author: Hunsicker, J.

text:
    In re Estate of Searight: Department of Taxation of Ohio, Appellant, v. Miller, Exr., Appellee.
    (No. 1110
    Decided June 7, 1950.)

      Mr. Herbert 8. Duffy, attorney general, and Mr. William H. Annat, for appellant.

      Mr. Adrian W. Miller, for appellee. ' :
   Hunsicker, J.

George P. Searight, a resident of Wayne county, Ohio, died testate on November. 2"7,1948. Item “third” of his will provided: ‘

“I give and bequeath my dog, Trixie, to Florence Hand of Wooster, Ohio, and I direct my executor to deposit in the Peoples Federal Savings and Loan . Association, Wooster, Ohio, the sum of $1000.00 to be used by him to pay Florence Hand at the rate of 75 cents per day for the keep and care of my dog as long as it sháll live:' If my dog shall die before the said $1000.00 and the interest accruing therefrom shall have been used up, I give and bequeath whatever remains of said $1000.00 to be divided equally among those of the following persons who are living at that time, to wit: Bessie Immler, Florence Hand, Reed Searight, Fern Olson and Willis Horn.”

At the time of his death, all of the persons, and his dog, Trixie, named in such item third, were living.

Florence Hand accepted the bequest of Trixie, and the executor paid to her from the $1000 fund, 75 cents a day for the keep and care of the dog, The value of Trixie was agreed to be $5.

The Probate Court made a determination of inheritance tax due from the estate of George P. Searight, deceased, the pertinent part of this judgment reading as follows:

“The court further finds that the value of the dog Trixie is taxable as a succession-to Florence Hand: that the said dog inherits the sum of $1000.00 with power to consume both the interest and principal at a limited rate; that the state of Ohio (Sec. 5332) levying a tax on successions to property does not levy a tax upon the succession to any property passing to an animal; that the $1000.00 bequest to said dog is therefore not taxable; that the remainder of the $1000.00, if any, remaining after the death of said dog is taxable in the hands of the remaindermen; that there is no certain life expectancy of said dog, and that a tax should therefore be. assessed upon the entire bequest to the contingent beneficiaries, subject to the right of refund as provided in Sec. 5343, Ohio General Code, upon final determination of the exact succession to each of the five remaindermen, or the survivor of them, reserving all rights of refund to a prior deceased remainderman to the estate of such remainderman, and reserving likewise the rights of the state of Ohio to assess any excess to all remaindermen.

‘ ‘ Wherefore, it is ordered by the court that Florence Hand, as successor to the title of the said dog Trixie, he taxed at the rate prescribed by law on the value of said dog, to wit, $5.00; that Bessie Immler, Florence Hand, Reed Searight, Fern Olson and Willis Horn, as contingent beneficiaries and remaindermen of the said $1000.00, each be taxed on $200.00 at the rate prescribed by law, subject to refund or assessment of any excess as indicated in the findings herein # *

The Department of Taxation of Ohio appeals to this court from such judgment, claiming the Probate Court erred: In holding that the bequest in item third to the extent it was paid to Florence Hand for the care of Trixie, is not a succession to property passing in trust or otherwise, to or for the use of a person; in not holding that the bequest of $1000 to the extent it was to be paid to Florence Hand for the care of Trixie was a bequest or succession to the said Florence Hand, subject to Ohio inheritance taxes; in holding that the bequest-of $1000.00 was a bequest to a dog to the extent it is paid to Florence Hand for the care of Trixie; in holding that a bequest of $1000 to the extent it is paid to Florence Hand for the care of Trixie is not subject to Ohio inheritance taxes; in holding that a bequest for the care of Trixie is a valid bequest; in not holding that the sum of $1000 was a succession of property passing to the remaindermen named in item third; in not making a final order holding that the entire bequest of $1000 was subject to Ohio inheritance taxes on the amount of $200 due to each remainderman.

The questions presented by this appeal on questions of law are:

1. Is the testamentary bequest for the care of Trixie (a dog) valid in Ohio—

';(a')"'¿s a proper subject'of a so-called “honorary trust”?

'(bJAs not being in violation of the rule against perpetuities ?

:'-2.''Is the bequest set forth in item third of testator’s will 'subject to the inheritance tax laws of Ohio?

•1 ;(a')-' The creation of a trust for the benefit of specific animals has not been the subject of much litigation in the courts, and our research, and that of able counsel in this case, have failed to disclose any reported case on the subject in Ohio. The few reported cases in this' couiltry, in England and in Ireland have been the subject of considerable comment by the writers of tbxt! books and by the law reviews of leading law schools. '

See: Mitford v. Reynolds, 60 Eng. Rep., 812, 16 Simons, 105 (trust for horses); Pettingall v. Pettingall, 11 L. J. Ch., 176, 8 English and Empire Digest, 264 (trust for horses and hounds); In re Dean, Cooper-Dean v. Stevens, 41 L. R. Ch. D., 552 (trust for horses aind’hbunds); In re Kelly, Clearly v. Dillon, 1932 Irish Rep., 255, 1932 Mews’ Annual Digest of English Case Law, 316 (trust for dogs allowed for 21 years); Willett v. Willett, 197 Ky., 663, 247 S. W., 739, 31 A. L. R., 426 (trust for dog allowed on the basis of a statute exempting both trusts for humane purposes ánd those for charitable purposes from the definite beneficiary requirement) ; In re Howells’ Estate, 260 N. Y. Supp., 598 (trust for 5 household pets and one human being declared invalid as violating the New York statute forbidding the suspension of the absolute ownership of personal'property for a period longer than two lives ih''being); In re Renner Estate, 358 Pa., 409, 57 A. (2d), 836 (a gift of residue in trust to maintain a dog and"parrot held valid); 5 Harvard Law Review, 389; 10 Michigan Law Review, 31; 17 Minnesota Law Journal, 563; 46 Harvard Law Review, 3036; 42 Yale Law Journal, 1290; 10 Cincinnati Law Review, 116.

We do not have, in the instant case, the question of a trust established for the care of dogs in general or of an indefinite number of dogs, but we are here considering the validity of a testamentary bequest for the benefit of a specific dog. This is not a charitable trust, nor is it a gift of money to the Ohio Humane Society or a county humane society, which societies are vested with broad statutory authority (Section 10062, deneral Code) for the care of animals.

Text writers on the subject of trusts and many law professors designate a bequest for the care of a specific animal as an “honorary trust”; that is, one binding the conscience of the trustee, since there is no beneficiary capable of enforcing the trust.

The rule in Ohio, that the absence of a beneficiary having a legal standing in court and capable of demanding an accounting of the trustee is fatal and the trust fails, was first announced in Mannix, Assignee, v. Purcell, 46 Ohio St., 102, 19 N. E., 572.

The text writer for Ohio Jurisprudence on the subject of trusts (40 Ohio Jurisprudence, page 85 et seq.), Professor Harry W. Vanneman of Ohio State University Law School, says, in Section 68:

“Where property is conveyed or devised to a trustee for certain purposes, such as maintenance of graves, saying of masses, erection of monuments, care of certain animals, and the like, although the object of the bounty cannot enforce the trust, and, the trust not being a charity, the attorney general has no duty with respect to it, nevertheless, contrary to the doctrine of the preceding section, the trust does not fail if the trustee is willing to carry it out'and erect the monument, care for the animals, etc., provided the trust will not continue for a period longer than the rule against perpetuities. The trustee cannot hold beneficially, and, if he is unwilling to carry out the power entrusted to him, he will hold as resulting trustee for the proper person. Such a trust has been designated as an ‘honorary trust’ because there is no beneficiary capable of enforcing it. * * * ”

In 1 Scott on the Law of Trusts, Section 124, the author says:

“There are certain classes of cases similar to those discussed in the preceding section in that there is no one who as beneficiary can enforce the purpose of the testator, but different in one respect, namely, that the purpose is definite. Such, for example, are bequests for the erection or maintenance of tombstones or monuments or for the care of graves, and bequests for the support of specific animals. It has been held in a number of cases that such bequests as these do not necessarily fail. It is true that the legatee cannot be compelled to carry out the intended purpose, since there is no one to whom he owes a duty to carry out the purpose.

“Even though the legatee cannot be compelled to apply the . property to the designated purpose, the courts have- very generally held that he can properly do so, and that no resulting trust arises so long as he is ready and willing to carry it out. The legatee will not, however, be permitted to retain the property for his own benefit; and if he refuses or neglects to carry out the purpose, a resulting trust will arise in favor of the testator’s residuary legatee or next of ldn.”

Professor Scott then discusses the position that another eminent scholar, Professor Bogert, takes in liis work on the Law of Trusts and Trustees, Sections 165-166.

The object and purpose sought to be accomplished by the testator in the instant case is not capricious or illegal. He sought to effect a worthy purpose — the -care of his pet dog.

Whether we designate the gift in this case as an “honorary trust” or a gift with a power which is valid when exercised is not important, for we do know that the one to whom the dog was given accepted the gift and indicated her willingness to care for such dog, and the executor proceeded to carry out the wishes of the testator.

“Where the owner of property transfers it upon an intended trust for a specific non-charitable purpose, and there is no definite or definitely ascertainable beneficiary designated, no trust is created; but the transferee has power to apply the property to the designated purpose, unless he is authorized by the terms of the intended trust so to apply the property beyond the period of the rule against perpetuities, or the purpose is capricious.” I Restatement of the Law of Trusts, Section 124.

To call this bequest for the care of the dog, Trixie, a ■trust in the accepted sense in which that term is defined is, we know, an unjustified conclusion. The modern authorities, as shown by the cases cited earlier in this discussion, however, uphold the validity of a. gift for the purpose designated in the instant case, where the person to whom the power is given is willing to carry out the testator’s wishes. Whether called an “honorary trust” or whatever terminology is used, we conclude that the bequest for the care of the dog, Trixie, is not in and of itself unlawful.

In Ohio, by statute (Section 10512-8, General Code), the rule against perpetuities is specifically defined, and such statute further says:

“It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common law rule against perpetuities.”

It is to be noted, in every situation where the so-called “honorary trust” is established for specific animals, that, unless the instrument creating such trust limits the duration of the trust — that is, the time during which the power is to be exercised — to human lives, we will have “honorary trusts” established for animals of great longevity, such as crocodiles, elephants and sea turtles.

See: Gray, The Rule Against Perpetuities (Fourth Ed.), Section 896.3.

’ Restatement of the Law of Property, Section 374, states the maximum period allowed by the rule against perpetuities as:

“fa) lives of persons who- are

“ (i) in being at the commencement of such period,, and

“(ii) neither so numerous nor so situated that evidence of their deaths is likely to be unreasonably difficult to obtain; and

“(b) twenty-one years; and

“ (c) any period or periods of gestation involved in the situation to which the limitation applies. ’ ’

' This same text, with reference to the application of such rule to “honorary trusts,” says, at Section 379:

“A limitation of property on an intended trust is invalid when, under the language and circumstances of such limitation,

“ (a) the conveyee is to administer the property for the accomplishment of a specific noncharitable purpose and there is no definite or definitely ascertainable beneficiary designated; and

“(b) such administration can continue for longer than the maximum period described in Section 374; and

- “(c) destructibility of the trust, of the sort described in Section 373, is absent.” •

The lives, in being, which are the measure of the period set out in the rule against perpetuities, must be determined from the creating instrument.

If we then examine item third of testator’s will, we discover that, although the bequest for his dog is for “as long as it shall live,” the money given for this purpose is $1000 payable at the rate of 75c a day. By simple mathematical computation, this sum of money, expended at the rate determined by the testator, will be fully exhausted in three years and 238-1/3 days. If we assume that this $1000 is deposited in a bank so that interest at the high rate of 6% per annum were earned thereon, the time needed to consume both principal and interest thereon (based on semi-annual computation of such interest on the average unusued balance during such six month period) would be four years, 571/2 days.

It is thus very apparent that the testator provided a time limit for the exercise of the power given his executor, and that such time limit is much less than the maximum period allowed under the rule against perpetuities.

We must indulge the presumption that the testator was cognizant of the rule against perpetuities and the construction placed upon it by the courts, and that he prepared his will possessed of such knowledge. Everhard et al., Trustees, v. Brown, 75 Ohio App., 451, at page 459, 62 N. E. (2d), 901.

We therefore conclude that the bequest in the instant case for the care of the dog, Trixie, does not, by the terms of the creating instrument, violate the rule against perpetuities.

2. We next consider the problem of the inheritance tax, if any, to be levied on the bequest contained in item third of testator’s will.

Section 5332, General Code, says, in part:

“A tax is hereby levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases:

‘ 1. When the succession is by will or by the intestate-laws of this state from a person who was a resident of this state at the time of his death.

í Í # # #

‘ ‘ 4. Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property heretofore or hereafter made, such appointment when made shall be deemed a succession taxable under the provisions of this subdivision of this chapter in the same manner as if the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by said donee by will * *

This statute determines that a tax shall be levied upon succession to all property passing to a person, institution or corporation. Certainly, a dog is neither an institution nor a corporation. Can it be successfully contended that a dog is a person ? A “ person ” is defined as “3. A human being.” Webster’s New International Dictionary, Second Edition.

We have hereinabove indicated that the bequest for the dog, Trixie, comes within the designation of an “honorary trust,” and, as such, is proper in the instant case. A tax based on the amount expended for the care of the dog cannot lawfully be levied against the monies so expended, since it is not property passing for the use of a “person, institution or corporation.”

The executor herein had a power granted to him to use the funds for the support of the dog, which he proceeded to fulfill. Is it possible that such a power could be considered as a power of appointment within the terms of subsection 4 of Section 5332, General Code, and, hence, subject to taxation thereunder?

On this point, we need look for no other authority than that contained in 3 Restatement of the Law of Property (Future Interests), Section 318 (2), which states the rule as follows:

“ (2) The term power of appointment does not include a power of sale, a power of attorney, a power of revocation, a power to cause a gift of income to be augmented out of principal, a power to designate charities, a charitable trust, a discretionary trust, or an honorary trust.”

Thus, an intended trust (honorary trust) for the support of a specific animal does not create a power of appointment, as such term is used in the inheritance tax statute (Section 5332, General Code).

We therefore conclude that no succession tax may be levied against such funds as are expended by the •executor in carrying out the power granted to him by item third of testator’s will.

The judgment of the Probate Court is affirmed.

Judgment affirmed.

Stevens, P. J., and Doyle, J., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Mullins, Appellee, v. Brown, Appellant.

      (No. 191
    Decided April 24, 1950.)

      Messrs. Ely, White S Davidson, for appellee.

      Mr. Carl L. Meier, Messrs. Nichols, Speidel & Nichols and Mr. William J. Walsh, for appellant.
   Matthews, J.

This is an action for breach of a contract to lease a specified portion of a farm known as Maplewood Farm and an unidentified portion containing from 50 to 80 acres' of a farm known as Arcadia Farms containing 168 acres. That portion of the contract relating to the Maplewood Farm was fully performed and a final’settlement made by the parties and is not involved in this litigation. We are concerned only with those matters relating to the leasing of a portion of the Arcadia Farms.

The issues of fact were submitted to a jury in the Common Pleas Court and it returned a verdict for the plaintiff-appellee for $2,550. On defendant’s motion for a new trial, the court required a remittitur of $1,000, which was accepted by the plaintiff and judgment was thereupon rendered in his favor for $1,550. Defendant' appeals from that judgment and assigns various errors.

(1) The plaintiff alleged that prior to April T, 1948, the defendant agreed to lease to him for the farming season of 1948-1949 no less than 50 acres upon which he was to plant corn and soy beans and furnish a team of horses and tractor. Also by the terms .of their agreement the parties were to operate a dairy. There was no promise on plaintiff’s part to do anything as a consideration for the defendant’s promise, but it is alleged that the plaintiff moved into the house ou the Maplewood Farm, obtained a three-month leave of absence from his job as a railroad brakeman, and in various other ways prepared to take advantage of the defendant’s promise. Whether this change of position after, and in reliance on, the agreement was a sufficient consideration in law we do not stop to consider. ; Certainly, if a contract was entered into, it was not the consideration contemplated by the parties at the time. The consideration was the mutual promises of the parties.

But the first contention of the defendant is that the minds of the parties never met and that, therefore, m> contract came into existence. After reading the evidence, we are unable to agree with counsel. It is true that the evidence was conflicting, but there was substantial evidence that the plaintiff agreed to lease noi less than 50 acres and not more than 80 acres, to cultivate and harvest not less than 25 acres of corn' and' 25 acres of soy beans, and to operate a dairy. The defendant agreed to designate such portion of the Arcadia Farm and lease it to him, furnish the team of horses and the tractor, and bear certain other expenses. They agreed that the net profits should be divided equally. The agreement of the parties was set forth in great detail in- a written memorandum prepared in duplicate by the defendant. The introductory sentence is: “The following is my understanding1 ■ of our agreement as outlined over the phone last night. ’ ’ It is true, the memorandum was not signed and it bears no indication that it was the intention of anyone that it should be. There is substantial evidence that the plaintiff concurred in the statement, that it correctly set forth the agreement, and that he in fact did sign one copy which the defendant took. There are many circumstances corroborating the plaintiff’s testimony and indicating that both parties understood that they were bound. The issue was for the jury.

(2) At the time this contract was entered into, the entire Arcadia Farms was leased to one Foster, who -apparently had sowed some wheat on a portion, and a dispute arose between him and the defendant as to the date of the expiration of his lease. Foster contended that his lease covered the entire year of 1948, and the defendant contended that it expired on April 1, 1948. Foster refused to vacate, and that fact is assigned by the defendant as a legal excuse for not delivering possession of the 50 to 80 acres to the plaintiff; Counsel rely upon a line of cases, of which Hannan v. Dusch, 154 Va., 356, 153 S. E., 824, 70 A. L. R., and Snider v. Deban, 249 Mass., 59, 144 N. E., 69, are typical, holding that a lessor is under no implied obligation to put his lessee into actual possession at the beginning of the term, and that the wrongful exclusion of the tenant by a third person is no breach of any obligation of the lessor, in the absence of an express agreement by him to put the lessee in possession. An examination of the authorities discloses that there is almost an equal division on this subject. Perhaps a slight preponderance favors the English rule that it is the duty of the Lessor, where the term is to begin in futuro, as in this case, to oust any one who may be in possession, so that the lessee may take peaceable possession.' The state of the authorities is summarized as follows in 32 American Jurisprudence, 178, 179:

“Although the authorities are not in accord, some courts in this country take the view that the extent ot* the lessor’s covenant to give possession is that the¡possession shall not be withheld either by himself or,-bv one having a paramount title. Under this rule, it- is sufficient if the premises are open to entry without an -obstacle in the form of a superior right which .will prevent the lessee from obtaining actual possession.- Accordingly, a lessor is' not liable to a lessee for the wrongful holding over of a former tenant so as to -withhold possession from the second lessee at the beginning of his term. Other authorities in this country, as well as the English courts, t.ake the view that the implied obligation of the lessor where the term is to commence in futuro extends to a wrongful withholding of possession by- a.third person at the time of the commencement of the lessee’s right to possession. Under this rule, the lessor impliedly covenants to put the lessee in possession at the beginning of the term as against a prior, tenant wrongfully holding over; he must see that the first tenant vacates the premises at the time the lessee’s right of possession accrues» and is liable in damages to the lessee if he permits that •first tenant to hold over. ”

The Supreme Court of Ohio has not expressed itself on this subject. There have been some references to it’ in the decisions of the lower courts. These are cited as authorities for the following text in 24 Ohio Jurisprudence, 880, 881:

‘ ‘ The lessor is. obligated not merely to give the lessee a right of possession free from any'other paramount title; he' is obligated also to deliver possession to the lessee. There is said to be an implied’covenant on the part of the lessor to put the lessee in. ¡possession.1.- Obviously, the lessor himself must not, by remaining in possession, prevent the lessee from taking possession; But the lessor must do more than relinquish possession. It is his duty to eject, and he is liable tcfthe lessee for the possession of, a tenant under a' valid prior lease, or a tenant holding over wrongfully, or under color of right. Although the authorities are divided, the better view is that the lessor is liable to the lessee for the wrongful possession of any person at the commencement of the lessee’s term.”

One of the cases cited in support of the text is Miller v. Innes, 3 N. P. (N. S.), 50, which was affirmed by the Circuit Court (3 N. P. [N. S.], 54), the latter judgment-being in turn affirmed by the Supreme Court (74 Ohio St., 476, 78 N. E., 1132) without opinion. The action was for rent. The plaintiff had leased to the defendant a dwelling house for a year at a rental of $300 per year, payable'in monthly installments. The lease provided that the lessee should also have the use of space in a large stable sufficient for one horse and one carriage. • The lessee abandoned the premises at the end of the seventh month and the action was for rent for the remaining five months. The lessee defended on the ground that when he went to the stable on the first day he was refused admittance to the stable for his horse and carriage and, after subsequent attempts and refusals, he stopped any further attempts and rented another stable. The Common Pleas Court took notice of the conflict in the decisions in different jurisdictions and said: “In consideration of the principles and reasons adduced in these various cases, I incline to the English doctrine and adopt the reasoning of King v. Reynolds, 67 Ala., 229.” The court also -called attention to a feature of the case which prevented the application of the contrary doctrine, i. e., the provision relating to the space in the stable for the lessee’s horse and carriage, and on that subject said: 4 41 am moreover of the opinion that in the case at bar there would be no conflict of authorities, for this reason, that by the terms of the lease the particular space in the large barn allotted to the lessee was not specified therein, and, therefore, remained to be indicated and set apart by the lessor. It thereupon became the duty of the lessor to set aside that space because the lessee would have no right to maintain any action to eject any particular person * * * for the reason that * * * he could not specify in his action for ejectment the premises to which he was entitled.”

The Circuit Court agreed with the Common Pleas Court in both respects, saying:

4 4 Recognizing the conflict of authority on the main point, we are, however, of the opinion that the best reasoning is in favor of the contention that it is the landlord’s duty to clear the way for the entrance to possession of the property by the lessee, on the first day of his term. See opinion of Stone, J., in King v. Reynolds, 67 Ala., 229, 233.

“Furthermore, in the case at bar it was impossible for the lessee to get possession of the stable room, because same had not been designated and described to him. ’ ’

As already noted, the Supreme Court affirmed without opinion the Circuit Court judgment. As there were only these two possible grounds for the lower court’s decision, it would seem that the affirmance was necessarily on one or the other.

What was said in Miller v. Innes, supra, is equally applicable to the facts in the instant case. Here was a lease for an unidentified 50 to 80 acres in a tract of 168 acres for one farming season. What the plaintiff contracted for was possession of at least 50 acres. If he was not placed in possession, he would get nothing under the contract. If he was required to litigate to obtain possession, the farming season might have entirely passed or be so far advanced as to make possession valueless. Furthermore, in the instant case, as in Miller v. Innes, supra, the part lessee was to have had not been identified by the lessor and, until it had been, no title could pass to him and he could maintain no action to recover possession against anyone.

Baxley v. Davenport (Ga.), 44 S. E. (2d), 388, involved a kindred principle. The owner of a storeroom and fixtures leased them to the plaintiff while they were in the possession of a purchaser of the stock of goods of a prior lessee. The plaintiff sued the purchaser of the stock of goods for rent during his occupancy. The court said:

“However, where the owner of lands does not con vev the title or an estate therein but gives the lessees only the usufruct, as in the present case, such lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which he rented the premises, but the lessees must look to the owner to place them in possession of the premises and may maintain an action for damages against him for a refusal or failure to do so. ‘Where the lease contains no stipulation to the contrary, there is an implied covenant on the part of the lessor that the premises shall be open to entry by the lessee at the time fixed by the lease for him to take possession, and if possession is then wrongfully withheld from the lessee, he can maintain an appropriate action against the lessor.’ ”

It should be noted that the record does not indicate that Foster’s possession of Arcadia Farms was wrongful. It does show that the ..defendant sued him in ejectment and that the parties compromised. The issue was not decided. Certainly, according to all the authorities, if Foster was in possession rightfully under a lease from Brown and the plaintiff was thereby excluded, that would be a violation of the implied term in the lease that the lessor had not done and would not do anything which would interefere with the lessee taking and holding possession.

Our conclusion is that Foster’s possession and tho defendant’s inability to dispossess him constituted no defense.

(3) Finally, we come to the question of the measure of damages.

The court charged the jury:

“The damage must flow naturally and directly from the breach of the contract, that is, it must be such as might be presumed to follow the breach if there was a breach. It must not be remote, but the proximate consequence of the breach. * * * In measuring the damage of the plaintiff, should you find for the plaintiff under the rules 1 have given you, you will take into account the profit, if any, he would likely receive as of that farming year under this contract and arrangement, had the contract not been breached.”

There is evidence of the gross income which might be expected provided weather and all other conditions proved to be favorable, and the size of the verdict seems to indicate that as its basis, without giving the defendant his share. There is no evidence of the cost which would necessarily be incurred in producing that income. In other words, there is no evidence of the probable net profit which would have been realized. The trial court found the amount of the verdict to be excessive, but we fail to discover any basis in the evidence upon which a reduction of $1,000 or any other sum could be predicated.

As to the measure of damages for violating a sharecropper’s contract by refusing him entrance or later evicting him, there has been great diversity of decisions in the various jurisdictions, but in Ohio the rubí seems to have been laid down in 1866 in the case of Rhodes v. Baird, 16 Ohio St., 573, and has never been qualified since. We quote the first three paragraphs of the syllabus of that case: :

‘ ‘ An action was brought on a contract by which the defendant agreed to make a lease, for the term oi ten years, to the plaintiff, of certain lands on which to plant and cultivate a peach orchard. The breach consisted in the failure of the defendant to make the lease, and in his causing the plaintiff, within two years from his taking possession, to be evicted from the premises, but after the peach trees were planted. On the trial, the plaintiff was permitted to give evidence of the probable profits that might in future be realized from the orchard, judging by the number of crops and the prices of peaches in the county for the last ten or fifteen years. Held:

“1. The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by the jury, such evidence being uncertain and speculative in its nature and in a great degree conjectural.

‘.‘2. To the extent that the damages depended on the loss of the use of the property ■ for the term, its market value at the time of the eviction subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value in view of the hazards and chances of .the business to which the land was to be devoted.” '

The measure is the general market value, if any, of the lease or contract at the time of the breach, and if, perchance, it had no general market value, the measure is its value determined on the testimony of experts testifying directly to its value in view of the hazards and chances of the business to which the land was to be devoted. The jury was not instructed that this was the measure of damage. The evidence on the subject of profit and expense was not so limited. The only instruction given left it to the jury to base its verdict upon probable profits, which was erroneous.

We find that the court erred in its charge on the subject of the measure of damages and in the admission of evidence on the subject of damage.

It should also be noted, in view of the fact that the case must be retried, that the charge contains contradictory statements on the burden of proving a discharge by settlement. . In one place, the burden is placed on the plaintiff to prove there was no settlement, and, in the other place, the burden is properly placed on the defendant.

For these reasons, the judgment is reversed and the cause remanded to the trial court for further proceedings according to law.

Judgment reversed.

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


author: Miller, P. J.

text:
    The State of Ohio, Appellant, v. Smith, Admx., Appellee.
    (No. 4380
    Decided February 9, 1950.)

      Mr. Herbert 8. Duffy, attorney general, Mr. James B. Yaw and Mr. Charles T. Kays, for appellant.

      Wlessrs. Dargusch, Caren, Greek é King, Mr. John P. McMahon and Mr. Robert L. Hausser, for appellee.
   Miller, P. J.

This is an appeal on questions of law from the judgment of the Court of Common Pleas sustaining the demurrer to the petition in which the state of Ohio seeks to recover the costs of maintaining one Carol Wood in a state institution. The action is brought against the estate of Thomas Ellsworth Dickson, the father of Carol Wood.

The petition discloses that Carol Wood is 30 years of age, a married woman during the entire period of time for which recovery is sought, being the wife of Dayton Wood and also the mother , of three children. The action seeks to predicate the liability of the defendant on the provisions of Section 1815-9, General Code, which provides:

“It is the intent of this act that a husband may be held liable for the support of a wife while an inmate of any of said institutions, a wife for a husband, a father or mother for a son or daughter, and a son or daughter, or both, for a father or mother. ’ ’

It must be conceded that this enactment is indefinite and uncertain as to who is responsible for the maintenance of a married woman having both a husband and a father still living. If it was intended that both be responsible it would seem that the act would have so indicated as was clearly done in the case of a son or daughter having a parent in a state institution, the act providing, “* * * and a son or daughter, or both, for a father or mother.” We must therefore proceed on the theory that liability attaches only to the husband or father but not to both. Since the statute operates to create a liability it must be strictly construed in favor of the one sought to be subjected to its terms. Division of Aid v. Hogan, Admr., 143 Ohio St., 186, 191, 54 N. E. (2d), 781; 59 Corpus Juris, 1129, Section 668. The enactment offers no suggestion that the Legislature intended to create a new or different liability for the support of an insane person from that of one not so afflicted. Clearly under Section 7997, General Code, the husband, and not the father, is responsible for the support of the wife. In the case of In re Beilstein, 145 Ohio St., 397, 62 N. E. (2d), 205, the court, at page 400, made a statement which seems to be somewhat enlightening upon the question here presented :

“Applying the doctrine of expressio unius est ex-clusio alterius there is no legal liability on the part of a father to support and maintain an adult child. Thiessen v. Moore, 105 Ohio St., 401, 421, 422, 137 N. E., 906; 30 Ohio Jurisprudence, 604, Section 52; 20 Ruling Case Law, 586, Section 3. The precise limit of time during which a father is liable for his child’s maintenance is fixed by law, and it cannot, in any case, be either enlarged or diminished except by legislative action.

“In some jurisdictions, this rule has been relaxed where a child is of weak body or mind, unable to care for himself after becoming of age, and remains unmarried and living in the father’s home. 20 Ruling Case Law, 586, Section 3.”

That case is decisive of the question of the power of the Legislature to fix the liability for the support of Carol Wood on both the husband and the father, but our question is whether it has done so. A familiar principle of statutory construction is that statutes should, if possible, be construed so as not to conflict with the settled and established policies of the state. 37 Ohio Jurisprudence, 679, Section 372. The policy of this state is clearly defined by Sections 7997, 8003 and 8023, General Code. Our' interpretation of Section 1815-9, General Code, is that the person who was legally responsible for the support of an incompetent at the time he or she was placed in a state institution, so long as that relationship exists, may be held responsible for the support of the incompetent while so confined. Since Thomas Ellsworth Dickson was not responsible for the support of his emancipated adult married daughter when she was placed in the state institution, he cannot be held liable by the state for her support.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.

Hornbeck and Wiseman, JJ., concur.


author: Hornbeck, J.

text:
    Burnett, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 510
    Decided November 1, 1949.)

      Mr. Paul L. Birt and Mr. L. B. Cousineau, for appellee.

      Mr. Herbert 8. Duffy, attorney general, Mr. T. Vincent Martin and Mr. Hugh P. Brennan, for appellant.
   Hornbeck, J.

This appeal on questions of law is from a judgment on a verdict of a jury in favor of the plaintiff, holding that she, as the widow of James 1. Burnett, deceased, was entitled to share in the state insurance fund as provided by the Workmen’s Compensation Act.

Plaintiff’s decedent, while in the employ of the Hurst Sand & Gravel Company of Dayton, Ohio, a contributor to the state insurance fund, was injured on May 22,1943, in the course of his employment. Thereafter he' fatally shot himself, and it was the claim of the plaintiff that his death was the result of an involuntary act committed in a deranged state of mind, the result of his earlier accident, and that, therefore, his death was proximately caused by this injury. This latter claim was the principal issue between the parties and was resolved in favor of the plaintiff by the verdict of the jury. Although there are four errors assigned, they are all directed to the narrow question at issue.

The court very properly charged the jury that for plaintiff to recover she must show by a preponderance of the evidence that the accident which occurred to her husband caused his mind to be deranged to such an extent that wholly without his own volition he performed the act which resulted in his death, and that, therefore, his act was directly and proximately caused by the accident in 1943. This was in accord with Section 1465-68, General Code, providing that such a recovery cannot be had if the injury was purposefully self-inflicted.

The factual occurrences were developed fully upon the trial and medical experts for both parties testified at length for and against the claim of the plaintiff.

The contention of the defendant is that the shooting of plaintiff’s decedent could not have been the act of an irresponsible mind, and that such was the cause was the hypothesis upon which .the plaintiff based her case and upon which the trial-judge submitted it to the jury. The plaintiff’s theory had support from the factual development and the jury accepted it as it had the right to do. It could well have found for the defendant had it elected to accept the testimony of the defendant’s witnesses.' The effect of the evidence only being involved, we cannot find either that the verdict is not supported by or that it is manifestly against the weight of the evidence.

The judgment is affirmed.

Counsel for plaintiff, concluding their brief, assert that no real question has been presented by defendant on the appeal and that the judgment should be affirmed and cost taxed against the defendant, including a reasonable attorney’s fee and damages, as provided by Section 12223-36, General Code. This section may not be given application in favor of the plaintiff if the appellate court certifies in its judgment that there was reasonable cause for the appeal. Although we would be favorable to further allowance to counsel for plaintiff for services rendered for their client in this court, we cannot say that there was not a reasonable ground for the appeal. As a matter of fact, counsel for defendant in the interest of their client, the state of Ohio, exercised sound professional judgment in prosecuting the appeal in view of the novel question presented and upon the diverse permissible inferences which could be drawn from the facts.

Judgment affirmed.

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


text:
    Matthews v. Russell, Supt.
    (No. 2072
    Decided December 10, 1949.)

      Mr. Louis C. Gap elle, for petitioner.

      Mr. Herbert S. Beane, city attorney, and Mr. William P. Keane, for respondent.
   Miller, P. J.

This is a habeas corpus proceeding originating in this court. The facts are that the petitioner was convicted of assault and battery in -the Municipal Court of Dayton, Ohio, and sentenced to serve one year in the workhouse and to pay a fine of $1,000 and costs. This is the maximum penalty as defined by ordinance Section 943-2 of the city of Dayton. The maximum penalty as prescribed by Section 12423. General Code, for this offense is a fine of not more than $200 or imprisonment for not more than six months or both. The petitioner is contending that the ordinance under which he was sentenced is void as being in conflict v/ith state law, to wit, Section 12423, General Code; in violation of Section 3628, General Code, which limits the penalty for violation of a city ordinance to six months imprisonment or a fine of $500 or both; also in violation of Section 9, Article I of the Ohio Constitution, which provides that cruel and unusual punishment shall not be inflicted.

The first question presented is whether the difference in the penalties as prescribed in the ordinance and the General Code constitute a conflict such as to bring the ordinance within the inhibition of the latter part of Section 3, Article XVIII of the Constitution. This question has been definitely answered in the negative in the case of Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519, which should require no further comment from us. Paragraph three of the syllabus provides:

“A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, * * * or. because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance.”

A more recent case deciding the same question is found in Village of Leipsic v. Folk, 38 Ohio App., 177, 176 N. E., 95, paragraph three of the syllabus of which reads:

“That ordinance against disturbing good order and quiet of village provided for fine not exceeding $100, and that statute provided that fine should in no case exceed $50, did not invalidate ordinance (Section 3665, General Code; Article XVIII, Section 3, Constitution ). ”

The next question presented is whether Section 3628, General Code, which limits the penalty in a city ordinance to a fine of $500 and imprisonment not in excess of six months, is effective as a limitation upon the powers of a municipal corporation. This statute is not a general law within the meaning of the Home Rule Amendment and the limitations therein contained as to the amount of punishment are not binding upon municipalities since the adoption of the amendment of 1912. City of Youngstown v. Evans, 121 Ohio St., 342, 168 N. E., 844, paragraphs one and two of the syllabus of which read as follows:

“1. The power conferred upon municipalities to enforce within their limits local police, sanitary and other similar regulations is only limited by general laws in conflict therewith upon the same subject matter. . .

“2. Section 3628, General Code, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring an ordinance purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution.”

See, also, Marko v. City of Youngstown, 6 Ohio Law Abs., 477, and Ermekiel v. State, 8 Ohio Law Abs., 121. The penalty imposed is neither cruel nor unusual and does not violate Section 9, Article I of the Constitution. To argue that it is, is indeed most primitive as these types of penalties have been regularly employed since our earliest civilization. Judge Day, in commenting on this subject in the case of Holt v. State, 107 Ohio St., 307, 140 N. E., 349, said, at page 314:

“The term ‘unusual,’ employed in Section 9, Article I of the Ohio Constitution, means the kind of punisJament inflicted, and is not used in the sense urged by plaintiff in error. We are content to follow the language of Wilkerson v. Utah, 99 U. S., 130, 25 L. Ed., 345, as interpreting the meaning of the expression:

“ ‘Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned in tbe commentator referred to [4 Blk. Com., 377, where the prisoner was drawn and dragged to the place of execution in treason; where he was emboweled alive; beheaded and quartered in high treason; cases of public, dissection in murder; and if burning alive in treason committed by a female], and all others in the same line of unnecessary cruelty, are forbidden by that amendment of the Constitution. ’ ’ ’

The ordinance being valid, the application is denied.

Petitioner remanded to custody.

Hornbeck and Wiseman, JJ., concur.


author: By the Court.

text:
    Miller, Appellee, v. Woolley, Appellant.
    (No. 7203
    Decided January 23, 1950.)

      Mr. David L. Shannon, for appellee.

      Messrs. Steer, Strauss & Adair, for appellant.
   By the Court.

This is an appeal on questions of law and fact from a decree of the Court of Common Pleas, dismissing both the petition and the cross-petition filed in the action. In each pleading, specific performance of an identical contract of sale of real estate is sought.

The contract was preceded by the tender of an offer prepared by the agent of the plaintiff-seller and signed by the defendant-purchaser and the delivery of a cognovit note to the plaintiff-seller, later replaced by a check of the defendant-purchaser, which the plaintiff-seller caused to be certified and paid to her. Such check represented the initial payment on the purchase price.

The anomalous situation presented hy the prayers of both the petition and cross-petition results from the fact that the plaintiff claims that, although the contract by its terms called for a deed of a certain acreage, through inadvertence on the part of the plaintiff she failed to except out of such acreage .72 of an acre, which she owned and intended to retain. Other exceptions to such total acreage were noted in the contract of sale.

The defendant states he intended ..to buy the entire acreage mentioned in the contract, with only the exceptions noted therein.

No attempt has been made by plaintiff to reform the contract and it is at least doubtful, if not certain, that such an attempt would be futile in view of the evidence which was introduced only for the purpose of showing mistake on the part of the plaintiff.

The real defense of the plaintiff to the cross-petition of the defendant-purchaser is that there was no meeting of the minds, owing to plaintiff’s intention to include in the contract an additional exception, which, through inadvertence, she failed to state.

The contract as in evidence clearly calls for the conveyance of the area which defendant claims he purchased. There is no dispute upon this point. Such area consisted of a rectangular tract, from which four lots had been deeded to three purchasers. These lots were in the northeast corner of the tract. Adjacent to these lots, on the west, was a narrow strip connecting the southern portion of the tract with the highway. Immediately to the west of such strip was a lot in the northwest corner of the tract, which plaintiff asserts she intended to exclude and except from the conveyance to defendant, but which, owing to the absence of such exception, the defendant claims was included in the contract of sale.

There was some evidence offered, over the objection of the defendant, which plaintiff claims indicates that the defendant knew that the lot in dispute was excluded. Such evidence has generally been held to be inadmissible. See 17 Ohio Jurisprudence, 517, Section 418. See, also, Schmidt v. Weston, 150 Ohio St, 298, 82 N. E. (2d), 284. Even were such evidence admissible, it is not of such a character as to weigh strongly in favor of the contentions of the plaintiff. On the other hand, there is evidence which séeins conclusive to the contrary. One of the considerations mentioned in the contract for the sale of the premises was that the defendant-purchaser would assume a mortgage upon this entire tract, with certain parcels excepted from the operation of such mortgage. The language used in the contract is, “to assume first mortgage with Allemania Building & Loan Association in the sum of eleven thousand nine hundred dollars at 5 per cent interest to he paid in accordance with building and loan agreement.”

It is to be remembered that the parcel in dispute had never been conveyed to anyone and was still in the name of the plaintiff-seller.

In the bill of exceptions, the following appears:

“Mr. Adair: It is stipulated by counsel that the mortgage appearing in mortgage book 2170, page 457, Hamilton county, Ohio mortgage records, being a mortgage from Eva M. Miller to the Allemania Building & Loan Association No. 2, is the mortgage referred to in the contract between the parties to this action, and that the description of the property in said mortgage covers all of the property now belonging to Eva M. Miller, to wit, 4.9 acres—

“Mr. Shannon: No, I won’t stipulate that it covers that property. I will stipulate on behalf of the plaintiff that the mortgage in mortgage book 2170, page 457, is a photostatic copy of the original mortgage from Eva M. Miller to the Allemania Building & Loan Association, to secure a loan in the sum of $17,250 and that the property described therein is the 6.879 aeres which was originally conveyed to the plaintiff by Mr. Hardinger.

“Mr. Adair: That is as much as you will stipulate.

“Mr. Shannon: Yes.

‘ ‘ Mr. Adair: I understand that is all you will stipulate;? . I 'tlioii.gb.t you would stipulate that the property covered--by this mortgage was .4.9 acres; but if the court-please, since Mr.' Shannon will not stipulate, I ■will; have, to; ash your Honor’s indulgence to get a representative'from the recorder’s office.

“The- Oourt:. Is there any. question, Mr. Shannon, that when the plaintiff sold these four parcels to three purchasers, that the mortgage as to those was taken care- of?'- . ■

“Mr; Shannon-: I don’t know. I think so, but the release book is here, and the releases can be shown.

“The Court: It- .is a very simple matter. The elevendliousand-dollar balance due the building association covered all the property which the plaintiff then owned, which had been a part of the original grant from.-her .¡grantors.

“Mr. -Shannon: ■ Upon inquiry,-1. have learned that the, three releases were placed of record, and the. balance-duecthe building association at the time this contract' was-signed, did cover the property which we commonly'now call the 4.181 and the .72 acre plat.

£ ‘The, Court: That was all the land she owned out of the original grant?

“Mr. Shannon: That is correct.” (Emphasis added.).:

■i .Nqw-if is -apparent, therefore, that the-mortgage included.' t)ié. disputed parcel. - In -other words, the defendant,,was .assuming- to pay a mortgage on premises to-which; according 'to the plaintiff, he was to receive no. deed.

In. the “exceptions to the warranty clause in the deed tendered by the plaintiff-there'appears the following-in a typewritten insertion: - '

? * except taxes and assessments due and payable in June, 1950, and thereafter, and. a mortgage, in favor of- the : .Allemania Loan : & Building Association, recorded in mortgage book 2170, page 457, Hamilton county mortgage records, all of which the grantees herein assume and agree to pay.” /

It seems strange that if the plaintiff is correct in her claim of inadvertence that she should expect the defendant to assume a mortgage on property to which he was not to receive title and that, after mature consideration, no exception was made from the assumption in the mortgage. - .......

It is the conclusion of the court that the weight of the evidence fails to .sustain the eontentipn .-pf, f.he plaintiff that there, was no meeting;.'of the minds;.;and that, therefore, the defendant-purchaser is. entitled, to a decree of specific performance of the contract as executed-by the parties.

Judgment accordingly.

Ross, P. J., Hildebrant and-MATTHEws, JJ., concur.


author: Fess, J.

text:
    In re Estate of Harmon.

      (No. 4457
    Decided March 27, 1950.)

      Mr. George R. Effler, for appellant, applicant.

      Mr. 'Leroy C. Lancer and Mr. Robert J. Meffley, for appellee, administrator.

       Reporter’s -Note: At the time' this opinion was rendered,- the. court was aware of the decision in In re Estate of Hughes, 84 Ohio App., 275, 85 N. E. (2d), 583, but no motion to certify on grounds of ..conflict was filed., .

   Fess, J.

This is an appeal on questions of law from an order of the Probate Court entered January 17, 1950, denying an application of appellant, Jessie M. Haág, to probate a lost will of Samuel L. Harmon, deceased,. and dismissing the proceedings thereon.

On January 5, 1950, applicant requested the court in writing for conclusions of fact found separately from conclusions of law. To such request, applicant appended two interrogatories pertinent to the issues. Among errors assigned is one to the action of the court in overruling the request.

If otherwise in order, the request was timely made. Bittmann v. Bittmann, 129 Ohio St., 123, 194 N. E., 8 ; Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808.

The attachment of interrogatories involving probative facts from which the ultimate facts can be inferred as a matter of law is proper. Cleveland Produce Co. v. Dennert, 104 Ohio St., 149, 135 N. E., 531.

It is contended, however, that Section 11421-2, General Code, does not apply to a proceeding in the Probate Court to admit a lost will to probate.

Section 10501-22, General Code, enacted in 1932 and amended in 1941, provides:

“In the exercise of jurisdiction the probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided by law for the courts of common pleas and the judges thereof in vacation, so far as they are consistent with laws in force. The provisions of law governing civil proceedings in the Court of Common Pleas, so far as applicable, shall govern like proceedings in the Probate Court when there is no provision on the subject in this act.

“Unless it is expressly otherwise provided by law, in all actions or proceedings had in the Probate Court, whether ex parte or adverse in character, the court may award and tax costs, and apportion them between the parties, on the same or adverse sides, as it adjudges to be right and equitable.”

The first and second sentences of the first paragraph of Section 10501-22 combined former Sections 10499 and 11212, General Code, respectively, without change.

When probate courts were re-established pursuant to the Constitution of 1851, in the act of February 25, 1852 (50 Ohio Laws, 84), defining the jurisdiction and relating to the practice of probate courts, the General Assembly made no attempt to incorporate separate rules of procedure for the Probate Court. Section 15 of the act provided merely that probate judges should be governed by the laws then in force upon the subjects to which they related until otherwise provided by law. Section 58 of the act of March 14, 1853 (51 Ohio Laws, 178), provided that in the exercise of jurisdiction the probate judge should be governed by the same rules and regulations as were provided by law for common pleas courts. The provisions of section 58 of the 1853 act were carried, without substantial change, as Section 537, Revised Statutes, and later as Section 10499, General Code. That act became effective. July;.!; 1853, at the-.same time-the Codeiof Civil Procedure, ¡became effective. : .

: The-i second. sentence in Section 10501-22, General Code, had its- -origin in Section 12; of Chapter 7, Title-II, Procedure in the Probate Court, in the- Act of May 7, 1878-(75 Ohio. Laws, 959), and became Section 6411, Revised. Statutes, and later. Section 11212, General Code.

• - The legislative history of the first .paragraph of Section 10501-22, General Code, indicates that the General {Assembly avoided- encumbering the Probate Code with; special rules: of procedure- and thereby prevented ■; confusion, - which -might, arise from - different methods - of ¡¡procedure- in the Probate Court. -It was-provided merely that:-the familiar procedure" of the Common Pleas Court should apply .where: no: particular procedure was i delineated for the Probate .Court in’the Pfobatoi Code.. So far as they may be applicable, the provisions {governing civil.proceedings- in: the.Common Pleas .'Courts govern -proceedings' in the Probate Court in: thesabseheé mf any: particular - procedural ¡ provision in- the ■•'Pró'báte:, Code. "Section 58 of the Act of 1853 employedfthe:word, “-same,” three times — “same'powers,’;’ “sameduties” and “same rules and regulations’’ as .provided..by law. for .-the Court of • Common Pleas. The pbrasfe,! ¡9 like proceedings, ’ ’ as .used in- the - second sentence of Section 10501-22, General Code, is not limited to-'proceedings of dike character in the - Common Pleas Court. '-The’word, “like,” refers to 2‘civil proceedings 'inutile: Court of-Common Pleas.”

This conclusion is’' supported by the following observation of the Supreme Court in Railroad Co. v. O’Hara (1891), 48 Ohio St., 343, 356:

. “No espressprovision on the subject is to be found in the procedure provided by statute for the Probate Court; indeed the special rules of procedure provided for this a court are quite limited, because; by Section 6411, Revised Statutes, all the provisions of law governing civil proceedings' in'- the' .Court of Common Pleas, are made applicable- ' to the Probate Court, where there- is no special;provision ¡on the subject applicable to that court. Again ¡it-is-provided in Section 537, Revised'Statutes;’that .’.the probate judge shall, in the exercise of the jurisdiction conferred on his court, have the same powers and' be governed by-the same regulations as are provided bylaw for the courts of common pleas * *;■*.

‘ ‘ * * * it can hardly be supposed that the -Legislature would have conferred a -power of' this kind, (to empanel a jury), without making some provision”for .'its exercise ; and no special provision was made for; empaneling a jury, for the reason, doubtless, that;-'in''its view, ample provision therefor was to be found ¡in the provisions for- the Common Pleas,- made ¡applicable, as above shown, to the Probate Court.’’

In Kittredge v. Miller (1896), 12 C. C., 128, 5 C. D., 391, .the court construed Section 6411; Revised" Statutes, as making Section 5205; Revised Statutes-(predecessor-of Section' 11421-2; General Code) applicable to proceedings in the Probate Court incident to the mination of a claim for counsel fees.

We "now proceed to inquire' -'whether'the provisions of •Section- 11421-2, General -Code,-are applicable-to proceedings to probate a lost will.

Section 1050P22, General Code, appears in that portion of the Probate Code dealing-with' thee subject of jurisdiction and procedure.'¡' Section Í0501-82,'-General Code, provides that, unless otherwise-provided'by lafv, all questions-of fact shall-be. determined by the probate judge, unless',-- in his''discretion, he ■ Older sbkeiHt'o ' be tried-by /abjury or referred; Section 10504^36, General Code;-provides'for an''application to'the CoUftlo ¡admit to probate a lost will. Section 10504-37, General Code, provides that the probate judge shall, examine the witnesses and reduce their testimony to .writing. Section 10504-38, General Code, provides that, if upon the proof the court is satisfied that the will was executed in the mode provided by law, that its contents are substantially proved, that it was unrevoked, and that it was lost, etc., such court shall find and establish the contents of the will as near as can be ascertained and cause them and the testimony taken in the cause to be recorded in the court. It will thus be noted that the proceedings contemplate the determination of a question of fact by the probate judge.

The function of a request for conclusions is “with a view.of excepting to the court’s decision on questions of law involved in the trial,” primarily to determine whether such conclusions of fact support or warrant the conclusions of law drawn from such facts. A secondary function is to avoid the necessity of a transcript of the evidence in the record on appeal unless the party appealing desires to attack one or more of the findings as unsupported by the evidence. The right to require a court to comply with the request is limited to cases where “questions of fact are tried by the court.” Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808. In cases tried to a jury, provision is made for special verdicts and ansAvers to interrogatories.

Counsel as well as the courts frequently overlook the function of findings by a court upon appellate review. When findings are made, the reviewing court is not ordinarily required to review the evidence but merely determines whether the conclusions of law are consistent Avith and supported by the conclusions of fact. A party appealing, however, may assign as error that one or more of the conclusions of fact are eontrary to or not supported by the evidence. In passing upon such assignments of error, the appellate court reviews the evidence.

Our review of that portion of the Probate Code reveals no provision inconsistent with proceedings in the Common Pleas Court. The admission of a lost will to probate involves the determination of a question of fact without a jury and the provisions of Section 11421-2, General Code, are applicable.

Since the applicant was entitled to have her request granted, the denial thereof was prejudicial. Although this court could review the entire record in this case, since a bill of exceptions is on file (In re Zimmerman, 78 Ohio App., 297, 70 N. E. [2d], 153), it is not required to do so. Should this court undertake to do so and find that the judgment was manifestly against the weight of the evidence, such error could not be reviewed by the Supreme Court. However, the Supreme Court would consider whether the evidence attains to that higher degree of probative value to constitute clear and convincing proof. Cole v. McClure, 88 Ohio St., 1, 102 N. E., 264. The denial of the request thereby affected a substantial right.

•The order of the Probate Court is therefore reversed and the cause remanded for further proceedings.

Cf. Shunk v. Shunk Mfg. Co., 86 Ohio App., 467.

Judgment reversed.

Conn and Carpenter, JJ., concur.


text:
    Wenning, Appellant, v. The Peoples Bank Co. of Coldwater, Ohio, et al., Appellees.

      (No. 484
    Decided November 26, 1949. )

      Mr. Elmer McClain, for appellant. , .-k

      Mr. Henry J. Knapke, Mr. Carlton C. Reiser and Mr. David Armstrong, for appellees. : 'W ¡ : . o
   By the Court.

This.is an ¡appeal on;questions of law from a: ¡judgment of the Common Pleas ¡Court ¡of Mercer County,- in an action wherein Joseph ¡Ge Wenning, appellant, was ¡plaintiff,, and the appellees, The Peoples: Bank of Coldwater and other's, were:defend! ants.-.-

A jury-having been waived.by the parties-,.¡this cause was submitted .to the court without the- intervention /of a.jury. - The.court found for the defendants/¡rendered-final ¡judgmentdn thbir. favor.-and dismissed; ¡plaintiff petition. That is the judgment from which this; appeal is.taken.

The action is one in which the plaintiff seeks :to: have set aside.asvoid, certain-judgments rendered and ¡proceedings had/ and conveyance of real ¡estate ¡authorized in an. action in the Court of Common Pleás, i wherein The Peoples: Bank Company of Coldwater,’¡one- of the defendants' herein, -was. one, of the plaintiffs/¡and the plaintiff ¡herein was. one. of the-¡defendants,: the action being for determination of-liens; the- marshaling of liens, foreclosure of mortgage and other equitable relief, and being canse. No. 12534 in such'Couft-of Common.Pleas:

The Common Pleas Court, in which the'foreclosure ■action, cause Number 12534; was pending, was-a court, of general jurisdiction and as such it had jurisdiction both of the subject matter of the action and of the parties to the action.

At the time such action in foreclosure was commenced on September 7,1934, there was no action pending in the federal court or elsewhere, which in any way precluded the Common Pleas Court from fully exercising its jurisdiction in the foreclosure action.

The plaintiff in the instant case did not file his petition in the federal court, as a farmer-debtor, until October 2, 1934, and that petition was dismissed on his application, on August 6, 1935.

On January 26, 1938, at a time when there was no petition or action upon the part of the plaintiff pending in the federal court, which in any way precluded the Common Pleas Court from fully exercising its jurisdiction in the foreclosure action, the Common Pleas Court awarded judgment to the Federal Land Bank of Louisville, Kentucky, ordering foreclosure, appraisement and sale of the real estate involved in such action, being the real estate described in the petition herein.

That is one of the judgments sought to be set aside in this action.

On January 28, 1938, after such judgment was awarded, the plaintiff herein filed a new farmer-debtor petition in the federal court.

Three days later, the clerk of the Common Pleas Court, pursuant to the judgment awarded on January 26, 1938, issued an order of appraisement and advertisement for sale of the premises to the sheriff of Mercer county, Ohio.

Thereafter, the sheriff proceeded to have the real estate appraised and to advertise the same for sale, and on March 12, 1938, conducted a public sale thereof, of which he returned his report to the court on March 13, 1938.

On October 10,1938, the federal court dismissed tbe farmer-debtor petition of plaintiff and ordered all stay orders theretofore entered thereunder set aside and held for naught.

On December 17, 1938, after the dismissal of plaintiff’s farmer-debtor petition and the setting aside of all stay orders entered thereunder, and at a time the Common Pleas Court was not in any way precluded from fully exercising its jurisdiction in the foreclosure proceeding, it rendered judgment confirming the sale of the real estate in such foreclosure action to John G. Weigel, in conformity with the sheriff’s report of sale.

That is the other judgment the plaintiff seeks to. set aside in the instant action.

On December 29, 1939, following the last-mentioned judgment, and pursuant thereto, a deed for such real estate was executed and delivered to the purchaser thereof, and a writ of possession was issued by the Common Pleas Court, which was executed by the sheriff of Mercer county, Ohio, on February 25, 1939,. bv placing the purchaser of the real estate in possession, of the premises. .

As the Common Pleas Court, on January 26, 1938, was free, as hereinbefore mentioned, to fully exercise its jurisdiction in the foreclosure action, the judgment of foreclosure rendered by it on such date constituted a proper exercise of jurisdiction by it, and such judgment may not be set aside in the instant action.

The appraisal, advertising for sale and sale of the real estate by the sheriff were not judicial acts-, but merely ministerial acts, the performance of which was not inhibited, prohibited or precluded in any way by reason of the filing by plaintiff, of a new farmer-debtor petition on January 28,1938. Such acts were therefore performed in due course of law.

The appraisal, advertising for sale and sale of the real'- .estate ■ by. the sheriff not being judicial, acts but • merely 'ministerial ’ acts, the Common Pleas Court on December 17,1938, being then free to fully exercise its jurisdiction in such foreclosure proceeding, had jurisdiction"! and power.to.render judgment confirming;such Sale;-, and its judginent may not be set aside in"'this aetiomR

Furthermore,, if such acts of the sheriff in the respects mentioned had been wholly void, the. action of the court in confirming such sale wás within, its jurisdictiori and power and was hot'void but merely voidable, arid'subject to'attack, only through an appeal prosecuted from such judgment and not by separate action such as the plaintiff seeks to maintain.

The deed to purchaser which the plaintiff seeks to set aside was executed and delivered in conformity with the judgment of December 17, 1938, and was valid in every respect and may not be set aside in this action.

The writ of possession which the plainliff seeks to set aside was issued and. executed in conformity with the judgment of December 17, 1938, and was valid in every respect and may not be set aside in this action.

The other relief the plaintiff seeks is wholly dependent on plaintiff’s claim that the judgments, deed of conveyance and writ of possession hereinbefore mentioned, are invalid. As they are All valid, the plaintiff is not entitled to any relief in the premises.

\For the-reasons-'-mentioned,---the judg'-merit of the Oommoii Pleas; Court is affirmed átfhe costs .of'plaintiff arid-the cáüse remanded for execution.

Judgment affirmed.'

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


text:
    Tipton v. Alvis, Warden, et al.
    (No. 4329
    Decided December 8, 1949.)

      Mr. Paul W. Martin, for petitioner.

      Mr. Herbert 8. Duffy, attorney general, and Mr". Alan E. Sclnoarswalder, for respondents.
   Miller, P. J.

This is a habeas corpus proceeding originating in this court. The petitioner alleges that he is illegally and unlawfully incarcerated in- the Ohio Penitentiary under a sentence the trial court had no jurisdiction to pronounce against him.

The record discloses that an indictment was returned against the pétitioner by the grand jury of Clinton county, as follows: ■ •

“The jurors of the grand jury of said county, oh their oaths, in the ñamé and by the authority of thé state of Ohio, do find and present that Clark Tipton and Paul Tipton , on the 24th day . of December, in the yéar of our Lord one thousand nine hundred and forty-three, at the county of Clinton aforesaid, unlawfully and by force and violence * * * robbed one Frank; Tener of forty dollars ' ($40). in United States money contrary to' the‘ statute’ in such case made and- provided, and against the peace and dignity of the state of Ohio. ’

The judgment entry recites:

“'This day came the prosecuting attorney on behalf of ,the state of Ohio, and the defendants, Clark Tipton and Paul Tipton, came into court accompanied by the sheriff and for plea to said indictment charging the said defendants, Clark Tipton and Paul Tipton, with armed robbery, the said Clark Tipton sayeth he is guilty. * * * it is ordered, adjudged and decreed by the court that the said Clark Tipton be sentenced to the Ohio Penitentiary at Columbus, Ohio, for an indefinite period of not less than ten years nor more than twenty-five years * * *. ”

It will be noted that a plea of guilty was entered to “armed robbery,” whereas the indictment charged the petitioner only with “robbery.” These are two separate and distinct offenses under the General Code of Ohio, the same being defined in Sections 12432 and 12432-1. These two sections are identical with the sole exception that Section 12432-1 requires the accused to be “armed with pistol, knife or other dangerous weapon.” Therefore, when the plea of guilty to .armed robbery was entered there was also an admission of guilt to all the other material elements of the offense, to wit, the stealing of something of value from the person of another by the use of force or violence or by putting in fear. The plea of guilty entered admitted all the material averments contained in the indictment and in addition admitted the use of a dangerous weapon, which was not charged. All the material averments of the indictment being admitted, the court had jurisdiction to impose sentence, but the sentence pronounced was not in conformity with the charge in the indictment. Clearly, this was error which was subject to attack on appeal, but it does not go-to the jurisdiction of the court.

In Ex parte Van Hagan, 25 Ohio St., 426, the petitioner had been sentenced under a statute not in force, although another statute covered the offense. The punishment inflicted was for a term longer than that authorized by the then existing statute. It was held:

“Habeas corpus is not the proper-mode of redress, where the relator [.sic] has been convicted of a criminal offense, and sentenced to imprisonment therefor * * * ; if errors or irregularities have occurred in the proceedings or sentence, a writ' of error is the proper remedy.

"* * *

‘ ‘ The punishment inflicted by the sentence, in excess of that prescribed by the law in force, was erroneous and voidable but not absolutely void. It follows that a writ of error to reverse the proceedings or sentence is the remedy that the relator should have resorted to in order to obtain a discharge from illegal imprisonment, and not habeas corpus, which is not the proper mode of redress where the relator was convicted of a criminal offense and erroneously sentenced to excessive imprisonment therefor by a court of competent jurisdiction. Ex parte Shaw, 7 Ohio St., 81, approved and followed on this point.”

In the case of In re Allen, 91 Ohio St., 315, 325, Judge Newman used the following language:

“The trial court in the instant case had jurisdiction of the person of the petitioner. It had jurisdiction to try him for the offense charged and to sentence him to a term in the penitentiary under Section 12672. Instead there was an indeterminate sentence imposed of which the petitioner complains. If this were erroneous, the error committed by the court related to the sentence and punishment only and was not a jurisdictional one. The court merely entered and enforced a

wrong judgment. Admitting then for the purpose of this case that there was no authority to impose the sentence either by reason of the ©repeal of the indeteÑ mihate-sent'enee lla-vyior itsiuhcoftstituüonality, thé;putíf ishffibnt inflicted; -wa's; erronbousnairid©Voidable but hot V'oid.b' The sentence';and phuishmentn could have! b’e'en borre’cted' in !a‘ '-proceeding 'in! éhr-oÑ challenging, ©the judgment'nf the; court;-• ifEhei petitioner ■ had ample "bp; portunity'to avail; himself! of- the'-Objections as to'the sentence' whieh' he' attemptsvto matee here; A habeas corpus proceeding cannot perform the functions "Of-'a writ of error. ” ''

The subject of excessive sentences is discussed in 25 American Jurisprudence 188 Section 59, where it is said:

Contrary to some early decisions it is now well Settled that in the case of a sentence which was merely excessive, if the court which imposed it had jurisdiction of the person and subject matter such sentence was not void ab initio because of the excess, but was good in so far as the power of the court extended and was invalid only as to the excess and, therefore, a person form in custody under; such’ sentenced cannot be discharged on habeas corpus until he has suffered or performed as much of it is was within the power of the court to impose.''

We are therefore of the opinion that since the Court had jurisdiction to impose sentence, and since the sentence for robbery, as defined by Section 12432, General Code, has not been fully complied with, the petitioner is entitled to no relief from this court. His only remedy at this time is through appeal upon leave being first obtained.

Petitioner remanded to Custody.

Hornbeck and Wiseman, JJ., concur.


author: Carpenter, J. Conn, J.

text:
    Crisman, Appellee, v. Fedility Health & Accident Mutual Ins. Co., Appellant.
    (No. 4410
    Decided January 16, 1950.)
    Mr. Robert N. Zanville, for appellee.

      Messrs. Shumaker, Loop, Kendrick & Winn, for appellant.
   Carpenter, J.

A judgment for plaintiff, Emma J. Chrisman, in an action based on a policy of health and accident insurance issued by defendant, Fidelity Health & Accident Mutual Insurance Company, was the occasion for this appeal on question of law.

The facts were undisputed. October 17, 1940, on application of plaintiff, defendant issued to her a health and accident policy. December 24, 1945, by riders the insurance was extended to include additional hospital benefits, medical and surgical expence indemnity which were subject to all other conditions and provisions of the policy contract.

One of the provisions of that policy, under the heading " Conditions not Covered," was :

"No benefits shall be payable in the event of death disability, injury, or any other loss sustained while engaged in active military or naval service in time of war or from any act of war * * * nor disability caused by, contributed to, or affecting organs not common to both sexes. * * *”

While this contract was in full force and effect on May 28, 1949, in Flower Hospital, Toledo, an abdominal operation was performed upon plaintiff, which the surgeon explained was ‘ ‘ a supracervical hysterectomy, meaning removal of the uterus” in which had developed a benign fibroid tumor. At the same time, the surgeon also excised “a number of parovarian cysts.” The undisputed medical evidence was that the cause of fibroid tumors is unknown and that they “affect organs of both sexes.”

The defendant contends that the disability experienced by the plaintiff was not covered under the policy provision quoted above,- because-it affected an “organ not common to both sexes.”

The material and relevent words of the quoted provision of the policy read as follows:

“No benefits shall be payable in the event of * * * disability caused by, contributed to, or affecting organs not common to both sexes.”

Applying elementary school grammar to this language, it is obvious that the object of the preposition, “of,” is “disability”; that it is modified by one of three alternative participle phrases, (1) “caused by” (organs not common to both sexes), or (2) “contributed to” (organs not common to both sexes), or (3) “affecting organs not common to both sexes”; that the operative word is “disability,” which, in this case, the evidence shows was caused by a fibroid tumor. Hence neither phrases 1 nor 2 are relevent as modifying the prepositional object, “disability,” but, in this case, 3 is, as it affected the uterus. In other words, the operation was made necessary by the disability caused by the tumor on the uterus, an organ not common to both sexes.

To illustrate, a man thus insured might have a fibroid tumor on the prostrate gland, an organ not common to both sexes, thus causing him disability requiring operative surgery, and this clause of the policy would preclude his recovery under it.

This provision of the contract distinguishes it from contracts which exclude diseases that affect organs not common to both sexes. This being the contract the parties made, the plaintiff cannot recover and the judgment for her was error. It will be reversed and final judgment entered for the defendant.

Judgment reversed.

Fesb, J., concurs.

Conn, J.

I am of the opinion that the judgment of the trial court should be affirmed.

The policy of insurance issued to plaintiff was a health and accident policy at the monthly premium rate of $1.50. Subsequent to the issuance of the policy, two riders were attached thereto, to wit: Rider form 523-MI providing for “additional hospital benefit” with increased premium of 50 cents per month, and rider form 533-M1-A, being a “medical and surgical expense supplement,” in consideration of a premium of 75 cents per month. The last supplemental rider sets up a schedule of surgical operations and maximum amounts payable, including .abdominal operations by “cutting into abdominal cavity for diagnosis or treatment of organs therein” and removal of tumors “by cutting operations.”

It is expressly provided that these riders shall be subject to all the conditions and limitations of the policy. The pertinent provisions of the policy are found in part twelve, “Conditions not Covered.”

The exclusion provision purports to relieve the defendant from the obligation to pay benefits “in the event of death, disability; injury, or any other loss sus-I tained’’.in'relation to definitely stated and separately enumerated activities of the. policyholder; also i‘ven nereal disease” and “disability caused by, contributed' to, or affecting organs not common to both sexes *'* *.” It is on this-latter provision that the defendant rests-its claim of nonliability to-plaintiff.. • •

The terihy “disability,’’when used in reference to.a person-in relation to his physical condition, and broad-* ly stated, means a state or condition :of being disabled or incapacitated. As outlined in part twelve, if the incapacity of vthe policyholder results directly from an injury received in any one of the excluded activities, or from venereal disease, no benefits shall be payable.

The word, “disability,” as employed in the exclusion provision:;relied on.-by defendant may include the proximate result of disease as well, as physical injury. Plaintiff ’s incapacity did not result from physical injury. Her disability was proximately caused by discase, to wit a fibroid tumor, the immediate cause of a condition in which bodily health is seriously attacked, deranged, or impaired."

The form of the exclusion provision relied on by defendant is obscure and ambiguous. This becomes apparent when read without abridgment. That is when read: Disability ceaused by organs not common to both sexes; disability ;contributed to .by .organs- not common' to- both. sexes; and disability affecting organs; not- common.to; both se’xes.j vWe' have .here an important exclusion: grafted on plaintiff’s policy in equivocal and ambiguous unintelligent language.

To. clarify.-this provision'and giye-. it meaning, the court, ás a matter, of law/ may read it in relatio'n to; the Concept of i‘.-cause’Dof-dhe disability. . When so'read; the meaning is. manifest ¡¡and clear--that, the-basis fori exclusion in the instant, case (no physical injury beihg shown) 'is: disability which results -from a- disease- :pe-i euliar to the uterus, an' organ not comihon to"both sexes. ’ ' '• '

If plaintiff had sustained accidental bodily injuries hot within those excluded in part twelve, resulting in temporary total disability by reason of harm to. the abdominal region including the uterus, and resulting in disability to that organ and requiring an abdominal operation, could defendant escape liability under the exclusive clause in question?' The answer to this question is apparent.

In the instant case, the fibroid tumor menaced plaintiff’s general health and the normal functions of the body. This disability resulted from or was caused by a disease common to both sexes and not from a disability exclusively resulting from a disease of the uterus. ' " ■ -

The attending physician testified that the objective signs of plaintiff’s illness “were enlargement of her lower abdomen, excessive bleeding at menstrual time and between the periods, and anemia and discomfort in the lower abdomen”; that the cause of fibrous tumors is unknoAvn and may originate from the outside or the inside of the organ involved; and that "he' removed the tumor by a surgical operation;

' It appears to follow that a disease affecting the uterus, which is not peculiar to that organ and which may affect other organs of the body, both- male and female, is not Avithin the exclusion clause.' ■ • ' ’

1 In general, the same rules of construction apply to the terms and provisions of an- insurance policy as apply to other contracts. .However,-When exceptions or conditions are incorporated -in -a policy of insurance limiting’ liability and' af e - drawn uncertain or' ambiguous terms “fairly susceptible of -two or more different but sensible and reasonable constructions, the one will be adopted which, if consistent with the objects of the insurance, is most favorable to the insured.” 22 Ohio Jurisprudence, 340, Section 185; Conaway v. Life Ins. Co. of Virginia, 148 Ohio St., 598, 76 N. E. (2d), 284.

There is support for the conclusion we have reached in the case of Stewart v. Hoosier Casualty Co., 67 Ohio App., 509, 37 N. E. (2d), 438, cited by plaintiff. We quote the syllabus:

“An ordinary health and accident insurance policy which provides that indemnity ‘shall not be paid for disability due directly or indirectly to venereal disease or to any illness or diseased organs not common to both sexes, ’ furnishes coverage for disability resulting from a disease common to both sexes which attacks an organ not common to both sexes, and'an insured disabled during the coverage period of such policy as a result of a fibroid tumor of the uterus is entitled to recover under the policy. ’ ’

See, also, Mutual Benefit Health & Acc. Assn. v. Blaylock, 163 Miss., 567, 143 So., 406, 87 A. L. R., 679, and cases cited in note on page 681.

Defendant undertakes to distinguish those authorities from the case at bar on the ground that the exclusion in those cases was confined to an illness or disease of the organ not common to both sexes in contrast with the exclusion clause in plaintiff’s policy. This contention invites a field of application too narrow and confined in which to apply the generally recognized rules of construction in respect to exclusion provisions in insurance contracts. If it were the intention and purpose of defendant to incorporate in its policy an exclusion clause embracing injury or disease afflicting the uterus not limited to those disabilities which are peculiar to that organ, it could have easily employed language appropriate for such purpose and intention.