text:
    DEEDS — EMBLEMENTS—LANDLORD AND TENANT
    [Scioto (4th) Court of Appeals,
    April 18, 1919.]
    Walters, Sayre and Middleton, JJ.
    L. D. Crabtree v. Nat Smith.
    1. Share of Crops Going to Landlord is Rent.
    When real estate is leased for a consideration consisting of a part of the crops raised thereon, the owner’s share of such crops is rent for said land and such crops are also the issues of the land for the year in which they are raised and harvested.
    2. Deed Conveying All Issues and Profits Covers Owner’s Share of the Crop. '
    A deed which conveys certain lands described therein “together with all the privileges and appurtenances to the same belonging and all the rents, issues, and profits thereof” passes to the grantee all the grantor’s rights and interests in and to all crops then growing on said lands. Evidence of a parol reservation by the grantor of his interest in such crops when the deed was executed is not competent to modify or contradict the express terms of the grant aforesaid.

      B. F. Kimble, for plaintiff in error.

      A. Z. Blair, for defendant in error.
   MIDDLETON, J.

On August 5, 1918, the defendant in error, Nat Smith, and his wife, Annié Smith, conveyed to the plaintiff in error, L. D. Crabtree, by deed of general warranty, a certain farm situate in this county, “together with all the privileges and appurtenances to the same belonging and all the rents, issues and profits thereof.”

Growing on the farm at the time of this conveyance was a crop of corn which had been planted and cultivated by one Darey McCain, who was in possession of this farm and continued in possession thereof until after the corn crop was harvested in the fall and who, under his contract with the owner Smith, was entitled to two-thirds of said crop divided in shock, the remaining one-third being Smith’s share as his rent, or at least a part of his rent for the premises. It appears from the record that when the crop matured both Smith and Crabtree claimed the owner’s or landlord’s share, which controversy resulted in this litigation. Smith claimed the corn by reason of a parol reservation made at the time the deed was executed, and which he was permitted in the lower court to establish by oral evidence. Crabtree not only denied such parol agreement but insisted that evidence of the same was inadmissible as under the express term of the grant made in the deed this corn passed to him. The lower court found in Smith’s favor, and if the evidence was properly admitted by which the parol reservation claimed by him was shown we would not be inclined to interfere with the judgment, as the evidence clearly sustains his contention.

The single question, therefore, before us is whether or not the admission of this evidence contravened the general rule against the admission of oral testimony to contradict, modify or vary the terms of a written contract.

We do not question the proposition that in this state at least growing crops may be reserved by a parol agreement from the operation of a deed for the real estate on which they are grow-in, notwithstanding the further fact that such crops will pass with a grant of the land as a part thereof in the absence of such reservation. This principle was established by the case of Baker v. Jordan, 3 Ohio St. 438, and rests primarily upon the theory that such crops are regarded generally as personal property and if the parties to a deed treat such crops as personalty and contract by oral agreement accordingly, evidence of such agreement does not contradict the deed but is consistent therewith. Mani-f estly this rule may not apply where the deed by its express terms treats such crops as a part of the realty, and plainly and by language subject to no doubt passes them with the realty to the vendee. The deed considered by the court in Baker v. Jordan, supra, the grants and conveys only real estate, which the grantee is to have and to hold, with its appurtenances. No reference whatever is made in that deed to the “rents, issues and profits” of the land and there is no grant of the same, with the real estate, as in the instant ease. Can we, therefore, give full effect to this deed, as the court did to the deed in Baker v. Jordan, and regard it as conveying only the real estate and not including the corn crop in question? We think not. This corn, or the share in controversy, was rent for the use of the land. While rent is ordinarily payable in money, and in a technical sense the right to receive it may be considered an interest in the realty, yet it is the common understanding in this section and everywhere that, in the case of a cropper that portion of the crop he gives for the use of the land is considered as rent. Lamberton v. Stouffer, 55 Pa. St., 284. In this ease it is said that,

“The red/itus or rent of a cropper being a portion of the crop, falls due and is payable only when the crop is harvested. This is the universal understanding. ’ ’

Further, it is held in that case that,

“Grain sown in one year and harvested in the next is the issues and profits of the year in which it is harvested. ’ ’

Attention is directed to the case of Bruce v. Thompson, 26 Vt., 741, in which it is claimed a different interpretation is given to the terms “rents, issues and profits,” but it is clear that the court in that case did not consider these terms under the circumstances presented here, but only in the sense in which they were used in a statute. Moreover, in that case it is said:

“Rents, issues and profits and such as are of the nature of rent, which is as everyone understands a rediius or return by some one holding the land of another for which he owes such return. ’ ’

There is no difficulty in bringing the subject of this suit within the scope and meaning of “rent” as defined by that court.

Smith’s share of the corn was at least a part of the issues of the farm in 1918, and also rent which was accruing at the time the deed was executed, although not due and payable until cut and in shock.

Upon that theory then may it be excluded from the terms “rents, issues and profits” as employed in the deed? The grant was present, as well as future. It passed all of Smith’s immediate rights and there is nothing in the language used by which it could be limited in its operation to the ‘ ‘rents, issues and profits” of some other and future year.

The effect of a grant of ‘ ‘ rents, issues and profits ” in a deed was before the court in Wilhoit v. Salmon, 146 Cal. 444 [80 Pac., 705], In that case one Jane Salmon executed a deed in escrow to be delivered at her death, but reserving in the deed a life estate in the lands conveyed. At her death the land was held by another under a contract for grain rent, and a dispute arose between her personal representatives and the grantees in the deed as to the disposition of the crops growing at her decease. In discussing the operation and force of the grant of all the rents, issues and profits aforesaid the court say:

“When Jane Salmon made her conveyance to the appellants, it was for her to determine the extent for which she should transfer her property to them. * * * If she saw fit by the terms of her deed to cut off the common law incidents of a life estate— the right to emblements — by words clearly having that effect and operation, that was her right. And this is what, by the express terms of her deed, she did. To the fullest extent possible, she conveyed to her grantees all her interest in the land, ‘together with the rents, issues and profits thereof. ’ She divested herself of all existing and future rights in the property, except solely the right to retain the use and occupancy of the premises, and take and receive the rents and profits during her life time. * * * * in her grant to them the language was broad and comprehensive enough to deprive her of all common law incidents of a life estate, and we see no room for contention that it did not. The clause in her deed granting to appellants the premises, with-the ‘rents, issues and profits thereof,’ is entirely incompatible with any construction which would support the contention of respondent that the right to the ‘rents’ of the premises was reserved to the grantor as a common law incident to her life estate. To so hold would be to render such clause meaningless and inoperative. It would be idle to suggest that by it the grantor intended to convey only such crops to her grantees as the latter might sow after obtaining possession on her death. They would take those by virtue of their ownership of the land, and independent of any such provision in the deed. They could, how.ever, only take the crops which were sown by her while life tenant, or to which she would be entitled, by virtue of such clause in their deed, and it was undoubtedly the intention of the grantor to effect that purpose — the only one which the provision would be pertinent to accomplish, and which we think it did. ’ ’

If the grant of “all the rents, issues and profits” made by Smith in his deed is to be regarded at all and given any meaning whatever, it disposed of all his interest in the growing crop of corn and passed it to the grantee, Crabtree. Any parol agreement to the contrary was and is not consistent with the deed, and testimony by which such agreement is sought to be established is not admissible. This conclusion may not be in harmony with the intention of the parties to the actual contract as understood by both the grantor and grantee, but this is not an action in equity to reform a deed and the court will look only to its plain provisions to ascertain the intention of the parties. Cleveland Co-op. Stove Co. v. Cleveland & P. Ry. Co., 44 O. C. C. 236, 23 C. C. (N. S.), 260.

Judgment reversed and case remanded for a new trial.

Walters and Sayre, JJ., concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    WILLS
    [Coshocton (5th) Court of Appeals,
    May Term, 1918.]
    Powell, Houck and Shields, JJ.

      S. F. Chaney, Exr. v. Clarence Coulter.
    1. Scrivener, Executor, Cross-Examined in Will Contest.
    In an action to contest a will the scrivener may be called for cross-examination, where he is the executor under the will and is made hy the issues raised to appear as an adverse party.
    2. Will on Different Sizes and Grades of Paper Presumed in Accordance with Instructions.
    The presumption that the will was drawn in accordance with instructions given hy the testator is sufficient to overcome the objection that it is written on pieces of paper of different sizes and grade, where the explanation offered for so doing indicates it was done innocently and not for any fraudulent purpose.

      3. Declarations of Testator Before and after Execution not Admissible on Issue of Forgery.
    While testimony as to declarations made by the testator before and after execution of the will may be competent on the question of testamentary capacity, such is not the case on an issue of forgery, and the admission of such testimony in a case where that issue has been raised is not cured by the giving of a special charge to the effect that, if the jury find the will was executed on the date specified, it would not matter what the testator may have said on other occasions as to his intention and all such declarations with respect thereto should be disregarded, if the objectionable testimony was not withdrawn from the jury in a manner which could not have been misunderstood by them and no direction was given them not to consider it except as implied in said charge.
    4. Failure to Instruct Prima Facie Effect of Probate, Error.
    Failure of the trial court in its charge to the jury to distinctly state and emphasize the effect of the order probating the will, or the statutory provision makes such probate prim a facie evidence of its attestation, execution or validity, constitutes prejudicial error.
    5. Failure to Define Prima Facie Evidence, Held Error.
    It is also prejudicial error to refuse to charge that prima facie evidence of a fact is, as a matter of law, such evidence as in the judgment of the law is sufficient to establish the fact and if not rebutted remains sufficient for that purpose.
    6. Specific Instructions as to Testamentary Capacity, Fraud, Undue Influence Required in Will Contest.
    It is the duty of the trial court to specifically instruct the jury on the legal questions raised by the evidence, and in the contest of a will this requirement has particular reference to the definitions of testamentary capacity, fraud, undue influence, and the legal presumption arising from the absence of proof tending to sustain either, or the effect of fraud or undue influence practiced at the time of the making of the will.
    7. Preponderance Sufficient to Sustain Fraud in Will Contest.
    While the rule requires in many cases that fraud be proved by clear and convincing testimony, a preponderance of the testimony is sufficient to sustain such an allegation in an action to set aside a will.
    8. Jury’s Experience in Life Not Guide in Will Contest.
    The instruction that the jury may be guided by their own experience in life, while proper in certain classes of cases, is out of place in a will contest where issues as to testamentary capacity, undue influence and fraud can be determined only by the sworn testimony of the witnesses offered.
    9. Will Probated Differing from Previous Wilis of Testator not Basis for Support of Allegation of Undue Influence or Fraud.
    The fact that the will which was admitted to probate differs in some respects from previous wills executed by the same decedent, affords no basis for an allegation of undue influence or forgery in its execution, where reasons appear for the changes which were made, and the same executor was named in all of the wills and he a man in whom the decedent had long reposed confidence in business affairs, and nothing is offered to impeach the integrity of the testamentary act and there is nothing but naked suspicion to overthrow it.

      Wm. 8. Merrdl and J. B. Shepler, for plaintiff in error.

      C. B. Bell, T. E. Wheeler and F. E. Púmerene, for defendant in error.

       Motion to certify overruled hy Supreme Court, November 19, 1918, Coulter v. Chaney, 63 Bull. 446.

   SHIELDS, J.

This action was brought in the court of common pleas of said Coshocton county to contest the validity of what purports to be the last will and testament of Absolom Lynch, deceased.

In the first cause of action in his petition the plaintiff, Clarence Coulter, alleged, in substance, that he is the only heir at law of the said Absolom Lynch, deceased, who at his death was the owner of an estate in said county consisting of real and personal property; that on April 18, 1917, a certain paper writing purporting to be the last will and testament of the said Absolom Lynch, dated November 10,1915, was presented for and admitted to probate by the probate court of said county; that letters testamentary were issued thereon by the said probate court to the defendant, S. F. Chaney, as executor, and that the other defendants are named as legatees and devisees of the said Absolom Lynch, deceased; “that said paper writing is not the last will and testament of the said Absolom Lynch, deceased, but was produced bj'the fraudulent and feloneous act of the defendant, S. F. Chaney, who was the writer thereof, and the same does not speak the will and intent of the said Absolom Lynch, deceased; that the signature of the said Absolom Lynch to said paper writing was produced and appended thereto by means of fraud and circumvention, and its contents were never authorized or made known to the said Absolom Lynch nor acknowledged by him; that said paper writing and the devises and bequests therein provided were procured and made by the practice of fraud and undue influence and by means of false and fraudulent representations and forgery, and because of the premises said paper writing does not speak the purpose or wish of said decedent.” Wherefore the plaintiff prays that an issue be made up in respect to said paper writing, that the same be set aside and declared to be not the last will and testament of the said Absolom Lynch, deceased.

In the second cause of action the plaintiff alleges that the defendant, S. F. Chaney, claiming to act as executor under the provisions of said alleged last will and testament of the said Absolom Lynch, deceased, and in pursuance of the terms thereof, commenced an action in said probate court to sell the real estate of said decedent, and threatens to dispose of the personal estate of said decedent, in violation of the property rights of the plaintiff in said estate, and an order of court was sought and granted restraining the probate judge of said county from issuing an order authorizing a sale of said property, and against the said S. F. Chaney from making said sale, as executor, pending the determination of this action.

Issues of fact were joined by separate answers filed by the several defendants, including the guardian ad litem for the minor defendants therein named, denying all the allegations in the first cause of action in the plaintiff’s petition, except that on March 17, 1917, the said Absolom Lynch died leaving the plaintiff as his only heir; that at the time of his decease he was' the owner of an estate in real and personal property in said county; that on April 18, 1917, a paper writing purporting to be the last will and testament of the said Absolom Lynch, dated November 10, 1915, was presented to- and admitted to probate by the probate court of said county; that letters testamentary were issued thereon by said probate court to the defendant, S. F. Chaney, as executor, who is now acting as such; that by the terms of said will the plaintiff and the defendants, except the defendant, Milo C. Ely as probate judge and S. F. Chaney as executor, are named as legatees and devisees of the said Absolom Lynch, deceased.

Answering the second cause of action in said petition said defendants deny all the allegations therein except that as executor under and by virtue of the last will and testament of the said Absolom Lynch, deceased, the defendant, S. F. Chaney, commenced an action in the probate court of said Coshocton county to sell the real estate of said decedent, and that the defendant, Milo C. Ely, is the duly elected and acting probate judge of said county. With the exceptions noted, the defendants and each of them deny each and every allegation contained in said causes of action numbered 1 and 2 in the plaintiff’s petition.

Although an issue was made by said pleadings, it was ordered by the court that it be ascertained by the verdict of a jury whether said paper writing was or was not the last will and testament of the said Absolom Lynch, deceased. The case haviñg been submitted to a jury, it was found by its verdict that said paper writing purporting to be the last will and testament of the said Absolom Lynch, deceased, was not his last will and testament. A motion was filed to set aside said verdict and for a new trial for numerous grounds stated therein; also a motion for judgment non obstante veredicto, which said motions were overruled and a judgment was entered upon said verdict. Thereupon a bill of exceptions was taken containing the evidence in said trial, including the rulings of the trial court thereon, the written requests submitted before argument to be given in charge to the jury, including those refused and those given, and the charge' of the court to the jury, and by a petition in error filed in this court the plaintiffs in error seek a reversal of said judgment.

It appears that the said Absolom Lynch, whose will is in controversy, for many years prior to his death lived upon and owned a valuable farm of about one hundred and seventy-five acres, in Coshocton county, and also owned at said time personal property which after his death was. appraised at about $5,500. He lived to be some eighty-two years of age and died March 17, 1917. His wife died in 1914. Two children were .born of their marriage, a son and a daughter, the former, William Lynch, intermarried with Melissa Lynch, having died in 1908, without issue, and the daughter, intermarried with-Coulter, having died long prior to the death of the son William Lynch. Of this latter marriage one child was born, namely, Clarence Coulter, the plaintiff below, who is married and has two children, Walter and Benson Coulter, both young in years. It appears that the son William, lived upon his father’s farm until his death, after which, perhaps in 1909, Clarence Coulter moved upon said farm, occupying a separate dwelling thereon, and he and his grandfather operated the farm together from that time until the spring of 1915, when Clarence Coulter went to Detroit, Mich., but afterward returned to Coshocton, where he lived up to the time of said Absolom Lynch’s death. Melissa Lynch, wife of the deceased son William Lynch, remained in the family of the said Absolom Lynch, after her said husband’s death, and so continued after the death of the wife of the said Absolom Lynch as his housekeeper.

It also appears that the said Absolom Lynch made three wills, the first in 1904; the second in 1909, and the third November 10, 1915, all written by the defendant S. F. Chaney. It is said that these several wills were made because of the changed condition in the said Absolom Lynch’s family — the death of his son William followed by the death of his wife. By the terms of said first will, after providing for his son William and the said Absolom Lynch’s wife, Clarence Coulter was to receive the sum of $1,000. By the terms of the second will made some two years after the son William’s death, in 1909 or 1910, the said Absolom Lynch bequeathed the sum of $2,000 to Nancy E. Chaney, wife of the said S. F. Chaney and a sister of the deceased wife of the said Absolom Lynch, who it appears rendered certain services to her said deceased sister in the early part of the latter’s early married life, and' he also bequeathed in said second will to the defendants, Fern Chaney and Clay Chaney, sons of the said S. F. Chaney, the sum of $500 each, to Melissa Lynch the sum of $2,000 and to his wife a life interest in said farm together with his interest in the live stock thereon and the accruing interest on a certain fund to be created and mentioned therein, and at her deáth said farm was devised to Clarence Coulter, subject to the payment of said bequests. Some five years later, and on November 10,1915, the wife of the said Absolom Lynch having died in the meantime, he made a third will in which he again made the same bequests as in the second will, namely, $2,000 to Nancy E. Chaney and $500 each to Clay and Fern Chaney, $3,000 instead of $2,000 to Melissa Lynch, $500 each to Clarence Coulter’s two children, and the residue of his estate was devised to Clarence Coulter, giving to his executor therein named, the said S. F. Chaney, who was also named as executor in the said second will, directions to sell said farm, out of the avails of which said bequests were to be paid. This third will was executed in the presence of two witnesses, and all the formalities required by law in its execution and acknowledgement were duly observed and complied with. It was kept in the custody of the said S. F. Chaney until April 18, 1917, when it was duly admitted to probate by the probate court of said Coshocton county, and on said day the said S. F. Chaney, named as executor therein, was duly appointed and qualified by said court as such executor, who on May 10, 1917, commenced an action in said court to sell the real estate of said decedent under the terms of said will, and who was enjoined from so doing for the reasons set out in said petition.

Absolom Lynch lived in Perry township, some miles distant from the village of West Carlyle in said county. He was an industrious and frugal farmer and, as stated, he lived to attain the ripe age of some eighty-two years. While there was naturally more or less weakening of his body and faculties because of his age, still it does not appear that the mental grasp of the said Absolom Lynch of matters touching his farm and other interests, including his family relations and relatives, was affected at the time of the making of his last will. During the lifetime of his wife, he and his wife frequently visited the said S. F. Chaney and his family, who in turn visited them. After the death of his wife, the said Absolom Lynch continued to call on the said S. F. Chaney whenever his business called him to said village.

S. F. Chaney, as stated, was a brother-in-law of the said Absolom Lynch. He is now and for over thirty years last past has been the postmaster at said village of West Carlyle, having said office in his store where he is now and has been actively engaged in business during said time, with the exception perhaps of a short time caused by the burning of his store. He is also a notary public and as such transacts more or less business in that community incident to said office. For many years prior to his death it appears that the said Absolom Lynch entrusted much of his business correspondence, including the writing of his several wills, to the said S. F. Chaney, and whenever at said village, up to the time of his death, the latter’s store was made his headquarters.

For the purposes of this opinion, the foregoing statement sufficiently shows the changed family relation of the said Absolom Lynch from time to time, the several wills made by him, and his relations to the said S. F. Chaney who wrote said wills.

Numerous grounds of error are assigned in the petition in error why the verdict in this case should be set aside and the judgment rendered thereon should be reversed. The record is indeed a voluminous one, all of which together with the ably prepared and well-arranged briefs of counsel we have not only read, but have endeavored to give to them careful and thoughtful consideration. Without here repeating such grounds of error, we will consider such grounds only as we deem material and necessary to a determination of the questions arising upon the record in the case.

It was contended that the trial court erred at the beginning of the trial below in permitting the plaintiff below to call for cross-examination S. F. Chaney, the party who wrote the will in question. Had the action been one for the construction of said will, or any portion of the same, testimony of the scrivener as to instructions given him by the testator at the time of the preparation or execution of the will would not have been competent, but such is not the only relation of the witness here. True he was the scrivener, but he is also a party, and although a party as executor, under the issue raised by the pleadings, he is made to appear in the attitude of an adverse party, and we are therefore of the opinion that said witness was subject to the provisions of Sec. 11497 G-. C. and that the action of said court in this respect was not erroneous.

An examination of the record shows that a considerable portion of it consists of the testimony of several witnesses who testify to certain declarations made by the testator in his lifetime at various times as to what disposition he intended to make of his said farm, such declarations having been made, as said witnesses testified, both before and after the execution of said will. Objections were made to this class of testimony, and on the overruling of such objections, exceptions were preserved which form the main ground of error urged here.

It will be borne in mind that the action herein was not one to construe the will of the said Absolom Lynch, deceased, but to set it aside for the reason stated in the petition. In the revision and codification of the statutes it is provided that:

“Section 10503. A person of full age, of sound mind and memory, and not under restraint, who has property, or an interest therein, may give and bequeath it by last will and testament lawfully executed.”
“Section 10505. Except nuncupative wills, every last will and testament must be in writing, but may be handwritten or typewritten. Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in tbe presence of such party, by two or more competent witnesses, wbo saw the testator subscribe, or heard him acknowledge it. ’ ’

Here it appears in testimony that the said Absolom Lynch on November 10, 1915, who was then “of sound mind and memory and not under restraint,” requested S. F. Chaney to prepare and write his will, and after writing it, and after the said Absolom Lynch read it over and expressed his satisfaction with the same, and after declaring it to be his last will and testament to George Magruder and J. W. Hoover, he thereupon signed the same in their presence, and the said Magruder and Hoover thereupon signed the same in the presence of each other, at his request, as witnesses thereto. It thus appears that all the formalities required by law in the execution of a will to clothe it with the characteristics of a will were complied with?®

The different pieces of paper on which the will was written and attached to each other, and the difference in the size and quality of the paper on which the attestation clause was written, as well as the time it was written and attached to the other parts of the will, with reference to the time the body of the will was written, were made the subject of comment by counsel for the plaintiff below as being unusual, if not suspicious. At the time said witnesses to the will subscribed their signatures thereto the testimony is that they were told why the tablet paper was used, and the scrivener testified that the sheet on which the attestation clause appears was purposely left open and unattached to the body of the instrument to enable the testator after reading the will to make any alterations or additions thereto that he might desire. Ordinarily it is reasonable to suppose that one writing a will would use not only the same grade but the same size sheets of paper, but under the explanation given by the witness why it was not so done, when considered in connection with the testimony of the subscribing witnesses to the will, it would seem that it was innocently and not fraudulently done, aided as it would be, in the absence of evidence to the contrary, by the presumption that the will was drawn in accordance with the instructions given by the testator. Morris v. Osborne, 39 O. A. & C. 280 (27 N. S. 161).

The authorities are uniform in holding that there is no valid objection to the use of different sheets or.tablets of paper upon which to write a will, when fastened or pasted together as to constitute one instrument. I Rockel, Probate Practice, Sec. 1036, says:

“A will is valid if written upon several pieces of paper. It is valid even if the testator’s signature is on a piece of paper separate from the dispositive clauses of the will; and it is held that it is not necessary that these papers be fastened together if their sense connects them. But it must be shown from the several pieces of paper themselves that they constitute but one entirety.” 1 Schouler, Wills, See. 284; Page, Wills, Sec. 161, and numerous cases cited by Rockel.

The petition charges that the attestation clause to said will was procured by undue influence and fraud. On the subject of testamentary capacity of the testator at the time he executed said will, the trial court instructed the jury “to find on this issue in favor of the defendants and that the said Absolom Lynch was of sound mind and memory, ’ ’ so that this issue was eliminated from the case.

It is contended on behalf of the plaintiff in error that with the will executed in form and as described by the subscribing witnesses thereto, with no part of it ambiguous or uncertain in its terms, but intelligible and readily understood, the same having been admitted to probate and letters testamentary issued thereon, that the trial court erred in admitting the testimony of witnesses both before and after said will was executed. The solution of the question presented is rendered more or less difficult by reason. of the fact that the. condition of mind and memory of the testator was left in the ease, and testimony in relation thereto was permitted to go to the jury off and on until the close of the case. It is apparent that the action of the trial court in so instructing the jury was fully warranted. So long as the • question of a want of testamentary capacity of the testator to execute a will was made' an issue in the case, so long were these declarations of the testator competent, either before, after, or at the time of the execution of the will, “as showing the former state of mind of the testator, his long settled purposes, his affections or dislike, and the execution and contents of former wills, ’ ’ etc. We are aware that the holdings of courts in different jurisdictions are not uniform on this question, but we think that the trend of the decisions by the Ohio courts sustains the holding here made. But while we think that such declarations are competent as tending to prove the state of mind of the testator, they are not competent to prove the fact of undue influence, which rule of law was laid down by the Cuyahoga circuit court in the case of Boepple v. Mellert, 40 O. A. & C. 610 (24 N. S. 409-410).

1 ‘ The law is, that declarations of the testatrix, made before or after the making of the will, if made near such time, are admissible to prove the state of the mind of the testatrix, but are not admissible to prove the fact of undue influence. If the declarations tend to prove both the fact of undue influence and the state of mind of the testatrix, then the court must admit the testimony and instruct the jury that it can consider the declarations only so far as they tend to prove the state of mind of the testatrix. ’ ’

This is the rule also stated in 3 Jones, Commentaries on Evidence, See. 483, wherein the author says:

“It is highly necessary to watch the line which marks the purpose for which declarations of the testator may be admitted. We have demonstrated that under ordinary circumstances they are not admissible at all where the will is clear; that in case of ambiguity they are admissible for explanatory purposes; that in eases where the mental condition of the testator is challenged, they are part of the res gestae, the making of the will. It now becomes necessary to emphasize that declarations of the character treated in the last section are admissible only for the purpose of proving the condition of the testator. They afford no substantive proof of fraud, duress or undue influence, and are admissible for no such purpose. There must be independent proof and evidence exclusive of such declarations. If the statements are mere recitals of facts, and there is no such independent proof of undue influence, they are, of course, pure hearsay and inadmissible. ’ ’

The same rule is also stated in 3 Alexander, Commentaries on Wills, See. 608:

“Declarations of a testator made in connection with the ex-execution of his will, when pertinent to the issue, are admissible as part of the res gestae. As proof of the fact, however, of undue influence, declarations not contemporaneous with the execution are inadmissible; they must be treated as hearsay. ’ ’

Same rule is laid down in Page, Wills, also in Schouler, Wills.

Many adjudicated cases are cited in the foregoing text books sustaining the rule therein stated, but which we do not deem it necessary to refer to.

It will be seen from the charge of the court given in the case before us that the distinction observed in the instructions given to the jury in the case of Boepple v. Mellert, supra,, heretofore referred to upon the subject of testamentary capacity and undue influence, was not observed, nor was the jury instructed upon the subject of undue influence in its application to the case before us, either as to its meaning or its effect, or the burden of proof, for which we think the trial court erred. We think it is but proper to say in this connection that the nature and importance of the case, giving rise as it did to a variety of distinct issues, required that the jury should have been specially and properly instructed as to the law pertaining to such issues beyond the mere reading of the pleadings.

Among other things, the petition charged that the will in question was procured by fraud, “and by means of false and fraudulent representations and forgery.” Counsel for plaintiff in error argued that the declaration of the testator made before and after the time of the execution of said will, testified to by witnesses heretofore referred to, as bearing upon testamentary capacity and undue influence, were also incompetent as bearing upon the alleged forgery of said will, and that the trial court therefore committed error in admitting them for said purpose. Without here repeating the testimony of said witnesses and giving only the substance of it, said witnesses testified that on numerous occasions, before, after and near to the time of the execution of said will, the testator stated he desired that his grandchild, Clarence Coulter, should have and possess his farm after his death, and at the death of Clarence, the same should go to his two children; that he desired that said farm should not be sold; that, he at different times refused to sell any part of it, etc.

An examination of the authorities shows that the courts are not in accord on the subject of admitting declarations of a testator made before or after the execution of his will, where forgery is the issue. The two leading cases cited by counsel in their briefs are Throckmorten v. Holt, 180 U. S. 552 [45 L. Ed. 663; 21 Sup. Ct. 474], and State v. Ready, 78 N. J. L. 599 [75 Atl. 564; 28 L. R. A. (N. S.) 240], the former holding that:

“Declarations, whether oral or written, made by a testator, either before or after the date of an alleged will, unless made near enough to the time of its execution to become part of the res gestae, are not admissible as evidence in favor of or against the validity of the will. ’ ’

And the latter holding that:

“Where the issue is whether a will was executed or whether a will was made to have a certain tenor or provision, the preexisting testamentary design of the alleged testator is always relevant; and, to evidence the existence of that design, his antecedent statements are admissible, when not too remote to be material. ’ ’

Both cases involve forgery of a will, the latter being a criminal case. It is needless to remark that both are interesting and ably written opinions upon the subject treated of, written as they >vere by the distinguished jurists who for many years have graced the benches of their respective courts and have enriched and dignified the profession with their learning in their respective spheres of judicial duty.

We have no desire to review these opinions by contrasting the views therein expressed, except to add that the views in the case first cited seem to harmonize with the rule already stated in Jones’ Commentaries on Evidence and Alexander’s Commentaries on Wills, rather than the case last cited. We refer more particularly to the principal of law heretofore referred to that something more should appear than the mere expression of a wish or future intention by the testator in casual conversations had with him, or in the language of the text-writers “there must be independent proof and evidence of such declarations” and unless so supported, they are to be regarded as hearsay. True exceptions to this rule might find favor in the admission of such declarations if made and they became part of the res gestae, but the testimony shows no such conditions exist in this case. As stated, they would be competent upon the question of testamentary capacity, and they might also be competent in a case where undue influence was charged, as where the testator was of weakened and impaired mind owing to old age or sickness, or accident, but here the mental faculties of the testator while advanced in years were shown to be unimpaired at the time of executing said will. Commenting upon this class of evidence, Mr. Justice Peek-ham in the case of Throckmorton v. Holt, supra, referred to on page 573 in his opinion in said case says:

“After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate that exclusion. The declarations are purely hearsay, being merely unsworn declarations, and when no part of the res gestae are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his unsworn declarations as to any other fact. ”

Again, in commenting upon the uncertainty and unreliability of this class of evidence, the said justice on page 578 in said opinion says:

“There is-another reason why no exception should be made in favor of such evidence upon which to build a presumption or inference of forgery, and that is the inherent weakness and danger of the evidence itself. No inference is generally more uncertain or unreliable than that which is sought to be drawn upon the question of the genuineness of a will from the alleged condition of a testator’s mind towards relatives or others, as evidenced by his declarations. It is every day experience that declarations of that nature are to the last degree unreliable as a basis for an inference as to probable testamentary disposition of property. Those who thought by reason of such declarations that they ■would certainly be remembered in tbe will of the testator are so frequently disappointed, and that too in cases where there is not the remotest suspicion of forgery, that it would seem exceedingly unsafe to permit a jury to draw an inference based upon such evidence, relative to the genuine character of the instrument propounded as a will. ’ ’

And on page 579 said justice says:

“The motives underlying and causing the particular provisions of a will may be so various and so hidden from observation that it is in the highest degree unsafe to draw an inference of forgery based upon declarations as to testamentary intentions which are so subject to change and which declarations may or may not represent the true feelings of the testator or even his actual testamentary intention at the time when spoken. The result is very apt-to be a breaking down of the safeguards provided by statute for the proof of the due execution of a will, and to provide in place of that proof evidence which is in itself of the most unsatisfactory nature, and from such evidence permit a jury to draw a still more uncertain inference of forgery. ’ ’

It is true as counsel for defendant in error say that the foregoing decision rendered by the United States Court was made by a divided court, but it is the opinion of the majority of the court, and such majority declares the law. It is to be noticed that the rules of law laid down in this decision find support in many adjudicated cases in other jurisdictions. The New Jersey ease referred to while a well considered case, it will be noticed that outside of a review of the case of Throckmorton v. Holt, and a reference or two to Massachusetts and New York cases, cases in New Jersey are for the most part cited in the opinion. However this may be, the fact is, as already stated, that there is a conflict of authorities on the admissibility of declarations of this character, especially those made after the execution of a will.

Without extending our remarks further upon this branch of the case, we think the better reasoning and the weight of authority is, in the absence of some independent proof being shown in connection with declarations of the character referred to, that they were incompetent and should have been excluded, not however upon the question of testamentary capacity, but upon the issue of forgery. In this connection it is but fair to state that the trial court did give to the jury in charge before argument the following request submitted by counsel for the defendants below:

“12. I charge you as a matter of law that if you find from the evidence that Absolom Lynch executed this will on the 10th day of November, 1915, it would not matter what he may have said at other times, either before or after said date, about his intentions and you should disregard all such declarations and your verdict should be for the defendants and that this is the last will and testament of Absolom Lynch. ’ ’

While this request was given, still the testimony referred to was allowed to go to the jury and was not withdrawn, nor were the jury instructed not to consider the same except as implied from said request, for which we think the court erred to the prejudice of the plaintiffs in error.

Other errors are complained of in the admission of testimony on the trial below, but we do not deem them of sufficient importance to merit discussion, especially in view of the conclusions we have reached in the case.

Numerous exceptions were taken to the action of the court below in its general charge to the jury as given and in its refusal to charge as requested before argument, which are assigned as error. Requests Nos. 1, 3, 4, 5, 7, 8 and 10 were refused, Nos. 2, 6, 9, 11 and 12 were given. Nos. 1, 3 and 4 involved questions of fact which will be noticed hereafter.

Request No. 5 is as follows:

“5. I charge you as a matter of law that the order of probate introduced in this case is prima facie evidence of the due attestation, execution and validity of the will introduced in evidence in this case, and, unless you find by preponderance of the evidence that this prima facie case is overcome by the evidence of the plaintiff, your verdict should be for the defendants, and that said will is the last will and testament of Absolom Lynch. ’ ’
“6. I charge you as a matter of law that the burden is upon the plaintiff to prove by preponderance of the evidence that the will introduced in evidence is not the last will and testament of said Absolom Lynch, and, in order to warrant the setting aside of the will, such evidence should not only outweigh the evidence adduced by the defendant, but also the presumption arising from the order admitting the will to probate, and, unless it does so outweigh such evidence and order, your verdict should be for the defendants, sustaining the will.”

Section 12083 G. C. provides:

“On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil.”

That the instruction in request number 5 contains a correct proposition of law under the foregoing section of the code is not open to question, but is the same instruction contained in re-, quest number 6, which was given? If it is, then the trial court did not err in failing to repeat said request number 5, for it is held that one instruction to the jury by the court upon a given subject, when properly given, is all that is required. Said Sec. 12083 was recently before the Supreme Court of this state and was construed by it in the case of Hall v. Hall, 78 Ohio St. 415, wherein it reversed the judgment of the circuit court—

“for the reason that the charge to the jury (in the court below) is misleading and erroneous in that it nowhere distinctly states nor sufficiently emphasizes that the order of probate of the will, by the probate court, raises a presumption that the will so probated is the valid last will and testament of Mercy A. Hall; that the court did not clearly explain to the jury the legal effect of the provision of the statute, ‘that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil/ that the jury was not instructed as it should have been instructed, that before they would be entitled to return a verdict setting aside the will they must be able to find that the evidence adduced by the contestant, Charles F. G. Hall, outweighs both the evidence adduced by the defendant, Anna S. Hall, and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of Mercy A. Hall. ’ ’

In the instruction given in the case before us the court did charge clearly that the burden was upon the plaintiff to show by a preponderance of the evidence that the said will was not the will of said Absolom Lynch to warrant it being set aside, and that such evidence should not only outweigh the. evidence adduced by the defendants below but also the presumption arising from the order admitting the will to probate, etc., but does it appear that the trial court distinctly stated and sufficiently emphasized the effect of the order of the probate of said will, or that said court clearly explained to the jury the legal provision of said statute f Interpreting the rule as laid down by the Supreme Court we think it did not, and in failing to so instruct the jury we think the court erred to the prejudice of the plaintiffs in error.

Requests numbers 7 and 8 were considered and disposed of in a former part of this opinion.

Request number 10 is as follows:

“I charge you as a matter of law that prima facie evidence of a fact is such evidence as, in the judgment of the law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose.”

This request was refused, and we think was improperly refused. Under Sec. 12083 G-. C. the order of probate carried with it prima facie evidence of the validity of said will and such presumption continue until overcome by competent evidence. In Gomien v. Weidemer, 39 O. A. & C. 1 (27 N. S. 177), which was a will contest case, Judge Walters in announcing the opinion in said case, quoting from Crane v. Morris, 31 U. S. 598 [8 L. Ed. 514], says:

“Prwna facie evidence of a fact, says Mr. Justice Story, is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted, remains sufficient for that purpose.
“Prima facie evidence of a fact is such as establishes the fact, and unless rebutted or explained by the evidence becomes conclusive and is to be considered as if fully proved. State v. Burlingame, 146 Mo. 207 [48 S. W. 72].

We think that said request number 10 should have been given and in refusing to give it the trial court committed prejudicial error.

Various exceptions were also taken to the general charge of the trial court to the jury, and, among other things, that the trial court erred in not fully instructing the jury as to the law to be applied under the different issues raised by the evidence in the case. As already stated, the record in the case is a voluminous one, and the evidence raised various legal questions on which it became the duty of the trial court to specially instruct the jury. This is noticeably true with reference to the definitions of testamentary capacity, undue influence and fraud, and the legal presumption arising in the absence of proof tending to sustain either, which was omitted, nor does it appear that the jury were instructed as to the effect of the alleged undue influence or fraud practiced at the time of making said will, be cause unless it resulted in producing the effect charged, such proof would be unavailing to invalidate said will for undue influence or fraud. The evidence offered upon the trial raised a multiplicity of questions arising out of such evidence, it is true, but such fact in no wise procured exemption from duty of the trial court to so charge the jury that the verdict of the1 jury should be responsive to the facts and the law. As held in the case of Parmlee v. Adolph, 28 Ohio St. 10:

“A charge to the jury should be a plain, distinct, and unambiguous statement of the law as applicable to the case made before the jury by the proof, and not mere abstract legal rules. ’ ’

"We are therefore of the opinion that the exceptions to said "charge in the respect mentioned are well taken.

Referring to said charge upon the question of fraud, the trial court charged the jury as follows:

“Fraud is never presumed, but must in all eases be clearly proved. Fraud alleged does not necessarily need to be proven by direct evidence. Like all other facts, it may be proven by circumstances alone, but must be clearly proven, so you will inquire into all the facts and circumstances surrounding the making of this will. ”

We are aware that it is not unusual to find courts laying down as a rule of law that “fraud must in all cases be clearly proved,” but we can not subscribe to the correctness of such rule in the face of the established rule by the Supreme Court of this state to be found in decided cases from time to time. While it is recognized that different degrees of proof are required in certain civil eases, in a ease, for instance where the reformation of a contract is sought upon the ground of mutual mistake, clear and satisfactory proof is required of the party seeking such reformation, or where a family relative renders services to another in the same family, and in the absence of an express contract seeks a recovery for such services, clear and convincing proof is required, or where a party seeks to engraft a trust upon an instrument in writing, clear and convincing proof is required, but in a case like the one before us, which is a civil action, is anything more than a preponderance of proof required to sustain the allegation of fraud?

In Jones v. Greaves, 26 Ohio St. 2 [20 Am. Rep. 752], it is held that:

“On the trial of a civil action wherein the claim or defense is based on an alleged fraud, the issue may be determined in accordance with the preponderance or weight of the evidence, where the facts constituted the alleged fraud do, or do not, amount to an indictable offense.”

In Lyon v. Fleahmann, 34 Ohio St. 151, the judge announcing the opinion of the court in said case on page 156, cites with approval the case of Decker v. Somerset Ins. Co., 66 Me. 209 [22 Am. Rep. 562] and says:

“It can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones. Such an instruction does not vitiate the rule that in civil suits a preponderance of evidence is all that is required to maintain the affirmative of the issue; for, as already stated, to create a preponderance of evidence, it must be sufficient to overcome the opposing presumption as well as the opposing evidence.”

In Mason v. Moore, 73 Ohio St. 275 [76 N. E. 932; 4 L. R. A. (N. S.) 597; 4 Ann. Cas. 240], which was a case involving the liability of bank directors for the publication of an alleged false statement of the bank’s resources and liabilities, the rule is there stated to be that a preponderance of the evidence only is required in such case. Other adjudicated cases in this state might be cited announcing the same rule. While we are aware that a different rule in like cases is recognized in other jurisdictions, the same as the rule laid down by the court below in the case at bar, yet we are of the opinion that the rule which prevails in Ohio is, that a preponderance of the evidence only is required in such case, and entertaining this view, we hold that an instruction to the jury that a higher degree than a preponderance of proof was required, was prejudicially erroneous.

The court below also instructed the jury as follows:

“You are the sole judges of the credibility of the witnesses, and by your own experience in life you may determine what the proof is.”

This instruction insofar as the jury are the sole judges of the credibility of witnesses is correct, but is the remaining part of said instruction correct ? The trial court appears to have proceeded upon the assumption that the jury could substitute the result of their own experience in life in determining the proof.

It is scarcely necessary to say that the evidence in a ease, and not the jury’s experience in life, is the standard set by the law by which the rights of parties, under the law, are to be dedetermined. True there may be cases where the common knowledge of the jury, in considering evidence, may be exercised, as, for instance, in determining the value of services in an action upon a quantum meruit, as was held in the case of Hossler v. Trump, 62 Ohio St. 139 [56 N. E. 656], and the same rule might apply in a case for damages to property where the solution of the matter under inquiry could be aided by the jury’s own observation, experience and knowledge, but we know of no rule of law that permits the substitution of ,the juror’s experience in life for the sworn testimony of witnesses in a will case where the issues raised are determinable solely by the evidence under the law. Observation, experience and common knowledge, or either, find no place or application in such case, for the issues here are testamentary capacity, undue influence and fraud. The instruction given was clearly erroneous, and prejudicially so, calculated as it was to mislead the jury from confining their inquiry to the issues presented in the case.

As grounds for setting aside the verdict of the jury and the judgment of the court in this case it is alleged that “the verdict and judgment are contrary to the manifest weight of the evidence and law” and that “the verdict and judgment are not supported by any evidence.” Although not unmindful of the salutary rule laid down in Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340], that, “A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and that reviewing courts will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony,” we are constrained to say that we fail to find anything in this entire record, either of anything said or done, that can be construed, in our judgment, as indicating in any possible form or degree, that any undue influence was sought to be, or in fact was, exerted upon the said Absolom Lynch either before or at the time of the execution of his said will. Nothing whatever appears in the record showing that the testator at any time or place ever mentioned a word to anyone, or that he was at any time or place ever spoken to, concerning the disposition of his property, outside of the casual remarks made in conversations had with his neighbors in which they testified that he desired his farm to go to his grandchild after his death as heretofore referred to. We think there is an entire absence of proof to sustain, or tending to sustain the charge of undue influence.

With the question of testamentary capacity eliminated, the only remaining question is the alleged fraud practiced in obtaining the signature of the said Absolom Lynch to the attestation clause on the last sheet of said will. In the light of the history of the events transpiring immediately before and at the time of the execution of this will, as testified to by the scrivener and attesting witnesses to said will, is there anything appearing in the record to show that said will was not executed as claimed by them, and according to law? What circumstances or what declaration is shown by the record that tends to impeach the integrity of the testamentary act of the said Absolom Lynch on that day ? True, the provisions of his will then made vary with the provisions of the will shown to have been made by him some years before that time in respect to his said farm, according to his declarations made to some of his neighbors before and after the execution of the will in question, as testified to by them, but according to the testimony of the witnesses, Dr. B. Edwards, John W. Lee, Bene Pigman and John Funk, he may have had occasion to change his mind and did so for reasons satisfactory to himself, all of which he had the right to do. In said will he seems to have carried out the same desire and intention expressed by him in his will made before that time by providing for his deceased wife’s relatives, as well as to provide for those nearest to him in affection. He likewise named as his executor the person to whom he had given his confidence in business correspondence and whom he had successively named as his executor in each of the different wills executed by him. Is such fact to be construed as a suspicious circumstance ? If it is, then it is time that men in the legal profession who consent to accept trusts created under wills drawn by them for other persons should take notice of their liability to be charged with questionable practices. It is sufficient to say that the imputation is as unfounded as it is unjust. S. F. Chaney is not a beneficiary under said will, nor was he such under either of the other two wills executed by the said Absolom Lynch, and with the legal presumption in favor of the validity of said will, with nothing appearing but mere naked suspicion to outweigh or overturn it, we can not persuade ourselves as a reviewing court to approve the verdict of a jury setting aside the deliberate and solemn act of a person exercising his inherent right under the law and disposing of his property as he sees fit, provided, of course, that in the exercise of such right he was under no such constraint or moral coercion as to interfere with his free agency, nor are we ready or willing as a court to condone the accusation by a judgment that the scrivener of such a will, made under the circumstances here described, is a forger. Character is still to be valued as an asset in human life, and the philosophy and mandate of the law require that a person shall not be deprived of it without sufficient and just cause. Here the testimony shows that S. F. Chaney is now and for a period of some thirty years last past has been the trusted agent of the Government as its postmaster in said village, and that the subscribing witnesses to said will have been known and recognized as reputable citizens of said village during said period of. time, and not a breath of suspicion is even whispered from the witness stand against their reputation or character for truth and general integrity. Can it be said that their sworn testimony is to be brushed aside and held for naught? Until the present system of administering justice in our courts shall be changed, we shall hesitate to believe it.

We do not join issue with counsel for the defendant in error in their contention that courts should be slow to disturb the verdict of a jury, and should not do so, unless it appears that-such verdict is clearly and manifestly against the weight of the evidence. As already indicated in this opinion, we not only find the verdict in this case against the clear weight of the evidence, but that the allegations of the petition as to undue influence and fraud are wholly unsupported by the evidence, and we therefore hold that the motion submitted by the plaintiff in error at the close of all the evidence in the case should have been sustained by the trial court and the jury instructed to return a verdict sustaining said will, and that the motion of the plaintiff in error for a new trial should have been sustained, and in overruling said motibns said court erred.

For the errors indicated, the judgment of the court of common pleas will be reversed and said cause will be remanded to said court for such other action as may be deemed proper.

Powell and Houck, JJ., concur.


author: MEALS, J.

text:
    COURTS — EXECUTORS AND ADMINISTRATORS,
    [Cuyahoga (8th) Court of Appeals,
    March 27, 1916.]
    Meals, Carpenter and Grant, JJ.

      Jennie Tibbott, Admx. v. Frances Cadisch.
    Judgment of Probate Court Determining Title to Property of Estate Concealed Title Res Judicata.
    Sections 10673 G. C. et seq., concerning concealing of property of estate by personal representatives, provide for trial of the right of property by the probate court, and proceedings before that court pursuant thereto may be pleaded in bar of an action in another court to try the title to or the right of possession of the property involved in said proceedings.
    Error.

      Kerruish, Kerruish, Ha/rtshorne <& Spooner and E. J. Cherney, for plaintiff in error.

      B. J. Selzer, for defendant in error.

       Motion to certify overruled by Supreme Court May 18, 1916, Tibbott v. Cadisch, 61 Bull. 191.

   MEALS, J.

On January 20, 1915, the plaintiff in error instituted proceedings in replevin against the defendant in error in the municipal court of Cleveland for recovery of certain personal property, to wit, one diamond ring, one diamond stick pin, and sixty dollars in currency. Thereupon summons was duly issued by the clerk of the municipal court and placed in the hands of a deputy bailiff of said court for service. On January 22, 1915, said bailiff returned said summons endorsed as follows:

“Received this writ January 20,1915, and by virtue thereof I searched for the chattel property within described but failed to find the same. I served this writ on the within named defendant, Mrs. John Cadisch, whose real name I found to be Frances, by delivering to her a true and certified copy thereof, with all endorsements thereon. Charles L. Selzer, bailiff, by Ed. E. Peck, deputy bailiff. ’ ’

During the pendency of said action in the municipal court, to wit, on January 22,1915, the plaintiff in error duly instituted in the probate court of Cuyahoga county proceedings charging the defendant in error with concealing, withholding and appropriating property to her own use in fraud of the rights of the administratrix and others interested in the estate of James Rees, deceased. Summons was duly issued and served.

On January 27, 1915, during the pendency of said replevin action in the municipal court, and without objection, a trial was had in the probate court of Cuyahoga county before the Honorable Alexander Hadden, judge of said court, on the merits of said complaint, and the judgment of said court — a jury having been waived — was entered for the defendant in said proceeding, the defendant in error in this action.

On February 5, 1915, a trial of said replevin action was had in the municipal court. At said trial the defendant in error offered in evidence the original papers and a certified copy of the docket entries of the proceedings had in the probate court, in support of a plea in bar to said action. This evidence was excluded by the court, and the trial resulted in a judgment for the plaintiff in error. This judgment was reversed by the court of common pleas. Error is prosecuted in this court to reverse the judgment of the court of common pleas.

One question only is presented for our consideration: Did the proceedings in the probate court constitute a trial of the right of property ? If so, it is admitted that the municipal court erred in excluding the evidence offered of said proceedings in the probate court.

The act of February 26, 1843, supplementary to the act for the settlement of estates of deceased persons, provided that “upon complaint of an executor or administrator before the probate court against any person suspected of having concealed, embezzled or carried away the property or effects of the estate, the parties suspected shall be cited to appear before the court and submit to an examination touching the matter of complaint. ’ ’ It also provided that either party might examine witnesses and required the court to reduce all such examinations to writing, to be signed by the parties and witnesses respectively and file the same in the court. The act further provided that “if upon such examination the probate court shall be of opinion that the person or persons so accused is or are guilty of having concealed, embezzled or carried away any of the money, goods,” etc., of the estate, “the court shall forthwith render judgment in favor of the executor, etc., against such person for the amount or value of the money or goods, together with ten per cent penalty, which judgment, the act declared, shall be a lien upon his estate and be collected by execution.”

In Howell v. Fry, 19 Ohio St. 556, the constitutionality of this act was attacked, on the ground that it provided for a trial of the right of property to court and without the intervention of a jury. The court held the law unconstitutional, and in its opinion said:

“If the defendant denied the truth of the charge, he had a constitutional right to a jury trial, and could not be deprived of that right by this summary proceeding, in which no provision is made for a jury trial or for the right of appeal. The statutory provision authorizing a judgment can only be sustained as constitutional and valid in so far as it applies to a case where the defendant does not controvert the truth of the complaint. ’ ’

Thereupon the statute was amended so as to cure the defect found in it by the court in Howell v. Fry, supra. It is found in Secs. 10673 G. C. el seq.:

“Section 10673. Upon complaint made to the probate court or the common pleas court of any county, by the executor, administrator, creditor, devisee, legatee, heir or other person interested in the estate of a deceased person, or by the creditor of any devisee, legatee, heir or other person interested in such estate, against the executor or administrator of such deceased person, or against any person suspected of having concealed, embezzled, or conveyed away moneys, goods, chattels, things in action, or effects of such decedent, the court shall cite such executor, administrator or other person suspected, forthwith to appear before it to be examined, on oath, touching the matter of the complaint.
“Section 10674. When complaint is made to the probate court and a jury is demanded by either party, the court may forthwith reserve the case to the court of common pleas for hearing and determination, and it thereupon shall proceed in all respects as though the complaint had been originally made therein.5 ’
“Section 10678. By the verdict of a jury, if either party requires it, or without, if not required, the court shall determine whether the person or persons accused is or are guilty of either having concealed, embezzled or conveyed away moneys, goods, chattels, things in action or effects of such deceased persons, and if found guilty, the amount of damages to be recovered on account thereof. In all eases except when the person so found guilty is the executor or administrator of such deceased person, the court forthwith shall render judgment in favor of the executor or administrator or if there be no executor or administrator in this state, in favor of the estate, against the person or persons so found guilty for the amount of the moneys or the value of the goods, chattels, things in action, or effects so concealed, embezzled or conveyed away, together with ten per cent penalty and all costs of such proceedings or complaint, which judgment shall be a lien upon the real estate of the person or persons against whom it is rendered within the county from the rendition thereof. If the party so found guilty is the executor or administrator of such deceased person, the court forthwith shall render like judgment in favor of the estate against him for such amount or value, together with penalty and costs as aforesaid.
“Section 10679. Such judgment shall be a lien upon the real estate of the executor or administrator, within the county from the rendition thereof. The probate court must forthwith remove such executor or administrator and commit the administration of the estate, not already administered, to some other person or persons. The executor or administrator so removed, shall not receive compensation for acting as such, and must be charged in his account with the amount of such judgment. His property also shall be liable for the satisfaction of the judgment on execution issued thereon by his successor, who, when the judgment is rendered by the probate court, must file a transcript with the clerk of the common pleas court and cause such proceedings to be had as are contemplated in the next following section.
“Section 10680. The executor or administrator in whose favor such a judgment has been rendered by the probate court, may forthwith deliver to the clerk of the common pleas court in the county, an authenticated transcript which the probate judge on demand of such personal representative shall make out and deliver to him. On such transcript the clerk forthwith must issue an execution of the common pleas court for the amount of the judgment and costs, and the costs accrued, or that may accrue thereon. Thenceforth proceedings on execution shall be the same as if the judgment had been rendered in such court. ”

In our opinion the act now provides for a trial of the right of property, and a judgment entered by the probate court, in proceedings before it pursuant to the provisions of said act, may be pleaded in bar of another action to try the title to or the right of possession of the property involved in said proceedings.

But few of the states have statutes on this subject similar to ours. Authorities, therefore, which might aid us in arriving at a correct conclusion in the case at bar are not numerous. The statute of Missouri on this subject is similar in substance to that of Ohio, and the Missouri courts have held that it contemplates a trial of the right of property.

In Huffman, v. Huffman, 132 Missouri App. 44 [111 S. W. 484], paragraph 2 of the syllabus is as follows:

“In a proceeding under the provisions of Secs. 74 and 78 Rev. Stat. 1899, interrogatories may be exhibited against the person cited and evidence heard on them to try the right of property, concealed or embezzled or otherwise wrongfully withheld by such person the former rulings; that such a proceeding was only to facilitate the discovery of hidden assets, preliminary to an action to recover them, and a showing, on the part of the person proceeded against, that they were held in good faith, would stop further proceedings, are unsound in principle and in conflict with the decisions of the Supreme Court. ’ ’

In the opinion the court say:

“The Missouri statutes dealing with the subject differ from those of all the other states we have examined in essential particulars; chiefly in providing for a trial by jury of the issues raised. This provision is not found in any of the statutes of other states cited infra, except Maryland (and we might add, Ohio); and text-writers derive the proposition that the right of property can not be tried in a proceeding like this one, from, cases in other jurisdictions. * * * But those cases, so far as the decisions are based on the lack of a statutory provision for a trial by jury, should be eliminated in considering the effect of our statutes. The opinions usually treat this omission as the decisive reason for saying property rights can not be determined. * * * In Maryland the orphans’ court of probate jurisdiction, in analogy to the old chancery practice, may refer the issues to a law court to be tried but can not try them itself. * * * Under statutes granting this privilege, it was held in a majority opinion, the jurisdiction of the orphan’s court was confined to determining whether or not the defendant had concealed the property mentioned in the affidavit, and if he openly admitted possession, but claimed title, his right could not be determined. A dissent was filed. Gilson v. Cook, 62 Md. 256. In several states the sole aim of 'the law is the discovery of assets — not to compel the party in possession to turn over or inventory property, but to compel him to submit to an examination in order that his statements, and some times those of other witnesses as well, may be filed in writing as a basis for other proceedings to recover the property. * * * In New York the statutes expressly provide that if the defendant files a verified answer alleging ownership of the property, the proceeding shall be dismissed without further examination. * * * The Texas statutes pertain only to papers and documents belonging to the estate. * * * The statutes of Arkansas, Utah and Nevada permit a summary order by the court for the delivery of the detained property, but provide for no examination of witnesses or jury trial. * * * The following decisions held the purpose of the statutes dealt with was to provide a means of discovery, not recovery, of assets; Gardner v. Gillihan, 20 Ore. 598 [27 Pac. 220] ; and others. It will be seen from the foregoing summary of statutes and cases that the adjudications in other jurisdictions can lend little assistance in the attempt to ascertain the object and effect of our statutes, in consequence of the wider scope of the procedure these provide and the use materially different language — language suggestive of an intention to create a new method of both discovery and recovery. It is worthy of note that in the statutes of 1845, where the proceeding was first authorized and presumably the policy of the legislature put into effect, it is said if the defendant appears and in his answer to the interrogatories denies the right of the executor or administrator to the goods, chattels, money, etc., ‘the right thereof shall be tried by a jury; or, if neither party require a jury, by the court, in a summary manner, and judgment shall be rendered according to the right and for costs.’ This language imports a purpose to provide a method for determining the right of property as between the estate and the person accused of concealing or embezzling assets. The statutes of 1855 (See. 10) instead of saying the right shall be tried, say the issue shall be tried; meaning the issue of whether the property is concealed or embezzled. The present statutes cover assets concealed, embezzled or otherwise wrongfully withheld, and Secs. 77 and 78 say the issue upon the interrogatories and answers filed, shall be tried by a jury, etc., and if the defendant is convicted, the court shall compel him to deliver the property detained; or if he be an executor or administrator, compel him to inventory it. In our opinion this legislation was not enacted merely to provide a method of investigating the good faith of a person who detains assets, but to provide also a remedy by which detained assets could be brought quickly into the course of administration. The notion that the only object was to facilitate the discovery of hidden assets, preliminary to an action to recover them, is fallacious and founded on the decisions of jurisdictions where statutes, enacted only to assist discovery, prevail; and which do not take care of the constitutional right of trial by jury in cases involving property rights, because no property rights are involved under said statutes, but only information. In this state a jury trial of the issues is allowed and also an appeal; thus preserving to a defendant all the rights he would enjoy in any other form of action. It is unlikely that this elaborate procedure was devised simply to discover assets. The purpose was broader — to expedite the administration of estates by affording a new and speedy remedy for collecting assets. ’ ’

On these considerations, we find no error in the record, and the judgment of the court of common pleas is affirmed.

Grant and Carpenter, JJ., concur.


author: LAWRENCE, J.

text:
    APPEAL — DRAINS AND DITCHES
    [Lorain (8th) Court of Appeals,
    May 10, 1918.]
    Grant, Dunlap and Lawrence, JJ.

      George L. Ammon et al. v. Conrad A. Horn, Aud., et al.
    1. Property Owners Encouraging Ditch Improvement Denied Relief when Results Prove Disappointing.
    In the absence of fraud or collusion no relief will be granted from an assessment for a ditch improvement, where the complaining property owners, by their action as well as by silence and acquiescence, induced the county commissioners to tile a ditch in the belief that it would be a benefit to them all, but which on actual test was found to have made the situation worse rather than better.
    2. Lack of Benefits not Ground for Judicial Modification Assessment.
    The authority vested in the court by Sec. 6500 G. C., to grant an order which will make such an assessment equitable where benefits are not shown, does not afford ground for relief from an assessment for an improvement which the community procured to be made on the theory that it would not have to be paid for by them unless it proved beneficial.
    Appeal.

      Stroup, Fa/aver <& Bice, for plaintiff.

      C. F. Adams, G. B. Findley and F. A. Stetson, for defendant.

       Motion to certify was sustained by tbe Supreme Court, but dismissed for want of preparation.

   LAWRENCE, J.

Without going into an extended statement of the facts, it seems sufficient to say that this suit arises out of dissatisfaction of certain property owners, farmers, along the line of a certain ditch in Ridgeville township. It seems that in 1&13 one Shaw petitioned to the county commissioners of Lorain county for the improvements of this certain ditch. The proceedings had before the county commissioners all appear to be regular, and no complaint is made that these proceedings were irregular or erroneous in any particular. The cost of this improvement was to be assessed upon the property owners supposed to be benefited by the proposed improvement of this ditch. No complaint was made by any of the property owners, now plaintiffs in this case, as to the method of such improvement, although duly notified according to law; no complaint was made that it would not be conducive to the public health, convenience or welfare, or that the route thereof was impracticable. The hearing was had before the county commissioners as provided for by law, and the order finally and legally made by the county commissioners ordering the improvement. The contracts were let in the manner provided by law and the work was completed in this ditch.

After the completion of this work dissatisfaction arose apparently universal among the property owners, and this dissatisfaction expressed itself in the form of a petition to the court of common pleas asking for an injunction against the collection of the assessments upon the ground that no benefits were in fact obtained by the improvement of this ditch, but, on the contrary, damage was sustained by the property owners, in that the ditch did not drain the lands of these property owners as well after the completion of this improvement as the ditch drained them before in its then state.

There are other allegations in the petition to the effect that some of the petitioners are over-assessed in that only a portion of their lands were drained by this ditch while the assessments are based upon the benefits of the whole of the land, but no evidence of a substantial nature is offered in the case bearing out this claim. We therefore treat the case as if the relief was asked solely for the reason that no benefits were obtained by this improvement by these plaintiffs.

The evidence clearly discloses that the improvement which was thus made consisting of the placing of tile in this ditch and thus making the same a blind ditch with tile of a certain size, was well known at the time of its construction by all or practically all of these plaintiffs, and no objection was made by any of them during the progress of this work as to the propriety of the same.

We have investigated the eases in Ohio which have some bearing upon the facts presented in this case, and we are unable to find a single case where under such circumstances the relief prayed for in the instant case has been granted.

The nearest approach to the granting of such relief in a similar case that we have been able to find is in the case of Stemen v. Hizey, 32 O. C. C. 640 (11 N. S. 347). In that case suit was brought to enjoin the collection of assessments levied by township trustees for a similar improvement, upon the ground that the plaintiff received no benefit from the tiling of the ditch, but the court says that:

“The contention of the defendant is this: that a court of equity can not attack by injunction the judgment.of a judicial board; that if the plaintiff has any remedy at all, it is by appeal or error. With that contention of the defendant, we are in accord, if there is a provision for error or appeal.
“The question presented then is this: Could this plaintiff appeal or could he prosecute error from the judgment of the trustees of Violet township in assessing him for the construction of this ditch, when he received no benefit from it?”

The court in that case then proceeded to show that under the statutes then in existence, relating to the improvement of ditches by township trustees, that there was no appeal provided for by the said statutes from an unjust assessment by the township trustees made against him; but the appeal which was provided for was the appeal provided for by Sec. 4533 Rev. Stat. (now Sec. 6625 Gr. C.), and in view of the fact that no appeal existed to the plaintiff in that case from the action of the township trustees, and in view of the fact that the petition in that case set forth an unjust assessment of his property for a case in which he derived no benefits, the court held that such a petition did state a cause of action, but in the case at bar it will be noted that the relief here sought is not that the property of any one of these plaintiffs is not benefited in the same proportion that other property assessed for the construction of this ditch is benefited, but is brought because of the fact that upon actual test of this ditch after its construction none of the property of any of these plaintiffs is benefited by the construction of said improvement, and the claim is made that it is unlawful taking of property without due compensation to assess or tax these plaintiffs for a benefit which they do not derive. In other words, that because they originally believed and thought that the improvement of this ditch would be a benefit and thus induced the county commissioners to make the improvement and afterwards found that they were mistaken, and that it was not a benefit, that they can be relieved from an assessment which their own action and their own silence during the proceedings preliminary to the improvement and during the construction of the improvement led the county to make.

It will be noted that there is a great distinction not only between the case which is here present and the case just cited as to the facts, but there also is a very marked distinction between the two statutes granting the right of appeal. In the section providing for appeal from the action of the township trustees, the provision is:

“Any person interested in the location of such ditch or in the amount of compensation and damages determined upon by the trustees, may take an appeal from the proceedings of the trustees to the probate court of the county by giving,” etc., while in See. 6469, G. C., the section granting an appeal from the final order or judgment of the county commissioners made in such proceeding, the language is:
“A person or corporation, aggrieved thereby, may appeal from a final order or judgment of the county commissioners made in the proceeding and entered upon their journal, determining any of the following matters, viz:
“1. Whether the ditch will be conducive to the public health, convenience, or welfare.
“2. Whether the route thereof is practicable.
“3. The compensation for land appropriated.
“4. The damage claimed to property affected by the improvement. ’ ’

We regard the contention made by the plaintiffs in this case, in view of the fact that it is now claimed that the ditch was not a benefit to any of that public who were particularly interested in this ditch, namely, the property owners and fanners along the line of the same, that their complaint is a general complaint to the effect that said ditch was not conducive to the public health, convenience, or welfare. While there may be no evidence in the case upon the question of health, yet the whole burden of this petition is to the effect that it was not conducive to public convenience or welfare, but on the contrary was a detriment to public convenience or welfare. It will thus be apparent that that was a question at least preliminarily for the county commissioners to determine, and it was a question which, when determined by the county commissioners, if it gave grievance to any one interested, could have been appealed to the probate court as provided in this section just quoted. The distinction then between the case at bar and the case so strongly relied upon as authority for the relief sought in this petition is very apparent, and the able decision of Judge Crane in Stemen v. Hizey, supra, can not be regarded by us as authority for granting the relief in the case at bar.

It seems to us that in view of the memorandum decision of the Supreme Court in Moody v. George, O. S. C. D. 578 (37 Bull. 189), and which apparently was based upon previous decisions of the Supreme Court, particularly Haff v. Fuller, 45 Ohio St. 495 [15 N. E. 479], and the Chesbrough v. Commissioners, 37 Ohio St. 508, and in view of the decision of the same court in Putnam County (Comrs.) v. Krauss, 53 Ohio St. 628 [42 N. E. 831], and in view of the further fact that the Supreme Court in Blue v. Wentz, 54 Ohio St. 247 [43 N. E. 493], allowed the relief prayed for apparently solely upon the ground of fraud and collusion between the surveyor and the county commissioners, a thing which is not claimed or even hinted at in the case at bar, and of many decisions of courts inferior to the Supreme Court, we can come to but one conclusion as to the law of this case, and that is that in the absence of fraud or collusion a court of equity will not interfere and determine the question of benefits when the property owners interested have sat by and allowed the county commissioners to act in the manner in which they have acted in this ease.

A strong appeal is made to the court that under Sec. 6500 G. C. the court has full power to act in this case, even though there is no fraud or collusion, when a gross injustice in the apportionment is made to appear to the court, and the claim is made that gross injustice does appear in this case because of the fact which, it is claimed is proven that no benefts have accrued to the property owners, but only damage has resulted. Upon this question óf whether or not benefits have accrued the state of the testimony is entirely unsatisfactory. Much testimony has been introduced on both sides of the case; much of it to the effect that damage has resulted instead of benefit; much of it to the effect that damage only occurred at a time when there was an extraordinary rainfall or much snow and ice. Even if we were inclined to exercise the power Sec. 6500 apparently gives to the court we would not feel justified in exercising it arbitrarily, but only upon the clearest and most conclusive showing of damages, and we doubt if under these circumstances which the evidence in this case discloses a ease could be made under See. 6500 which would appeal to a court of equity, in view of the fact that these property owners by their silence during the preliminary proceedings and the progress of this work apparently acquiesced in the work that was done; and we think that the remark of the court as contained in Putnam Co. (Comrs.) v. Krauss, supra, at page 634 is appropriate, the same being as follows:

“But our attention is called to Sec. 4491 R. S. [Sec. 6500 G. C.], giving the court in which such proceeding is brought, power to enjoin an assessment. But the power conferred is not an arbitrary one. There must be a reason for the injunction — a ease made. This petition, as we have shown, makes none. ’ ’

"We are inclined to the belief that the laws of Ohio relating to ditches and the construction of the same can not be used for experimental purposes; that they were not intended to allow or encourage communities who wanted to make an improvement in their drainage to place this burden upon the county, upon the assumption that it would be paid for if it proved successful and not paid for unless it proved successful; to make the county and the commissioners, who are in reality and according to the theory of the law simply the agents for this purpose, guarantors to their principals of the success of an undertaking of this kind. Such a ruling is unfair to the county at large and would encourage haphazard and ill-considered plans for public improvements. Holding these views, we feel that the relief sought for in this petition should be denied, and the injunction is dissolved and the petition dismissed at the costs of the plaintiffs.

Grant and Dunlap, JJ., concur.