to the administrator after the expiration of the four-month period. The statute set forth specific grounds upon which the court could, pursuant to hearing, “authorize such claimant to present his claim * * *; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims.”

In the appeal now under consideration, the question presented is whether the amended petition filed in the Municipal Court of Akron was sufficient to show that the requirements of the above statute were met. If the petition made such showing, the court erred in striking the challenged paragraphs from the pleading and in sustaining a demurrer, and, upon a refusal to plead further, erred in dismissing the petition. If the petition was deficient in respect to showing a compliance with the statutes, the trial court did not err, and the judgment would have to be affirmed.

The statutes in question were what were known as “nonclaim” statutes — that is, statutes which required an act to be done as a prerequisite to the accrual of a cause of action; and the general rule as to such statutes is that all persons * * * are bound thereby unless excepted from their operation by a saving clause. Breen, Admx., v. Conn, et al., Exrxs., 64 Ohio App., 325, at pp. 327-328, 28 N. E. (2d), 684.

“ * * * a petition * * * which does not allege that the claim has been so presented, does not state facts sufficient to constitute a cause of action.” Ibid. And see: Beach, Recr., v. Mizner, Exr., 131 Ohio St., 481, 3 N. E. (2d), 417.

That a person having an unliquidated claim for damages arising out of tort is a “claimant” within the meaning of the statute cannot be seriously doubted. Pierce v. Johnson, Exr., 136 Ohio St., 95, 23 N. E. (2d), 993, 125 A. L. R., 867.

We now proceed to examine the amended petition. It is stated in substance that The Beacon Mutual Indemnity Co., the plaintiff, had issued its policy of insurance, insuring one Denver C. Sampson against loss and damage to his automobile “by reason of its collision with other cars * * *.” While Sampson was driving his automobile on a public highway, he came into collision with an automobile being operated by Ghristian H. Stalder, Sr., and it is claimed that the negligence of Stalder, Sr., proximately caused the collision and damage to his car. The petition further alleged that the plaintiff Insurance Co. paid to Sampson, under its policy of insurance, $814.28 (the amount of damage, minus a deduction of $50 under policy terms), and, consequently, “has become subrogated to all rights, claims and causes of action which said Denver C. Sampson, its insured, has against defendant on account of the aforesaid collision and damage.” The amended petition further alleged that the accident occurred on September 6, 1952, and that Christian H. Stalder, Jr., was appointed administrator of Christian H. Stalder, Sr. ’s, estate on the 7th day of October, 1952.

The following two paragraphs are claimed by the appellant to satisfy the statute hereinbefore set forth regulating the presentation of the claim to the administrator :

“Plaintiff further says that at the time of the aforesaid collision and damage, defendant’s decedent was insured by the General Accident, Fire and Life Assurance Corporation; that under the policy of insurance issued by said corporation, it agreed to defend defendant’s decedent against suits alleging injury or destruction of property caused by accident arising out of the use of the automobile of defendant’s decedent; that under said policy the corporation reserved the right to investigate and negotiate settlements of any suit or claim as it deemed expedient; that under said policy defendant’s decedent agreed to notify the said corporation in case of accident.

“Plaintiff further says that shortly following the aforesaid collision and damage, defendant’s decedent or his duly authorized agent notified said corporation through its Akron claims office of said accident; that said corporation’s duly authorized claims manager undertook to investigate and commence negotiations relative to settlement of plaintiff’s claim against defendant’s decedent; that defendant’s decedent, and, after his decease, defendant, authorized and acquiesced in said manager’s handling said claim as agent for defendant’s decedent and defendant; that on or about the 29th day of January, 1953, plaintiff duly notified in writing said manager as agent for defendant of its claim; that said manager rejected its claim on or about the 23rd day of March, 1953. ’ ’

The appellant poses the following question:

“Whether the questioned portions of plaintiff’s amended petition are irrelevant depends on whether an agent for an executor or administrator may receive presentment of claim required under Sec. 10509-112, General Code, on behalf of said executor or administrator. If an agent is permitted to receive presentment of claim, then the questioned portions of plaintiff’s amended petition are relevant. If an agent is not permitted to receive presentment, then the questioned portions are irrelevant. ’ ’

We shall first examine two lines of the statute, which stated that “All claimants shall present their claims to the * * * administrator in writing * * This means that the claims shall be presented by the claimant to a probate fiduciary, an officer of the Probate Court. When presented in writing to the fiduciary, it marks the beginning of a legal proceeding, without which, unless permitted under Section 10509-134, General Code (now Section 2117.07, Revised Code), the legal proceeding cannot be commenced, and the claim is forever barred. The presentation must be to the administrator in his capacity as an officer of the Probate Court, and not to the individual personally, and, consequently, a presentation of a claim to a so-called agent of the administrator falls outside of the requirements of the statute, because the functions of the office cannot be delegated to agents.

If the presentation of a claim to an agent of the administrator were permitted, then the legal proceeding would be begun upon such presentation and before knowledge of such fact was had by the officer of the court. The right to file a claim involves a question of time, and the purpose of the legislation to effect a speedy administration of estates would be defeated if the court’s officer were compelled to delay the administration until he had received the report of his agent or his various agents. Furthermore, the fiduciary, personally, is accountable for the fixing of the time when a claim has been presented, and this responsibility cannot be delegated to an agent who does not owe the fidelity required of an officer of the court.

The statute places the burden upon the claimant to present his claim with the probate officer. If he fails to do so within the time provided, his rights are lost. There is no duty imposed upon the administrator in this respect, except to receive the written claim, and, in proper time, to officially act on it. This duty cannot be delegated to another.

It will be further observed that the so-called agent of the fiduciary undertook to reject the claim. Clearly, this act contravenes all laws regulating fiduciaries. More than 50 years ago, Spear, J., when speaking for the Supreme Court of Ohio, said:

“Without questioning the proposition that the execution of the trust reposed in the administrator to allow and reject claims cannot be delegated, it is manifest by this evidence that the attorney * * * was speaking for the administrator, and it is not the law that a trustee cannot act through an agent. Where he gives to the attorney instructions how to act, it is not a delegation of the trust, but a performance of it by the, trustee acting through another.” Miller v. Ewing, Admr., 68 Ohio St., 176, at p. 184, 67 N. E., 292.

The learned judge applied a rule of long standing, and extant today, that when a fiduciary is given a power which requires the. exercise of a personal discretion, such power cannot be delegated to another. However, when the fiduciary has exercised the power of discretion, he may, through another, have it carried into execution under his direction. It is obvious that the claimed agent in the case here now for decision had no authority to reject the claim for the administrator.

Efficacy in the administration of estates requires the ruling here made. No other ruling would suffice.

Because the pleading failed to state a proper presentation of the claim under either Section 10509-112, Genera] Code (now Section 2117.06, Revised Code), or Section 10509-134, General Code (now Section 2117.07, Revised Code), the paragraphs were properly stricken from the amended petition, and the demurrer was properly sustained.

(Nothing contained in this opinion is to be construed as in any way interpreting the provision in Section 10506-3, General Code [now Section 2109.03, Revised Code], which reads: “In the event that the fiduciary is absent from the state,” the attorney for the administrator “shall be the agent of the fiduciary upon whom summonses, citations and notices may le served, and any summons, citation or notice may be served upon the fiduciary by delivering duplicate copies thereof to the attorney designated by him as aforesaid.”)

Judgment affirmed.

Stevens and Hunsicker, JJ., concur.


author: Hornbeck, J.

text:
    Brate, Appellee, v. McDonald et al., Appellants.
    (No. 4851
    Decided March 10, 1953.)

      Messrs. Ingalls £ Jones, for appellee.

      Mr. Phillip V. Stout and Mr. Robert W. Phillips, for appellants.
   Hornbeck, J.

This is an appeal from a judgment of the Common Pleas Court in favor of the plaintiff and against the defendants in the sum of $1,500, entered on a verdict of a jury for $2,500 after the court on motion for a new trial had ordered a remittitur of all over $1,500, which remittitur was accepted by the plaintiff.

Five errors are assigned, the first of which is directed to the admission of certain testimony by a witness for the .plaintiff who was manager of the Ohio National Bank, Linden office, which bank had refused plaintiff a loan on the property upon which defendants had improperly placed a mechanic’s lien. During the testimony, inquiry was made as to what a report showed which had been made by an examiner of title to the lot on which the mechanic’s lien was placed. This opinion disclosed the existence of the mechanic’s lien and where it was filed. This was not objectionable for two reasons. First, it was merely the presentment by the witness of the information upon which his bank acted when the loan was refused. It was not offered for the purpose of establishing the existence of the lien. Second, the subject matter, namely, the existence of the mechanic’s lien was not in controversy but was admitted by the answer of defendants and their testimony.

The second error assigned is the admission of the testimony of plaintiff, owner of the property in question, as to its value before and after the filing of the mechanic’s lien. This testimony was properly admitted. Morris v. Huber, 15 Ohio Law Abs., 71.

The third assignment relates to the measure of damages as charged by the court:

(A) It is claimed the court erred in charging that if the jury found that the plaintiff wai prevented from selling her property because of the incumbrance improperly placed upon it by defendants the damages “would be the difference between the value of the property just before the lien or incumbrance was placed upon it * * * and the value of the property when it was actually sold.” It is urged that the measure of damages should have been the difference between the value of the property when the plaintiff discovered the lien was on the wrong lot and the value of the property when it was actually sold, if it were sold for a sum less than the first mentioned amount. The charge is not vulnerable in the particular assigned by defendants.

(B) It is urged further that the court erred in the charge concerning the impairment of plaintiff’s health. Plaintiff pleaded mental anxiety resulting in impairment of health requiring medical attention. The trial court mentioned this only in reading from plaintiff’s second amended petition. No charge whatever was made on the subject and the jury was given no information upon which it could have awarded any damages to the plaintiff upon this claim of impaired health. There is no reason to believe that the verdict, as returned, included anything whatever on this averment of the second amended petition.

(C) It is claimed also that the court erred in its charge concerning the awarding of attorney fees. There was no evidence of the value of the services of the two attorneys whom plaintiff testified she had engaged by reason of the discovery of the mechanic’s lien improperly filed against her property. The court charged that if they found for the plaintiff she would be entitled to recover for compensation paid lawyers to have the lien cancelled, and that the sum fixed should be reasonable and such amount as the jury believed the services of counsel to be worth. The specific claim apparently is that the court failed to mention'in its charge either Section 8319, General Code, or Section 8323-4, General Code, both of which afford statutory remedies to one upon whose property a mechanic’s lien has been improperly placed. This right to award counsel fees as a part of the damages was accorded to the jury as a part of compensatory damage and without the necessity of finding malice permitting the awarding of punitive damages. To this extent the charge was incorrect but, inasmuch as it is plain that the jury did award punitive damages, it was proper to consider attorneys’ fees and, if allowed, they are to be treated as compensatory damages. It does not appear that appellants were prejudiced by the charge as given.

In the early case of Roberts v. Mason, 10 Ohio St., 277, at page 282, Chief Justice Brinkerhoff considered and determined the law on both aspects of this question of attorneys’ fees. He said:

“On this point [attorneys’ fees] the authorities are not uniform; but the better opinion now seems to be, that in actions ex contractu, and in cases nominally in tort, but where no wrong in the moral sense of the term is complained of, the fees of counsel ought not to be included in the estimate of damages; but in cases where the act complained of is tainted by fraud, or involves an ingredient of malice, or insult, the jury, which has power to punish, has necessarily the right to include the consideration of proper and reasonable counsel fees in their estimate of damages. * * *

“No evidence in this case appears to have been given to the jury on the subject of counsel fees; nor do we think such evidence ought to have been given or received. But the fact that the plaintiff would necessarily be subjected to expenses of that kind, was properly taken into consideration and allowed, as a circumstance in the case patent before them.”

To like effect see Peckham Iron Co. v. Harper, 41 Ohio St., 101.

The fourth assignment of error is that the verdict of the jury is excessive, appearing to have been given under the influence of passion and prejudice.

There is nothing in the record to indicate that the conduct at the trial of the case had any tendency to inflame or prejudice the jury. The trial judge found that the verdict was not brought about by passion or prejudice and the reduction was not made upon that theory. We do not find this assignment well made, nor is the fifth assignment established, namely, that the judgment is contrary to the manifest weight of the evidence.

The judgment is affirmed.

Judgment affirmed.

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


author: Collier, J.

text:
    In re Estate of Davis.

      (No. 169
    Decided May 12, 1953.)

      Mr. David G. Rowell, for appellant.

      Mr. Frank DeLay, for appellee.
   Collier, J.

This case is in this court on an appeal on questions of law from a judgment of the Probate Court of Jackson County, sustaining exceptions to certain items contained in the inventory and appraisement of the estate of Margaret Parry Davis, deceased.

The exceptor, Frank DeLay, is the administrator of the estate of E. Stanton Davis, deceased, who was the surviving spouse of Margaret Parry Davis, deceased. Margaret Parry Davis, the wife, died on March 31, 1949, and E. Stanton Davis, the husband, died'on July 13, 1949. For the purpose of brevity, we shall refer to them as the husband and the wife.

The exceptor claims that certain certificates of stock of the Oak Hill Savings Bank and the Cambria Clay Products Company, a U. S. Government check dated May 11, 1949, in the sum of $61.40, and a dividend check of such bank for $10, dated July 7, 1949, are not the property of the wife’s estate, but belong to the husband’s estate.

The executor of the estate of the wife claims title to the certificates of stock by reason of a separate blank assignment stapled to the certificates, which were found after her death in a safe-deposit box of The Oak Hill Savings Bank. The deposit box, at the time of the wife’s death, stood in her name alone. The assignments of all the certificates are in blank, except for the signatures of the husband and one Bruney, a witness thereto. The assignments do not contain the names of the corporations issuing the stock; there is no number of the certificates, no number of shares, no name of the transferee and no date when the assignments were signed by the husband. A blank form of assignment was used with none of the blank spaces filled in.

There is no evidence that the husband ever delivered the certificates to the wife with intention to transfer title-to her. The only evidence explaining the assignment is the testimony of the witness, Bruney, who said that the husband signed the blank form of assignments to make the certificates negotiable. The only basis for the claim of the executor of the wife’s estate to ownership is the separate blank assignment attached to the certificates, and the further fact they were found after her death in the safe-deposit box which stood in her name. The evidence shows that from September 1, 1941, until December 22, 1948, this box, number 145, was rented by the husband with right of access thereto by his wife as his deputy; that the husband had owned the stock for many years prior to the death of either of them; and that it was after the husband sustained an injury on December 22, 1948, and was confined to his home, that the box was re-rented in the name of the wife.

The one question for determination under these facts and circumstances is whether the certificates of stock belong to the estate of the wife or to the estate of the husband. Since the enactment in this state of the Uniform Stock Transfer Act in 1911 (102 Ohio Laws, 500), such certificates may be transferred only as prescribed by the provisions of the General Code. There is no exception for the transfer of stock in an Ohio corporation.

Subdivision (b) of Section 8673-1, General Code, sets forth the necessary steps to transfer such certificates by separate document, and provides:

“By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby signed by the person appearing by the certificate to be the owners of the shares represented thereby. ’ ’

Two essential requirements of this statute are, first, that there must be a delivery of the certificate and, second, that there must be a separate document describing the certificate so that it may be identified, neither of which has been established in this case. A different rule applies where the assignment is written on the certificate. Section 8673-20, General Code, provides for a blank indorsement on the certificate. See Gugle, Admr., v. Gugle, 83 Ohio App., 85, 78 N. E. (2d), 585.

In the case of Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917, our Supreme Court has established the quantum of proof required in a case of this kind. In that case, where the facts are very similar to the facts involved in the instant case, it is held that to place title in the wife, the transfer from the husband must be shown by clear and convincing proof. The single fact that the certificates were found in the deposit box is not sufficient to give rise to the presumption of ownership.

It follows for the same reasons that the dividend check is the property of the husband’s estate. He being the owner of the stock at the time of his death, his estate is entitled to the dividends thereon.

The United States Government check in question was issued May 11, 1949, sometime after the death of the wife but while the husband was still living, in payment of an income tax refund on a joint tax return made by the husband and wife. The evidence shows that almost all income reported represented the salary of the husband. We are unable to see how the executor of the wife’s estate has any legal claim to this check.

We find no substantial error in the ruling and judgment of the Probate Court, and the judgment of that court is affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.


author: Wiseman, P. J.

text:
    In re Estate of Miller: Brandon, Appellant, v. The City National Bank & Trust Co. et al., Exrs., et al., Appellees.

      (No. 4847
    Decided March 20, 1953.)

      Mr. Bruce A. Lotvman and Mr. Robert E. Patterson, for appellant.

      Mr. Webb 1. Vorys, for appellees Edward W. Miller and Betty E. Miller, executors.

      Messrs. Key, Butler é Harrison, for appellee Roberta M. Hammond.

      Mr. John H. Summers, for appellees Joseph W. Brandon and Richard M. Brandon.

      Mr. Harrison W. Smith and Mr. Ithamar D. Weed, for appellees Betty Ann Miller, Patricia Joan Miller and Nancy Louise Miller.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County.

The testator, Frederick A. Miller, bequeathed the residue of his estate in shares to his wife, his son, and his daughter, Frances Ann Miller, for life. The widow having elected to take under the law, the share of the daughter amounted to one-third of the assets available for distribution, and was of the approximate value of $450,000. The testator directed that at the death of his daughter, the share bequeathed to her for life should be divided among her children or'their issue in fee simple.

The administration of the estate nearing completion, the daughter filed an application for distribution of her share. The executors instituted a proceeding in the nature of an action for a declaratory judgment. concerning matters affecting distribution. The two proceedings were consolidated and evidence was presented. The order from which this appeal was taken directed that the daughter’s share was to be paid by the executors to a trustee, to be held and managed for the benefit of the daughter during her life and to be distributed to the remaindermen at her death. Prom this order, the daughter took this appeal.

The order of the Probate Court was based on its findings of fact and conclusions of law, which are incorporated in the order. No bill of exceptions has been filed. The trial court found that the testator, Frederick A. Miller, died in 1948, at which time the daughter was indebted to the decedent in the sum of $58,620.64; that in 1945, she received cash and stock of the value of $215,323.58 from the estate of her grandfather; that the daughter and her husband received other moneys during the five succeeding years ; that the total amount received from 1945 to 1950 aggregated $453,866.95; and that an itemized statement filed with the court by the daughter as of January 1, 1951, together with her testimony, shows that as of that date the net value of her estate was $41,524. This amount did not include the above mentioned indebtedness to the instant estate. In 1945, the daughter moved with her family to the state of California, where she has since resided and where she intends to maintain a permanent domicile. The trial court found that in February or the early part of March 1948 the testator learned of the financial situation of the daughter, and that, thereafter, the testator contemplated mailing a change in his will, which was never consummated, the testator having been stricken with illness on March 22, 1948, from which he died on May 6, 1948.

Thus, it appears from the findings of fact that the appellant (daughter) within a few years consumed the inheritance which she received from her grandfather’s estate, and, also, approximately $102,000 paid to her during the years 1948, 1949 and 1950, as income from her father’s estate as well as other moneys, the total amount aggregating over $470,000, and that on the date of her father’s death she was insolvent.

On the basis of this factual situation, the trial court concluded:

‘ ‘ Frances Ann Miller Brandon has not demonstrated her ability to handle an estate of the character and size of which she is the life beneficiary, but on the contrary has demonstrated her inability to handle an estate of such size as life tenant; and delivery of possession to her of her share as life tenant would imperil the integrity of that share and result in severe, if not total, loss to the minor remaindermen and severe injury to the life tenant.

“The court therefore concludes that, in the exercise of its plenary power and duties in respect to the administration and distribution of this estate, the competency of the life tenant of each share must be considered in order to safeguard all interests created by the decedent’s will; and with that obligation it has a responsibility to the minor remaindermen and contingent remaindermen to safeguard the corpus of the shares to the life tenants until the delivery of each share of corpus to the ultimate beneficiaries.

“The court further concludes that the application of Frances Ann Miller Brandon for immediate delivery to her as life tenant of her share of the decedent’s estate should be denied; and, in the exercise of the court’s plenary power, in order to safeguard the corpus of the estate devised to the children and issue of Frances Ann Miller Brandon until the date of its delivery to them, and in order to protect their interests, the corpus of the estate in which Frances Ann Miller Brandon has an interest as life tenant should be distributed by the executors to a trustee, for the benefit of Frances Ann Miller Brandon during her life and the persons who will be entitled to the ownership thereof at her death. ’ ’

The court decreed and ordered as follows:

“It is therefore decreed and ordered that the application of Frances Ann Miller Brandon for an order directing immediate distribution and delivery to her of such part of the estate assets to which she is entitled to possession as life tenant be, and the same is hereby, denied * * * and that the City National Bank and Trust Company of Columbus be and it is hereby appointed trustee to receive from the executors of the estate of Frederick A. Miller, deceased, the share of said decedent’s estate bequeathed to Frances Ann Miller Brandon for her life and at her death to her issue

In her assignments of error, appellant claims that the Probate Court erred (1) in ordering appellant’s share as life tenant placed in the hands of a court-appointed trustee; (2) in ordering that the rights, powers and privileges granted appellant as life tenant under decedent’s will be vested in a court-appointed trustee; and (3) in construing provisions in the will affecting the rights of the appellant to be precatory and not mandatory and by preferring the interest of the remaindermen over the interest of the life tenant.

The appellant contends that the provisions of the will should be followed; that the Probate Court did not possess plenary power to make the order; and that the provisions of Section 10509-185, General Code, control the manner of making distribution to a life tenant.

In item III of the will, the testator provided that the appellant, as a life tenant, should have full power and authority to manage, control, invest and reinvest, sell, convey and exchange property held by her as life tenant and to exercise other beneficial rights as she may deem proper, “notwithstanding any statute or rule of law or equity to the contrary. ’ ’

Item III provides further:

‘ ‘ It’ being my intention to facilitate the use of such shares by the respective life tenants thereof, 1 direct that my property shall not be held by my executors or by any trustee or trustees for the benefit of any life tenant, but that my executors shall deliver to the respective life tenants aforesaid the property which is allocated to their shares and the executors shall thereupon be relieved of all liability for the property so delivered and the court shall not have authority to direct otherwise.” (Emphasis ours.)

In view of the findings of fact and the provisions of the will, did the Probate Court have jurisdiction to make the order? Finding no reported case in Ohio touching this precise question, it becomes one of first impression.

The jurisdiction of the Probate Court is conferred in part by the Constitution and in part by the statute. In the matter presented here, the jurisdiction of the Probate Court is conferred by the Constitution as well as by the statute.

Section 8, Article IV of the Ohio Constitution provides :

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians * # * ? >

It has been held that the power conferred on the Probate Court by the above-quoted provision of the Constitution is plenary.

In Trumpler, Admr., v. Royer, 95 Ohio St., 194, 115 N. E., 1018, the first paragraph of the syllabus is as follows:

“By the provisions of Section 8, Article IV, Constitution, and Section 10492, General Code, plenary jurisdiction is conferred on the Probate Court to grant and revoke letters testamentary and of administration, to direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates.”

Section 10492, General Code, referred to therein is now Section 10501-53, General Code. -

In the case of In re Estate of Shafer, 77 Ohio App., 105, 65 N. E. (2d), 902, the court, on page 108, said:

“By the provisions of Section 8, Article IV of the Constitution of Ohio, jurisdiction in probate and testamentary matters and in the settlement of accounts of executors and administrators is conferred upon the Probate Court. By virtue of the constitutional provisions conferring such jurisdiction, the Probate Court has plenary power fully to dispose of any of those matters properly before the court, and such power comprehends the power to adopt and apply such remedies, legal or equitable, as may be suitable for such purpose. Insofar as these matters are concerned, Section 10501-53, General Code, prescribing that the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is otherwise limited or denied by statute, adds nothing to the jurisdiction of the court.” (Emphasis ours.)

The court held further that the procedure of the court in the exercise of its jurisdiction may be prescribed by statute, but that the jurisdiction prescribed by the Constitution cannot be enlarged or diminished by statute.

In Union Savings Bank & Trust Co., Exr., v. Western Union Telegraph Co., 79 Ohio St., 89, 86 N. E., 478, 128 Am. St. Rep., 675, the court, on page 99, said:

“The Probate Court is a court of record and its jurisdiction in matters testamentary and in the' appointment of administrators and guardians has been broadly given by the Constitution of this state, Article IY, Sections 7 and 8. The jurisdiction is plenary and it may well be doubted whether the Legislature, if it chose to do so, could in any respect limit it.”

In the case of In re Guardianship of Zimmerman et al., Minors, 141 Ohio St., 207, 47 N. E. (2d), 782, the court, on page 219, quoted with approval the quotation just given from the Union Savings Bank & Trust Co., case.

It is axiomatic that the plenary juiisdiction conferred on the Probate Court by the Constitution may be implemented by legislation, but it cannot be abridged or limited by legislative enactment. In the enactment of Section 10501-53, General Code, the Legislature extended the plenary power to matters where the jurisdiction is derived by statute by providing in the last paragraph of this section as follows:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute. ’ ’

We agree with the statement of Judge Guernsey in the case of In re Estate of Shafer, supra, where, in commenting on the effect of this provision in view of the power conferred by the Constitution, he said that this provision “adds nothing to the jurisdiction of the court.” Plenary power is full and complete power— an unlimited power. The trial court found that it possessed plenary power in this matter and proceeded to exercise it.

The appellant contends that the plenary power exercised by the trial court was derived from the last paragraph of Section 10501-53, General Code, which confers on the Probate Court “plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.” The point is made that the provisions of Section 10509-185, General Code, expressly limit the power of the Probate Court, in that they prescribe the manner of making distribution to a life tenant. However, we are concerned here primarily with the exercise of the plenary power conferred by the Constitution, which cannot be abridged or limited by statute. We might well rest our opinion on the fact that plenary power is conferred on the Probate Court by the Constitution, but since counsel have briefed extensively the question of the application of the provisions of Section 10509-185, General Code, to the issues presented, we proceed to discuss in some detail the effect of that statute.

That section provides as follows:

“When by a last will and testament the use or income of personal property is given to a person for a term of years or for life, and some other person has an interest in such property as remainderman, the court, unless such last will and testament otherwise provides, shall have authority to deliver such personal property to the person having the limited estate, with or without bond, as the court may determine; or the court may in its discretion order that such property be held by the executor or some other trustee, with or without bond, for the benefit of the person having the limited estate. If bond is required of the person having the limited estate, or of the trustee, it may be increased or decreased, and if bond is not required in the first instance it may be required, at any time prior to the termination of the limited estate, at the discretion of the court. ’ ’

The purpose of this section is to protect the interests of the remaindermen. In the first clause, authority is given to the court to deliver the property to the life tenant, unless the will otherwise provides. The implication is that if the will provides that the property shall be delivered to someone other than the life tenant, the court shall follow the provision of the will. This construction is in accord with the general purpose of the statute to protect the remaindermen. But the appellant contends that under this section, where the will provides that the property shall be delivered to the life tenant as distinguished from some other person, there is a mandatory duty imposed on the court to follow the will in every ease and under any and all circumstances.

We find no such mandatory provision in the statute.

The statute by its terms is permissive in character and not mandatory. In the second clause of this section, it is provided that “the court may in its discretion order that such property be held by the executor or some other trustee, with or without bond, for the benefit of the person having the limited estate. ’ ’

Appellant contends that the phrase, “unless such last will and testament otherwise provides, ’ ’ contained in the first clause, modifies the second clause, and that the second clause should be construed as if it read “or the court, unless such last will and testament otherwise provides, may in its discretion order that such property be held by the executor or some other trustee, etc.”

We are of the opinion that it was not the intention of the Legislature in enacting this section that the words, “unless such last will and testament otherwise provides,” as used in the first clause, should modify the second clause also. If this were the intention of the Legislature, this section would have been worded and punctuated differently. It is very clear that in the second clause the Legislature intended to protect the assets for the remaindermen and that in the exercise of a sound discretion, the court in a proper case may order the assets distributed to a trustee. No limitation is imposed on the court in the exercise of its discretion. The statute recognizes the plenary power of the court. The second clause manifestly applies to situations which are not embraced in the first clause of the section. The second clause is a complete sentence, having a subject, a verb and an object. The clauses are separated by a semicolon.

Webster’s New International Dictionary (2 Ed.) says that the purpose of a semicolon is:

“ (1) To mark antitheses between the ideas of major sentence divisions. (2) To effect transition between main clauses when lacking a connective and when succeeding each other in a swiftly moving passage. (3) Typically, to introduce a second main clause when the connective is also, hence, nevertheless, therefore, and the like. (4) To mark the larger breaks in a series, etc. ’ ’ '

In the same dictionary, the word, “or,” is defined as follows:

“A coordinating particle that marks an alternative; as, ‘you may do one but not both. ’ Specific uses are to indicate a substitution.”

The grammatical rule that clauses separated by a semicolon should be related in thought but must be independent, in that each clause is complete by itself, is satisfied.

The comment of the Probate Code Committee, which proposed Section 10509-185, General Code, is found in Addams and Hosford’s Ohio Probate Practice (3 Ed.), page 1053, in the footnotes to that section, and is as follows:

“This was an entirely new section, effective January 1,1932. It supplements two others which relate to real property only and which protect remaindermen in case waste is committed by a life tenant; G. C. 10502-7 concerns waste by life tenants in dower, and G. C. 10503-23 concerns waste by life tenants. With the increasing popularity of investment in securities rather than in real'property, a need has arisen for protection of the remainderman’s interest in personal estates against waste by a person receiving the use or income for life from such estates, and this statute should provide the court with power to deal fairly in all cases which may arise. It will be noted that the statute provides an exception to the court’s interference when the testator has made provision or specified conditions concerning the life estate in his will which precludes the court from requiring bond of the life tenant. The Probate Court is given broad powers by this statute, to be exercised within its discretion after hearing, undoubtedly, all persons concerned and their evidence.”

It is interesting to note the comment which was made by the Probate Code Committee in the Ohio State Bar Association Report under date of November 17, 1931, found in 4 Ohio Bar, No. 34, page 413, which is as follows:

“When a will creates an estate for life or for years, in personal property, the court is given discretion to deliver such personal property to the person having the limited estate, either with or without bond as the court may determine, or the court may in its discretion appoint a trustee with or without bond to hold the property. In this way the interest of the remainder-man is taken care of, in whatever manner the court considers necessary under the circumstances of the individual case.”

The intent of the Probate Code Committee becomes the intent of the Legislature.

In our opinion, this section contains two distinct remedies which the court may apply in a proper case in protecting the remaindermen. The first clause applies generally to situations where the court has nothing before it except the provisions of the will; no special circumstances appear showing the property to be in jeopardy, The first clause is in accord with the great weight of common-law authority. The second clause applies to an entirely different situation. It applies specifically where it is made to appear upon hearing that the property is in danger of being lost, and in such case the statute requires the court to exercise its discretion in the premises. In such matters, the court may exercise a broad discretion. Hence, the reason for the omission of the words, “unless such last will and testament otherwise provides,” is readily apparent. The insertion of these words, or to construe this clause as if these words modified the clause, would operate to deny the authority of the court to exercise the discretion conferred.

In our opinion, the provisions of this section do not operate as a limitation on the plenary power conferred on the Probate Court by the Constitution or the last paragraph of Section 10501-53, General Code. However, we do not rest our opinion solely on the authority of the Probate Court to appoint a trustee under the provisions of Section 10509-185, General Code, but rather on the plenary power conferred on the Probate Court by the Constitution.

We come now to consider whether the court, in the exercise of the power conferred, also exercised a sound judicial discretion, in view of the factual situation and the provisions of the will. No reported case in Ohio has been cited as a precedent. In support of her contention that the court may not refuse to distribute the property to the life tenant, the appellant cites Martin v. Lapham, 38 Ohio St., 538. In that case the syllabus, in part, is as follows:

Held: 1. That, under the will, M. L. is entitled to the possession of the legacy, without giving security for the repayment thereof, in the absence of facts showing that she is about to waste or squander the legacy. 2. Such inference will not arise from the mere fact that she and her husband are residents of another state, and are pecuniarily irresponsible.” (Emphasis ours.)

On page 542, ibid., the court said:

“We do not deny that equity will protect this right, shadowy though it be, and will not permit the legatee to be guilty of waste or other acts which might operate to defraud the plaintiffs. But no such thing is alleged against her here. It surely does not follow from the fact that she is insolvent, and a resident of another state, that, therefore, she is about to waste or squander her legacy.” (Emphasis ours.)

Martin v. Lapham was decided in 1883, before the passage of the Married Women’s Act, and the court, on page 542, in discussing this phase of the case found that the fact of the legatee’s insolvency would not jeopardize the legacy, for the reason that at that time a married woman could not contract debts which she would be unable to pay. The factual situation in that case was entirely different from the factual situation in the case at bar.

Appellant cites also the case of Ohio Savings Bank & Trust Co. et al., Exrs., v. Clark, 7 Ohio App., 6, the fifth paragraph of the syllabus of which is as follows: “It is the duty of the executors to deliver the entire estate to the widow on the settlement of their final accounts, without security from her, in the absence of evidence showing that the rights of the remaindermen will be imperiled thereby.” (Emphasis ours.)

The court, on page 16, ibid., said:

“The petition of the executors asks the instructions of the court with regard to the delivery of the estate in their hands. Having determined that the widow is entitled to the estate for her use during the term of her natural life, it being the intention of the testator according to the language of the codicil thereby to insure to her the income from the property during her life, we know of no sufficient reason why the executors, upon filing their final accounts and having the same approved, should not turn the entire estate over to her to hold under and pursuant to the right given her by the language of this codicil. The evidence does not disclose danger or insecurity to the remaindermen if this be done without bond.” (Emphasis ours.)

In that case there was no factual situation presented showing the improvidence and spendthrift tendencies on the part of the life tenant such as is presented in the instant case. We find in these decisions little support for the contention of the appellant. On the other hand, we find some support for the authority of the court to refuse to distribute the property to the life tenant under the facts presented. In Martin v. Lapham, supra, it is inferred that where it is shown that the life tenant is “about to waste, squander the legacy, ’ ’ distribution to the life tenant would not be made unless security would be given. In the Clark, case, supra, the court indicated that if the evidence had disclosed'“danger or insecurity to the remaindermen,” a different order would have been made.

The appellant cites the case of In re Trust of Labold, 148 Ohio St., 332, 74 N. E. (2d), 251. That case is distinguishable from the case at bar as indicated by the words of the court found on page 341, as follows:

“The Probate Court, while it has broad discretionary powers, cannot without sound reason go directly against the expressed wishes of a settlor. Here, for no sound reason, the Probate Court acted on its own motion without proper hearing and without consulting the person who the settlor had said should designate the person to succeed him.”

In other jurisdictions, the only case found which bears some similarity to the case at bar is Frye v. Community Chest of Birmingham and Jefferson County, 241 Ala., 591, 4 So. (2d), 140, where the will devised one-third of the residue and the income therefrom to the testator’s sister, as trustee without bond, for her use during her life and after her death to be divided equally between testator’s nephews and nieces who survived her. The executor filed a bill in equity, seeking to determine certain matters with respect to the administration and distribution of the estate. The estate passing to the life tenant consisted of personalty. The life tenant was an elderly woman and a nonresident of the state. The court held that the estate passing to the sister was a life estate. In discussing the relationship existing between the life tenant and the remaindermen, the court, on page 600, said:

“A life tenant of personalty has, as [a] matter of law, a trust relation toward the remaindermen or reversioners in the preservation of the corpus or principal of the estate.”

With respect to the factual situation presented, the court, on page 601, ibid., said:

“The fund, by this decree, is to be turned over to an elderly lady, in a foreign state in the form of money. The safe investment of money to yield a substantial income, as well as payment of the principal, is a decided responsibility; one more difficult now than in 1923. Mrs. Warriner, apart from her age, does not appear to be experienced in handling such funds. This trust continues until her death. Identifying the investment, as well as all questions as to her fidelity must be determined after her mouth is closed by death. She is expected to have followed the laws of a state other than that of her residence in making investments, and apportioning principal and income.”

On the question of the nonresidence of the life tenant, the court, on page 601, ibid., said:

“Nonresidence, within itself, in the absence of testamentary provisions to the contrary, is generally held to involve such hazard, inconvenience and expense to the remaindermen as to endanger their interests to such extent that security should be required; or the estate retained under the jurisdiction of the court, and managed by a trustee of the appointment of the court. Restatement of Law of Property, Vol. XX, Sec. 202, 203, d; 33 Am. Jur. pp. 713, 715, Sec. 222, 224; Jackson v. Jackson, supra.”

With respect to disregarding the provisions of the will that the life tenant should not be required to give bond, the court, on page 601, ibid., said:

“The court of equity has inherent power under the law of trusts to make such orders touching properties within its jurisdiction as will protect all interests. The directions of a testator, touching bond, an administrative matter, may be disregarded in effectuating the substantive property rights created by the will.”

On affording protection to the remaindermen, the court, on page 601, ibid., said:

“We are of opinion the question of safeguarding the estates of these remaindermen should be determined in advance, not after the property has passed into the keeping of the nonresident tenant for life. Embarrassments to all parties in the latter event can be easily foreseen. ’ ’

While the court in that ease invoked equity jurisdiction, the rationale of the court is applicable in the case at bar, where the court has exercised its plenary jurisdiction conferred by the Constitution, which is as full and complete as the jurisdiction conferred on a court exercising general equity powers. Fidelity & Deposit Co. v. Wolfe et al., Trustees, 100 Ohio St., 332, 336, 126 N. E., 414; Abicht, Exr., v. O’Donnell, 52 Ohio App., 513, 516, 3 N. E. (2d), 993.

The matter of requiring the life tenant to give security is treated at length in 33 American Jurisprudence, 706 et seq. After stating that there is a great diversity of opinion in the several jurisdictions, and stating the general rule to be that no security will be required of the life tenant unless the will requires it, an exception to the general rule, which is applicable here, is stated on page 714, Section 226, ibid., as follows :

“It seems to be settled, however, that where it can be shown that there is a threatened injury to the property, or danger of loss to the remainderman, security will be required of the holder of the life estate. One fact that has frequently been made the basis of an order requiring security of the life tenant has been non-residence of the life tenant. The fact that the life tenant will, in all probability, remove from the state property delivered to him has also been held to warrant exaction of security, and such factor has especial significance when added to such factors as evident hostility toward the remainderman and inefficient handling or mismanagement of the property.”

Again, on page 715, Section 228, ibid., it is stated:

“Under this principle, however, if there is danger of waste or injury to the interests of the remainder-man, security may be required even though the testator has given the life tenant possession of the funds. ’ ’

With respect to the right of the court to appoint a trustee to hold the property for the benefit of the life tenant and the remaindermen, which is the situation in the case at bar, the text on page 717, Section 230, ibid., is as follows:

“In cases where a life tenant of personalty is under a duty to furnish security, an alternative safeguard available to the owner of the future interest is the power to require the'life tenant to deliver over the property to a trustee appointed by a court of competent jurisdiction in the event the life tenant chooses not to furnish the security. For example, it has been held that a life tenant, under circumstances requiring security, must furnish a bond for the protection of a remainderman before the estate will be delivered to him, and in default of such bond, the administrator should apply to the court for the appointment of a trustee to manage the estate. Statutes which require the giving of security also frequently provide in the alternative for appointment of a trustee to take charge of the estate.

“The property left in present and future interests may be seized and impounded for the protection of the remainderman. Should the tenant attempt to sell, or in any other mode waste or misuse the property, so as to threaten its destruction, the court may impound it, that is, take it into the hands of the court, by its officer, and give the first taker the profits.” (Emphasis ours.)

In support of the test, the author cites decisions from several jurisdictions, together with 101 A. L. R., 271; and 2 Restatement of the Law of Property, 828, 835, Sections 202, 203. See, also, 23 Ruling Case Law, 582, Section 140.

In the instant case, the trial court was convinced, and rightly so, that if securities of the value of $450,000 were turned over to the appellant, who had no power to consume, but who, under the provisions of the will, could sell and reinvest in her own name without order of court, the assets would very soon be squandered and lost to the remaindermen. The trial court evidently found, and we find, that the relief given to the remaindermen in case of a showing of waste would be entirely inadequate. The remaindermen are the minor children of the appellant. The trial court held that it owed a duty to protect the interest of the remaindermen, and that adequate protection could be afforded only by making an order placing the property in the hands of a trustee. The trial court did not see fit to order the life tenant to give security, the amount of which would have been over half a million dollars. The trial court had a right to presume that under the circumstances the life tenant would be unable to furnish security. Where the court finds that the property is in danger of being lost and the life tenant is ordered to give security, and the security is not forthcoming, it has been held that the court has the authority to appoint a trustee to hold and manage the property. 33 American Jurisprudence, 718, Section 230. Under the facts in this case, we hold that it was not essential for the trial court to first order the life tenant to give security before proceeding to appoint the trustee.

Suppose the life tenant resided within the jurisdiction of the court, and the property had been distributed to her, and it was made to appear to the court in a proper proceeding that the life tenant had squandered a substantial part of the property, could it be successfully contended that the court, either under Section 10509-185, General Code, or in the exercise of its plenary jurisdiction conferred by the Constitution, would not have the power and the judicial discretion to impound the property and appoint a trustee to hold and manage such property for the benefit of the life tenant and the remaindermen, even though the provisions of the will expressly provided that the life tenant should hold and manage the property without the intervention of a trustee? We do not think so. The court is not required to wait until an actual loss occurs before it is permitted to exercise its jurisdiction. Once the plenary jurisdiction of the court is found to exist, the exercise of that jurisdiction lies in the field of a broad judicial discretion. We find no support for the appellant’s claim that the trial court abused its discretion. When all the factors present in this case are given proper consideration, we are of the opinion that the trial court exercised a sound discretion.

The appellant contends that the intention of the testator in certain particulars is ignored; that his purpose to deliver the assets to the life tenant is thwarted by the court order; that the court must, in every instance, bow to the wishes of the testator; and that the court must refrain from the exercise of its plenary power in deference to the wishes of the testator. There are many instances in the law where the intention of the testator is wholly ignored and some disposition other than that expressed in the will is made of the estate. See Sections 10503-17, 10503-18, 10504-5, 10504-49 and 10504-55, General Code.

A testator does not possess a natural or inalienable right to make a will or distribute his property as he sees fit. Such right has always been subject to legislative control. In paraphrasing a statement taken from the scriptures, we might say: The law giveth and the law taketh away. Patton v. Patton, 39 Ohio St., 590, 596, 597; Folsom v. Haas, 9 C. C., 473, 482, 6 C. D., 460; Hane v. Kintner, 111 Ohio St., 297, 300, 145 N. E., 326; 41 Ohio Jurisprudence, 291, Section 40.

The fact that in his will the testator expressed a desire that the estate be not held by his executor or a trustee is not necessarily binding on the court. In the ordinary case, due recognition would be given to the expressed desire of the testator in such matters; but such provision does not, in a proper case, deprive the court of the right to exercise its plenary power in testamentary matters. The question presented becomes one of administration rather than testamentary intention. The testator is charged with a knowledge of the power of the court in such matters.

In conclusion, we hold that where a nonresident life tenant and nonresident remaindermen have an interest in property to be distributed by executors, and, under the terms of the will, the life tenant is given power to sell, convey,- invest and reinvest the property in her own name without order of court, but does not have the power to consume, and the property to be distributed consists of securities of the value of $450,000, and, upon hearing, it clearly appears that the life tenant will take such property out of the jurisdiction of the court, and the evidence shows that the life tenant has recently squandered a large inheritance, and there is found to be a strong probability that said property will be squandered, and the estate lost to the remaindermen, the Probate Court, in furtherance of the intention of the testator that both the life tenant and remainder-men shall be benefited by the distribution of the property and in order to protect the interest of the remaindermen, may order that the property be distributed to a trustee to be held and controlled under the terms of the will for the benefit of the life tenant, and at her death for distribution to the remaindermen, even though the life tenant under such order is denied the management and control of the property as provided in the will.

In the briefs several matters are discussed which are not assigned as error. We pass only on the errors assigned.

Since we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Per Curiam.

text:
    Jacobs et al., Appellees, v. Cook et al., Appellants.
    (No. 1008
    Decided June 25, 1953.)

      Mr. Sol Goodman, for appellees.

      Messrs. Sohngen, Parrish, Beeler é Egbert, for appellants.
   Per Curiam.

On June 9, 1952, upon the filing of the original petition, the Common Pleas Court issued a temporary injunction, as prayed for therein, enjoining defendants, Andrew B. Cook and Russell P. Sick, from taking any action which would bring about the discharge of plaintiffs and the class of employees they represented. Such order was served upon the defendants on the morning of June 10, 1952.

After trial on an affidavit filed in the original case, the defendants, appellants herein, were adjudged guilty of contempt for doing what had been prohibited by the injunction. This appeal is from that judgment.

All the plaintiffs except Local 1190 (U.A.W.-C.I.O.) are individuals, who, together with the individual defendants, were employees of the Hamilton plant of Clearing Machine Corporation, and members of an independent union, having a duly certified collective bargaining agreement with the company, the plaintiff Jacobs having been president of the independent union and the defendants, Cook and Sick, having been respectively the financial and recording secretaries thereof.

In general, the original petition alleges that by proper procedure under its constitution, the membership of the independent union voted to disorganize and affiliate with the International U. A. W.-C. I. 0., so that Local 1190 has succeeded by assignment to all the assets of the independent union, including the collective bargaining agreement, and now stands in the position of sole bargaining agent for all employees of the corporation, and entitled to assume all the rights and duties previously exercised by the independent union.

The petition goes on to charge the two defendants, as individuals, with usurping those prerogatives and attempting to function as they did in their respective positions in the past as officials of the independent union, in representing the employees, and particularly with reference to the collection of dues under the contract, which provided for a closed shop and a procedure for procuring the discharge of employees who failed to keep up their dues.

The record discloses that on June 4, 1952, the defendants, acting as officials of the independent union and in conjunction with the corporation, as provided by the contract, had posted upon the bulletin board a notice of and to delinquents in the -payment of dues to the independent union.

On June 11, 1952, the defendants, upon advice of counsel, prepared the notice provided for by Article HI, Section 7 of the constitution of the independent union, and on June 12, 1952, delivered a copy of such notice to the plaintiff Jacobs.

Exhibit 4, the notice delivered to Jacobs, is as follows :

“Albert Jacobs

“Hamilton, Ohio, June 11, 1952.

“Pursuant to Article III, Section 7, you are hereby notified by the financial secretary of the Hamilton Thomas employees union (Clearing Machine Corporation Workers Union), that as a suspended member you shall be reinstated only upon payment of all arrears to date and a reinstatement fee of $1. This must be paid within five (5) days after receipt of this notice.

“Andrew B. Cook,

“Fin. Sec.”

Article III of the independent union’s constitution, sections six, seven and eight are:

“Section 6. Members who are in arrears in payment of dues or assessments for two consecutive monthly meetings shall stand automatically suspended from all rights and privileges of membership, except in cases of sickness, accident or valid reason acceptable to the Union.

“Section 7. Suspended members shall be reinstated only upon payment of all arrears to date and reinstatement fee of one ($1.00) dollars. Must be paid within five (5) days after notification by financial secretary, or company will be notified as provided for in contract.

“Section 8. Notices containing the names of all members, who by word of the financial secretary, indicates the possibility of being delinquent two (2) consecutive months, shall be posted on union bulletin board not less than five (5) days prior to next regular meeting. ’ ’

Plaintiffs claim that the preparation and service of the above notice constituted a violation of the prohibition of the injunction, in that it was a necessary step, prerequisite under the independent union’s constitution, before request upon the corporation for a discharge for nonpayment of dues.

The record discloses no further act done by either or both defendants, either as individuals or officials of the independent union, in connection with the discharge of Jacobs.

The record reveals that on July 7, 1952, defendant Cook, starting a vacation period and entering a hospital, turned his records over to one Humphries, chairman of the shop committee, who normally functioned as financial secretary during the absence of that official. Humphries, having previous knowledge of Jacobs’ delinquency by reason of critical discussion thereof among the employees, learned from the records that Jacobs had been served with the five-day notice and of his disregard thereof, making him vulnerable to discharge.

On July 8, 1952, following a regular monthly meeting between the shop committee of the independent union and officials of the corporation, and after the conclusion of the meeting, Humphries delivered to the corporation a request for Jacobs’ dismissal under the terms of the contract, in the following form:

“July 8, 1952

“This is a formal request by the union to the company for the release of Albert C. Jacobs, who we certify to be more than two monthly meetings delinquent and having failed to tender periodic dues, or resultant reinstatement has automatically suffered loss of his membership in this union. The committee for the union request compliance to the terms of our agreement, immediately, in regards to Section One (D), 1.

“Roy Humphries

‘ ‘ Edward Hendrickson

“Leo S. Winnefeld

“J. G. Wainscott.”

After consultation and upon advice of counsel, the corporation gave written notice to plaintiff Jacobs of termination of his employment.

Humphries frankly testified that neither he nor his committee discussed with these defendants or collaborated with them in any way concerning their intended action, but purposely concealed it from them and assumed to request the dismissal of Jacobs upon their belief in a right to do so, neither they nor the independent union being under any restraining order of court. There is no evidence in the record of either of these defendants conspiring with any person or persons to violate the temporary injunction.

Upon this »tate of the record, the court made the following finding:

“ (1) That on June 9, 1952, this court issued an order temporarily restraining the defendants and each of them from taking any action which would bring about the discharge of plaintiffs, and the class of employees of Clearing Machine Corporation, which plaintiffs represent.

“(2) That said restraining order was duly served upon the defendants on the morning of June 10, 1952.

“(3) That on June 11th, 1952, defendants Andrew B. Cook and Russell P. Sick, together collaborated in preparing a written notice which is an exhibit and evidence in this cause, wherein plaintiff Albert C. Jacobs was advised of his delinquency in dues, and that under the constitution and regulations, unless he paid the dues, and obtained his reinstatement, that the company would be notified.

“(4) The court finds that said notice was required under the constitution and regulations before the company could be notified of his delinquency in dues.

“ (5) The court finds that on or about July 7th, the defendant Andrew B. Cook turned over certain books and records showing the delinquency in dues of said Albert C. Jacobs, to the defendant Roy Humphries.

“ (6) The court finds that on July 8th, 1952, the defendant Russell P. Sick, along with other defendants, other than the defendant Andrew B. Cook, attended a meeting with the officers of Clearing Machine Corporation, and that after adjournment of the meeting a notice in writing was served on the Clearing Machine Corporation requesting the discharge of Albert C. Jacobs.

“(7) The court further finds that a copy of said notice was handed to the defendant, Russell P. Sick, as recording secretary, for him to keep as part of the records in his custody.

“(8) The court finds that as a direct result of the preparation and service of the first notice above referred to on Albert C. Jacobs, and the turning over of the books and records to Roy Humphries, and the serving of the notice on the company, that Albert C. Jacobs was discharged from his employment in direct violation of the provisions of the restraining order herein.”

Finding No. 3 is based on exhibit No. 4 in the record, which is shown on its face to be merely a notice advising plaintiff Jacobs of a delinquency in dues, and not violative of the letter or spirit of the temporary injunction. There is no evidence to justify the additional finding ‘‘and that under the constitution and regulations, unless he paid the dues, and obtained his reinstatement, that the company would be notified,” which, while even if construed as a required step in bringing about plaintiff Jacobs’ discharge, still falls short of that, and, hence, is not violative of the injunction.

There is nothing contained in findings No. 4 through No. 7 to show any contumacious act or conduct on the part of defendants here. The notice referred to in finding No. 6 is shown by the record to have been the act of other persons.

Finding No. 8 refers to acts of these defendants not contumacious in character and continues as a composite finding on acts and things done by other persons, including the members of the shop committee of the independent union — various and company officials and on advice of counsel, which cannot be the basis for condemning these defendants.

Without elaboration, this court concludes this case to be one of civil contempt, so that it was not error to call a defendant as on cross-examination.

From the foregoing, it appears to this court that there is no substantial evidence to sustain the findings of the trial court, upon which its judgment of guilty of contempt is based, and the judgment is, therefore, reversed.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.