author: Ross, J.

text:
    The Provident Savings Bank & Trust Co., Trustee, Appellee and Appellant, v. Nash et al., Appellants and Appellees. (Two cases.)
    (Nos. 6492 and 6493
    Decided April 16, 1945.)

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Messrs. Ciarle é Robinson, for appellee and appellant.

      Messrs. Waite, Schindel & Bayless for appellants and appellees.
   Ross, J.

These cases involve two appeals from a single decree of the Court of Common Pleas of Hamilton county. The latter appeal is upon questions of law and fact, and, being such, requires a complete consideration of the entire case by this court, rendering, therefore, unnecessary consideration of the appeal upon questions of law presented by the first case.

The appellant, The Provident Savings Bank & Trust Company, Trustee, in the- appeal upon questions of law and fact is the plaintiff in the action. Suit was filed by such trustee to quiet the title to certain real estate acquired by it, and for injunction.

The defendants and cross-petitioners in the action are the children of a testatrix and the husbands of such children, the will of such testatrix being a necessary link in the chain of title of the plaintiff. •

The trial court in its final decree sustained the claim of these four children as intestate inheritors from their mother, the testatrix, decreeing that they were tenants in common with the plaintiff and ordered partition of the property involved in this litigation.

There are many facts disclosed by the record which will not be included in a statement in this opinion, for the reason that the determining factor renders such facts irrelevant to the premises upon which the final conclusion herein is based. Only such facts, therefore, as are pertinent to such premises will be herein stated.

The plaintiff, through purchase, acquired the fee of the real estate involved. Outstanding against this fee was a perpetual leasehold which ultimately became the property of the testatrix.

On February 6, 1905, Clara W. Dorger executed a valid will, which was, after her death on September 30, 1924, admitted to probate on October 4, 1924. At the time the testatrix executed such will, she and her husband had then living three children. After the execution of such will, four other children were born to the testatrix and her husband, Frank J. Dorger. These four daughters, with their husbands, are the cross-petitioners herein.

By the terms of this will, the husband of the testatrix became sole devisee of the leasehold involved. Tlie will, however, contains the following items:

“Item 3rd. In the event of the death of my said husband before me, then and in that case, I give and bequeath all of my estate to my brother, Alphonse S. Wetterer, in trust, nevertheless, for the use and benefit of my children, and request that no bond be required of him as such trustee, hereby giving my said trustee full power to manage, control, exchange, lease or incumber any or all of my said estate, whether real or personal, to sell the same, either at public or private sale, as in his judgment may seem best, vdthout applying to any court for authority so to do, the income of my said estate to be used for the purpose of maintaining, supporting and educating my said children until the youngest shall become 25 years of age, when a distribution shall be made between my said children, share and share alike, and said trust shall then cease and determine.
“Item 4th. In the event of the death of said trustee before the youngest of my said children shall arrive at the age of 25 years then and in that case, I appoint my brother, Ferdinand J. Wetterer, as trustee without bond, giving and granting unto him the same power .and authority heretofore given my brother Alphonse S. Wetterer as trustee.”

It is the claim of the cross-petitioners that as to the four daughters born after the execution of the will there was a pretermission, and that the provisions of Section 10563, General Code, as then in force, apply so as to give such after-born children an intestate share in the estate of their mother, the testatrix, Clara W. Dorger.

Section 10563, General Code, as in force September 30, 1924, the date of the death of testatrix, contained the following provisions:

“When, at the time of executing his will, a testator has a child absent and reported to be dead, or having a child at the time of executing the will, afterward has a child who is not provided for therein, the absent child, or child born after executing the will, shall take the same share of the estate, real and personal, that he would have been entitled to if the testator had died intestate. ’ ’

Frank J. Dórger survived his wife, and all of the alleged pretermitted children were also living at her death. He took title to the perpetual leasehold devised to him. He later was adjudicated a bankrupt and such leasehold sold as a part of his assets at the bankrupt sale. The title to the leasehold was purchased by the plaintiff at such sale.

Some question as to the validity of the cross-petitioners’ claims having been raised by an abstracter of title, an action to quiet title and for injunction was instituted by the plaintiff.

The alleged pretermitted children set up their claims and prayed for partition as tenants in common with plaintiff. As stated before, the trial court found them to be pretermitted children and entitled to intestate shares in their mother’s estate, and ordered partition.

The plaintiff, in reply to the claims of the cross-petitioners, advances a number of defenses.

While the conclusion herein reached is based upon a finding against the claim of pretermission, it may be stated that an examination of the evidence requires a conclusion adverse to the plaintiff upon all such defenses, with the exception of that upon which the conclusion herein reached is based.

It must be admitted that the plaintiff seems to place little reliance upon the premise which requires that conclusion. This appears to be caused by a misconception of what little authority there is in existence construing the section of the Code, in force at the time of the death of Clara W. Dorger, in the light of the pertinent facts existing in this matter.

Before proceeding to a review of what authority is to be found, it is proper to. clear away certain considerations which are entirely foreign to the matter here considered. In doing so, many decisions of courts, both in this state and elsewhere, will be seen to be wholly irrelevant to the issues here presented.

In the first place, at the time the testatrix executed her will, she hacl three children living. The provisions of Section 10561, General Code, therefore, have no application, since that statute refers only to a situation where at the time of making the will the testatrix “had no children at the time of executing” the will. As will be shown later, the decision in Rhodes v. Weldy, 46 Ohio St., 234, 20 N. E., 461, therefore, construing that section under circumstances therein has no decisive effect.

Nor is this a case where the testatrix specifically attempted to disinherit an after-born child, as was the case in German Mutual Ins. Co. v. Lushey, 66 Ohio St., 233, 64 N. E., 120.

Again, it is not a case where the testatrix attempted to provide for her after-born children indirectly by any statements leaving their interests to the discretion of her spouse.

Nor haye we here a situation involving a posthumous child, one born after the death of a testator, or a case where no mention of any children is made in the will as was the case in Krueger v. Krueger, Gdn., 111 Ohio St., 369, 145 N. E., 753, or a case where any living child is specifically mentioned by name in the will.

On the contrary, it is a case where the testatrix made contingent .provision for all her children, alive at the time of making the will and including in the class for whom contingent provision is made those born thereafter. She made provision for all her children when she provided that, in the event her husband predeceases her, the income of her estate “is to be used for the purpose of maintaining, supporting and educating my said children,” she having previously stated that she places her estate in trust “for the use and benefit of my children.”

It is presumed that the testatrix knew the applicable provisions of the law and there is not the slightest suggestion anywhere in the will or the evidence submitted that the testatrix intended that the after-born children should not be included in her provision for “my children.”

It is generally conceded that a will speaks as of the death of the testator. Ohio Nat’l Bank of Columbus, Trustee v. Boone, 139 Ohio St., 361, 365, 40 N. E. (2d), 149, 144 A. L. R., 1150; Judy v. Trollinger, 110 Ohio St., 576, 583, 144 N. E., 44.

It is also well settled that in the absence of clear and unambiguous indications of a contrary intention disclosed in a will, the members of a class described in a will are to be ascertained at the death of the testator. 127 A. L. R., 604.

Nor is such rule affected by the fact that the class takes a contingent estate. Id., 616.

The contingency mentioned in the will under which the children of the testatrix would take would be coincidental with her death also, as far, at least, as affecting the passing of title to the children was concerned, for that contingency was the predecease of the husband of the testatrix. So even those cases holding that the event of the contingency is the time of determination in no way limit the principal rule. See, also, 49 A. L. R., 174; Wilberding, Admr., v. Miller, 90 Ohio St., 28, 106 N. E., 665; 41 Ohio Jurisprudence, 700.

By leaving a contingent estate to “my children,” the testatrix provided equally for the maintenance, support, and education of all of her children living at her death, including her cross-petitioning children, who were not, therefore, pretermitted.

“To pretermit is to pass by, to omit, to disregard. If the intention to exclude appears upon the face of the will, the child has not been omitted or passed by. If the child has been provided for by the will, the value of the provision is not the subject of inquiry by the court, for, however inadequate the provision may be, it would yet be true that the child was not pretermitted, had not been omitted, passed by, or disregarded. The words ‘omits to provide’ mean simply an omission to make a provision in the will, and have no reference to the pecuniary value of the provision, and, by the weight of authority, under a statute whose purpose is not to constrain but only to supplement a testator’s intention, the provision required to prevent intestacy as to an after-born child need not be of a quality or value to satisfy the court’s sense of justice. However, it has been held that the mere bequest of keepsakes of a personal nature and of little or no extrinsic value does not, as a matter of law, take the heir out of the class provided for by the statute. Where a statute provided for certain heirs ‘not having a legacy given them,’ it was held that though the amount of the legacy was obscurely expressed, it was sufficient as showing that they had not been forgotten; but construing two sections of a statute together, it was held that an after-born child was not ‘provided for in the will,’ and that no provision had been ‘made for such child by some settlement,’ where the whole estate was left to the wife and after her death a remainder to her children, and it seems that by the weight of opinion, though there is authority to the contrary, a general devise of a reversionary interest to the heirs of the testator is not a provision for an after-born child.” 9 Ruling Case Law, 42.

The reference in the text to an authority construing two sections together is Rhodes v. Weldy, supra, and requires a consideration of the applicability of that case to the present problem. In the first'place, it is to be noted that in that case, the testator had no children living at the time of making the will and that Section 10563, General Code (Section 5961, Revised Statutes), the section involved in the instant litigation, has no application to the facts in the Rhodes case, and this was specifically stated in German Mutual Ins. Co. v. Lushey, supra, at page 240 of the opinion, where no comment was made by the Supreme Court upon the Rhodes case, although it was cited to the court as an authority.

“But Section 5959 does not cover a case where there is a child living at the time the will is executed, but provides for a very different situation. These two sections are independent ‘but not inconsistent provisions. Each covers a case not covered by the other. Both have been in force as far back as 1840, at least. One of them much longer than that.” German Mutual Ins. Co. v. Lushey, supra, at p. 240.

In the Rhodes case, the court was solely concerned with the construction and application of Section 10561, General Code (Section 5959, Revised Statutes), a section radically different in many respects from Section 10563, General Code (Section 5961, Revised Statutes). It will be noted in the former section in addition to the difference noted that the first section provides for revocation of the will upon pretermission. The latter section does not. Again, the former section requires provision by some settlement. No such requirement appears in the latter section, which merely requires that the after-born child shall in the will be “provided for therein.” The former section permits disinheritance; the latter, as then in force, did not. Evidence tending to rebut the inference of revocation is prohibited in the former section, and no such inhibition appears in the latter section.

The Rhodes case, therefore, is an authority only for the contention that a contingent provision does not comply with the requirement of Section 10561, it being stated therein that the will is revoked “unless provision has been made for such child by some settlement.” (Italics added.) An interesting comment upon that case is to be found in McMillan v. McMillan, 12 N. P. (N. S.), 593. In that case Judge Kyle of the Common Pleas Court of Greene county painstakingly reviews the authorities relied upon in the Rhodes case for the conclusion that a contingent provision is no provision.

A reading of this comment and the later authorities from the same states as those relied upon in the Rhodes case is convincing that that rule has little foundation in substantial authority and that a contingent provision is sufficient provision even under a statute as drastic as Section 10561. Of course, it is to be noted again that Section 10563 fails to require anything other than mere “provision.”

In In Re Rouges’s Estate, 103 Wis., 497, 512, 79 N. W., 786, the court points out as follows that Ohio stands alone in requiring other than some provision:

“An analysis of all the authorities cited to us, or which have come under our notice, leaves without support the contention that, 'under a statute like ours, whose purpose is, not to constrain but only to supplement a testator’s intention, the provision required to prevent intestacy as to an after-born child must be of a quality or value to satisfy a court’s sense of justice, except in Ohio, and that support is ambiguous at the best. On the other hand, the courts of Michigan, Illinois, and Massachusetts clearly, and Missouri, Kentucky, and California apparently, sustain the other rule that any provision, intended as such, however slight, will be respected and enforced as the complete will of the testator. That view also is in accord with the tendency of our own decisions as to the provision which will be effective to cut off a widow’s dower, and we think is supported by the better reason. We accordingly hold that the devise made by this will of a remainder in the real estate to the respondents upon the majority of the youngest constitutes a ‘provision’ for them, within the terms of Sec. 2286, and that the estate should be assigned and distributed according to the terms of the will, subject to such modification as results from the widow’s election to take by law, and not under the will.”

The case of German Mutual Ins. Co. v. Lushey, supra, although construing and applying Section 10563, General Code, has also no dispositive effect upon the problem presented in the instant litigation. In that case, although the testator had a child living at the time of the execution of the will and a child was born thereafter, the question presented was whether disinheritance of such child could be considered provision therefor, and it was held that it could not be so considered in view of the language of the statute which fails to include a disinheriting provision, as found in the first section. The Lushey case is authority only for the principle that “where a testatrix, having a child living, devises all her estate to a third person (in this case her husband), without making provision in her-will for an after-born child, such after-born child, if it survive the testatrix, by virtue of the provisions-of Sec. 5961, Rev. Stat., will inherit from the mother as her heir at law, as if she died intestate, notwithstanding, that by clear and explicit language in the will, such testatrix undertakes to disinherit such after-born child.”

Nor is tlie case of Krueger v. Krueger, Gdn., supra, helpful, for in that case the estate was left to the surviving spouse, with no mention or provision for any child born before or after making the will. The question presented is stated as follows on page 370 of the opinion:

“The question for determination is whether, subsequently to the making and execution of a will by a parent who has children living, in which will there is no specific provision for an after-born child, the latter may maintain an action in partition for its undivided interest in the real property of the testator, or whether such child is required to take its portion of the estate in money or the equivalent.”

It may be stated without fear of contradiction that no Ohio case controlling upon this court holds that the circumstances found in the instant case present a case of pretermission. What authority there is elsewhere disclosed after an exhaustive search requires the conclusion that by devising a contingent remainder to “my children” the testatrix, Clara W. Dorger, included provision for all her children, whether born before or after making her will and who were living at her death.

The case of Industrial Trust Co., Admr., v. McLaughlin, 44 R. I., 350, 117 A., 428, is most nearly in point. The terms of the will and the necessary facts appear in the following quotation at pages 352 and 353 of the opinion:

“After a certain legacy and certain devises, the testator provided by his will that one third of all the rest, residue and remainder of his estate should go to his wife ‘and the remaining two thirds to my children, the children’s share, however, to be held in trust.’ Before us the parties have discussed as to whether Helen shares in this gift to the testator’s children or whether as to Helen the testator should be held to have died intestate in accordance with the provisions of Section 22, Chapter 254, General Laws, 1909, which is as follows : ‘When a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional and not occasioned by accident or mistake.’
“The complainant avers in the bill that ‘no provision for said minor daughter Helen was made by said will or by codicil thereto.’ The language of the gift of two-thirds of the residue of the estate is not to the testator’s children designated by name, nor does the testator in any other manner restrict the gift to his children alive at the time of making the will. Ordinarily such a gift as one ‘to my children,’ without more, is construed as a gift to a class in the absence of an inteution to be gathered from the will that it is one to individuals. The fact that at the time this will was made Helen was as yet unborn is not a circumstance which alone would indicate an intention to restrict the right to share in the residue to the testator’s three children then alive. A will speaks and takes effect as if executed immediately before the death of the testator. That is the general rule recognized in our cases. Coggeshall v. Rome for Children, 18 R. I., 696; Hazard v. Gushee, 35 R. L, 438; R. I. Hospital Co. v. R. I. Homeopathic Rospital, 87 Atl., 177. Our statute also provides iu Section 6, Chapter 254, General Laws, 1909, that every will shall be construed with reference to the real and personal estate comprised in it to take effect from the death of the testator unless a contrary intention appears in the will. The gift to the testator’s children of a share in the residue of his estate, being immediately operative upon his death, the members of the class who come within the designation of ‘my children’ are to be ascertained at that time, and the class includes all of the four children of the testator who survived him.”

To much the same effect is Osborn v. Jefferson National Bank of Steubenville, 116 Ill., 130, 4 N. E., 791, in which the following paragraphs of the syllabus appear :

“1. Will — subsequent birth of child — effect thereof on the provisions in the will. Section 10 of the act in relation to descents, in which the rights of a child horn to a testator after he has made a will, are prescribed, applies only to children for whom no provision is made by the will, and as to whom it does not appear by the will that they were intentionally disinherited.
“2. Same — what will amount to making provision for an after-born child. A married woman in 1873 made her will, by which she devised to her husband, and his heirs and assigns, all her estate, provided he should survive her, but in case he should not survive her, and she should die leaving children, then to her child or children, etc. In 1880 she died, leaving her husband surviving, and three children, all born after the date of the will: Held, that the testatrix, by the will, had made provision for her children, within the meaning of section 10 of the act relating to descents, although depending upon a contingency.”

It is not overlooked that that case is contrary to the case of German Mutual Ins. Co. v. Lushey, supra, in sustaining disinheritance. This does not destroy the value of the decision as a supporting authority for the conclusion that a contingent provision for the children of a testatrix is provision for all her children living at her death.

The case of Weiland v. Muntz, 2 C. C. (N. S.), 71, 15 C. D., 185, has some bearing upon the question. However, in that case it will be noted that the testator specifically mentioned living children in his will, although an additional contingent remainder would include by class designation the unnamed after-born child. In the opinion it is stated at page 72:

“By his will the decedent devised one tract of land in Wood county, Ohio, to eight of his children, naming them, and devised this lot and part of a lot in controversy to five other of his children, naming them. This still left undisposed of a fifty-acre tract of land in Wood county, constituting the homestead, with respect to which his will contains a provision that his wife — who afterwards became his widow — should have an estate for life therein, and that the remainder should go to his children generally, without naming them. It is needless to repeat that the name of the after-born child did not appear in the will. The undevised thirty-nine acre tract was acquired by the testator after the execution of his will.”

No sole general designation involved in the instant action is there found. The testator, more than once specifically designated shares in his estate to be taken by his children naming them, and it is apparent that the unborn child’s interest in the homestead by reversion was accidental as far as the intention- of the testator was concerned.

The case of Ward v. Ward, 120 Ill., 111, 11 N. E., 336, relied upon also by the court in the Weiland case, was one in which the children of the testator were specifically mentioned in his will, and the real question, as in the Weiland case, was what share in the estate the prel termitted child should take.

Recognizing that no two wills are alike, that the circumstances surrounding the creation and administration of testate estates are unlike, and that statutes of the several states providing for the rights of pretermitted children vary, we note' the' following cases as indicating the views of courts upon the general subject.

Reference is first made to 26 Corpus Juris Secundum, 1050, note 46; 43 L. R. A., 1195, 1201.

“1. In applying the statute (Decedent Estate Law, Section 26) which makes provision for a child born after the making of a last will, it is settled law that mention of after-born children as a class and in terms broad enough to.include a specific child is, in this respect, a sufficient compliance with the statute, and further that this mention may be made in the form of a provision for them.
“2. A testatrix, having no children at the time of making her will, devised her real property to her husband for and during his life, and on his death to her issue surviving her said husband, and provided further that if there should be no issue of testatrix or descendants of such issue surviving her said husband at the time of his death, then and in that event the property should go to certain designated cousins. After the execution of said will two children were born to testatrix, a daughter and a son. She died leaving both the children her surviving but the son died, an infant, soon after his mother, intestate. The husband of testatrix died about two years later leaving him surviving the daughter by testatrix and a son by a second wife. After the death of the husband of testatrix, her said daughter died unmarried and intestate, leaving her surviving her half-brother, the son of her father by his second marriage. Held, that there was in the will of said testatrix no such failure to mention or provide for after-born children as entitled her infant son to inherit an interest in the real estate in question, as though no will had been made, and which by inheritance might pass to his surviving sister, and through her to her half-brother.” McLean v. McLean, 207 N. Y., 365, 101 N. E., 178.
“After-born child is mentioned within statute providing that after-born children who are neither mentioned nor provided for in will should share in estate, where testator makes some reference to a class in terms broad enough to include such after-born child, even though mention may be made in form of a provision of little or no practical value for such a class. (Decedent Estate Law, Section 26).” In Re Dooling’s Will, 285 N. Y. Supp., -603, paragraph four of the syllabus.
“A devises land to his son B. for term of his life, and ‘that after his decease the premises should be equally divided among and between his sons, to be their property.’ — When the will was made, B. had three sons living, after which, and before the testator’s death, he had two other sons. This was held to be a vested remainder in the five sons of B.” Dingley v. Dingley, 5 Mass., 535, syllabus.
“Devise of ‘all the remainder of my estate, both real and personal, to my daughter S. A. and the children of her body, including all my wife has the improvement of during her life after her decease.’ S'. A. had three children when the will was made, and a fourth was born afterwards, all of whom survived the testator, and two more ‘were born after his decease, which happened in 1781. Held, that S. A. and her four children living at the time of the testator’s death, took an estate together in fee simple in the real property — in the part in which the widow had a life estate, a vested remainder which opened to let in the two afterborn children, and in the rest a qualified fee so limited as to admit their claims by way of executory devise; and that no right by survivorship having accrued before the passing of St. 1785, c. 62, Sec. 4, respecting joint-tenancies, the devisees from that time held as tenants in common.” Annable v. Patch, 20 Mass., 360, syllabus.
“A provision however inadequate, will exclude a child from the benefit of this act.
“Where there is a gift in a will to a class of persons, as to children, courts are always anxious to effectuate the intention of the testator, by including in it as many persons, answering the description, as possible.
“When legacies are given to children, payable or to be divided at some period subsequent to the testator’s death, then those persons, whether born before or after the making of the will or before or after the death of the testator, who come into being before the period of division etc. and answer the description at that time, are entitled.” Meares v. Meares’s Exrs., 26 N. C. (IV Iredell’s), 192, syllabus.
“A will which directs that the estate shall be distributed among all of testator’s children, and thus includes after-born children in its provisions, is not void as to children born after the execution of the will. It is only a will making no present provision for after-born children which the Act of April 8, 1833, Section 15, makes void as to such children.” Leyrer’s Estate, 17 Pa. County Ct. Reports, 132, syllabus.

In view of the circumstances here presented, there being no controlling Ohio authority to the contrary, it must be concluded that by the terms of the will of Clara W. Dorger all her children were provided for, and that Section 10563, General Code, is not applicable to give her cross-petitioning children an intestate share in the perpetual leasehold as a part of her estate.

Certainly, the Legislature did not intend by the enactment of Section 10563, General Code, to impose a penalty on children born before the execution of a will. It is manifest that the intention was merely to save after-born children from the results of pretermission. If there is no pretermission, forgetfulness or oversight, then the statute has no application. The position of the cross-petitioners is to first create a pretermission, which does not exist, by refusing the plain inference of a general class designation, and then prefer the after-born children to the rights of those preborn.

If the words used in the will are sufficient to include all children, both pre-born and after-born, why strain the simple language in order to secure such preferment. To do so is to write into the will additional words not therein found. The testatrix did not say in her will “my children now living.” She did not name any of them. She lived for many years after executing the will and after the birth of the the cross-petitioning children. Can it be supposed that she did not believe and intend.that the language she had used, being all inclusive in its character, was sufficiently broad to cover such after-born children, and that it was not necessary for her to draw a new will in order to prevent a preference for one group by virtue of the law, which she most certainly would not desire. It must be remembered also in this connection that her husband was a lawyer and it may be justly inferred that he knew the effect of the language used and desired no such unequal and unjust preference to accrue to the after-born children.

Applying the recognized rules of construction to the will that the members of the class are determined as of the date of the death of the testatrix, the words used are as effective as if she had said “all my children living at the time of my death.” The testatrix knew at all times until her death that her will spoke as of her death.

For these reasons, the prayer of the plaintiff will be granted, and that of the cross-petitioners denied.

A decree may be entered accordingly.

Decree accordingly.

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


source: Caselaw Access Project

author: Guernsey, P. J.

license: Public Domain

text:
    R. F. Roof, Ltd., Appellee, v. Sommers et al., Appellants.
    (No. 348
    Decided February 16, 1944.)

      Mr. J. J. Labadie, for appellee.

      Mr. Claude L. Reciter, for appellant Ray Walter Sommers.

      Mr. Thomas J. Herbert, attorney general, and Mr. John M. Woy, for appellant Unemployment Compensation Board of Review.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Putnam county, Ohio.

The case arose from a claim for benefits filed by Ray Walter Sommers with the Bureau of Unemployment Compensation of Ohio. Sommers claimed to be an employee of R. F. Roof, Limited, a partnership association, appellee. The administrator of the bureau, in the first instance denied this claim for benefits, on the ground that Sommers was a partner and not an employee. Sommers, under the law, appealed to the board of review of the above bureau. The board of review then referred the matter to one of its referees to hold a hearing, and such hearing was held on or about July 16, 1942, at Ottawa, Ohio, before Referee Ray C. Odenweller. Under date of August 12,1942, the referee reversed the administrator and allowed the claim for benefits.

R. F. Roof, Limited, took an appeal to the board and on September 9, 1942, the board denied further appeal which in effect made the referee’s decision the final decision of the board. R. F. Roof, Limited, then appealed. from this decision to the Common Pleas Court of Putnam county.

The case was tried in such court on the. transcript filed by the board of review, and upon the arguments and briefs of counsel. On July 6, 1943, the Common Pleas Court entered judgment reversing the decision of the board, and denied payment of benefits to Sommers. The claimant, Sommers, and the board of review, which had been made a party defendant in the case in the Common Pleas Court, perfected this appeal from such judgment.

Sommers began working for one R. F. Roof in March 1928, as a candler in a poultry and egg establishment at G-landorf, Ohio, at $22 a week and worked continuously in such capacity until about the end of December 1941.

The unemployment compensation law became effective on December 17, 1936.

In January 1937, Sommers was approached by Roof and was requested to join a partnership arrangement with other employees of the establishment-and Roof, for the operation of sneh establishment, which he did. The partnership was a “partnership association” organized under the provisions of Sections 8059 to 8078 of the General Code. Sommers continued to work at the establishment for the partnership association until the dissolution of the association in December 1941, the compensation received by him being advanced to $24 per week at the end of the year 1937.

During the year 1941, the Bureau of Unemployment Compensation had held that the partnership association was liable to pay contributions under the unemployment compensation law on amounts which it paid its members for services rendered to the association.

• This partnership association was dissolved as of December 31, 1941. Effective January 1942, a general partnership was entered into by this same group, and claimant, not wishing to join the general partnership, refused to do so and lost his employment, and, on January 13, 1942, filed his claim for benefits.

The benefits allowed to Sommers through action of the board of review of the Bureau of Unemployment Compensation denying the appeal of R. F. Roof, Limited, were properly allowable if Sommers had been as a matter of fact an employee of R. F. Roof, Limited, a partnership association, during the period of the existence of such' association.

The appellants assign errors in a number of particulars all of which are to the effect that the judgment of the Court of Common Pleas is contrary to law.

Under these assignments appellants claim that Sommers had rendered services to R. F. Roof, Limited, a partnership association, for remuneration; that such services, within the purview of the unemployment compensation law, were those of an employee of the association; and that under the undisputed facts shown by the record Sommers was entitled to benefits in tbe amount allowed by the Bureau of Unemployment Compensation when he became unemployed in January 1942.

R. F. Roof, Limited, on the other hand, contends that as it was a partnership association and Sommers was a member thereof, it was not an employer subject to the unemployment compensation law and therefore Sommers was not entitled to benefits.

The following provisions of the G-eneral Code (118 Ohio Laws, 721) were part of the act relating to unemployment compensation and are pertinent to the matter at issue:

Section 1345-1. “* * *

“b.(l) ‘Employer’ means any individual or type of organization including any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign * * * (which) has, or subsequent to December 31, 1936, had in employment three or more individuals at any one time within the current calendar year * * *
“c. ‘Employment’ means service, including service performed in interstate commerce, performed for remuneration under any contract of hire, written or oral, express or implied. The term ‘employment’ shall include an individual’s entire service performed within or both within and without the state [this definition of “employment” had been in effect since August 1937.] * * *
“e. ‘Wages’ means remuneration payable to an employee by each of his employers with respect, to employment during any calendar year * * *
“f..‘Remuneration’ means all compensation payable for personal services, including commissions and bonuses and the cash value of all compensation payable in any medium other than cash. * * * ”

These definitions are quoted from the law existing prior to the 1941 amendment.

Sommers was clearly an employee of - R. F. Roof, Limited, a partnership association, within the purview of the foregoing statutory provisions unless the fact that he was a member of the partnership association during the period of the rendition of services by him precluded him from having the status of an employee of such association.

Tu the case of Goldberg v. Industrial Commission, 131 Ohio St., 399, 3 N. E. (2d), 364, it was held that employee-members of an ordinary partnership are not embraced within the terms “workmen” and “employees,” as used in Section 35 of Article II of the Constitution of Ohio relating to workmen’s compensation. That holding was based on the reasoning that a member of an ordinary partnership when engaged in carrying on the business activities of the partnership is working for himself and in his own interest and for this reason does not have the status of an employee of the partnership.

If a partnership association such as R. F. Roof, Limited, organized pursuant to the provisions of Sections 8059 to 8078, G-eneral Code, has the legal attributes of an ordinary partnership, that holding and the reasoning upon which it was based are applicable to the relationship which existed between Sommers and R. F. Roof, Limited, and Sommers, as a matter of law, was not an employee of the partnership association. On the other hand, if such a partnership association, does not have the legal attributes of an ordinary partnership, that holding and the reasoning upon which it was based are inapplicable to the relationship which existed between R. F. Roof, Limited, and Sommers.

. This being the case, it is necessary to determine whether a partnership association, such as R. F. Roof, Limited, organized under the provisions of Sections 8059 to 8078, General Code, lias the legal attributes of an ordinary partnership.

An examination of the provisions of those sections discloses that a partnership association may be organized by three or not more than twenty-five persons, and the interests of the individual members'of such association are personal property and may be transferred under rules and regulations adopted by the association. There is no liability' against the members of the association, over and above the amounts of their respective unpaid subscriptions. A member of such an association may transfer his interest. The death of a member or the transfer of an interest of a member does not terminate the existence of the partnership association or affect the conduct of its business. The association must hold at least one meeting a year at which not less than three nor more than five managers must be elected, one of whom shall be chairman, one treasurer, and one secretary, who hold their respective offices for one year. The association is authorized to sue and be sued in its association name and summons for the association may be served on the chairman, secretary or treasurer. Conveyances by the association may be acknowledged by the chairman and secretary. A majority of the managers of the association determine upon a division of profits.

As the business of such association is conducted by managers, a person in his capacity as member has nothing to do with the management of the business of the association and has no authority in such capacity to act for the association or the members thereof, or to render, or to employ anyone else to perform, services for the association.

From a consideration of those provisions it will be noted that the legal attributes of a partnership association of this character differ from those of an ordinary partnership, in the following particulars:

1. The interest of an individual member of the asso- - ciation is personal property and may be transferred under rules and regulations adopted by the association.

2. The death of a member or the transfer of the interest of a member does not terminate the existence of the partnership association or affect the conduct of its business.

3. The business affairs of the association are managed by not more than five nor less than three members elected for that purpose, a majority of whom determine upon a division of the profits.

4. The'association may sue, be sued and make conveyances as a legal entity.

5. A person in his capacity as a member has nothing to do with the management of the business of the association and has no authority to act for the association or the members thereof, or to render, or employ anyone else to render, services for the association.

6. The legal attributes of a partnership association are such that it is a legal entity separate and apart from the members composing the same.

The legal attributes of a partnership association organized under the sections above mentioned being so dissimilar to the legal attributes of an ordinary partnership, as above noted, the holding in the case above mentioned and the reasoning upon which it was based are inapplicable to the relationship existing between such an association and its members.

As R. F.Roof, Limited, a partnership association, was a legal entity and the claimant, Sommers, when engaged in carrying on the business activities of the association was not working for himself or in his own interest but for the association and in its interest, he was an employee of the association, within the purview of Section 1345-1 et seq. of the General Code, relating to unemployment compensation and is entitled to unemployment compensation as ordered by the Bureau of Unemployment Compensation.

For the reasons mentioned, the judgment of the Common Pleas Court is reversed; and this court rendering the judgment the Common Pleas Court should have rendered, affirms the decision of the Unemployment Compensation Board of Review appealed from, at the costs of R. F. Roof, Limited.

Judgment reversed.

Jackson and Middleton, JJ., concur.


author: Middleton, J.

text:
    In re Estate of Hedges: Bosley, Admr., Appellant, v. Lawrence et al., Appellees.
    (No. 964
    Decided December 9, 1943.)

      Messrs. Mouser & Mouser, for appellant.

      Mr. Howard F. Guthery and Mr. Russell C. Price, for appellees.
   Middleton, J.

This is an appeal on questions of law from a judgment of the Probate Court of Marion county, Ohio, sustaining exceptions of Perry E. Lawrence and Ann Lawrence to the schedule of debts filed by George W. Bosley as administrator of the estate of Thomas Hedges.

Thomas Hedges died May 5,1939, and on August 15, 1939, George W. Bosley was appointed administrator of his estate. Within four months thereafter, on November 14, 1939, Perry E. Lawrence presented a claim to the administrator, which was rejected on November 27, 1939. The claim was one for the recovery of expenditures made for repairs by P. E. and Ann Lawrence as remaindermen, and made necessary by waste suffered or committed by Thomas Hedges, the life tenant. The claim also set forth the payment of taxes by the remaindermen which it is alleged should have been paid by the life tenant. Thereafter, on January 10, 1940, the administrator prepared and filed a schedule of debts which included the claim of Perry E. Lawrence and listed it as rejected. Thereafter, to wit, on January 24, 1940, Perry E. Lawrence and Ann Lawrence filed exceptions to the schedule of debts. Due notice of the filing of the schedule of debts, the filing of the exceptions to the schedule, and of the hearing thereon was given to all interested parties.

Upon the hearing, the court made the following findings :

‘ ‘ This cause came on and was heard upon the schedule of debts and claims heretofore filed herein, the exceptions of Perry E. Lawrence and Ann Lawrence to said schedule of debts and the action of the administrator in rejection of their claim, the motion of George Bosley as administrator to make the exceptions more definite and certain, the amended exceptions, and the evidence.
“And the court find that notice of the filing of the said schedule of debts, and of the'exceptions thereto, and of the hearing thereon were duly given to all interested parties as required by law.
“The court further find from the evidence that the exceptions to said schedule of debts are well.taken, and that the claim of Perry E; Lawrence and Ann Lawrence against the estate of Thomas Hedges should be allowed as a valid claim against the estate of Thomas Hedges, deceased, in the amount of $324.51, with interest on $251.92 from November 7, 1939, and with interest on $72.59 from March 31, 1940, at 6% perannum.
“It is therefore ordered that the said claim of Perry E. Lawrence and Ann Lawrence against the estate of Thomas Hedges, deceased, be and the same is hereby allowed as a valid claim against said estate in the amount of $324.51 with interest on $251.92 from November 7,1939, and with interest on $72.59 from March 31, 1940, at 6% per annum, and that the said Perry E. Lawrence and Ann Lawrence recover from George Bosley as administrator of the estate of Thomas Hedges, deceased, the sum of $324.51 with interest on $251.92 from November 7, 1939, and with interest on $72.59 from March 31, 1940.
“It is further ordered that said schedule of debts and the action of the fiduciary in allowing claims listed therein be otherwise allowed and confirmed.”

Motion for new trial was filed and overruled.

It is urged by the appellant that the Probate Court did not have jurisdiction to allow the claim on exceptions to the schedule of debts; that upon the rejection of the claim by the administrator the appellees were required to bring suit thereon in the Court of Common Pleas within sixty days from the date of the rejection of the claim. •

This assignment of error involves a consideration of the provisions of Sections 10509-119 and 10509-133, General Code, as effective September 2,1935.

Section 10509-119, effective at the time (116 Ohio Laws, 398), was as follows:

“Upon the filing of the schedule of debts the court shall forthwith set a day, not later than one month after the day such schedule of debts was filed nor prior to one week from the day of publication of notice for hearing thereon. One week’s notice of the hearing shall be given by publication thereof in a newspaper of general circulation in the county. If more than one schedule is specified in such notice the costs must be paid in equal proportions by the respective estates. In addition to the notice by publication, ten days’ notice of the hearing shall be given to all creditors whose claims are shown on the schedule to have been rejected in whole or in part by the executor or administrator.
“For good cause the hearing may be continued for such time as the court deems reasonable. Exceptions to the schedule of debts may be filed at any time prior to five days before the date set for the hearing or the date to which such hearing has been continued as provided herein by any person interested in the estate. When exceptions are filed, notice of the filing thereof and the day when the same will be heard must forthwith be given to the executor or administrator and to his attorney, and to the claimant or claimants whose claims are in question and their attorneys, by registered mail or personal service, unless such notice is waived. At the hearing the executor or administrator and any witness may be examined under oath. The court shall have power to affirm, modify or reverse the action of the executor or administrator as to any item contained in the schedule of debts, excepting action on claims on which suit has already been brought, or which have been referred to referees, or which have been disallowed by requisition; and may dispose of any other matters properly raised by exceptions without the intervention of a jury.
“Subject to the right of review, and to be opened up for fraud, collusion or mistake, the finding and order of the court shall be final as between parties who have filed exceptions or otherwise voluntarily entered their appearance.”

Section 10509-133, General Code (116 Ohio Laws, 400), provided as follows:

“When a claim against the estate of a deceased person has been presented to the executor or administrator, and has been rejected by him in whole or in part, but not referred to- referees, or if a, claim has been allowed by the executor or administrator in whole or in part and thereafter rejected or further reduced by the court, the claimant or person deriving title from him, must commence an action thereon within two months after receipt of actual notice of such rejection or reduction, if the debt or any part of it be then due, .or within two months after some part of it becomes due, or be forever barred from maintaining an action thereon; except that, in the event of the death, resignation or removal of such executor or administrator, within such two months’ period and before action is commenced thereon, the action may be commenced within two months after the appointment of a successor; and provided that no claimant shall be permitted to bring an independent action on his claim after it has been heard and decided on the merits on exceptions to the schedule of debts filed by him.
“For the purposes of this section the action of a claimant shall be deemed to have been commenced when the petition and praecipe for service of summons on the executor or administrator have been duly filed. ’ ’

Express authority was thus conferred by Section 10509-119, General Code; upon the Probate Court to affirm, modify or reverse the action of the executor or administrator as to any items contained in the schedule of debts, except as to claims on which suit has been brought or which have been referred to referees or which have been disallowed by requisition; and the court may dispose of any other matters properly raised by exceptions, without the intervention of a jury.

The claim filed by Perry E. Lawrence does not come within any of the exceptions mentioned in Section 10509-119, General Code, which would preclude consideration by the Probate Court. No suit had been brought upon the claim; it had not been referred to a referee; and it had not been disallowed upon requisition. Therefore as the claim did not fall within any of the excepted classes the Probate Court had jurisdiction to hear and finally determine without the intervention of a jury. In Matter of Estate of Beabout, 136 Ohio St., 412, 26 N. E. (2d), 211; In Matter of Estate of Blue, 67 Ohio App., 37, 32 N. E. (2d), 499.

It is claimed, however, by the appellant that Section 10509-133, General Code, required claimant to file suit in the Court of Common Pleas within two months after the claim was rejected by the administrator.

Upon the rejection of his claim, Lawrence could have proceeded under the above section and commenced an action in the Court of Common Pleas within two months from the date of the rejection of the claim. However, this procedure is not exclusive. He also had the right to avail himself of the provisions of Section 10509-119, General Code, and except to the schedule of debts; he had the right to elect either to proceed under Section 10509-133, General Code, or to proceed under Section 10509-119, General Code. He elected to proceed under Section 10509-119, General Code, and to -file exceptions to the schedule of debts, and having invoked this right, the Probate Court had jurisdiction to hear and finally determine the matter, subject to the right of review of such judgment.

This court finds that the Probate Court had jurisdiction to hear and determine all questions raised by the exceptions, and the holding of the court below on this point is sustained.

The only remaining assignment of error goes to the sufficiency or weight of the evidence.

As hereinbefore stated, the claim filed included expenditures made for repairs by Perry E. Lawrence and Ann Lawrence as remaindermen and made necessary by reason of waste suffered or committed by Thomas Hedges, the life tenant.

As disclosed by the bill of exceptions, evidence was received of expenditures made by the remaindermen for repairs, some of which may have been necessary by reason of waste committed by the life tenant and some of which clearly were not made by reason of waste committed by the life tenant, and there is no evidence proving which part of such expenditures were made necessary by waste and which were for improvements.

The bill of exceptions discloses that no evidence was offered as to the date of the death of the testator, Louise Taylor Hedges, nor the date Thomas Hedges, the life tenant, took possession of the property. The record is also silent as to the condition of the property at the time the life tenant took possession thereof.

Evidence was introduced to prove the condition of the premises at the date of .the death of the life tenant. Without evidence of the condition of the property at the time the life tenant took possession, the court was not in a position to determine the extent of waste, if any, committed by the life tenant.

Thomas Hedges, as life tenant, was liable to the remaindermen for taxes not paid by him and which were a lien upon the premises during his life tenancy, so that the amount of such taxes was properly allowable to the remaindermen on their exceptions to the schedtile of debts. Foulks, Exr., v. Talbott, Exr., 74 Ohio App., 281, 58 N. E. (2d), 790.

As shown by the exceptions and judgment entry, the amount of unpaid taxes for which judgment was awarded, was $72.59 with interest at 6% per annum, from March 31, 1940.

All of the judgment in excess of the above amount is for waste and is erroneous in that it is against the weight of the evidence, the evidence as to waste being-such, as hereinbefore noted, that it is impossible to determine the amount of the expenditures, if any, made necessary thereby.

This error may be cured by remittitur of all that part of the judgment in excess of $72.59 with interest from March 31, 1940. If the appellee, within ten days after the announcement of this decision, files his written consent herein to remit all that part of the judgment in excess of the amount mentioned, the judgment will be modified accordingly and affirmed at costs of appellant. But if the appellee does not file his written consent to such remittitur within the time above limited, the judgment, for the error mentioned, will be reversed at the costs of appellee and the cause remanded to the Probate Court for a new trial and further proceedings according to law.

Judgment accordingly.

Guernsey, P. J., and Jackson, J., concur.


author: Putnam, J.

text:
    The Canton Malleable Iron Co., Appellee, v. Green ; Board of Review, Bureau of Unemployment Compensation, Appellant.
    (No. 2162
    Decided September 28, 1944.)

      Mr. Walter J. Mackey, for appellee.

      Mr. Thomas J. Herbert, attorney general, and Mr. John M. Woy, for appellant.
   Putnam, J.

This is an appeal on questions of law from the judgment of the Court of Common Pleas reversing the judgment of the Board of Review of the Bureau of Unemployment Compensation, allowing benefits to one Charles R. Green, an employee of The Canton Malleable Iron Company, appellee herein. Appellant claims that the judgment of the Common Pleas Court is erroneous and contrary to law.

The facts of the case as shown by the record are undisputed and are as follows:

Charles R. Green was employed by the Superior Sheet Steel Company on July 10, 1941, and quit work there on September 11, 1941. On the same date he was employed by the appellee, The Canton Malleable Iron Company, as a chipper. He worked there until December 5, 1941, when he voluntarily quit his job, without giving any notice. On April 6, 1942, he filed a claim for benefits in which he stated he was laid off for lack of work. On April 28, 1942, an initial determination of the claim was made and upon reconsideration on May 22, was adhered to. The matter was then referred to a referee pursuant to law, who on December 3, 1942, upheld the. original determination. On January 7,1943, the board of review declined a further appeal to it and an appeal was taken to the Common Pleas Court by appellee herein. The Common Pleas Court reversed the decision of the board of review, holding that same was unlawful, unreasonable and against the manifest weight of the evidence.

On April 29, 1942, as shown by exhibit A herein, the appellee sent Green the following letter to his last known address:

“Mr. Charles Robert Green,
520 17th Street S. E.,
Canton, Ohio.
“Charles Robert Green SS No. [ XXX-XX-XXXX ]
“Dear Sir:
“Our records show that you voluntarily quit without just cause your employment with The Canton Malleable Iron Company on December 5, 1941.
“This is to advise you that a job is available to you and can be secured by your prompt return to it. You" will have the same wages, hours, and working conditions you formerly enjoyed.
“You may consider this a formal offer of work in your usual occupation in which we will reemploy you if you will notify us immediately.
“Yours very truly,
“The Canton Malleable Iron Company.
“CTD :jem
“cc: Canton Unemployment office
“cc: Cambridge ”
'“cc: Mr. Mackey.”

On May 18, 1942, Green came back to work and worked until May 29th, when he again quit without notice. Thereafter benefits were paid him and charged to the account of appellee. At none of the hearings above mentioned did Green appear or present any testimony. The employer produced testimony that had Green returned to work at any time after May 29th, he could have continued his usual work.

The referee’s decision was as follows:

“The administrator’s decision upon reconsideration dated May 22, 1942, is hereby affirmed. The claim is allowed. Benefit year begins April 5,1942. Weekly benefit amount $11. Waiting period 5 weeks. Potential maximum benefits payable during benefit year 12 times weekly benefit amount.”

It is to be noted that in making this award the claimant Green was penalized by virtue of Section 1345-6, subsections b and c, General Code, by having his waiting period extended from 2 to 5 weeks and his maximum benefit weeks reduced from 18 to 12 weeks.

The appellant states in substance in its brief and contends that, while both the bureau and board of review found that the claimant “had voluntarily quit his work without just cause,” the only penalty in the law therefor is the one authorized under Section 1345-6, subsections b and c, General Code, and that our law definitely does not provide that an employee quitting under such circumstances shall be denied benefits.

The provisions of the law applicable hereto, appearing in Section 1345-6, General Code (119 Ohio Laws, 836, 837), are as follows:

“a. No individual shall be entitled to any benefits unless he or she * * *
“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonable fitted; and
“(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted Including employments not subject to this act.
“b. * * * An individual who has been discharged for just cause in connection with his work or who has voluntarily quit his work without just cause and thereafter is unable to secure other employment, shall have a waiting period of three additional weeks during which no benefits shall be payable. * * *
“c. An individual’s maximum weeks of benefits per year shall be reduced by six weeks in the event his unemployment results from discharge for just cause in connection with his work, or from voluntarily quitting his work without just cause in connection with such work.
“d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting-period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual: ■* * *
“(2) has refused to accept an offer of work for which he is reasonably fitted.”

These provisions of the law must, of course, all be construed together. The interpretation placed upon these statutory provisions by the appellant is shown by the following language used by the referee as the basis of his decision:

“Claimant left his employment without just cause in connection therewith and accordingly his .waiting-period was extended and benefits reduced. He accepted the offer of work made him and again voluntarily quit this employment. No reason has been advanced for claimant’s subsequent separation. While it is apparent claimant left his employment voluntarily without giving any reason which would amount to just cause for the action taken by him, yet the law provides for this type of quitting by extension of waiting- period and reduction of benefits payable.
“There is no evidence that claimant was offered work after May 29, 1942. Even though claimant left his subsequent employment without just cause, there is no evidence which tends to show that claimant was informed that he was able to secure work in his usual trade or occupation or any other work for which he was reasonably fitted. The claimant having left the employment voluntarily for the second time without giving the employer notice, would not know or be led to believe that work would be available for him. The law apparently differentiates between voluntary quitting without just cause and inability to obtain work in his usual trade or occupation, and to hold that a claimant was able to obtain work when no showing was made of an offer of reemployment, would tend to nullify the provisions and conditions of the statute which provides for the benefits to which a claimant may be entitled for leaving his work voluntarily without just cause in connection therewith.”

With this reasoning we do not agree.

It is to be noted that Section 1345-6, subsection b, second paragraph, and subsection c, General Code, providing for the penalty when one voluntarily quits his work without just cause, is limited by the phrase “and thereafter is unable to secure other employment.” If he is unable to secure other employment he may be paid after and in accordance with penalty, but if he is able to secure employment there is no provision for any payment, because Section 1345-6, subsection a, (4), and (5), General Code, distinctly says that no individual shall be entitled to any benefits unless he is able to work and is unable to obtain work.

Subsection d, (1) and (2), is an additional limitation on subsection a and certainly limits the discretion of the bureau in declaring claimant eligible for benefits with penalties under subsections b and c.

In either casé, if he is able to find work or refuses to accept an offer of work for which he is reasonably fitted, he is ineligible for benefits. It certainly does not follow that to be ineligible he must have refused an offer of work. He must also be unable to find work.

The law does not contemplate that the job must seek out the man and coax him to come to work. It presupposes some effort on the part of the employee to secure work. Nor does the law contemplate the granting of benefits to an employee who refuses to work at his regular job, when that job is open to him.

When one quits his regular job or employment in the absence of a showing to the contrary the presumption must be that same is still open to him. In the instant case the presumption is fortified by the fact that having once quit his job on December 5th, he was again re-employed on May 18th, after he presented himself in response to the letter of April 29th from the company, stating that his job was open to him. It is true that after he again quit on May 29th no further letter was sent him that his job was open, nor in our opinion was that necessary, because the presumption would be that it was. While he could not be deprived of benefits because he had refused an offer of work, as provided in subsection d (2), certainly the burden of proof would be upon him to show under subsection a, (4) and (5), that he was unable to obtain work. As before stated, claimant not only failed to appear at any of the hearings, but no testimony was submitted in his behalf to show his inability to obtain work.

The claimant was clearly ineligible for benefits and the Common Pleas Court did not err in its judgment. The same must be and is affirmed.

Judgment affirmed.

Montgomery, P. J., and Sherick, J., concur.


author: Hildebrant, P. J.

text:
    Schaefer, Exr., et al., Appellants, v. Department of Taxation, Appellee.
    (No. 6488
    Decided June 4, 1945.)

      Mr. Charles H. Stephens, Jr., for appellants.

      Mr. Parker L. Snyder and Mr. Joseph P. Ford, for appellee.
   Hildebrant, P. J.

The Probate Court of Hamilton county included in the taxable estate of decedent all but one of six inter vivos gifts of common stock of The Lunkenheimer Company, made over a period of years between 1920 and 1935 to decedent’s only son, and assessed the Ohio inheritance tax on the transfer thereof, as having been made in contemplation of death within the meaning of the Ohio statutes.

The appeal is on questions of law.

The Department of Taxation offered the following in evidence at the hearing on the exceptions filed in the Probate Court :

(1) The appraisal proceedings in the Probate Court including the order to appraise, the itemized schedules showing the gifts involved, and the report and recapitulation thereof.

(2) Exceptions to determination of inheritance tax filed on behalf of the executor and individually by the only son.

(3) Journal entry determining tax after auditor’s appraisal.

(4) Application and itemized statement of assets and liabilities to be filed for determination of inheritance tax, listing the gifts involved and making the contention that none was subject to tax.

(5) Last will and testament of Ella L. Schaefer, dated. August 13, 1942.

The state then rested and no motion of any kind on behalf of exceptor was filed.

The exceptor himself testified and called as witnesses a niece of decedent, a friend of decedent, and the woman who had been housekeeper for decedent for over a period of thirty-five years, who testified as to facts and circumstances relevant here.

Pertinent data as to the gifts is as follows:

Date of Transfer

Age of Donor

No. of shares

Equiv. in pres. shares

Age of Donee

Monetary-Value

Ages of Children

5-27-1920 62 105 2100 38 $ 44,100 4 to 9

12-31-1924 66 500 2000 42 42.000 8 to 13

12-31-1925 67 500 2000 43 42.000 9 to 14

12-18-1930 72 500 500 48 10,500 14 to 19

5-31-1933 75 1620 1620 51 34,020 17 to 22

12-23-1935 77 5000 5000 53 105,000 19 to 24

Ella L. Schaefer died, testate, a resident of Cincinnati, Hamilton county, Ohio, on August 23,1943, at the age of 84 years. It is admitted that the gifts or transfers were without a valuable consideration in money or money’s worth, the shares being common stock in The Lunkenheimer Company.

• Decedent, by her last will and testament, dated August 13, 1942,- devised her home and bequeathed certain personal effects to her son, H. Frederick Schaefer, and bequeathed 50 shares of preferred stock in The Lunkenheimer Company to each of her four grandchildren, and 50 shares of the same stock to her daughter-in-law, Martha W. Schaefer, the wife of the exceptor. Provisions were made for the payment of debts, funeral expenses and inheritance taxes on such bequests. The rest and residue of her estate was devised in trust to the son and The Central Trust Company of Cincinnati, one-half of the income being payable to the son for life and the other half to be paid in equal shares to the four grandchildren. On the death of the son, the trust was to terminate and the principal was to be divided equally among the four grandchildren. A further provision, not important here, was made to take care of distribution in the event any of the grandchildren should die without issue before taking.

At the time of decedent’s death, the appraised gross value of her estate, including the above gifts, amounted to $834,951.39, but excluding the gifts, amounting to $277,620, the gross estate showed a value of $557,-331.39. Debts and other expenses of the estate amounted to $153,651.80, consisting almost entirely of estimated federal estate taxes and costs of administration. The net estate, including the gifts, amounted to $681,-299.59, and, excluding the gifts, to $403,679.59. Based on these figures, the decedent transferred to her son an amount in excess of 33 per cent of her gross estate, or in excess of 40 per cent of her net estate. With reference to the property in the possession and enjoyment of decedent, prior to death, the gifts amount to approximately 33-1/3 per cent thereof.

Section 5332, G-eneral Code, provides:

“A tax is hereby levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases: * * *
“3. When the succession is to property from a resident, or to property within this state from a non-resident, by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:
“(a) In contemplation of the death of the grantor, vendor, assignor, or donor,* * *."

Section 5331, General Code, provides:

“As used in this subdivision of this chapter: * * *
“5. ‘Contemplation of death’ means that expectation of death which actuates the mind of a person on the execution of his will.’"’

The question presented for decision here is whether the Probate Court was correct in finding from the evidence before it that the Department of Taxation had sustained the burden of proving that all but one of the gifts were made in contemplation of death, as defined by the Ohio statute.

Our Supreme Court has said in paragraph four of the syllabus in Tax Commission v. Parker, 117 Ohio St., 215, 158 N. E., 89:

“The controlling fact in determining whether a transferor made the transfer of property in contemplation of death is whether the purpose of the transferor was to distribute or partially distribute his estate, or was simply to do an act of generosity or kindness.”

Again, the Supreme Court, in paragraph three of the syllabus in In re Estate of Robinson, 145 Ohio St., 55, 60 N. E. (2d), 615, stated:

“Whether the transfer of property was a distribution of the transferor’s estate or an act of generosity or kindness is to be determined by all the facts and circumstances existing at the time of the transfer, and if multiple transfers were made, the facts and circumstances existing at the time of each transfer should be separately considered.”

All the gifts in question here were made more than two years prior to the death of donor, so that the burden of proving that the gifts and transfers were in fact made in contemplation of .death rests upon the Department of Taxation. In re Estate of Robinson, supra. It is by application of the statutory definition of the phrase “in contemplation of death” in the light of the decisions in the Parker and Robinson cases that the question as to the taxability of. these inter vivos gifts is to be determined.

Pertinent facts about the donor and the circumstances under which she lived are as follows:

She was a daughter of the founder of The Lunkenheimer Company and lived most of her life in her ancestral home, where she died in 1943, at 84 years of age. She was widowed when her only son was a small boy and he lived with her until his marriage, when his home was established next door to hers, where he and his family, consisting of his wife and four children, continued to reside during donor’s lifetime. Donor was a wealthy woman, whose estate consisted largely of intangibles, included therein being a large block of the preferred as well as the common stock of The Lunkenheimer Company, so that her income was substantially greater than her expenditures. It appears from the record that her primary, all-consuming interest in life centered upon her only son and his family. This natural and instinctive bond was no doubt stimulated and strengthened by the years of widowhood, during which she and her son lived together, followed by the close, daily contacts resulting from his family home being established next door to her own. Donor was active in club affairs in the city, as well as in the artistic and cultural -life therein, attended the symphony concerts, the theatre, and moved in her social circles, upon whose generosity and interest such, phase of human endeavor so largely depends. During the years 1920 to 1935, she was well, active, directed her own household affairs, entertained and visited with her circle of friends and suffered no serious illness at any time. In 1942, a cold developed into pneumonia, which left her with a heart condition, which is the only evidence of illness in the record, and following which she executed her last will dated August 13,1942. There is evidence of a former will executed approximately five years before her death, but no evidence of its contents.

It appears that the donee had an ample estate of his own and during the period 1920 to 1935 his average income was estimated to be around $12,000 per year. For a number of years the donee was a vice president of The Lunkenheimer Company and drew a salary estimated at five or six thousand dollars per year.

About the year 1922, his services as an officer terminated, the record leaving an inference of a change in management incident to bad times for the company. From that time on, he has not been regularly employed as before.

The donee was in daily contact with donor, performing many services connected with the latter’s daily household living. The donor depended on donee to conduct the business of investing, reinvesting and managing her large estate of intangibles through contact with the business and financial world, thus relieving her of much arduous responsibility.

The testimony reflecting on the motive for the gifts was as follows:

“Hans Frederick Schaefer.
“Q. 30. Now coming to the time when these transfers of Lunkenheimer Co. stock were made to you, the first one in May 1920, and so on, what did you know as to your mother’s ideas or reasons for making those transfers, as stated to you? A. Well, she was particularly interested in the grandchildren, and she wanted them to have every advantage. We lived next door, quite a large family, a big house, and she just wanted to see that they were well cared for, and enjoying things.
“Q. 31. How about yourself? A. Well, I probably included myself in there.
“Q. 32. What did yon do for her from time to time, Fred? Well, I tried to take care of, and do all I could for her in taking care of her matters, making investments for her, and things of that sort.
“Q. 33. Did anybody else attend to any of her business affairs? A. Well, I just acted as a go-between, you might say.
“Q. 34. In a personal way, what did you do for her? A. Well, I lived next door, and I would see her almost every day, and I did whatever I could for her.
“Q. 35. Did you take care of seeing people about taking care of the place? A. Yes, but of course, she was able to do that. She was very particular about such things.
“Q. 36. Were the children in and out of the house every day? A. Quite a bit, yes.
“Q. 39. In a general way, how did it happen that you left the employ of the Lunkenheimer Co.? A. Well, it was during a bad period, as I remember it, and they had all sorts of efficiency engineers, and I guess I was fired.
“Q. 40. Did your mother know about that? A. Oh, yes, she knew about it; certainly.
“Q. 41. Did she say anything to you about loss of salary, or anything of that kind? A. I think it was her idea to try to make up for the loss of salary.
“Q. 42. You had been getting from them, prior to that, quite a considerable salary? A. Yes, but I don’t just remember exactly what it was.
“Q. 43. During all those years, and up to the time of your mother’s death, how was her income with reference to her living expenses and her needs? A. Well, it was more than enough.
“Q. 44. Did she ever spend her income? A. Never, No. She was always able to put some aside.
“Q. 45. Do you recall anything further of what she said that she would like to do for you at the time these gifts were made? A. Well, she probably wanted to see that the children were provided for, and probably also wanted to make some remuneration to me for taking care of her affairs.
“Q. 46. You were the only man in the family? A. Well, yes; she had a brother living.
“Q. 47. Just give the court an idea of the extent to which your mother relied on you for help. A. Well, I was the only child, and I lived next door, and I did most of this from about 1916 on.
“Mr. Ford: Did most of what? A. Watching her affairs. If any of her investments had to be sold, or in investing, if she had a surplus in hank, we would invest it. I would get good advice on that and consult her, and then it would be done.
“Q. 48. State whether or not you kept her posted as to what went on in the Lunkenheimer Co.? A. I tried to. Yes.
“By Mr. Ford:
“XQ. 6. None of these gifts were made to any other person? A. None of these, No. There was some gift made, I think, in 1935, to the grandchildren.
“XQ. 7. What was the nature of that gift? A. Well, I don’t just exactly remember; it was stock.
“By Mr. Stephens:
“Q. 49. Those were small, weren’t they? A. Yes.
“Q. 50.1 didn’t know anything about that until after this was filed. That was preferred stock, wasn’t it? A. I think that was preferred stock.
“By Mr. Ford:
“XQ. 8. How many shares? A. Oh, I don’t remember.
“XQ. 16. Now when she gave this first gift in 1920, do yon recall any of the conversations, or any of the circumstances, that led up to that gift? A. Oh, I don’t remember.
“XQ. 31.1 want to ask you as to each of these gifts, and whether you can recall as to the time any of these gifts, and the conversations or circumstances which surrounded them, and as to why they were made? A. They were made because it was necessary; the children had been going to private schools.
“XQ. 32. You mean your children? A.'My children, yes: and then later on, to college, and the expenses were quite high. There were four children, all going to finishing school, or private schools, or college, and practically all at the same time. They were all within just a few years of each other in age, and they were out of town quite a long time.
“By Mr. Stephens:
“Q. 55. Fred, to the best of your memory, when your mother made you these gifts, did she speak of the grandchildren alone, or did she refer to you and to your needs and expenses? A. I think she spoke of all of us, as a group.
“Q. 56. Including yourself? A. Including myself; yes.
“Frances L. Hopple.
“By Mr. Stephens:
“Q. 15. Now what was the nature of her relation with her son and her son’s family? A. Well, she was a most devoted mother. You would think that was all that amounted to in life, was her son and grandchildren, and her own family.
“Q. 16. They lived right next door to one another? A. Yes, they were in and out almost every day from their house.
“Q. 17. Do you know anything about Mrs. Schaefer making her son certain gifts of Lunkenheime-r stock from time to time? A. Well, many years ago, she told me that she wanted to make her son independent, and he was raising a big family and she wanted to do it, and that she was going to give him some of her stock.
“By Mr. Ford:
“XQ. 3. You say many years ago she related to you that she wanted to make her son independent. Do you recall any further conversations at that time, or any further words or statements that were made with respect to what she intended by making him independent? A. No, but other times, I have been down there later than that. Many years ago she said that, and then in between times when I have been down there, she has said at different times, that she wanted to give to her son to make him independent.
“XQ. 6. Did she say at that time, how she intended to make him independent? A. She was transferring some of her Lunkenheimer stock.
“Elizabeth Loewenguth.
‘ ‘ By Mr. Stephens:
“Q. 13. What were Mrs. Schaefer’s relations with that family? A. Oh, she was very fond of them; very fond of her grandchildren.
“Q. 20. Now, Elizabeth, would she sometimes talk to you about her business? A. Yes.
“Q. 21. And about her financial affairs? A. Yes, she did.
“Q. 22. Did she ever mention to you what she did from time to time for her son, Fred? A. Yes, she did, many times.
“Q. 23. What did she say? A: Well, one time she talked about it and she said ‘I am making some gifts to my son; I want him to be independent, and I want him to enjoy it while I am still alive.’ She wanted to see Mm to be happy, and also for his children’s schooling, yon know.
“By Mr. Ford:
“XQ. 2. Did Mrs. Schaefer .consult with you as to these gifts, or would she just tell you in a conversational way after she had made them? A. Yes, she just told me about it, you know. She wanted me to know, because she was very fond of me too, and she told me all of those things.
“XQ. 3. Did she tell you before she made the gifts, or afterwards? A. No, afterwards.
“XQ. 4. She would tell you she made the gifts to her son because she wanted him to enjoy it while she was living? A. Yes, to see him well provided for, and she was happy to do it.”

Do the facts and circumstances existing at the time of each transfer, as set forth above, reveal the purpose of the donor to be to distribute or partially distribute her estate, or to do an act of generosity or kindness ?

Significant in the record here is the testimony that donor expressed her purpose in making the gifts to be, to make her son independent. Motive for giving is limitless and conception of needs of individuals and families may be almost equally broad.

To a woman of donor’s background and situation, independence to the son would include the means for all members of his family to take their place in the life of their home community according to the pattern set by the donor. It included the conception of private schooling and higher education for his children. It is reasonable to infer that donor’s conception of independence also comprehended a position of dignity and respect in the business and financial world for her only son, colored with a particular anxiety to preserve a knowledge of the affairs of and influence the voting power in the family business to herself and donee, as daughter and only grandson of the founder thereof. The gifts of the voting stock would so indicate. Considerations of mounting taxes and changing living conditions would further tend to show need for the gifts to accomplish her goal of independence for her son and explain her choice of capital assets as the subject of the gifts.

Remoteness in time of the gifts to her last will and death is a circumstance pointing away from contemplation of death.

Donor is quoted as saying she wanted her son independent and to enjoy the use of the property while she was still alive, which is in effect saying that she wanted to enjoy seeing him independent. Surely this is a motive connected with life and her own then present enjoyment and contains no thought of the effect of death on her whole estate. We observe here that it must clearly be possible to make substantial gifts inter vivos without contemplation of death. Nor can one give without it, in a way, amounting to a partial distribution of one’s estate should that language be chosen to describe the transaction, but, certainly, it does not of necessity follow that any gift and consequent partial distribution is such a one inhibited by the statutes nor necessarily made to evade the tax.

In the Robinson case, the court stated that the .will was of persuasive effect in fixing the pattern of distribution and coupling the gifts involved thereto, and the same appears to be true in the Parker case. Such is not the case here which provides a clear distinction between those cases and the instant case.

We, therefore, conclude that the facts and circumstances existing at the time of each of the various gifts, as shown by the record, coupled with the testimony as to motive, show that the purpose of the donor Avas in the nature of doing acts of generosity, satisfying her conception of a need of independence for the donee and conferring a favor and expressing appreciation to a dutiful son; hence, the gifts can not be said to be in contemplation of death, and thus do not amount to a partial distribution of donor’s estate. The Department of Taxation has, therefore, failed in sustaining the burden of proof that the transfers were in fact made in contemplation of death, as defined by the Ohio statute.

The judgment of the Probate Court of Hamilton county is, therefore, in excluding the first gift from the taxable estate, sustained, and, in including the five subsequent gifts in the taxable estate, reversed in part, and the cause is remanded to the Probate Court of Hamilton county, with instructions to determine the Ohio inheritance tax in accordance with the law and this opinion.

Judgment accordingly.

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