author: Shields, J.

text:
    NAKED SUSPICION NOT SUFFICIENT TO OVERTHROW A WILL.
    Court of Appeals for Coshocton County.
    S. F. Chaney, Executor of the Last Will and Testament of Absolom Lynch, Deceased, v. Clarence Coulter.

    Decided, May Term, 1918.

      Wills — Contest of — Scrivener May be Called for Cross-Examination, When — Presumptions of Validity which Overcome Circumstances to which Suspicion May Attach — Competency of Declarations Made by Testator Before and After Execution of the Will — Instructions to Jury with Reference to Prima Facie Evidence, Testamentary Capacity, Undue Influence and Fraud — Degree of Proof Required to Establish Fraud in a Will Case — Not Competent for Jurors in a Will Case to Apply Their Own Experience in Life for Sworn Testimony. '
    1. 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 by the issues raised to appear as an adverse party.
    2. The presumption that the will was drawn in accordance with instructions given by 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 that it was done innocently and not for any fraudulent purpose.
    3. 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intention and all such declarations with respect thereto should be disregarded, if the objectionable testimony was not Withdrawn from the jury in a manner which could not have been misunderstood by them and no direction was given them not to consider it except as implied in said charge.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 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-make such probate prima facie evidence of its attestation, execution or validity, constitutes prejudicial error.
    5. 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. 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. 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. 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. The fact that the will which was admitted to probate differs in some respects from previous w-ills 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. Merrell and J. B. Shepler, for plaintiff in error.

      G. B. Bell, T. H. Wheeler and F. E. Pomerene, contra.

      Motion to require the 'Court of Appeals to certify its record in this case overruled by the Supreme Court, November 19, 1918.

   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 the 18th day of April, 1917, a certain paper writing purporting to be the last will and testament of the said Absolom Lynch, dated November 10th, 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 by 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, 3. 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 3. 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 having 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 thé 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. Tie 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 eondition 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 death 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, $3,00|0 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 acknowledgment 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 3. 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 ease.

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 Section 11497 of the General Code, 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 oij 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 reasons stated in the petition. In the revision and codification of the statutes it is provided that:

“See. 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.”
“See. 10505. Except nuncupative wills, every last will and testament must be in writing, but maybe handwritten or trpewritten. 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 the presence of such party, by two or more competent witnesses, who 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 et al, 27 O. C. A., 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. Bockel in his work on Probate Practice, Volume 1, Section 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.” Schouler on Wills, Volume 1, Section 284; Page on Wills, Section 161, and numerous cases cited by Bockel.

The petition charged 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 termis, 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 taht the condition of mind and memory of the testator was left in the case, and testimony in relation thereto was permitted to go to the jury off and on until the close of the ease. 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 ease, 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 Court of Appeals of the Eighth District in the case of Boepple v. Mellert et al, reported in 24 C.C.(N.S.), 409-410.

‘ ‘ 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 Jones’ Commentaries on Evidence, Volume 3, Section 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 Alexander’s Commentaries on Wills, Volume 3, Section 608:

“Declarations of a testator made in connection with the 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 laid down in Page on Wills, also in Schouler on 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 et al, 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 addmitting 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 childdren; 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 eases cited by counsel in their 'briefs are Throckmorten v. Holt, 180 U. S., 552, and State of New Jersey v. Ready, 78 N. J. L., 599, 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 ag 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 pre-existing 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 were by the distinguished jurists who for many years hav.e 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 ease last cited. We refer more particularly to the principle 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 Peckham in the case of Throckmorton v. Holt 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 oases 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 eases 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 npon 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 b,e 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 the 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 o*f 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 case 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 abesence 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 b.elow:

“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 lOl w'ere r,e-fused, 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 ease 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 ease 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 of the General Code 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 No. 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 Request No. 6, which was given? If it is, then'the trial court did not err in failing to repeat said Request No. 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 Section 12083 was recently before the Supreme Court of this state and was construed by it in the case of Hall v. Hall, 78 O. S., 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, Anne '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? 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 Nos. 7 and 8 were considered- and disposed of in a-former part of this opinion.

Request No. 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 Section 12083, General Code, the order of probate carried with it prima f acie evidence of the validity of said will and such presumption continued until overcome by competent evidence. In Gomien, Executor, v. Weidemer et al, 27 O. C. A., 177-178, which was a will contest -case, Judge Walters in announcing the opinion in said case, quoting from Crane v. Morris, 31 U. S., 598, says;

“Prima 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 (Mo.), 48 S. W., 72.

"We think that said Request No. 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, because 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 the jury should be responsive to the facts and the law. As held in the ease of Parmlee, Admr., v. Adolph, 28 O. S., 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 cases 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 eases from time to time. While it is recognized that different degrees of proof are required in certain civil cases, in a case, 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 ease 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 O. S., page 2, 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 O. S., 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 Maine, 209, 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 evideuce 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 et al, 73 O. S., 275, 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 ease. Other adjudicated cases in this state might be cited announcing the same rufe. "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 ease 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:

“Y. u 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 case, 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 determined. 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 O. S., 139, 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 O. S., 146, 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 circumstance 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. R. 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 tesitmony shows that S. F. Chaney is now and for a period of some thirty years last past has been the trusted agent of the G-overnment 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 motions 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, J., and Houck, J., concur.


source: Caselaw Access Project

author: Metcalfe, J.

license: Public Domain

text:
    OPTION TO RETURN STOCK PURCHASED.
    Court of Appeals for Carroll County.
    Hartman v. Gorrel et al.
    Decided, April 10, 1917.

      What Constitutes Reasonable Time — When a Question for the Jury and. When for the Court — Circumstances May 'Affect Length of Time Permissible — Stock Purchased Under Option to Return.

    Where the purchaser of certain shares of stock had the option to return the stock after one year from the date of sale, such option may be exercised in a reasonable time after the expiration of the year. What is a reasonable time in such case is a question of fact, or of mixed law and fact, -unless the admitted facts are such as to make it apparent that the, time taken to exercise the option was an unreasonable time.

      McDonald & Oglevie, for plaintiff in error.

      I. E. Blythe, contra.
   Metcalfe, J.

The plaintiff in error here was plaintiff below. Several amended petitions were filed in the case, and the question here is raised by the demurrer to the sixth, amended petition. The demurrer was sustained in the common pleas court.

The facts as alleged in the petition are, in substance, that in April, 1906, the plaintiff, Elmer W. Hartman, purchased from the defendants, J. W. G-orrel and W. I. Powell, ten shares of stock in the Eastern Ohio Goal & Coke Company for the price-of $1,000, -and that at the tim,e of purchase an agreement was made between Gorrel and Powell and the plaintiff, by the terms of which the plaintiff had the right after the expiration of one year from the date of purchase to surrender his stock to the defendants and upon such surrender they were to pay bim back the $1,000 paid therefor. Afterwards the stock of the Eastern Ohio Coal & Coke Co. was transferred to the J. W. Gorrel Coal Co. and stock in the latter company taken in its place. This was done in pursuance of an agreement between the stockholders of both companies.

This allegation is material only as bearing upon the averment in the petition that within “several months” after this change in stock was made the plaintiff decided to .exercise his option and thereupon tendered to the defendant Gorrel the stock which he had received, and demanded the return to himself of the $1;00|0 which he had paid for it, and that, afterwards, in December, 1913, he made a second demand for the return of the money he had paid and a second tender of the stock. Both were refused. It is averred, also, that the defendant Powell could not be served with summons in this cas,e.

The agreement set out in the petition was signed only by the defendants, Gorrel and Powell.

It is urged that there is no, consideration for the agreement on the part of the defendants to pay back to the plaintiff the amount paid for the stock, when the plaintiff tendered back to them the stock itself; that the sale of the stock was a completed contract, and that when the defendants agreed to pay back the amount paid them after the plaintiff had exercised his option to return the stock to them, such agreement was unilateral and imposed no reciprocal duty or obligation upon the plaintiff.

We do not think this position is tenable. When the plaintiff purchased the stock, and as part of the agreement of purchase, the defendants agreed to give the plaintiff an option to return the stock, and in the event that he did so to pay him back the amount paid therefor, the agreement was clearly mutual, and the transfer of the stock and payment of the money furnished a sufficient consideration. In The Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St., 44, where the action was based upon a contract for the sale of 126 shares of stock at a certain price and 124 shares at another price, it is said:

“That, upon acceptance, the obligations became mutual, and the promise of one furnished a consideration for the promise of the other.”

We think that is the ease her,e.

Was the option exercised within a reasonable time? It is urged that the demand made within “several months” after the expiration of the year from the date of the purchase, and the subsequent demand in December, 1913, were not made within a reasonable time and hence the defendants were justified in refusing to comply with the demand.

The exchange of the stock of the Eastern Ohio Coal & Coke Co. for the stock of the J. W. Gorrel Co. took place in July, 1908, so that it appears that no demand was made until the lapse of a year and a quarter, to which should be added “several months,”'which is exceedingly indefinite, but we find nothing in the petition, that is to say no allegation of fact, to show that this was an unreasonable time. Th,e rule seems to be well settled that where no time is fixed by the terms of a contract, within which a demand to do a particular act must be made, time is not of the essence of the contract, and the demand must be made within a reasonable time. Laundry Co. v. Whitmore, supra; Catlin v. Green, 120 N. Y., 441, and Bassenhorst v. Wilby, 45 Ohio St., 333.

The latter action was upon an indorsement, and the question was whether or not the note had been presented to the indorser within a reasonable time. The third proposition of the syllabus reads:

“What is a reasonable time is generally a mixed question of law and fact. Where the facts are in dispute, it should be submitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and can not properly be submitted to the jury.”

On the issue made by the petition in this case, whether or not the demand and tender were made within a reasonable time, the court is not able to say as a matter of law upon the facts stated that the time was unreasonable, and we think the question should be submitted to a jury.

If no change had taken place in the financial affairs of the company, and neither of the parties could be harmed by the delay, that is one thing. If, however, the plaintiff was simply lying back an unreasonable time waiting to determine tbe outcome of his investment, and when he saw that the affairs of the company were changing, or had changed for the worse, then attempted to get out from under, that is quite another thing. Judgment sustaining the demurrer reversed.

Pollock, J., and Farr, J., concur.


author: Lawrence, J.

text:
    BROKER’S FEES FOR MAKING LOANS.
    Court of Appeals for Cuyahoga County.
    S. Ulmer & Sons v. Fred E. Bruml.
    Decided, October, 1918.

      Commission — Payable to a Loan Broker — Where Loan is Secured — But is Not Taken by Party Making the Application.

    Where application is made to a broker for a loan, and he finds one who has the money and is willing to loan it on the security offered, but the loan is not made because of a difference arising between the parties for whom it is being procured, the broker is not on* that account to he deprived of compensation for the work done, but is entitled to the same commission which would have been payable to him had the offer of the money been accepted.
   Lawrence, J.

Error to the municipal court of Cleveland.

The parties stand in the reverse order in which they -stood in the court below; we will refer to them in the relation in which they stood in the trial court.

This action was 'brought in the municipal court of Cleveland by the plaintiff to recover from the defendant partnership compensation for effecting a loan of $10,000 on real estate by virtue of a contract between him and the defendant, whereby plaintiff claims it was agreed that in the event of his procuring a person able, ready, and willing to make the said loan, the defendant would pay him for his service therein $100.

The trial helow was to the court and resulted in a judgment in favor of the plaintiff, and error is now prosecuted here to reverse such judgment on the sole ground that it was given for defendant in error, when it ought to have been given for plaintiff in error.

The plaintiff is an attorney at law and the defendant is engaged in making loans on real estate.

The record discloses that in January of this year, the defendant had on hand applications for loans and through two persons, Reinthal and Newman, it came in touch with a man named Weil, who had money he desired to loan on real estate; that a loan of $10,000' on property located on Murray Hill was first submitted to him by defendant. Weil was satisfied to make this loan, but told defendant to go to his brother-in-law, the plaintiff Bruml, for the purpose of closing up the details thereof. For some reason or another this loan failed of consummation, as did also a loan on property on East 152d street. A loan was then submitted to Mr. Weil on property located on Payne avenue. He was satisfied witli this loan and placed in the hands of plaintiff $10,000 for that purpose. Up to this point there is no dispute between the parties. When this Payne avenue loan was about to be consummated, plaintiff asked defendant what share of the 2 per cent, commission, that being the percentage defendant usually charged for making loans, he was to receive. Plaintiff claims that defendant told him that he would divide the commission equally with him, while defendant claims he agreed to divide one per cent, of the commission between plaintiff and Reinthal and Newman.

This loan was never consummated; Bruml was willing that the loan go through if paid one per cent. — $100—and offered to turn over to defendant $9,900. This the defendant refused to accept, and suit was thereupon commenced by Bruml to recover his share of the commission.

The defendant contends that because the loan was not made, plaintiff is not entitled to recover.

With this contention we can not agree. It is not denied that if Bruml had been paid the $100 he claimed, the loan would have been consummated, the whole contention being relative to what the contract between the parties was concerning the division of the commission. We think that where one is able, ready and willing to make a loan to another, and a dispute arises as to what the agreement between the parties was relative thereto, he is not thereby to be deprived of compensation for his services in procuring the loan.

The evidence is, conflicting. However, in this state of the record, we are unable to find that the judgment is manifestly against the weight of the evidence as claimed 'by defendant.

The judgment will be affirmed.

Grant, J., and Dunlap, J., concur.


author: Jones, P. J.

text:
    MOTOR VEHICLES IN COLLISION.
    Court of Appeals for Hamilton County.
    The Bruns Brothers Grocery Company v. Orvon G. Brown.
    Decided, November 12, 1917.

      Negligence — Collision of Automobiles at Street Intersection — Accident Due to Effort to “Cut the Corner" — Not Error to Omit from Charge to Jury a Qualifying Phrase Which Was Without Application.

    1. In charging a jury with reference to observance by chauffeurs of a traffic ordinance, omission of the qualifying phrase of the ordinance, that drivers would be required to observe the rules therein laid down “as far as practicable,” is not prejudicial where the evidence has disclosed no reason for the failure of the defendant’s driver to observe the strict letter of the ordinance.
    2. Where both parties are charged with negligence and the evidence is conflicting, the judgment w-ill not be disturbed únless it is clearly against the weight of the evidence.

      J. L. Kohl, for plaintiff in error.

      Gideon G. Wilson, contra.
   Jones, P. J.

The plaintiff in error seeks in this case to secure a reversal of a judgment against it entered in the court of common pleas in favor of the defendant in error for damages arising from injury to the person and clothes of defendant in error by •reason of a collision between the motor truck belonging to the plaintiff in error .and the automobile touring car of the defendant in error.

The collision took place while plaintiff was driving north on the east side of Reading road at six o’clock p. m., October 1, 1914, and the motor truck of the defendant was being driven south on the west side of Reading road and was turned diagonally into Lexington avenue. Plaintiff contended that the motor truck undertook to make a short cut into the north side of Lexington avenue without warning and without lights, so that it was impossible for him to avoid the collision .although he claims to have been traveling at a speed not to exceed ten miles per hour, and that-he swerved to the left as soon as he saw that the truck was being run immediately in front of him.

Two claims of error are chiefly relied upon by plaintiff in error in argument: that the verdict is contrary to the weight of the evidence; and that the court erred in its charge to the jury.

The record shows the conflict of evidence usual in such cases. It is the distinct province of the jury to determine the facts in a case of this character, and to fix the blame, where each party as in this case is charged with negligence. The court can interfere with the verdict of the jury only in cases where it is not sustained by the weight of the evidence,

A careful consideration of the record fails to convince the court that .this verdict is not sustained by the weight of the evidence, but on the contrary the jury seem to have been justified in their finding that the collision was caused by the fault of the defendant -below and that the plaintiff was free from negligence.

The plaintiff in error contends that the court erred in using the following language in its charge to the jury:

“I should have -said, gentlemen of the jury, in this charge, that in turning to the left, when turning to the left, as it w.as in this case, no turn shall be made until the opposite half of the lateral street is reached. So,' therefore, gentlemen, under the law, the driver of the truck would be required to go -below the half of Lexington avenue, before he turned into Lexington avenue.”

This charge was based upon Section 680 of the traffic ordinance of the city of Cincinnati, which is in part as follows:

“Section 680. Traffic Regulations. Right-of-way. The right of way of vehicles using the streets of the city shall as far as practicable, be subject to the following regulations: * * * In turning corners, when to the right, vehicles shall be kept to the right; when to the left no turn shall be made until the opposite half of the lateral street is reached.”

Plaintiff in error says that the charge as given omitted the qualification which the ordinance contains, which provides these .regulations “as far as practicable.”

The record shows that there was no dispute as to the fact that Reading road was sixty feet in width and that Lexington avenue into which the truck was being turned was fifty feet in width; that no traffic interfered; and that there could be no finding by the jury as a matter of fact, nor was evidence offered to show, that it was not entirely practicable in this case for the driver of the truck to have observed the strict letter of the ordinance and avoided turning until he had reached the middle of Lexington avenue, but that he failed to do so.

While this paragraph of the charge might have been more accurately stated, it is not drawn so that it required any particular finding by the jury, and, taken in connection with the entire charge we do not think that it can be considered as error prejudicial to the rights of the defendant below.

Objection is also made as to the amount of the recovery.- But in this respect the verdict seems to be sustained by the evidence.

.A full consideration of the entire record fails to establish any reversible error to the prejudice of plaintiff.in error.

Judgment is therefore affirmed.

Gorman, J., and Hamilton, J., concur.


text:
    TAXATION OF GOODS IN POSSESSION OF A WAREHOUSEMAN.
    Court of Appeals for Hamilton County.
    Fred Pagels v. Edmund S. Beaman, Auditor, and Charles Cooper, Treasurer, of Hamilton County.
    Decided, November 29, 1918.

      Taxation — 'Warehouseman Not Liable Personally for Taxes on Property in His Custody — Such Words as “Official Custodian,” “Agent,” etc., as Used in the Statute — Can Not be Broadened to Include Warehouseman — Nor can Such Property be Taxed on Merelyl Equitable Considerations — But May be Listed by the County Auditor — If Statutory Provisions are Closely Followed.

    The entering upon the tax duplicate of goods and chattel property belonging respectively to many different owners in severalty in the custody and possession of a warehouseman, for storage purposes only, and the charging of the gross valuation thereof against him individually as a single item, does not comply with the provisions of the statutes with reference to the listing of such property for taxation and may be enjoined.

      Dempsey <& Nieberding, for plaintiff.

      Joseph McGhee, Attorney-General, Simeon M. Johnson, Special Assistant, and Campbell, Loche, Hauch & Capelle, contra.
   Jones, P. J.

This case was heard on appeal from the court of insolvency.

There is little if any dispute 'between the parties as to the facts. The action was originally brought by Fred Pagels, who has since deceased and is now represented by his administrator, against the county auditor and treasurer for a perpetual injunction against a tax charge placed by the county auditor upon the tax duplicate of' Hamilton county, for the year 1917, against the name of Fred Pagels for personal property in the ■amount of $217,500,

On April 8, 1917, Fred Pagels was engaged in Cincinnati in the business of warehouseman, being the owner of two warehouses in the sixteenth ward of said city which were conducted by him exclusively as warehouses for the purpose of receiving and keeping in storage furniture, household goods, pianos and automobiles under contracts made 'by him with the owners and possessors of such articles.

On the said 8th day of April, 1917, which was the day for making tax returns of personal property in said county, there were stored in said warehouses a number of pianos, automobiles .and crates, packages and lots of furniture and household goods which had been left with plaintiff for storage purposes only by the various owners, possessors and custodians of said property. None of said property was then in the possession or control of plaintiff in his own right or in any right except as warehouseman and solely for storage purposes.

On or about May 22, 1917, the county auditor served a written notice upon plaintiff requesting him to furnish that office with the names and addresses of all persons, firms or corporations who had chattels of any kind stored with him during the year ending April 8, 1917, with á complete list of all goods and chattels so stored and their actual or insured values, and requesting him to bring to the auditor’s office all records, books and data of every description which would furnish the required information.

Plaintiff declined in writing to furnish such names and addresses and such list of goods and chattels with the actual or insured value thereof, and declined to bring his books to the office of the said county auditor.

Thereupon the auditor proceeded under Sections 5401, 5402 and 5403 of the General Code to file an application in the probate court to require said Pagels and his two sons as agents to give testimony 'before said probate court relative to such personal property in their possession and control, which he claimed they were required to list for taxation.

Proceedings were thereupon taken in the probate court resulting in the refusal of Rheinhardt W. Pagels, who testified • therein, and of plaintiff Fred Pagels to furnish the information desired. 'Said witnesses were not committed for contempt, and further hearing of said cause was continued by the probate court.

Thereafter on June 11, 1917, the county auditor sent a written notice to the plaintiff stating that he had listed in his name for taxation the following named items amounting in tax value to $217,500:

100 Pianos at $75 ........................$ 7,500

150 Autos at $1,0(00 ...................... 150,000

500 S'ets of Furniture at $100 .............. 50,000

Miscellaneous Paintings, Chinaware, Glassware 10,000

and stating that said listings were made based upon the hearing in the probate court.

Thereupon the county auditor listed upon the tax duplicate a single item of personal property in the name of Fred Pagels, 977 West Eighth street, at a gross value of $217,500, and charged upon said duplicate the tax collectable one-half in December, 1917, and one-half in June, 1918, at the regular rates of taxation upon said valuation.

Plaintiff filed his petition in this ease charging that said action of the county auditor was without authority of law and was an abuse and usurpation of his powers, was unauthorized, illegal and wholly void, and praying for a permanent injunction against the collection of any tax thereunder.

The defendants by answer admit the making of such charge upon the duplicate and insist that it was a valid and legal charge against plaintiff under proper authority of said auditor. And by way of a second and third defense defendants allege that the valuation as fixed by the county auditor was conclusive and, in the absence of fraud or gross mistake, can not be disturbed by the court, and that the plaintiff did not exhaust his remedies under the statute by complaint to the board of revision and to the state tax commission.

The first question raised is as to the jurisdiction of the court. The action is brought by virtue of Sections 12075 and 1637 of the General Code. The question is not one of valuation, but is whether or not under the statutes the plaintiff is liable to be taxed at all for this property, and if so whether the auditor proceeded in the proper way to make this charge against plaintiff upon the tax duplicate.

The power of the courts to consider this question without the necessity of proceeding before the board of revision or the tax commission is clearly sustained by the case of Hagerty v. Huddleston, 60 O. S., 149, in which at pages 165 and 166 the doctrine is clearly stated:

“The valuation placed upon property by a taxing officer or board within the scope of authority conferred by law, when made in good faith, will be held and regarded by courts as conclusive of the value, unless it should appear that there was some gross mistake to the prejudice of the tax-payer. But when the complaint is not as to the valuation, but goes to the extent of claiming that under the statute the taxpayer is not liable to be.taxed at all, under the peculiar circumstances of the case, that is that the tax is illegal, then the determination of the taxing officers and boards is only prima facie, and under Section 5848 (12075, G. C.), Revised Statutes, full jurisdiction is conferred upon the courts of common pleas and superior courts to enjoin such tax as illegal. * * * When the power to tax in any particular case is challenged, the citizen has the right to be heard in court as to the legality of the tax, but when the power to tax is conceded, and the complaint is only as to the valuation, a valuation made in good faith and according to the best judgment of the taxing officer, will not be disturbed by the courts in the absence of gross mistake.”

The tax laws of Ohio have undergone so many changes especially during the last few years 'and are found in so many parts of the code — in many cases different sections practically duplicating the provisions of other sections — that it is very difficult to follow them and determine clearly what the effect of each provision may be. It is however in this case not necessary to go into these numerous provisions in detail or to refer to many of the sections.

There is no' question under the Constitution or the statutes ■ but that the property in storage should be listed at its true value in money' as required by Article XII, Section 2 of the Constitution.

Under the statutory provisions it undoubtedly was the duty of the various owners of property stored in plaintiff’s warehouses to make proper individual returns of their several properties and have the same listed for taxation in their own names; and. so far as shown in this case that may have been done as to each and all of the various parcels of property covered by the valuation complained of. (G. C. 5366, 5370, 5371, 5372.)

Inasmuch as property of non-residents in this state or of persons under disabilities of various kinds, or for other reasons held by persons in various capacities for others, might except for special provisions escape taxation, it is proper for the state to provide that property so held should be returned by the party in possession for the benefit of others.

Section 5370, G. C., requires each person of full age and sound mind to list the personal property of which he is the owner, and makes provision for the listing of property of minors and others who may not be in possession.

Section 5371, G. 0., provides where property shall be listed, and that a person required to list property on behalf of others “shall list it separately from his own, specifying in each ease the name of the person, estate, company or corporation to whom it belongs.”

Section 5372, G. C., provides that personal property “shall except as otherwise provided be listed in the name of the person who was or became the owner thereof on the day preceding the second Monday.of April,” etc.

Sections 5372-1, 5372-2 and 5372-3, are in their provisions somewhat analagous to Sections 5370 and 5371.

Undoubtedly, among other persons in possession of property so required to list same for taxation, the state might well have included warehousemen in possession of property, requiring them to list same and pay taxes thereon and giving to them a lien to secure such payment. Judson on Taxation, 2d Ed., Section 444; Cooley on Taxation, 653; Carstairs v. Cochran, 193 U. S., 10; Thompson v. Commonwealth of Ky., 209 U. S., 340.

Laws have been sustained authorizing a tax on property in possession of one other than the owner against such possessor, and permitting the tax collector to proceed against the individual property of such possessor for the collection of such tax. Hutchinson v. Board, 66 Iowa, 35; Commonwealth v. Gaines, 80 Ky., 489; Walton v. Westwood, 73 Ill., 125; City of Merrill v. Champagne Lumber Co., 75 Wis., 142; Spanish River Lumber Co. v. Bay City, 71 N. W. Rep. (Mich.), 595.

Some states have gone to the length of permitting chattel property in the possession of one other than the owner to be distrained or levied upon to satisfy taxes on the real estate of such possessor. Sears v. Cottrel, 5 Mich., 250; Hersee v. Porter, 100 N. Y., 403.

These cases are justified by the courts under the particular statutes which authorize such collection. We are, therefore, in every case required to consider the statutory authority for the listing and collection of the tax.

In the case at bar defendants justify the charge under the provisions of Sections 5372-1, which is as follows:

“Personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise in the possession or control of a person as parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent, attorney, or otherwise, on the day preceding the second Monday of April in any year, on account of any person or persons, company, firm, partnership, association or corporation, shall be listed by the person having possession or control thereof, and be entered upon the tax lists and duplicate in the name of such parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent, attorney or other person, adding to such name words briefly indicating the capacity in which such person has possession of or otherwise controls said property, and the name o'f the person, estate, firm, company, partnership, association or corporation to whom it belongs; but the failure to indicate the capacity of the person in whose name such property is listed, or the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs shall not affect the validity of any assessment thereof. ’ ’

It will be observed that although many classes- of persons are enumerated in this section, whose duty it is to list property in their possession or control, that a warehouseman is not specifically included and must therefore be brought under one of the other terms used. The auditor’s return upon which his listing was based had endorsed upon it (not however at the proper place) the words “Agent, Custodian and Warehouseman,” and defendants’ counsel rely upon those words.

The statute, it will be observed, does not use the word “custodian” alone -but the words “official custodian” doubtless referring to some public or corporate office by virtue of which possession or custody is held; so these words are not applicable to plaintiff in this case.

We are therefore limited to the word “agent,” or 'else to the necessity of bringing into the statute the word “warehouseman” as one of the capacities intended to be included by the use of the word “otherwise” in the statute. It is somewhat questionable under the rule of construction known as “ejusdem generis,” 'enunciated in 36 Cyc., 1119, whether the word “otherwise” is broad enough to include warehouseman and bring such capacity into the general class enumerated in the statute. This is more especially the case because of the provision of Section 5383, G. C., which provides that a consignee shall not be required to list “value of property consigned to him from another place for the sole purpose of being stored or forwarded * * * if he has no interest in such property. * * * In that section a consignee and commission merchant are treated together, but it will be observed that the storage feature of their business is somewhat analagous to that of a warehouseman. It is further suggested that while a lien is given to those paying taxes under various sections of the statute (G. C. 5683, 5687, 5689, 5693), and a lien is given warehousemen (G. O. 8483), for storage and numerous other charges and claims, “taxes” are nowhere specifically included.

It is strongly argued that the word “agent” is sufficiently broad to include a warehouseman. In 8 Adjudged Words and Phrases, 7392, we find the following definition:

“Warehousemen are of the class of bailees known as ‘paid agents' exercising private employments whose liberty and relation is essentially different from that of common carriers.”

Then it is urged that the words “or otherwise” found in the statute must be given some meaning, and should be corn strued broadly enough to include a warehouseman, if not covered by the word ‘ ‘ agent. ’ ’

In a matter so important as that of taxation the court will not by construction interpolate words into the statute to extend its terms; more especially so where an attempt has been made, as in the section under consideration, to enumerate all classes. But considering the intention and purpose of the Legislature and the ordinary acceptation of the language used, the court is of the opinion that the section in question should be construed to include one in such capacity as a warehouseman in the position of plaintiff, and where property in his possession has not otherwise been listed the auditor might under proper circumstances require its listing by him upon the tax duplicate, but in so doing the provisions of the statute must be clearly observed.

Nor do we regard such a construction of the law as imposing so unreasonable a duty upon agents, factors or attorneys — or ware-housemen, if you please — as to make the law unconstitutional under the rulings in State v. Boone, 84 O. S., 346, and 85 O. S., 313. In that case statistical information of a nature entirely foreign to the professional duties of a doctor, pertaining to the ordinary field of census taker, were required in addition to the regular birth or death return which might have been properly required. The act there under consideration was held invalid as unwarranted and an unreasonable exercise of police power. No such objection could be made to a law requiring the return of personal property for taxation by one holding it in his possession.

Considering that it might have been the duty of Pagels to list property not otherwise listed, in storage in his warehouses, and upon his failure so to do that it be listed by the auditor, it must be listed, not in the name of the warehouseman personally, but under the provisions of Sections 5372-3 and 5371 it must be listed separately from his own property and there must be specified in each case the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs and the capacity in which the warehouseman holds it.

Section 5372-3, G. C., makes no provision for bulking up property held in storage by an agent, belonging as this property did to divers and sundry owners. An exception is made in this section as to pawnbrokers, showing that in such a business where the qualified title passes to the bailee such provision might be allowable.

To the argument that it would be inconvenient to separately list property, or that because of the contumacy of plaintiff the information was not given by him to the auditor as to the ownership of the different properties, it can be said that if the property were listed, as it should have been by its several owners, it would make as many items as if it were listed in the name of the warehouseman in his capacity as such, for the different owners; and Section 2583, G. C., provides for the listing of property in the name of an unknown owner. Then in that case if the tax were not paid the particular personal property subject to the unpaid tax could under Section 5671 be itself seized and held for its collection.

The law as it now stands can not be construed to permit a personal charge against a warehouseman to be made other than out of the goods against which the tax is charged and certainly not out of his private property or means, for a tax which should have been primarily paid by the owner of the property and for which he has been given by the statute no lien for reimbursement.

The argument that plaintiff should receive but scant consideration, because he has failed to assist the auditor in securing a full tax duplicate, is without merit. The statute provides punishment upon the failure to furnish proper information on the hearing before the probate court but no other provision penalizing him by tax charges against him personally is found in this statute.

It is further urged that this proceeding is equitable in its nature, and that no relief can be had by plaintiff unless he himself is without fault and comes into court with clean hands. While this action is equitable in its form it is purely statutory in its nature and gives a remedy to a taxpayer in addition to all other remedies formally provided. It is not necessary therefore to establish all of the elements of a case in equity. Tone v. Columbus, 39 O. S., 281, at 301-302; Stephan v. Daniels, 27 O. S., 526, 536; Steese v. Oviatt, 24 O. S., 248, 253.

As said by Williams, J., at page 496, in the case of Markle v. Newton, 64 O. S., 493:

A tax can not be “justified merely upon equitable considerations. Public burdens of that nature can be sustained only when authorized by positive law. And when such burden is illegally imposed, it is a statutory right of the party against whom it is charged, to stay its collection by injunction. ’ ’

Doubtless the names of the several owners of the various items of property might have been ascertained by the proceedings in the probate court if such proceedings had not been discontinued. But if the property is listed under the sections of the statute which have been considered above, in the name of the warehouseman, it must be done not in his individual name but in his representative capacity, and separate listings must be made for the property of each owner, giving the name where ascertainable, and as the property of an unknown owner where such name can not be ascertained.

In the opinion of the court the charge as made on the tax duplicate against plaintiff does not comply with the law and is therefore illegal and void, and a perpetual injunction will be granted as prayed for in plaintiff’s petition.

Wilson, J., and Hamilton, J., concur.


author: Houck, J.

text:
    TITLE TO STREETS ACQUIRED BY ADVERSE POSSESSION.
    Court of Appeals for Licking County.
    Ethel Pratt Simpson et al v. The Incorporated Village of Johnstown.

    Decided, March Term, 1918.

      Prescriptive Title — Acquired to Streets and Alleys — Claim of Abutting Owners Based on Adverse Possession Good Against that of the Public.

    Where an abutting owner on a platted street or alley takes possession of that part of the way upon which his premises front and includes it within the boundaries of his land and exercises all the rights and privileges incident to ownership for a period of more than twenty-one years, title ripens in him and an action lies restraining the municipality from interfering with his possession.

      Kibler (& Kibler and Fitzgibbon, Montgomery & Black, for plaintiff.

      Stasel & Cornell, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 11, 1918.

   Houck, J.

The plaintiffs ¡bring this action against the incorporated village of Johnstown, in which they seek to restrain said village from taking possession of and opening up certain alleys and streets in said village.

The plaintiffs set forth in their petition that they are the owners of the alleys and streets in question by reason of the fact that they and their predecessors in title have had the open and uninterrupted possession of the same for more than twenty-one years. In the answer there is a general denial of all the material allegations in the petition, and further, as an affirmative defense, the answer says that by reason of certain plats filed by the original owner of said land prior to the year 1840, as well as by certain acts of the Legislature of Ohio, the title in and to said alleys and streets claimed by plaintiffs now vests in the state of Ohio, and therefore the statute of limitations, as claimed by plaintiffs, can not be invoked.

We have reviewed the evidence in this case with much care, and we are of the opinion that the claims made by the defendants are not borne out by the evidence in the case. On the other hand, we find from the evidence that the alleys and streets in question were never used by the, public, and that for a period of more than sixty years they have been used and occupied,, and fenced in, by those who were the holders of the paper title to said lots, and that in a number of instances buildings have been constructed upon the alleys and streets claimed by plaintiffs.

We further find the evidence to be clear and convincing that the plaintiffs, and their predecessors in title, for many years beyond the period of twenty-one years, have been in the possession of said streets and alleys. We think the law in this state is well settled that the oecuption by abutting owners of a street, by taking possession of the whole, including it with the boundaries of their land, using it and occupying it as a part of their premises, cultivating and tilling the same, exercising all of the powers incident to ownership thereof, and selling and conveying the same to purchasers for valuable consideration, establishes adverse possession, and if such possession has been for a period of more than twenty-one years, it ripens into title. If this be the law, and if we apply it to the conceded facts in the case in hand, we are bound to find for the plaintiffs. Section 11220 of the General Code provides:

“If a street or alley, or any part thereof, laid out and shown on the recorded plat of a city or village, has not been opened to the public use and occupancy of the citizens thereof, or other persons, and has been enclosed with a fence by the owner or owners of the inlots, lots or outlots lying on, adjacent to or along such street or alley, or part thereof, and has remained in the open, uninterrupted use, adverse possession and occupancy of such owner or owners for the period of twenty-one years, and if such street, alley, inlot or outlot is a part of the tract of land so laid out by the original proprietor or proprietors, the public easement therein shall be extinguished and the right of such city or village, the citizens- thereof, or other persons, and the council of such city or village and the legal authorities thereof, to use, control or occupy so much of such street or alley as has been fenced up, used, possessed and occupied, shall be barred, except to the owners of such inlots or outlots lying on, adjacent to or along such streets, or alleys who have occupied them in the manner aforesaid.1 ’ '

From an examination of this section of the statute, we are fully convinced that it is clearly applicable to the proven facts in the case at bar and is decisive of the case.

It therefore follows, from what we 'have already said, that the plaintiffs are entitled to the relief prayed for in their petition.

Decree and judgment accordingly.

Powell, J., and Shields, J., concur.