author: Ross, J.

text:
    Riley, Admr., Appellee, v. Keel et al., Appellants, et al., Appellees.

      (No. 6723
    Decided December 9, 1946.)

      Mr. Alfred T. Fulford, for appellee Thomas A. Riley.

      Mr. Robert F. Dreidame, for appellants Nellie H. Hancock and others.

      Mr. Frank A. Roberts, for appellants Clara Reed and others.

      Mr. Edward Hols, Jr., for appellant Eugene Fischer.

      Mr. Gits W. Byttner, for appellant estate of Anna Reininger, deceased.
   Ross, J.

This is an appeal on questions of law from a judgment of the Probate Court of Hamilton county.

The proceeding as originally presented to the trial court was one to determine heirship. The controversy involved in such initial presentation was fully determined apparently to the satisfaction of all parties concerned, as no question in reference thereto is here presented by the appeal.

The matter as presented on this appeal concerns certain findings and adjudications of the trial court with reference to the relation of the identical assets which became the property of decedent by devise from her deceased husband and other assets which she acquired otherwise.

The assignments of error involve three conclusions-of the trial court upon such relation.

The first deals with the distribution of certain building association certificates which were adjudged to be included in the “separate” estate of the decedent, as distinguished from assets held to be “identical” with assets devised by the deceased husband of decedent to her, and were held not to have descended under the provisions of Section 10503-5, General Code.

In the interest of brevity, assets of the estate claimed to be included and subject to the provisions of Section 10503-5, General Code, the'so-called “half and half” section, will be referred to as “identical” assets.and those claimed to be not so subject to such section will be referred to as “separate” assets.

It appears that such building association certificates were issued in the names of decedent and her husband but under a definite contract providing for joint and survivorship ownership ■ of the certificates and the deposits evidenced thereby. When the husband of decedent died such certificates and such deposits became the property of the decedent under such contract and should never have been included as assets in the estate of decedent’s deceased husband.

The decedent was the executrix of the estate of her deceased husband and for some reason not apparent •did include these certificates as assets of his estate.

The ensuing incidents in the administration of the •deceased husband’s estate with reference to these certificates, might, therefore, be disregarded as far as affecting the question of whether such certificates and •deposits were “identical” or “separate” assets in the • decedent’s estate. However, in the administration of the estate of the deceased husband, an order was made for distribution in kind to the decedent.

The decedent endorsed the certificates as executrix, surrendered them to the building association and received a check in full of the deposits, evidenced by such certificates, payable to her as executrix. The next •day the decedent endorsed the check as executrix, surrendered same to the building association, and, upon •signing a subscription, was issued new certificates in her own individual name.

Neither the fact that through mistake the original •certificates were included in the estate of the deceased husband of decedent, nor the fact that, as executrix, she treated same as part of his estate, nor the fact that an order of distribution in kind was made to her, nor the fact that she endorsed the certificates as executrix, nor the fact that she hurriedly had them issued in her own name after they were cashed by a check to her as executrix, can weigh against the two outstanding facts — (1) that such certificates and the deposits represented thereby were never legally or properly a part of her husband’s estate, but, on the contrary, by virtue of survivorship, belonged entirely to her upon her husband’s death; and (2) that such certificates completely lost their identity, in that they were can-■celled and the deposits represented thereby paid by a •check to the decedent as executrix, and entirely new, separate, and entirely different certificates issued to her in her own individual name upon her subscription ■for such certificates.

The trial court committed no error in its conclusion upon the lack of “identity” of building association certificates involved in this first assignment of error, and in holding such new certificates and the deposits evidenced thereby to be a part of the “separate” assets of decedent’s estate.

The second assignment of error involves an order ■of the trial court charging “identical” assets in decedent’s estate (not included with that involved in the first assignment of error) with an amount equivalent to a sum waived by decedent as a claim against the ■estate of her deceased husband.

It appears that in the administration of her husband’s estate, the decedent was entitled to the sum of $4,786, the equivalent of exempt property and widow’s allowance.

It also appears that if the widow had insisted upon the payment of such sum in cash, she, as executrix, would have been required to sell some of the “identical” property now appearing in her estate. Instead of insisting upon such claim, she advanced the sum of $4,461.83 to the estate, and waived any persona] claim against the estate of her deceased husband by reason of such advancement, thus freeing the “identical” property, now under consideration, from the necessity of sale.

The trial court states in its opinion: “It cannot be said, therefore, that the whole value of this identical property came to her from her deceased husband, and such identical property should stand charged with $4,461.83. In other words, $4,461.83, as represented in the certificates of stock was her own money.” The rationale of this conclusion is that by reason of the advancement the “identical” assets were reduced to the extent of the advancement and to that extent such advancement was the equivalent of exempt property and widow’s allowance.

While the justice involved in the premises for this conclusion is apparent, the result does too great violence to the law governing the administration of estates.

The widow was entitled to her allowance. Either she, in effect, waived them, which she could do, or waived the advancement she made, in order that they might be paid to her.

The estate is closed. To ignore the waiver of the widow from either aspect is to permit the assertion of a claim against an estate long after a final account has been approved and the estate closed.

The effect of such conclusion is to now, long after such estate has been finally closed, permit a disclaimer of a waiver, thus ignoring the statutory limitations governing the administration of estates. No authority for such action is found.

The widow must be presumed to have known the effect upon the “identical” property, when, in preference to selling same, she advanced sufficient funds to satisfy her personal claim against the estate of her deceased husband.

The trial court erred, therefore, in charging the “identical” assets with such claim of the “separate” assets.

The third assignment of error deals with the conclusion of the trial court that certain claims against the estate of the decedent should be charged upon a pro rata basis against the “identical” assets.

The trial court in its order adjudged that “all debts other than funeral expenses are to be chargeable against this net identical property sum in the same proportion that that sum bears to the total amount of assets in the estate of Adeline L. Feucht.” (Emphasis added.)

When the decedent died, she left certain assets constituting her estate. All such assets were her property at the time of her death, whether they were “identical” assets or “separate” assets. She also, at the time of her death, was indebted for certain sums of money and upon her death her estate became charged with certain obligations incident to her burial and the administration of her estate. Now all this indebtedness was indebtedness of her estate just as all the assets were assets of her estate. How such assets should be distributed after the payment of the debts of her estate is a matter not involved in the payment of such •debts against the estate. All the assets are responsible for all the debts.

The effect of the order of the trial court is to throw the burden of the funeral expenses entirely upon the “separate” assets; all the debts being prorated.

No complaint by any appellant is made as to this •order as far as it affects payment of funeral expenses and it will not be disturbed, although it is considered ■erroneous, regardless of anything that may appear in the opinion in Linton v. Williams, 25 Ohio Law Abs., 659. An examination of that case indicates the existence of factors not involved in the instant consideration. The estate administered was under testate disposition.

The testator devised the residuum of the estate in the Linton case to “descend to and be distributed to such person and persons as would receive the same were I to die without will * * *.” While the statutes providing for intestate disposition were adopted by the testator as the terms of her devise and bequest of such residuum, still the recipients of her devise and bequest took by virtue of her will as fully as though she had in her will made the specific disposition provided by law.

The conclusion of the court upon the matter of payment of debts it would seem, therefore, should have been reached without regard to any application of the provisions of Section 10503-5, General Code. There appears no reason for the conclusion of the court upon such subject.

Section 10509-121, General Code, provides:

“Every executor or administrator shall proceed with diligence to pay the debts of the deceased, and shall apply the assets in the following order:

“1. Costs and expenses of administration.

“2. Bill of funeral director not exceeding three hundred and fifty dollars, such funeral expenses other than the bill of the funeral director as are approved by the court.

“3. The allowance made to the widow and children for their support for twelve months.

“4. Debts entitled to a preference under the laws of the United States.

“5. Expenses of the last sickness of the decedent.

“6. Persona] property taxes and obligations for which the decedent was personally liable to the state of Ohio or any subdivision thereof.

“7. Debts for manual labor performed for the deceased within twelve months preceding decedent’s death, not exceeding one hundrd and fifty dollars to any one person.

“8. Other debts as to which claims have been presented within four months after the appointment of the executor or administrator.

“9. All other debts for which claims have been presented according to law after four months from the appointment of the executor or administrator.

As to the instant questions, Sections 10503-5 and 10509-121, Genera] Code, are to be read in pari materia, and there is no provision in the latter section indicating that by reason of the provisions of Section 10503-5, General Code, there is to be any special allocation of debts of any nature to any particular type of assets. Nor is there anything in the former section indicating that the provisions of the latter section are to be ignored.

The vesting of the estate, provided for in Section 10503- 5, General Code, has no effect upon the duty of the decedent’s representative to pay debts. There is no provision in such latter section indicating that the vesting therein provided takes precedence over the provisions of Section 10509-121, General Code. It is well understood that the vesting of any inheritance, or any devise or bequest is subject to the provision requiring that all debts of the decedent’s estate shall first be paid. There appears, therefore, no reason to apply different rules for different types of debts, except as to the priority provided in Section 10509-121, General Code. See, also, Sections 10504-75 and 10504- 77, General Code.

' Section 10503-5, General Code, deals with the vesting of the net estate. As said before the “identical” assets are just as much a part of the decedent’s estate as the “separate” assets. The “identical” assets are not impressed with any lien, simply because of their origin, nor do they bypass the decedent as a vehicle through whom they descend to the recipients provided by law. Under the decision of the trial court, as incorporated in the judgment entry — the “separate” assets in the estate were charged with the entire funeral bill; the costs of administration, including court costs, attorney’s and administrator’s fees were charged against the entire estate, proportioned to the relation of “identical” assets to “separate” assets. The state inheritance tax was charged against those succeeding to the particular assets and charged against the particular type of assets in the proportion such succession was composed of “identical” or “separate” assets.

Genera] debts were charged proportionately against both types of assets.

Now the only debt charges involved in this assignment of error are those which the court found to be a proportionate charge against the “identical” assets. As has been stated, such charge conforms to the conception of the applicable law adopted herein. No reversible error, therefore, intervened.

Those interested in the “separate” assets have not appealed from a ruling which is herein considered erroneous, in that the “separate” assets are unduly burdened with a debt charge not warranted by applicable law. A judgment of this court in conformity with this opinion is, therefore, not in conflict with the judgment of the judges of the Second Appellate District, even if such judgment may be considered adverse, and no certification is, therefore, required.

The trial court, however, having committed error in the matter involved in the second assignment of error, the judgment is modified to the extent of freeing the “identical” assets from the claim of the “separate” assets, based upon the claim of the decedent for advancement to the estate of her deceased husband. As so modified, the judgment of the Probate Court is affirmed.

Judgment modified and affirmed as modified.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Univis Lens Co., Appellee, v. United Electrical, Radio and Machine Workers of America, CIO, et al., Appellants.
    (No. 2006
    Decided November 16, 1948.)

      Messrs. Smith, Schnache & Compton, for appellee.

      Messrs. Davis, Davis & Randelman and Mr. John Ober, for appellants.
   By the Court.

This cause is submitted on two motions of appellants for extension of time within which to file an assignment of errors and brief, and, also, on motion of appellee to strike the bill of exceptions from the files and to dismiss the appeal on the ground that the assignment of errors and brief were not filed within time.

On August 3, 1948, the five appellants were found guilty of contempt for violating an injunction growing out of a strike at the Univis Lens plant. No motion for new trial was filed. On August 3, 1948, each appellant filed separate appeals ■ from the order entered on August 3, 1948. All these appeals were filed on questions of law and questions of law and fact.

On August 20, 1948, these five appeals were ordered c®nsolidated under case No. 2006. On August 20, 1948, the court dismissed the appeal on questions of law and fact and retained the appeal on questions of law and further ordered the appellants to prepare, settle and file their bill of exceptions within 30 days from the date of the order, and also to file within the same time the assignment of errors and brief. The 30-day period expired on September 20, 1948.

On September 18, 1948, counsel for appellants filed a motion requesting an extension of 15 days within which to file an assignment of errors and brief. In accordance with the practice in this court, counsel for appellee were given the customary period of time within which to file a memorandum opposing the motion. On October 4, 1948, counsel for appellants filed .a second motion requesting an extension of 60 days within which to file an assignment of errors and brief.

On September 14, 1948, the bill of exceptions was filed in the trial court and on October 4, 1948, it was filed in the Court of Appeals.

On October 13, 1948, counsel for appellee filed a motion to strike the bill of exceptions and also to dismiss the appeal on the ground that the bill of exceptions and the assignment of errors and brief were not filed within the 30-day period as ordered.

The order under date of August 20, 1948, requiring appellants to file their bill of exceptions within 30 days was made in pursuance to the provisions of Section 11564, General Code. Rule VII of the Courts of Appeals has no application to an order made under the provisions of that section. The “settlement” of the bill of exceptions as used in that section refers to the settlement in the trial court. The term “settlement” is used synonymously with “filed.” The phrase “prepare, settle and file their bill of exceptions in said consolidated case” as used in the order under date of August 20, 1948, refers to the filing in the trial court ♦and not in this court. The bill of exceptions having been settled and filed in the trial court within the 30-day period, the motion to strike the bill of exceptions will be overruled. Kennedy v. Mancini, 22 Ohio Law Abs., 607.

That part of the order which required appellants to file an assignment of errors and brief within a period of 30 days from the date of the order was not based on any statutory provisions but on rule. The first motion for an extension of time was filed on September 18, 1948. Thus it appears that the application for an extension of time was made two days before the 30-day period expired. When appellant seasonably presents his application for an extension to the-court within time, the court has customarily exercised a broad discretion in granting a reasonable extension. This motion was not promptly decided due to the fact that information was'brought to the attention, of the court that counsel for appellants and appellee would agree on a reasonable extension. No such extension, was finally agreed to and by reason of which appellants were prompted to file a second motion for an extension of 60 days within which to file an assignment of errors and brief.

This matter has been briefed on the theory that the-failure of the appellants to file an assignment of errors and brief within the time prescribed in Rule VII or within the 30-day period as ordered by the court requires a dismissal of the appeal. This court has consistently held that where the time prescribed under Rule VII or under an order of the court made in pursuance to the provisions of Section 11564, General Code, has expired, and an assignment of errors and brief have not been filed, and no application for sin extension is filed within time, the appeal will be dis-« missed. This case does not fall in that class.

In the instant case, appellants brought the matter to the attention of the court within time. The inability of counsel for appellants to prepare an assignment of errors and brief because of the unavailability of the bill of exceptions is a sufficient showing of “good cause” for granting a reasonable extension. A 60-day extension as requested in the second motion is considered to be unreasonable under the circumstances. The bill of exceptions has been available to counsel for appellants since October 4, 1948. We consider an extension of 15 days to be sufficient and reasonable.

The motion of appellee to dismiss the appeal will ■be overruled. The motions of appellants for an extension of time to file an assignment of errors and brief will be sustained. Appellants are hereby granted •an extension of 15 days from the date the entry journalizing this opinion is filed within which to file an assignment of errors and brief. The appellee is given ten days thereafter within which to file an answer ■brief. The appellants are given five days after date of filing answer brief within which to file a reply brief, if dhey desire to do so.

Judgment accordingly.

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


author: Wiseman, P. J.

text:
    Maggart, Appellee, v. Deaton, Appellant.

      (No. 444
    Decided November 11, 1948.)

      Messrs. Keifer <& Keifer, for appellee.

      Mr. W. A. Raines, for appellant.
   Wiseman, P. J.

This is an appeal on questions of' law from a judgment of the Common Pleas Court of Miami county. Plaintiff sued for damages for personal injuries sustained in a collision between an automobile driven by the defendant and a motor truck driven by one John Fisher, in the cab of which plaintiff was riding as a guest.

The jury returned a general verdict for the plaintiff in the amount of $375. A motion for new trial" being overruled, judgment was entered on the verdict.

The defendant, appellant herein, assigns as error the refusal of the court to appoint some person to accompany the officer in charge of the jury and to show the jury the property and place to be viewed; the refusal to have pointed out to the jury in viewing the-premises two large spike nails driven in the roadbed at the intersection of the two roads where the defendant claims the collision occurred; and the refusal of the court to allow the jury to view the defendant’s automobile.

A view of the premises is controlled by Section 11420-2, General Code. This statute is not mandatory. The trial court is invested with a discretion to •determine whether a view of the premises shall be allowed. 39 Ohio Jurisprudence, 601, 602, Section 31. The record shows the trial court granted defendant’s application to have the jury view the premises and the trial court designated the sheriff as the officer to conduct the jury to the place of collision. The trial .judge, as well as both counsel in the case, accompanied the officer and the jury. The discretion of the court was properly exercised and the record discloses a compliance with the requirements of Section 11420-2, General Code/

A view of the premises by the jury is solely for the purpose of enabling it to understand and apply the evidence offered upon trial, and it was not prejudicial error for the trial court to refuse to have pointed out to the jury, two large spike nails driven into the roadbed by the defendant sometime after the collision at the place where the defendant claims the collision occurred. To do so would have been to furnish evidence which is improper in viewing the premises. Evidence •of the place of collision and damage to defendant’s .automobile was available and offered by the defendant.

The defendant also assigns as error the refusal of the court to sustain defendant’s motion to direct a verdict for the defendant; and that the verdict and judgment are against the manifest weight of the evidence and contrary to law.

The plaintiff alleged four specifications of negli.gence against the defendant, first, excessive speed, second, failure to yield the right of way, third, failure to keep a proper lookout, and fourth, failure to have 'his automobile under control. The collision occurred at the junction of two roads which intersected at right angles. Neither road was a preferential highway. There were no stop signs or caution signs erected on either road. The plaintiff approached the intersection on the defendant’s right. Section 6307-40, General Code. There was evidence introduced from which the jury could conclude that the defendant was driving at a speed greater than was reasonable and proper,, having due regard to the conditions then and there-existing. The evidence presented in support of the-issues raised was in conflict. After a careful consideration of all the evidence in this case, we are convinced that different minds could reasonably arrive at different conclusions. In our judgment the court' properly submitted the case to the jury.

The evidence in this case does not present a situation which would require the court to charge on contributory negligence. Any negligence of the driver of' the motor truck could not be imputed to the plaintiff; neither does the evidence show the driver was acting-under instructions of the plaintiff.

In our opinion the verdict and the judgment are-sustained by sufficient evidence and are not against the manifest weight of the evidence; neither are they contrary to law.

We are unable to find any error to the prejudice of the defendant. The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Miller, J.

text:
    Columbus Metropolitan Housing Authority, Appellee, v. Stires et al., Appellants.
    (No. 4194
    Decided February 2, 1949.)

      Mr. Wm. Harvey Jones, for appellee.

      Messrs. Hamilton S Kramer and Mr. Joseph R. .Hague, for appellants.
   Miller, J.

This is an appeal on questions of law from the Municipal Court of Columbus. The action was one in forcible entry and detainer, tried before a jury and resulting in a directed verdict for the plaintiff. The petition, after alleging the capacity of the plaintiff to sue, alleges:

“The defendants entered upon said premises as tenants of the undersigned and the lease therefor was terminated on the 29th day of February, 1948, and from that date the said defendants have unlawfully and forcibly detained possession of the above described premises.

“On the 1st day of March, 1948, the plaintiff duly-served upon said defendants, as required by law, notice to leave said premises on or before the 4th day-of March, 1948, which said defendants have failed to-do.”

' The first four assignments of error are directed to-the sufficiency of the petition.

In Glink v. Pennell, 81 Ohio App., 340, 79 N. E. (2d), 672, this court expressly stated that a complaint in forcible entry and detainer is sufficient against demurrer if the- complaint conforms to the provisions of' Section 10452, G-eneral Code, which specifically prescribes what the complaint shall contain. We find that, the petition contains all the necessary averments and' the court properly ruled as to the sufficiency of the-petition.

The next error assigned is that the court erred in-refusing to admit evidence offered by the defendants, appellants herein. The record discloses that the plaintiff offered in evidence a resolution adopted by the-Columbus Metropolitan Housing Authority to the effect that no undue hardship would result to these defendants as a result of being evicted. This was an attempt to comply with a requirement of the federal' statute, Title 42, Section 1413c, ü. S. Code (61 Stats, at L., pt. 1, 705), which provided as follows:

“The United States or any state or local public agency assisted by federal funds made available with respect to housing shall continue to have the right to-maintain an action or proceeding to recover possession of any housing accommodations (except as provided in the proviso of section 209 [b] of the Housing- ■and Rent Act of 1947) operated by it where such action-’ or proceeding is authorized by the statute or regulations under which such accommodations are administered, but no such action or proceeding shah be maintained prior to March 1, 1948, if in the opinion of the administering authority such action or proceeding would result in undue hardship for the occupants of such housing accommodations, or unless in the opinion of such authority other housing facilities are available for such occupants.”

The record discloses that the aforesaid resolution was properly identified by a Mr. Linton and admitted in evidence as plaintiff’s exhibit F. It was adopted on February 27, 1948, and the action was instituted on March 12, 1948. Upon cross-examination Linton was asked what test was applied in arriving at the finding that there would be no undue hardship. An objection was sustained to the question, which ruling is alleged to be error. We are of the opinion that the statute gives the “administering authority” the sole power to determine the effect upon the defendant and upon the availability of other housing facilities, for it provides :

“if in the opinion of the administering authority such action or proceeding would result in undue hardship * *

The method or manner in arriving at this' conclusion is not material. In order to “maintain” the action it was necessary only for the authority to express or make a finding of their “opinion” in the respects mentioned in the statute. The only way the authority could express such an opinion was by resolution of the governing body. The objection to the question was properly sustained and the resolution was properly admitted in evidence.

The next question presented is whether Title 42, Section 1413a, U. S. Code, has been violated, which section, it is admitted, has application to the property involved herein, and it is also admitted that the effective date has been extended to April 1, 1949. It will be noted that the statute provides:

“* # * but no such action or proceeding shall be maintained * * * if in the opinion of the administering authority such action or proceeding would result in undue hardship.” (Emphasis ours.)

According to Webster’s New International Dictionary (2 Ed.), the word “maintain” means “To continue or persevere in or with,- to carry on; as, to maintain an attack, a correspondence, a legal action.”

The record discloses that the lease held by the defendants required a 15-day notice in order to terminate it; that this notice was served on the defendants on February 11, 1948, which was prior to the adoption of the resolution by the plaintiff. The question presented is whether the serving of the notice of termination • constituted a part of the proceedings in eviction. We do not think so. The notice was given in compliance with the terms of the lease itself. Proceedings to evict upon the ground of termination of the lease in the manner provided therein might or might not follow. However, such proceeding did follow upon the theory that the lease had been terminated and a petition was filed containing all the allegations prescribed by Section 10452, General Code. The notice of termination of the lease had nothing to do with the maintaining of the action or proceeding to evict. The action was not commenced until the petition was filed and a summons caused to be issued thereon. Section 11279, General Code. An action cannot be said to be “maintained” or “carried on” before it has been started. We, therefore, hold that the notice of termination of the lease was not an invalid act, but was in conformity with the terms of the lease itself. The right to maintain the action became a matter of proof at the time of the trial.

Wiseman, P. J., and Hounbeck, J., concur.


text:
    The State, ex rel. Brooks, Appellee, v. Smith, Appellant.
    (No. 4155
    Decided January 26, 1949.)

      Mr. William H. Brooks, for appellee.

      Mr. Frank C. Shearer, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court, Division of Domestic Relations, Franklin county, finding the defendant, appellant here, guilty of contempt for failure to make support payments as ordered.

The defendant was charged with being the father of the illegitimate child of complainant. The defen dent at first pleaded not guilty. After several continuances the defendant appeared in open court and changed his plea from not guilty to guilty. The court made an order respecting support. The defendant, after making payments for about two years, ceased making payments, which gave rise to the contempt charge.

Five errors are assigned, which relate to the validity of the order of the court requiring the defendant to make payments for support. The contention is made that the order was void ab initio and, therefore, defendant could not be held in contempt for the violation of a void order. The point is made that the defendant in a bastardy case is entitled to a jury trial, unless a waiver is signed in writing, on the theory that the charge is of a criminal dr quasi-criminal nature and the laws with respect to the trial of criminal cases apply. The record is such that a determination of all the technical legal questions raised is not required.

The record shows that the defendant appeared in open court, withdrew his plea of not guilty and entered a plea of guilty. The court made a notation on the record. This action was carried into a journal entry which was signed by the trial judge. A strong presumption exists of the regularity and the correctness' of the court record. The defendant will not be heard to say at this time that he did not change his plea from not guilty to guilty when the record is supported by the overwhelming weight of testimony from witnesses who were present in the courtroom at the time the plea was entered. The record shows a full compliance with the provisions of Section 12123, General Code.

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

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


text:
    Doud, Appellee, v. City of Cincinnati, Appellant.
    (No. 7017
    Decided December 29, 1948.)

      Messrs. Graydón, Head & Ritchey and Mr. WilUam A. McKenzie, for appellee.

      Mr. Henry M. Bruestle, Mr. Maurice W. Jacobs and Mr. Robert J. White, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment entered in the Court of Common Pleas of Hamilton county, after and in conformity with separate findings of fact and conclusions of law made by the court, in a trial to the court without a jury.

In her petition, the plaintiff states that she is the owner of certain real estate in the city of Cincinnati, that a house is located thereon, that the defendant, the-city of Cincinnati, maintains a sewer under such house, that the defendant failed to keep such sewer in repair, that it became broken “at a point seven feet west of the west wall of plaintiff’s house, thereby causing the house to settle and the foundation walls to crack, whereby plaintiff sustained damage in the amount of' seven hundred and fifty ($750.00) dollars.”

The answer of the city is a general denial.

Judgment was rendered for $850 on May 25, 1948.

From the evidence it appears that the plaintiff’s-property is located on Linwood road, a street of the-city of Cincinnati, extending in a general northeastwardly and southwestwardly direction, that LeBlond1 avenue extends southeastwardly from Arnold avenue,, and joins Beverly Hills road, which continues the direction of LeBlond avenue until Beverly Hills road' intercepts Linwood road.

From maps introduced in evidence it appears that a-natural watercourse is created by the fall of the area now located on either side of LeBlond avenue and' Beverly Hills road, which extends eastwardly from its intersection with LeBlond avenue, and that such-natural watercourse extends from such intersection in a generally southerly direction toward Linwood road, but. that it does not reach it, and follows a line somewhat parallel to Linwood road until it reaches a point in Linwood road near Sheffield avenue, the next street west of Beverly Hills road. It further appears that such natural watercourse was sewered by-private individuals from a point some considerable-distance north of the intersection of Beverly Hills road' and LeBlond avenue, across what is now such intersection and to a point some little distance south of it.. Such watercourse from this latter point ran through an open ditch until it reached a point to the north of plaintiff’s property where again private parties had installed a 24-inch sewer following the watercourse, as just described. It was over this lower section of the watercourse enclosed in the 24-inch sewer that plaintiff erected her house-. ^

The result of the situation which existed prior to the creation of a subdivision about LeBlond avenue and Beverly Hills road and the placing of such streets therein, is that a 15-inch sewer extended out of what is now such subdivision for some distance to the south of it, emptied into an open ditch, which extended some considerable distance to the south, the flow from such ditch being then picked up by the 24-inch sewer running under the plaintiff’s property, and discharged into another sewer.

It appears further that after dedication of LeBlond avenue and Beverly Hills road, the city installed in such streets sanitary sewers which converged into a manhole at the intersection of LeBlond avenue and Beverly Hills road, that from the manhole, the city constructed a sewer extending down the extension of Beverly Hills road eastwardly to Linwood road and that the city removed the old 15-inch sewer south of the intersection of Beverly Hills road and LeBlond avenue and placed a new 18-inch sewer in its place, extending it down through the old open ditch until it joined the 24-inch sewer located to the northwest of Linwood road, and extending down toward Sheffield avenue, through plaintiff’s property. The result of this changed situation was that sewage, as well as surface drainage, from the area in the neighborhood of LeBlond avenue and Beverly Hills road, north of the manhole in the intersection of these thoroughfares was partially diverted through the sewer created and installed by the city of Cincinnati, and by its connection with the old 24-ineh private sewer through that latter sewer to another portion of the city sewerage system.

Thus the city has used the private sewer over which the plaintiff’s house is located as a link between two public sewers. As far as the record shows, however, no attempt was made to acquire a definite easement for the use of this sewer, as was done in the case of the northeasterly end from the manhole in the intersection of LeBlond avenue and Beverly Hills road, southwardly to the 24-inch sewer.

Other than this, the only evidence connecting the city with the use of such 24-inch private sewer was the fact that the plaintiff applied for and was given a permit to connect the sewer for her house with this 24-inch sewer, described in the permit as a “public sewer,” that she paid for such permit, that while the city required permits for tapping either private or public sewers no fee was charged for tapping private sewers, that the city, upon complaint about the settling, sent a crew out to inspect the 24-inch sewer, and that this private sewer is shown upon the plats of the city as a part of the sewerage system. In this connection, however, it was shown that both private and public sewers are shown on such plats.

It is in evidence also that the plaintiff’s husband at the time the permit was obtained was a city plumbing inspector.

It appears that the first notice the city had of any defect in the 24-inch sewer was when the plaintiff, as just stated, informed the city authorities that the walls of her house had sunk. Representatives of the city made an inspection by digging a hole to the west of the plaintiff’s house and looking through the sewer. They were enabled to see 22 feet east under plaintiff’s house and 26 feet west of plaintiff’s house. It was found that the sewer was in a badly dilapidated condition, was cracked and falling apart. A part of the sewer in the inspection excavation was removed in order that this inspection could be made. After the inspection was made, the portion of the sewer so removed was replaced and the excavation filled. The husband of plaintiff testified the city’s employees repaired the sewer, but he did not testify in what manner and to what extent.

No further action was taken by the city and this action was filed.

A motion was made by the city for judgment at the close of all the evidence, and a motion for a new trial was duly filed after judgment. Apparently, it is from the overruling of this latter motion entered on June 28, 1948, that an appeal is taken, although the entry from which appeal is taken is designated in the notice of appeal as a final order entered “18th June, 1948.” There is no entry upon this date.

The trial court in its findings of fact found that by such acts of the city “thereby adopting and incorporating said sewer into the sewerage system of said city, without objection and with the acquiescence of the property owners over whose property said sewer flowed. That due to the gradual deterioration of said' sewers, said house settled and resulted in damage thereto in the amount of $850. That inspection of said sewer by the city of Cincinnati at reasonable intervals would have disclosed a deteriorating condition of said sewer and prevented the resulting damage,” that the city failed to exercise reasonable care in the inspection of the sewer, and that such failure was the proximate cause of damage to- plaintiff’s property.

There is nothing in the record to show when the deterioration in the sewer took place, or whether the ■sewer was defective at the time plaintiff put her house ■over it, except that the sinking of the walls of the house occurred 11 years after the city had caused the sewage from the subdivision to be carried into such sewer, and 21 years after plaintiff had placed her ■house over such private sewer. The house of plaintiff was built in 1922. The new sewer was installed by the city in 1932. The house settled in the fall of 1943. 'There is no evidence to show how the “deterioration ■of the sewer” caused the settling of the walls of the plaintiff’s house. It will be remembered the evidence is that the inspectors looked through the sewer. The' evidence is the sewer was- not clogged, but that the “pipes were cracked and broken.”

The only evidence upon the question of added load is that “no additional quantity of water went through” the sewers by reason of the connection with the city ■sewers. It is in evidence that any additional sewage load by reason of the development of the subdivision was provided for at the manhole by the sewer extending from the manhole in the intersection of LeBlond •avenue and Beverly Hills road down Beverly Hills road to Linwood road. .

It is admitted that the new 18-inch sewer construct■ed and installed by the city from the manhole in Le-Blond avenue and Beverly Hills road down to the point where it joins the 24-inch private sewer is accepted as a public sewer of the city.

There is no evidence that the change in the character of materia] carried by the sewer caused its deterioration, or when such deterioration occurred, or in fact what was the cause of the deterioration. As far as the. record shows, such deterioration may have ■occurred (though later effective to cause a sinking of the wall) before the plaintiff built her house over it, or because she built her house upon it. There is also no evidence or stipulation that there was any flow of water or material from the sewer into the property of’ plaintiff.

In City of Norwood v. Sheen, Exr., 126 Ohio St., 482, 186 N. E., 102, 87 A. L. R., 1375, and Steinle v. City of Cincinnati, 142 Ohio St., 550, 53 N. E. (2d), 800, such flow of water causing damage is considered a temporary appropriation of property for which the owner is entitled to compensation. Such situation does not exist here. The question here presented is: Had’

the city accepted responsibility for the 24-inch sewer simply because of its use by the city as a link in its-sewerage system? The city never at any time exercised' any jurisdiction over the 24-inch sewer. Its sole connection with it was to discharge sewage collected by the city by other sewers into the 24-inch sewer, and’ to inspect it at the request of the plaintiff.’ There is-a vast difference in holding the city responsible for damage caused by disposal of its sewage upon or through the property of a complainant, and holding it responsible for the condition of a sewer which is still serviceable and is disposing of such sewage and solely because it becomes dilapidated.

If the evidence in this case showed that such sewage-so disposed of by the city in the 24-inch sewer caused' the injury to plaintiff’s premises, an entirely different situation would be presented than that here considered. There is not a scintilla of evidence in this case that the seioage passing through the 24-inch sewer caused' this plaintiff any damage.

The fact that the city erroneously and improperly charged a fee for tapping into the 24-inch sewer did' not constitute an acceptance of obligation for its condition.

The facts in the case of City of Portsmouth v. Mitchell Mfg. Co., 113 Ohio St., 250, 148 N. E., 846, 43 A. L. R., 961, relied upon by plaintiff, are so radically different from those here involved that that case needs no comment, nor does any statement of law therein aid the plaintiff’s position.

It is apparent that a case could be shown involving the location and operation of the sewers here considered which would place responsibility upon the city for damage caused by the discharge of sewage into the private sewer. As far as this record shows, the '24-inch sewer in still a private sewer. Conditions may arise placing liability upon the city for such use of this private sewer. Those conditions are not present in the instant case.

The record fails to show any actual notice to the ■city of the defective condition of the sewer prior to the complaint of the plaintiff. The city now, however, has had such notice and it may well be supposed that this condition may ripen into a situation which would place liability upon the city for damage caused by the ■escape of sewage from the private sewer. With such situation, this court is not now concerned.

The trial court found that the damage to plaintiff’s house was due to the deterioration of the sewer. There is no finding that such deterioration or damage to the house was due to the flow of sewage through the 24-ineh sewer, or beyond it in or upon plaintiff’s property.

It may be further noted that plaintiff in her petition does not even claim that the damage to her premises was due to any obstruction in the sewer or to any flow7 •of sewage in and upon her premises from it, or through it. Her elaim is predicated entirely upon the claim of deterioration of the sewer, and the failure of the city to repair it.

There being an entire failure of proof showing the flow of sewage through the 24-inch private sewer, or that such sewage caused damage to plaintiff’s property by escaping therefrom, judgment must be here rendered for the defendant.

Judgment reversed.'

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


author: Matthews, P. J.

text:
    Morgan et al., Exrs., Appellees, v. The First National Bank of Cincinnati et al., Appellees; Morgan et al., Appellants.

      (No. 7002
    Decided November 8, 1948.)

      Messrs. Cottle, Campbell & Druffel, for appellee The First National Bank of Cincinnati.

      Mr. Robert G..Porter, for appellee Bertha L. Mor,gan.

      Mr. James L. Elder and Messrs. Taft, Stettinius db Hollister, for appellee The Children’s Home.

      Messrs. Peck, Shaffer db Williams, for appellee Home for Incurables.

      Mr. Charles Rodner and Messrs. Nippert db Nippert, for appellee The Bodmann Protestant Widows’ Home.

      Messrs. Bettinger, Schmitt db Kreis, for appellee The Cincinnati Association for the Welfare of the Blind.

      Messrs. Kunkel & Kunkel, for appellee The Fresh Air Farm.

      Messrs. Caldwell & Shoemaker, for appellee The .Anti-Tuberculosis League.

      Mr. Richard Todd and Messrs. Dinsmore, Shohl,

      Sawyer & Dinsmore, for appellee Young Women’s-Christian Association.

      Mr. Robert Adair Black, for appellee The Salvation. Army.

      Mr. James L. Elder and Messrs. Taft, Stettinius S' Hollister for appellee The Children’s Hospital.

      Messrs. Caldwell & Shoemaker, for appellee The-Associated Charities.

      Mr. Edgar B. Traver, for appellee The University of Cincinnati.

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore, Mr.. F. B. McConaughy and Mr. Charles H. Urban, for appellants Urban Morgan and Arthur R. Morgan, Jr. ,
   Matthews, P. J.

This action was begun by Urban-Morgan and Charles H. Urban, as executors under the-last. will and testament of Edna Urban Morgan, deceased, seeking a judicial declaration of the rights of' the parties under the will. The defendants are The First National Bank of Cincinnati, named as trustee-of the residue of the estate, and all the beneficiaries under the will. Pleadings were filed by the defendants. The case came on for trial at which it developed' that there was no dispute as to the facts, but that there was a complete divergence of views as to the-operative effect under the law of certain provisions-of the will.

The will of Edna Urban Morgan was executed on July 22, 1943. Sbe died on December 23, 1943, and' her will was admitted to probate on January 6, 1944. At the time of executing her will and at the time of' her death she was a widow and the mother of two-children — Urban Morgan and Arthur R. Morgan, Jr.,, parties to this action, both of whom are adults.

After directing payment of her debts, the distribution of articles of personal property to persons mentioned in a letter of the same date as the will and bequeathing a certain bank deposit and 200 shares of stock of The United States Playing Card Company to her sister and brother, and $10,000 to a niece, she provided as follows :

“Item Five. All the rest and residue of my estate of whatever name or nature and wherever situate, I give, devise and bequeath to The First National Bank of Cincinnati, in trust however for the following uses and purposes:

“Two-thirds (2/3) of said residue shall be placed by my trustee in a fund known as the Urban Morgan Trust. The full net yearly income from said fund shall be paid by my trustee to my son, Urban Morgan, in quarterly installments for and during his natural life. Should said net yearly income not permit my said son, Urban Morgan, to live as he customarily does, then and in that case he shall have the right by and with the consent of my trustee herein appointed, to draw yearly from the principal of said trust such sums as will enable him to so live.

“Item Six. Upon the death of my said son, Urban Morgan, and'provided also that Marion K. Morgan, his wife, has predeceased him, said Urban Morgan Trust shall terminate and I direct my trustee to turn over the remainder of said fund, both principal and interest, in equal parts to the Children’s Home, the Home for Incurables, the Bodmann Protestant Widows’ Home, The Cincinnati Association for the Welfare of the Blind, the Anti-Tuberculosis League, the Fresh Air Farm, the Young Women’s Christian Association, the Salvation Army, the Children’s Hospital, and the Associated Charities, and I give, devise and bequeath the remainder of said fund accordingly.

“Item Seven. If, after my death, my son, Urban Morgan, shall die, leaving his present wife, Marion K. Morgan, as his widow, then and in that case said Urban Morgan Trust shall continue for the benefit of said Marion K. Morgan, she to receive one-third (1/3) of the net income therefrom in quarterly installments until her death or until she remarries, at the happening of either of which events, said Urban Morgan Trust shall terminate and thereupon I direct my trustee to distribute the remainder in said trust fund, both principal and interest, in equal parts to the institutions named in Item Six herein, and I give, devise and bequeath said remainder accordingly. The remaining two-thirds (2/3) of the net income of said Urban Morgan Trust shall be merged into the principal thereof and invested by my trustee.

“■Item Eight. The remaining one-third (1/3) of ■said residue shall be placed by my trustee in a fund known as The Arthur R. Morgan, Jr. Trust, and my trustee shall pay the full net yearly income therefrom to my son, Arthur R. Morgan, Jr., in quarterly installments for and during his- natural life. Should said net yearly income not permit my said son, Arthur R. Morgan, .Jr., to live as he customarily does, then and in that case he shall have the right, by and with the •consent of my trustee herein appointed, to draw yearly from the principal of said trust such sums as will •enable him to so live.

“Item Nine. Upon the death of my son, Arthur R. Morgan, Jr., and providing also that Bertha Morgan, his wife., has predeceased him, The Arthur R. Morgan, Jr. Trust shall terminate, and I direct my trustee to turn over the remainder of said trust fund, both principal and interest, in equal parts to the institutions named in Item Six herein, and I give, devise and bequeath said remainder accordingly.

“Item Ten. If, after my death, my son, Arthur R. Morgan, Jr. shall die, leaving his present wife, Bertha Morgan, as his widow, then and in that case, The Arthur R. Morgan, Jr. Trust shall continue for the benefit of said Bertha Morgan, she to receive one-third (1/3) of the net income therefrom in quarterly installments until her death or until she remarries, at the happening of either of which events, said Arthur R. Morgan, Jr. Trust shall terminate, and thereupon I direct my trustee to distribute the remainder in said trust fund, both principal and interest, in equal parts to the institutions, mentioned in Item Six herein, and I give, devise and bequeath said remainder accordingly. The remaining two-thirds (2/3) of the net income of said Arthur R. Morgan, Jr. Trust shall be merged into the principal thereof and invested by my trustee.

“Item Eleven. 1 hereby give my trustee full power and authority, without the intervention of any court, to sell, invest and reinvest any part or all of the trust funds herein mentioned, to execute any and all documents and to do anything and everything necessary in its best judgment for the benefit of said trust funds. ’ ’

In subsequent items, the testatrix provided that the taxes on the specific bequests should be paid out of the residue, that any person contesting the will should forfeit the provisions made for such person, and that such share so forfeited should go to the University of Cincinnati and the institutions named in item six. In the last item of her will she named her son Urban Morgan and her brother Charles H. Urban executors, and requested that they be permitted to serve without bond. She also provided that if her brother were not living at her death The First National Bank of Cincinnati should act in his stead. She also appointed The First National Bank of Cincinnati trustee under item five of her will.

No evidence was offered as to the kind or value of property constituting these trust funds. There is an implication resulting from the size of the specific bequests and the number of charitable institutions mentioned that the funds- must be substantial, but as to whether it consists of real or personal property, or ■both, .nothing definite has been shown. There is no reference to real estate.

There is no evidence that either Urban Morgan or Arthur R. Morgan, .Jr., was extravagant, improvident, ■or incompetent. From the fact that Urban Morgan was named as one of the executors to serve without bond, we infer that the testatrix believed that he was ■competent and trustworthy to share in the administration of this entire estate. This, and the fact that the will provided for a continuance of his established mode of living we think are indications that the testatrix had confidence in his business judgment and approved of his mode of living. It certainly cannot be said that the will discloses that when the testatrix placed two-thirds of this estate in trust for his life ■that she was actuated by the motive or purpose of protecting him against his own extravagance, improvidence, or incompetence. And this, it seems to us, ■precludes any assumption that when she placed the remaining one-third in trust for Arthur R. Morgan, ■Jr., she was actuated by any such motive.

From the provisions making the right of Urban Morgan and Arthur R. Morgan, Jr., to draw upon the principal of the trust fund only if necessary to live in their accustomed way, we draw the inference that the testatrix was endeavoring to provide that as much of the principal as possible should be preserved for the charities to take upon the death of the sons.

There was no evidence of the circumstances surrounding the execution of this will from which a different inference can be drawn.

Another purpose, other than to protect the life beneficiaries, must be found, and that other purpose is apparent upon the face of the will. Testatrix thought she was giving this entire estate to the ten charitable institutions named by her, and a municipal educational institution, to take effect in enjoyment after the death of the life beneficiaries. The only effective way she could accomplish this was by the creation of this trust. Although taken to know the law relating to the effect of her death within one year, she did not contemplate, and, therefore, made no provisions for the contingency of her death taking place within one year of the execution of her will, resulting in the invalidation of the bequests by Section 10504-5, General Code.

Then finding no purpose expressed that the legal' title was withheld from the sons to protect them, or any other purpose stated as to the reason for' the creation of the trust, the natural conclusion is that, her purpose or motive was to protect the ultimate beneficiaries. In the note to Section 337 of 2 Restatement of the Law of Trusts,, it is said:

“If a trust is created for successive beneficiaries, in the absence of circumstances indicating a further purpose, the inference is that the only purpose of the trust is to give the beneficial interest in the trust property to one beneficiary for a designated period' and to preserve the principal for the other beneficiary,, and if each of the beneficiaries is under no incapacity, and both of them consent, to the termination of the trust, they can compel the termination of the trust.”

The testatrix did die within one year, with the result that the entire estate which she thought would' finally pass to the charitable and educational institutions became intestate property, passing to Urban Morgan and Arthur R. Morgan, Jr., as the sole heirs, at law and next of kin of their mother.

Upon the failure of the charitable and. educational bequests, the only persons having any interest in this-estate were Urban Morgan and Arthur R. Morgan, Jr.r and their wives, contingent upon survival of their respective husbands. Each has disclaimed the legacy and by answers filed herein consent that the court decree that the absolute title to the corpus of the trust property is in Urban Morgan and Arthur R. Morgan, Jr., respectively, free of all incumbrances. Urban Morgan and Arthur R. Morgan, Jr., have entered into an agreement by which each has transferred to the other all his right and title in and to the share in which that other was given the income for life, so that they stand before the court as the absolute owners of their respective shares, subject only to whatever valid control during their lives is withheld from them by the terms of their mother’s will.

By their cross-petitions, they pray that their respective shares be transferred to them, free of any control by the testamentary trustee.

The trial court found as one of its conclusions of law that “The primary object of the testatrix, Edna Urban Morgan, in creating the Urban Morgan Trust and Arthur R. Morgan, Jr., Trust under her will was to enable her sons to live as they customarily lived, meaning befitting the station in life to which they had been reared and to which they were accustomed, and in creating said trusts, said testatrix intended to insure that her sons Urban Morgan and Arthur R. Morgan, Jr., would live on a plane to which they had been accustomed throughout their entire lives even though the corpus of the trust estate had to be drawn upon yearly to enable them to so live, and that the invalidity of said bequests of the residue of the estate — for benevolent, educational and charitable purposes on the termination of the trusts — for the sons — does not in any manner affect the fulfillment of the primary objective of the testatrix; that the purpose for which each trust was created cannot be fulfilled and accomplished until the death of the son for whose benefit said trust was created and that each of said trusts is a live and active trust, and that its continuance during the lifetime of the son for'whose benefit it is to be held and administered by said trustee, is necessary to carry out the purpose for which it was created. ’ ’

The trial court ordered the executors to transfer the residue of the estate to the First National Bank as trustee, to hold and administer the respective shares of Urban Morgan and Arthur R. Morgan, Jr., during their respective lives and upon the death of either, his share should be paid to those entitled under the laws of descent and distribution, “and/or any.and all valid and effective assignments, conveyances, wills, renunciations and/or other instruments properly executed by and binding upon any person or persons who would, in the absence thereof, be entitled to a distributive share of such trust upon distribution.”

It will be noted that the trial court found that the primary purpose of the testatrix in creating this trust was to insure that her sons would be enabled to live in the way they had been accustomed to live. It will be noted also that we have not been able to find such purpose. Undoubtedly, she desired that her sons have the means to so live, but that could be accomplished as effectively by an absolute gift of the residue of the estate to them. Such primary purpose could only be attributed to her from something in the will indicating a lack of confidence in the ability of the sons to manage and control their own property, and that the trust was created to take control and management from them for that reason. In the absence of such an intention, our conclusion is that the only purpose in creating the trust was to preserve the corpus for the ultimate named beneficiaries, who would take upon the death of the sons.

■ It was the gift over upon the death of the sons that occasioned the trust relationship. The testatrix was presented with the alternative of creating an express trust, or of allowing the quasi-trust relationship between the life beneficiaries and remaindermen to be created by law, which would probably result in an administration by a trustee appointed by a court exercising equity jurisdiction. 2 Restatement of Law of Property, 843, Section 204.

We believe the question before the court is this:

Where, by the terms of a testamentary trust, the trustee is expressly given full power to' administer the trust for the benefit of the fund, and the life beneficiary of such trust is entitled to the entire net income for life with the right, with the consent of the trustee, to draw upon the principal if necessary to enable him to live in his customary mode, is he, when the gift over to charity, upon his death, fails because of invalidity, and he becomes, through inheritance, the absolute owner of the corpus of the trust estate, entitled to have the trust terminated, and such corpus delivered to him free of all restraint imposed by the terms of the trust?

It seems to us that this case is ruled by the case of Taylor v. Executors of Huber, 13 Ohio St., 288. The will under construction in that case provided:

“My son Martin, having departed this life since I made my said will, leaving a widow and children, I do declare, will and direct that the said children of Martin shall succeed to the distributive share which would otherwise have accrued to said Martin, in case he had survived me. Provided, however, that the interest of one third part of said share shall be paid annually to the widow of said Martin, during her natural life, the principal of said one-third part to be distributed to the children, or their heirs, of said Martin, after the death of his said widow. And to the end, that the interest may be raised on said one third, for said widow, and the principal be secured, I do direct that my executors, when the money shall come into their hands, shall loan the same upon bond and mortgage on real estate, and the interest to be paid annually. The money which is to accrue to said children of Martin shall be paid to them as they become of age; and, until that time, shall be loaned on bond and mortgage as aforesaid, except such part as may be necessary for their support.”

Martin left two children, both of whom died intestate, without children, whereby their mother — the beneficial owner of one-third for life — inherited the remainder in fee, just as in the case at bar the remainder in fee has been cast upon Urban Morgan and Arthur R. Morgan, Jr., by the intestacy of their mother, resulting from her death within one year of the execution of the will. In neither case, was the contingency provided for. We also see another similarity in that both wills expressly imposed active duties upon the trustee.

In an action by the mother — life beneficiary — to compel the executor to deliver the trust property to her, the court held, as stated in the syllabus:

“Where a testator, by his will, directed his executors to invest a specific fund, the interest to be paid annually to S., the widow of his deceased son, during her life, and at her death, the principal thereof to be paid to her two sons, L. and D., and L. and D. died without issue, leaving no brother or sister, either of the whole or half blood, and leaving no debts, whereby the principal of said fund descended to S., as their next of kin. Held, The trust in the hands of the executors having failed by the occurrence of a contingency not provided for by the will, and the entire beneficial interest in the fund having vested in S., equity will decree its payment directly to her, without the ■delay and expense of successive administrations.”

Although that case was decided in 1862, and has been cited and followed in both state and federal courts many times, it has never been criticised in Ohio or ■elsewhere. It certainly has never been overruled.

It is significant that Taylor v. Executors of Huber, supra, is not cited in any of the cases relied upon by the appellees. We believe the explanation is that those •cases fall in a different category.

In Robbins v. Smith, Jr., Admr., 72 Ohio St., 1, 73 N. E., 1051, the absolute title did not repose in those ■seeking a termination of the trust. This is expressly ■stated in the second paragraph of the syllabus. A contingency existed which could not be removed until the ■death of the life beneficiary.

In Union Savings Bank & Trust Co. v. Alter, 103 Ohio St., 188, 132 N. E., 834, a trust was created for ten years, during which only a portion of the income was to be distributed and the balance added to the principal, the beneficiaries of which could not be determined until the end of the ten years. It is true that in the first paragraph of the syllabus the statement is made that the direction ■.“ ‘that my trustees * * * shall pay the same * * # one-eighth part thereof to my son F. A., and his heirs’ * * * will be construed as a gift * * * absolute,” but this is qualified by the ■statement that that absolute title is “subject only to the provisions of the trust. ’ ’ The contingency is found in the provisions of the trust. It was so clear that the trust could not be terminated under such circum•stances that the question was not raised. What- the lagatees of a stipulated sum annually during the ten-years sought was to have the court order the payment of a larger sum annually contrary to the provision of' the will. The case also differs from the case at bar-in that the trust was not for life, but only for ten years and, therefore, postponement of the benefit or-enjoyment of the property could be said to inure to the-beneficiaries of the trust.

In Adair v. Sharp, Exr. and Trustee, 49 Ohio App., 507, 197 N. E., 399, also relied on by appellees, the-trustee was given absolute discretion to pay to Adair and his wife, or either of them “so much of the said' income as he thinks they or he should have,” from the-income or principal, and upon the death of the survivor the property remaining was given to their two-children. It is clear from this language that Adair and his wife had no vested right to any part of the income, which is in marked contrast to the terms of the-will of Mrs. Morgan, which requires the trustee to distribute the net income to the beneficiaries. The' fact1 that the trustee had discretion was emphasized and' Taylor v. Executors of Huber, supra, was not cited.

Perhaps greater reliance is placed by appellees upon the recent case of Feiler v. Feiler, 149 Ohio St., 17, 77 N. E. (2d), 237, but here, again, Taylor v. Executors of Huber, supra, was not mentioned — and we think for-equally obvious reasons. The facts are entirely different. The trust was required to be terminated in not less than 15 years, nine of which had already elapsed. The subject matter of the trust was real estate, the title to which was devised to the trustee-with full power to manage, rent, or sell, and to pay net income to named beneficiaries, and if and when he sold to invest the proceeds in annuities in a named insurance company payable monthly to the persons to whom had been bequeathed the net income during.■the continuance of the trust. There was no gift of the remainder. The testatrix also ' provided that her sister should have the occupancy of a part of one of the houses until it was sold. There was no failure ■of any bequest, and the purpose of the testatrix had neither failed nor been fulfilled.

It will be observed that the only legal title conferred by the will was to the trustee for 15 years with power to sell the fee and invest in annuities. There was no devise of the fee.

The court recognized that the case fell into that special category where there was a direction to sell and invest in an annuity. It reviewed at considerable length the English and American cases of that kind and reached the conclusion that:

“Where the existence of such a testamentary trust, by its terms, must not continue longer than 15 years, the beneficiaries, in the absence of fraud or abuse of -discretion by the trustee, cannot successfully claim either the property or the proceeds of its sale, in lieu of the annuities provided, at least until either the 15 years have elapsed or the trustee has, in the exercise of his discretion, sold the property.” (Paragraph 2 of syllabus.)

It will be noted the court did not hold that the trust ■could not be terminated prior to its expiration according to its terms. It did not hold that the annuities must be purchased and that the trust must continue for that purpose. And the court said: “This is not a •dry trust or one that has failed (emphasis ours), but it is an active one devolving upon the trustee the duties of management in every detail, of paying over net income to the beneficiaries, of protecting the rights of the sister (emphasis ours) and. of eventually, when the trustee sees fit, selling the various parcels and in-vesting the proceeds in annuities.” The dissimilarity was so striking that the court did not mention Taylor v. Executors of Huber, supra.

While we think that the law applied in Taylor v. Executors of Huber, supra, is applicable to the case-before us and is dispositive of it, we find- authority supporting another theory leading to the same conclusion.

Urban Morgan and Arthur R. Morgan, Jr., are-given the absolute right to the net income for life, and because of the failure of the gift to the charities, they are also the absolute owners of the trust res, subject to their own right to the net income for life. Whatever purpose the testatrix had when she created' this trust and conferred powers upon the trustee, that trust and those powers could not benefit Urban Morgan and Arthur R. Morgan, Jr., under the circumstances. The continuance of the trust could only inure to the benefit of whoever succeeds to the title upon their death.

In Crumlish v. Delaware Trust Co., — Del. —, 46 A. (2d), 888, 169 A. L. R., 451, the court had before it a trust for life, which imposed no active duties upon the trustee, with remainder, subject to the trust, in the-same person having an absolute right to the income during life. The court, after discussing the conflicting authorities, reached the conclusion, found on pages 457 and 458, that:

“Our understanding of the rule is that even though-the interest of a beneficiary be vested, and no one else is interested 'either in the income or corpus of the-estate, that the enjoyment of the beneficiary may be-postponed in accordance with the plain intent of the-creator of the trust, unless such intent contravenes some positive rule of law, or is against public policy.

“In order, however, that an absolute interest in income and a similar interest in principal given by a testatrix may be postponed by such testatrix as to enjoyment, such enjoyment to be postponed must be the enjoyment of the person entitled to such income and corpus. Any postponement of the benefit or enjoyment which operated or results in the benefit or enjoyment of some third party, and to the detriment of the beneficiary, must be either a pro tanto modification of the absolute interest of the beneficiary, or, if such interest in the original beneficiary remain an absolute one, then the postponement solely resulting in the benefit of a third person, ascertained or unascertained, must be inconsistent and entirely repugnant to the absolute interest of the beneficiary, and constitutes no reason that the trust should not be terminated at the suit of the beneficiary of the income and corpus. ’ ’

While we mention the rule from Crumlish v. Delaware Trust Co., supra, we base our decision on our finding that there is nothing in the will indicating any purpose or intent that this trust should be continued during the entire life of her sons, in view of the fact that her desire that the trust res go to charities has been defeated by her death during the year after making her will, thereby rendering her intestate in that respect, and casting the absolute title on her sons.

For these reasons, the judgment is reversed and final judgment is rendered for appellants.

Judgment reversed.

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


author: Guernsey, J.

text:
    Shults, Appellant, v. Hinamon, Appellee.
    (No. 1005
    Decided July 21, 1948.)

      Messrs. Moore & Myers, for appellant.

      Messrs. Donithen, Michel <& Davis, for appellee.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Marion county, in an action wherein the appellant, Alfred E. Shults, was plaintiff, and the appellee, Fred L. Hinamon, was defendant.

The action is one for damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant’s employee.

On the trial of this cause the jury returned a verdict in favor of the defendant of no cause of action, and judgment was thereafter duly entered upon the ver■dict.

This is the judgment from which this appeal is taken.

The facts material to a consideration of this appeal, as shown by the bill of exceptions, are as follows:

On July 16, 1945, the plaintiff was in the employ of the F & Y Construction Company as a laborer. The F & Y Construction Company was constructing a building for The Huber Manufacturing Company in Marion, Ohio. On that date, only the outside' foundation footer and part of the concrete floor were finished. There was no superstructure. At the middle of the west foundation was an opening through the footer, which would ultimately be a doorway for trucks and large vehicles.

Approximately parallel with this west foundation and quite near it was a temporary telephone wire ■strung up on temporary posts. It varied in height from eight to ten feet from the ground.

The plaintiff was working within the confines of the •concrete foundation, roughly 50 feet south of the doorway mentioned above and approximately 25 feet east ■of the west concrete foundation wall. He was working in and about some freshly poured concrete and was giving his attention to the performance of his ■duties.

A truck owned by the defendant and operated by his employee brought a load of stone into the area enclosed by the concrete foundation footer and backed his truck under the wire above mentioned so that his truck or approximately all of it was west of the wire and headed in an easterly direction. He unloaded his stone by raising the dump bed of his truck and shaking the stone out in a pile. Then, although he knew of the existence of the wire and that it was too low to-drive under with the bed of his truck up, he proceeded to drive forward with the bed of his truck still up and’ the bed of his truck caught on the temporary wire. As-the truck-moved forward it pulled the wire loose from, the several 2 x 4’s to which it was fastened and jerked it against the plaintiff, who was knocked to the ground and severely injured.

To the petition of the plaintiff, which, in substance,, alleged the above facts, the defendant filed a general denial.

Defendant’s counsel, in his opening statement, admitted that the driver of the truck was the agent of the defendant in hauling the stone on the premises. He admitted also that the truck caught the wire, that plaintiff was thrown to the ground by the wire, and', that he was injured thereby.

Plaintiff originally assigned errors as follows:

1. The verdict is not sustained by the evidence.

2. The verdict is contrary to. law.

3. Several errors of law occurring at the trial and' to which exceptions were taken at the time.

4. The court erred in its charge to the jury.

5. The court erred in rejection of evidence and admission of evidence to which the plaintiff excepted at' the time.

6. The court erred in refusing to give special charges-before argument which were submitted by the plaintiff. I

7. Misconduct of counsel for the defendant in stating on voir dire that the defendant did not have liability insurance.

8. Misconduct of counsel in referring to industrial compensation and in offering a witness as to such, knowing such testimony to be inadmissible.

9. Other errors manifest from the face of the record. On motion of the defendant, items 1, 7 and 8 of such assignment have been stricken.

Of the remaining errors assigned, plaintiff, in his brief, specifies and argues only 4, 6 and 9, and under its statutory prerogative the court will consider only these assignments.

In considering whether the proper foundation for these assignments of error has been laid, subdivision 8 of Section 11576, General Code, prescribing the causes for which a new trial may be granted, one of which is “error of law occurring at the trial and excepted to by the party making the application, ’ ’ must be read, interpreted and construed in pari materia with the provisions of Section 11576-1, General Code, that “an application for a new trial shall not be necessary as a prerequisite to obtain appellate review * * * as to any other matter which the record shoAvs was called to the attention of the trial court by objection, motion or otherwise,” and of Section 11560, General Code, that “an exception shall not be necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining-party, without exception being taken to the charge.”

Under such an interpretation and construction, it is clear that it is unnecessary, in order to lay the foundation for the review of errors of law occurring at the trial, to make a formal exception to such an error, but is only necessary, to lay such foundation for review, to call the matter to the attention of the court by objection, motion or otherwise, and to secure a ruling of the court thereon. And it is also clear that error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, and constituting errors of commission and not omission, without exception being taken in the charge.

With this in mind, we will consider the assignments of error last above mentioned.

4. The court erred in its charge to the jury.

The errors complained of under this assignment of error are all errors of commission and not omission, and consequently may be considered by the court, although no exception was taken to the charge.

Under this assignment the plaintiff specifies and argues in his brief two errors, as follows:

(a) The court erred in submitting the issue of agency, that being admitted.

(l>) The court erred in charging on contributory negligence, there being no such issue.

As above stated, counsel for defendant, in his opening statement in the cause, admitted that the driver of the truck which struck the wire causing it to rebound against the plaintiff, throwing plaintiff to the ground and injuring him, was the agent and employee of the defendant. And on cross-examination, the defendant himself admitted that the driver of the truck was his agent.

Notwithstanding these admissions the court instructed the jury as follows:

“Now directing your attention to the issues the court finds them to be these: ■

“1. Was the driver of the truck in question the agent, servant and employee of the defendant, Fred L. Hinamon?”

The rule applicable to this situation is stated in 2 Ohio Jurisprudence (Pt. 2), 1556, Section 816, as follows :

“Since questions for the jury can arise only where there is a possible doubt as to the real facts of the case or as to the inference which should be drawn from the facts, it is error to submit to the jury questions involving the determination of facts as to which the party having the burden of proof has offered no evidence, or which are admitted or conclusively established by undisputed evidence.”

Taken alone, it is questionable whether the error of the court in submitting-J;his issue to the jury was sufficiently prejudicial to warrant a reversal of the judgment, but when it is considered in connection with other qrrors of commission in the charge and the confusion in the minds of the jurors which would naturally arise therefrom, it is clear that this error is so prejudicial in character as to require the reversal of the judgment.

Turning now to the claimed error in charging on contributory negligence.

There was, in the answer, no allegation of contributory negligence, and there is in the evidence nothing whatever indicating contributory negligence on the part of the plaintiff.

Notwithstanding these facts the court submitted the issue of contributory negligence to the jury.

The rule applicable to this situation is stated in 2 Ohio Jurisprudence (Pt. 2), 1450, Section 762, as follows :

“It is clearly reversible error for the court in its instructions to inject into the case issues and questions not raised by the pleadings or the evidence, if they have a tendency to confuse the questions properly in the case and to mislead the jury to the prejudice of the appellant. This rule has found frequent application in negligence actions where the court * * * has given instructions as to contributory negligence although no such question was raised by the pleadings or the evidence * *

Defendant admits this instruction was erroneous, but contends that it was not prejudicial.

As the verdict of the jury was in favor of the defendant, we are of the opinion that this instruction in and of itself was so prejudicial as to require the reversal of the judgment. Moreover, considering it in connection with the error in charging on the subject of agency and the confusion in the mind of the jury necessarily resulting from the submission of two issues not in the case, it is clearly prejudicial, requiring reversal of the judgment.

6. The court erred in refusing to give special charges before argument which were submitted by the plaintiff.

The court refused to give plaintiff’s special requests Nos. 2, 3, 4, 5, 6, 7 and 9 before argument.

The record shows that the plaintiff duly excepted to the refusal of the court as to five of those requested instructions.

The requested instructions, as stated by plaintiff in :his brief, are generally to the effect that the plaintiff iis not liable for any negligence on the part of his attending physician if he, the plaintiff, used ordinary care in the selection of the physician, and that the plaintiff could recover for any injury directly and proximately caused by the defendant, plus the aggravation theieof by his physician.

In his opening statement to the jury, counsel for defendant stated that Dr. Weinbaum’ was called to the hospital and X-rayed the plaintiff, told him there was nothing wrong with him and that he would be back on the job in two or three days.

Counsel for defendant further stated:

“Now, we are not contending that he did not have a shoulder separation but we are contending and will contend in this defense that Dr. Weinbaum did not diagnose this case right and did not treat him right for a shoulder separation and if he had he would not have had this trouble. And we believe that this jury will not find that Fred Hinamon is guilty of any negligence or owes this gentleman anything and we do not believe that this jury will make him pay for any mistakes any doctor has made in the case.”

No evidence was offered by defendant in support of this contention, and although defendant’s attorney cross-examined two doctors called on behalf of plaintiff, no evidence was developed on the trial of the case in any way tending to prove aggravation of the injury sustained by plaintiff caused by improper diagnosis or treatment by his attending physician. Consequently, although an instruction to the jury removing the stated contention of defendant from its consideration may have been proper, there were no facts in evidence to which the requests were applicable, and the court did not err in refusing to give them.

9. For other errors manifest from the face of the record.

The only errors specified under this assignment are error in voir dire examination and error of the court in commenting on special charges.

The record shows that no objections were made by plaintiff to the statement of counsel for defendant in his voir dire examination of jurors, now claimed to be erroneous, and that the matter was not otherwise called to the attention of the court, so no foundation exists for the review of this claimed error.

No objection was made to the comment of the court on the special charges and the matter was not otherwise brought to the attention of the court, so that no foundation exists for the review of this claimed error.

For the reasons mentioned, the judgment of the Common Pleas Court is reversed for errors in the charge, above set forth, and the cause is remanded for a new trial and further proceedings according to law.

Judgment reversed.

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


author: Carpenter, J.

text:
    The State of Ohio, Appellant, v. Fishack, Appellee.

      (No. 4330
    Decided December 20, 1948.)

      Mr. Joel 8. Rhinefort, prosecuting attorney, and Mr. John J. McCarthy, for appellant.

      Mr. Jesse S. Heslip, for appellee.
   Carpenter, J.

In the Municipal Court of Toledo, the defendant was convicted and sentenced on. a charge of petit larceny. He filed a notice of appeal on questions of law to the Court of Common Pleas of Lucas county. That court reversed the conviction and discharged the defendant. From that judgment, the state appealed to this court on questions of law, and assigns as error that the defendant’s notice of appeal to the Common Pleas Court was not filed in time to give that court jurisdiction.

The record shows that defendant’s motion for a new trial was overruled and he was sentenced February 7, 1948. On March 20,1948, his notice of appeal was filed.

Section 1579-307, Genera] Code, a part of the Toledo Municipal Court Act, provides that appeals on questions of law from that court “in both civil and criminal cases may be prosecuted to the Court of Common Pleas of Lucas county * * * in the same manner and under the same conditions * * * as provided by law for appeals on questions of law from the Court of Common Pleas to the Court of Appeals.”

Section 13459-4, General Code, says that in that procedure an “appeal * # * may be filed as a matter of right within thirty days after sentence and judgment”; after thirty days, “only by leave of the court or two of the judges thereof.”

No such leave is shown by this record.

Forty-one days having intervened between the sentence and the notice of appeal, it was too late and the Common Pleas Court, for want of jurisdiction, should have dismissed the appeal. Such being the state of the record, the judgment of reversal must be set aside and the cause remanded to the Municipal Court for execution.of sentence.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.