author: Grant, J.

text:
    DETERMINATION AS TO WHETHER. OHIO OR NEW YORK LAW CONTROLS.
    Court of Appeals for Cuyahoga County.
    Eva Davies Lozier v. Liston L. Lewis, Trustee, et al.
    Decided, February 11, 1918.

      Conflict of Laws — Will made in New York hy an Ohio Woman — Presumption That it is to he Administered Under Ohio Lavo — Relief Denied to the Assignor of an Interest Thereunder Seeking to Revoke the Assignment Because of its Invalidity Under the Law of New York.

    The provisions of a will, executed in New York by a resident of Ohio temporarily sojourning in that state, are governed by Ohio law, in the absence of evidence of a contrary intention on the part of the testator; and a beneficiary thereunder who is a resident of New York and has made an assignment of his interest can not thereafter revoke the assignment on the ground that it is in derrogation of the law of New York, where the validity of the assignment under the law of Ohio is not disputed.

      Goulder, White & Gary, for plaintiff in error.

      Treadway & Marlatt and White, Johnson, Cannon & Neff, contra.
   Grant, J.

Error to the court of common pleas.

The facts necessary to a determination of the question raised by this record are not in dispute.

In 1905, Mary M. Lozier, an inhabitant of Ohio, but then temporarily sojourning in New York, in that state executed her last will, the parts whereof that are material in this controversy, being in the following words:

“Fifth: I hereby give and bequeath to Samuel Roger of the Borough of Brooklyn, County of Kings, City and State of New York, the shares of capital stock in the Lozier Motor Company of New York owned by me, in trust nevertheless to divide the same into four equal parts and to hold one of said parts for, and to pay the dividends derived therefrom to, William A. Keener, the dividends so received by said Keener to be paid by him in the proportion of two-thirds and one-third to my son Edwin R. Lozier, and his wife Eva Davies Lozier as provided in paragraph sixth of this will with reference to the trust therein created, and to hold one of the three remaining parts for each of my three children, Henry A. Lozier, Jr., Bessie Lozier Gregg and Joseph T. Lozier, as herein provided, .paying to each of said three children the dividends derived from the one-third part held for said child.
“In the event of the death of Joseph T. Lozier during the continuance of the trust hereby created for his benefit, the income derivable therefrom shall be paid to his next of kin during the life of Henry A. Lozier, Jr., provided the said trust continues so long.
“In the event of the death of my son Henry A. Lozier, Jr., or my daughter Bessie Lozier Gregg, the dividends derived from the trust created for his or her benefit shall be payable during the life time of Joseph T. Lozier, provided the said trust continues so long, to the next of kin of such deceased child.
“No portion of the stock allotted to any one of these four trusts shall be sold during the continuance of these trusts, without the consent of the trustee and one-half the number of the beneficiaries.
“None of the trusts created in this paragraph shall continue beyond the period of ten years from the taking effect of this will.
“On the termination of the foregoing trusts the one-fourth part of the stock of the Lozier Motor Company of New York held in trust for William A. Keener, or its proceeds in the event of sale having taken place, shall be transferred and delivered over to the said William A. Keener', in trust, however, in the proportions and in the manner and for the uses and purposes described in paragraph sixth of this will; and in the event of the termination of the trust described in the said paragraph sixth prior to the termination of the other trusts created in this paragraph (to-wit, paragraph fifth) the said one-fourth part of the stock held in trust for William A. Keener shall be treated and disposed of as part of my residuary estate disposed of by paragraph seventh of this will.
“On the termination of any one of the trusts created in this paragraph, other than the trust created for William A. Keener, the stock allotted to such trust, or its proceeds in the event of sale having taken place, shall be transferred and delivered over to his or her issue, if any, and in default of such issue shall be treated and disposed of as -part of my residuary estate disposed of by paragraph seventh of this will.
“Sixth: I give and bequeath to William A. Keener of the Borough of Manhattan, city, county and state of New York, one-fourth of my residuary estate in trust nevertheless, to invest the same and pay two-thirds of the net annual income derived therefrom to my son Edwin R. Lozier during his life, and to pay one-third of the net annual income derived therefrom to Eva Davies Lozier, wife of my said son Edwin R., for life or until she remarries. On the death of my said son Edwin R. Lozier, two-thirds of the trust fund hereby created in this paragraph shall be transferred and delivered over to his issue, if any, and in default of issue the said trust shall be continued until the death or remarriage of Eva Davies Lozier, the income from the said two-thirds to be paid to the said Eva Devies Lozier for life or until she remarries, and upon her death or remarriage be treated and disposed of by paragraph seventh of this will. On the death or remarriage of the said Eva Davies Lozier, the said two-thirds to be paid to the said Eva Davies Lozier for life shall be transferred and delivered over to the issue, if any, which she may have by my son Edwin R. Lozier. In default of such issue the said one-third shall be treated and disposed of as part of my residuary estate disposed, of my paragraph seventh of this will.
“In the event of the said Keener’s death or his refusing to act as such trustee, or resigning said trusteeship, I hereby designate Liston L. Lewis of the borough of Brooklyn, county of Kings, city and state of New York, as trustee of this fund.”

Subsequently and while the testatrix was still, or again, sojourning in New York, she executed a codicil to the will, changing the proportions in which her son and his wife, the plaintiff, should take the income to be derived from the trust created by the body of the testament — a change not material in the present consideration, and making no other.

In 1906 the testatrix died, in this county, being still an inhabitant thereof.

The probate of the will, therefore, appertained to the Probate Court of Cuyahoga County, in which it was accordingly duly proved and is of record.

In 1908 the plaintiff sued her husband for a divorce. The result of that suit was a decree for ,a divorce absolute, because of the husband’s aggression.

The wife’s claim for alimony in that action was settled by the parties while her suit was pending — the avails to her being a transfer of the interest of the defendant Edwin R. Lozier arising from the will of his mother in question.

This transfer was evidenced by the following assignment and ' the coupled power annexed to it:

“Know All Men by These Presents, That I, Edwin Ross Lozier, of New York City, Borough of Manhattan, county and state of New York, in consideration of ten dollars ($10) to me in hand paid by my wife, Eva Davies Lozier, and other good and valuable considerations, the receipt of which is hereby .acknowledged, have sold, assigned, transferred and set over and by these presents do sell, assign, transfer and set over unto Eva Davies Lozier all my right and interest in and under the last will and testament of my late mother, Mary M. Lozier, the same having been executed on the twelfth day of December, 1905, and in and under a codicil to said will and testament of my said mother, Mary M. Lozier, dated the twenty-ninth day of October, 1906, together with every other benefit or advantage thereunder that may now be had or obtained by me, to be held, received and enjoyed by her during her life.
“And I do hereby make, constitute and appoint Eva Davies Lozier my true and lawful attorney, irrevocable, for me and in my name, place and stead, and at her own cost ,and expense to ask, and during her life demand, and by all lawful ways and means receive from William A. Keener, the trustee named in the paragraph marked ‘Sixth’ of the said last will and testament, and the paragraph marked ‘Second’ of the codicil thereto, all moneys directed to be paid or delivered by him to me in accordance with the terms of said will and codicil.
“In Witness Whereof I have hereunto placed my hand and seal this thirteenth day of November, 1908.
“Edwin Ross Lozier. L. S.”

This paper was duly acknowledged.

The trustee named in the will was a resident of New York, as was recited in it, at the time it was made and so continued when it was proved. He accepted the trust, qualified as trustee and took upon himself the performance of the duties imposed by the relation.

The assets constituting the body of the trust, consisting of stocks, bonds and securities, were in New York when the will was made. They remained there till the death of the testatrix and thereupon passed to the first trustee and were in his possession until his subsequent death. When he died, the alternative trustee nominated in the will, the defendant Liston L. Lewis, succeeded to the trust in his stead and to the assets named, in continuity of location in New York. He received his designated appointment from a New York court, in which he gave bond, being domiciled in that state at all times after the testatrix executed the will. Before the commencement of this action, however, he sought and received an appointment as testamentary trustee from the probate court of this county, in which he has accounted as such, in accordance with the requirement of the Ohio statute in that respect. The domicile in New York of both the original and the substitute trustee was known to the testatrix ,at the time she made the will.

Edwin R. Lozier, the defendant and primary beneficiary in the trust, has been continuously an inhabitant of New York from a time anterior to the execution of the will until the present. His wife, the plaintiff, was domiciled there before the date of the will and so remained till after the execution of the assignment mentioned. She removed to Ohio and was a resident of Cuyahoga county before and at the time she commenced this action.

The trustee paid the plaintiff, regularly, the income assigned to her by her former husband until the year 1915, at which time the one then executing the trust and a present defendant was notified by Edwin R. Lozier to make no other payment to her, because, as he said, he had revoked the assignment theretofore made by him to her, with the power annexed to it, thereby resuming his first right and demanding that all further payments be made to him only. The defendant trustee thereupon ceased making .payments to the plaintiff, and declined to do so in response to a demand by her. Whereupon she brought this action to compel payment to her, she not consenting to the purported revocation of the assignment by her former husband, or to his .attempted reclamation of the trust income.

The latter, by way of defense to the action, pleaded and proved a statute of New York, enacted before the execution of the will and substantially operative in that state at all times since, as was said, and which provided ,as follows:

“The right of the beneficiary to enforce the performance of a trust to receive the income of personal property and to apply it to the use of any person, can not be transferred by assignment or otherwise. But the right and interest of the beneficiary of any other trust in personal property may be transferred.” *

Before the notification that the assignment had been revoked this law was somewhat changed in verbiage, but not in substance, operation or effect. The defendant, the trustee, answered, professing to stand neuter and taking the position, in substance, of an interpleading party.

Upon issues properly joined, to which the foregoing recited facts are relevant, the case w.as brought to trial in the court below without a jury.

The evidence brought forward standing in substance as has now been stated, the court, upon the facts, held the law to be with the defendants and for them gave judgment accordingly.

That judgment we are asked in this proceeding to reverse.

The question is single: Is the ease to be determined by Ohio law or that of New York?

Its resolution, either way, makes it simple as well as single. For it is admitted that if Ohio law is to be applied Lozier must keep his engagement, because in this state and by its laws he was at liberty to make it and may be held to it: It is equally certain that the assignment that he undertook to make of his right to the income of the trust fund was in New York by law forbidden, and the attempt to make it was inert and a nullity. The landmark of the defendant’s concession at this point is stated in his brief as follows:

“We make no question that for most purposes the will of Mary Ml. Lozier, though executed in New York, is governed by the law of Ohio, where she was domiciled at the time of her death. In all matters relating to the execution of the will, to its construction and validity, the law of Ohio governs; but we think with this concession, the control of the law of Ohio ends. ’ ’

Of course courts will not be expected to be astute in helping a man depart from his agreement once made, after having received what he deemed a meritorious consideration for making it. Still, except in swaying the balance, what may appear to be an equitable footing can have no place where the question is what we have here.

In matters of contract at least, the thing to be done really is to reach the intent of the parties as to the place and its accompanying law, where and by which the transaction is to be governed. If this can be gathered from the express direction of the instrument, or impliedly from the circumstances, the intent may be found and the question is answered. The rare exception is where the’surroundings point to an attempt to commit a fraud on the law, in which case the purpose will be defeated by disregarding the intention. If we may apply that rule to this case, we find no expression in Mrs. Lozier, Senior’s, will indicating a purpose or a preference as to where the trust created by it should be executed; the words of the instrument are not demonstrative in that respect; they point out no forum other than that of the will as a whole for the administration of the trust which it creates. The mere fact that the mechanical act of signing the will w,as performed in New York and away from the settled domicile of the testatrix is not, we think, of itself and without more, significant to confer jurisdiction on the courts of her sojourn in administering it, or any part of it; at most it may be regarded as a circumstance which, in concurrence with others, may fix a governing intent in the matter. Indeed, we do not know that more is claimed for it here. The other surro'undings,, said to be more or less indicative of an intention to submit the trust to the control of New York law, are that the trustees named in succession were residents of New York to the knowledge of the testatrix when she made her will; that the son then was, and has ever since been, an inhabitant of that state, as was .also his wife up to a time subsequent to tbe assignment to her by her then husband of his share of the trust income; that the courts of New York without objection took some jurisdiction by way of ratifying the testamentary appointment of the alternative trustee and becoming the custodian of his bond, and that the securities constituting the body of the trust were physically in New York, to the knowledge of the testatrix, both when she executed the will and at all times since. It is said to have been the opinion of the court below that from all the circumstances an intention might be found in the mind of the testatrix, amounting to a pointing out of the New York forum rather than that of Ohio in which this trust should be discharged, thus importing into her will the New York law applicable to this part of the instrument, and that the judgment under review proceeded on that footing. The ordinary legal situs of stocks and securities is that of the person of the owner; it is ambulatory only as the owner is; it follows and keeps its identity with the domicile of the owner, primarily if not conclusively. This will shows no conscious attempt, or wish, on the part of the owner to separate the situs of the securities from herself or to prevent it from following her. She did not bring or send .the securities from her own domicile to New York; they were there, fortuitously for aught that appears to the contrary, from the time of their issue. Their being there may have been an accident or from considerations of their safety or convenience of access or use by the owner. But that they were there from a design by her that they should be divorcees from herself — a mensa et thoro — does not appear, nor, as we think, can that condition be extracted as a legal consequence of all the facts ,and surroundings of the case., It can not be that because one dies having a safety deposit box in each state of our Union, or a trust involved in it, his estate must by possibility be administered according to forty-nine different sets of laws, as each may be invoked, subject to all the clashes thence resulting; our text-books on conflict of laws would in that event stand in need of revision and enlargement. In regard to what the New York court did in the case in hand, its position seems to have been no more than that of an honorable neutral, .as the court below is said to have said. Its action in respect of the bond and ancillary appointment of the nominated trustee, if more than perfunctory, was only to husband the trust in a matter of formality; it evinced no purpose of taking over the substantive jurisdiction to the exclusion of that of origin or to perform other than an office called for by comity between jurisdictions, as we view the matter. And such is said to have been the view of the court of common pleas at this particular point.

We can find in the circumstances of this case no single circumstance which we can regard as a piece of evidence going to show that the testatrix chose the courts of New York rather than those of her own state as the instruments to execute the trust which her will has created. And since no one circumstance points to a designation of a forum to make effectual her purpose, it follows that all the circumstances together will not work that result.

We have examined with proper attention the authorities cited and discussed in the briefs. For the most part they will not be more particularly mentioned here. We have also attended to the distinction claimed to take off the effect of some of the cited cases, the argument being that they have to do with “the question of the validity of the will, and not at all with the question of the assignment of property subject to a trust created by will.” We do not purpose to deal with this contention very much, except in result.

It is proper to say in passing that the plaintiff also asks the benefit of Section 47 of the “Decedent’s Estate Law” of New York, to neutralize the statute of that state forbidding assignments, already quoted. It is enough to say that the record before us does not show by proof or exemplification that Section. 47 is on the statute books of New York at all. We can not consider it.

We proceed to refer to some authorities — mostly text-books— in muniment of the conclusion to which we have come in the ease, keeping in view, but not necessarily allowing, the claimed distinction referred to, which must run through all that we have to say on the subject, more or less.

Wharton, Conflict of Laws, p. 1322, says:

“The courts.of a state which is neither the domicile of the testator, nor the place where the trust is to be administered, will remit the personal assets found there to the former state or country for the purposes of the trust, though the same would offend its own laws against perpetuities. ’ ’

Again he says, p. 1325:

“The combined effect of the New York decisions is to establish the rule that to bring a bequest of personal property within the New York statutes against perpetuities and suspension of absolute ownership, the testator must not only have been domiciled in that state, but the will must also contemplate that the trust shall be executed there, or at least it must not provide for its administration elsewhere.”

In Page on Wills, Section 35, it is said:

“Where the trust may be executed in the testator’s domicile in compliance with law there, a trustee can not make the trust unenforceable by withdrawing the trust funds to another state where such trust is void as in unlawful restraint of alienation.”

The author allows two exceptions to the rule: When the testator directs that the proceeds be sent to another jurisdiction, there to be .applied to the -purposes of the trust, the courts of his domicile may help to enforce it by applying the law of that state; but not, as we infer, to defeat it. And where the testator directs specific funds to be removed to another state, to be administered there, the law of that state will govern.

In Ruling Case Law, Vol. 5, p. 1024, it is said:

“The general principle that a will of personal property is governed by the lex domicilii of the testator applies to the validity of a bequest of personal property as affected by the rule against perpetuities or suspension of the power of alienation, assuming that the will does not fix a definite location, beyond the state or country of the testator’s domicile, where the fund is to be held or .administered. And it has been held that this rule governs even though the property, the trustee and most of the beneficiaries are in another state, by whose law the bequest would be void. But the purpose of the rule against perpetuities is strictly local, and so if a definite place is fixed wherein everything pertaining to the trust shall be located, then the rule changes, and its validity so far as the rule .against perpetuities is concerned is tested by the law of the place that has been fixed. So a bequest of personal property, upon a trust to be administered in a foreign country, by the law of which it is valid, will not be held invalid by the courts of the testator’s domicile, even though it contravenes the law of that domicile against perpetuities. ’ ’

Passing from the generalizations of text-writers, we shall now comment on one concrete case, with particular attention to its parallel facts with those of the ease at bar in some points which we regard as important. It is Chase v. Chase and another, 2 Allen, 101.

The will of an inhabitant of Massachusetts was made in that state and was proved therein upon the testator’s death; and the estate was .administered there.

This will created a trust as follows:

“I give and bequeath unto my son George Hazen Chase and my friend Jeremiah Hacker of Philadelphia, ten shares in the New Market Manufacturing Company, and the sum of seven thousand dollars to be held by them and the survivor of them upon the following trusts, namely, that they shall keep the same invested in such stocks and securities as they may think best, and also may appropriate any part of it to the purchase of real estate, if at any time they should think it for the interest of my son and his family to do so, and pay the income and annual interest thereof to my son, Philip Brown Chase of Philadelphia, every year during his natural life, for the support of himself and his family and the education of his children, and upon the decease of my said son, my said trustees or survivor of them shall divide the principal of said trust fund in their hands in equal portions among all the issue of my said son. ’ ’

The son, Philip B. Chase, and his family were residents of Philadelphia, continuously, from the making of the will to the bringing of the action. The will relieved the trustees from giving bond. Both trustees qualified, but before suit was brought the one resident in. Philadelphia resigned and thenceforward the trust was executed by the Massachusetts trustee alone.

The son, it was alleged, proved worthless, squandered the trust income in riotous living and allowed his family to be in want.

The wife and their five children thereupon brought their action in the courts of Massachusetts, in the county where the will had been admitted to probate.

The plaintiffs asked for ‘ ‘ an order requiring the trustee to appropriate and pay such portion of the income .annually towards the maintenance of the family of Philip B. Chase and the education of his children as the court might deem fit and proper, * * * and for other relief.” The report then goes on to say:

“The defendant, Philip B. Chase, demurred to the bill, assigning for causes that the court has no jurisdiction of his person, or of any controversy between him .and the plaintiff, both being residents of a foreign state; that the bill states no case for equitable relief; and that the will, as set forth, requires the trustee to pay over the trust fund to him, and if any subsequent trust is therein created, it can not be enforced in this suit, or by this court.”

The whole case was reserved for determination to the Supreme Judicial Court of Massachusetts.

That court proceeded to split the trust, so to say, by holding that Philip was a sub-trustee for his family — although the will in terms vested in him the absolute- right to receive the income— and held that the wife and children could enforce the secondary trust in the courts of Massachusetts, and compel the husband and father to share the usufruct with them against his will.

Coming to the question of the disputed jurisdiction of the Massachusetts court, Chief Justice Bigelow said:

“The objection to the jurisdiction of the court can not prevail. The residence of the trustee and cestuis que trust out of the commonwealth does not take away the power of this court to regulate and control the proper administration of trust estates which are created by wills made by citizens of this state, and which have been proved and established in the courts of this commonwealth. The legal existence of the trust takes effect and validity from the proof of the will and the right of the trustee to receive the trust fund is derived from the decree of the probate court.”

The chief justice then says that the residence in the state of the acting trustee — the differentiating fact between that case and this case — is “another ground” for taking jurisdiction, his person being within the grasp of the local courts, giving the latter the physical power by injunction to restrain him from making payment of the income to the named beneficiary in the trust. Btut this ground is in muniment of that already taken independently, and not at all in derogation of it or of the principle substantively asserted outside of it; the court assumed full jurisdiction without that consideration.

It should seem as if here were something more than passing on the validity of the will within the only limits which the defendant’s brief allows may be done, namely, as to the formal execution, probate and record of it. In other words, it deals, effectually, with the essential validity of the will, in distinction from its formal validity — a difference much discussed in the cases, and the power to do which seems to be clearly denied in the brief. It declares the paramount authority of the courts of, Massachusetts “to regulate and control the proper administration of trust estates,” over that of the jurisdiction of the domicile of both the beneficiary claiming and the one resisting, at the suit of the former over the protest of the latter — his sole enjoyment of the income having been exercised for years and theretofore not denied as a vested right of his. It enters the very citadel of the trust — and of the brief here, as we are given to understand it — seizes upon what is claimed to be an inviolable right to the contrary, and sequestrates and deflects to the enjoyment of others than the first taker a portion of what the will says shall be given to him.

This appears to be an essential part of the validity of the will, penetrating into the domain of administration of the trust created by it, to a remote effect. Certainly we do not have in the case we are discussing the matter of the voluntary and perhaps eager transfer of the trust income by one who seems to have received what he regarded as value for the assignment. But we do have a case where the court of the testator’s domicile steps in and does the assigning for him, against his will, rendering to him nothing which he thinks is of value to him, and over his pleaded objection to its jurisdiction, and so works the assigning for him, asserting its essential power to do so.

It is also true that the court deduces the sub-trust from the will, and so far forth may be said to construe the will — for the brief in places seems to include construction with validity and so to broaden the field of inquiry. But there was no need to construe the will as to whom it directs the trust income to be paid; as to that, the will was plain. It was to be paid to Philip Chase. But the court did interfere to divert the income from Philip after he became entitled to it, to a different application. That other application may 'have been forbidden by the law of Pennsylvania. It was not prohibited by the law where the will was of record and whence the power to make the changed application was derived, as the court held.

It is quite possible, as matter of course, that we do not acutely apprehend the full force of what is meant by “validity,” as that term is used in the following extract from the brief:

“As a matter of fact, both these eases deal exclusively with the question of the validity of the will, and not at all with the question of the assignment of property subject to a trust created ■by will.”

We think we do understand, however, that the Massachusetts court, in the case cited, did “deal” “with the assignment of property subject to a trust created by will,” and followed the assignment until the property was put to the use of another. It disturbed, rudely and with violence, the trust, which up to that time was getting along very well, both the trustee and the primary beneficiary — as well as the courts of their domicile, as far as we know — being satisfied with it, and neither of them invoking the authority of the Massachusetts courts. The difference is that the court made the assignment in invitum, and not the one to whom the settlor in the trust had in the first instance given the right to make it. And in so doing the court asserted its jurisdiction as superior to that of the one thus made the compulsory assignor. Whether the legal effect' should be different because in one case the transfer was forced and in the other was voluntary and for value, may be a question. If there is ,a difference in point of merit, it is to the advantage of the plaintiff, as we think. In either ease it is a matter of contribution to the support of family dependents and in both cases at last it was brought to the point of the contribution being forced by the courts. The jurisdiction invoked to do the forcing resided — so the Massachusetts court says — in the domicile of the settlor and the probate of his will clear through to the end of directing for whom the trust income may in a proper case be expended. The defendant in this case contends “that the validity of this assignment is to be determined by tlie law of New York” — the domicile of the testator and the probate of his will being in Ohio.

"We probably fail to grasp, or at least to appreciate at its appraised value, the distinction, so much insisted on in the brief, that the physical presence of the stocks in New York and the domicile in that state of the assignor and the assignee in the assailed transfer, of themselves render the cases cited by the plaintiff totally inapplicable. In Chase v. Chase the domicile of all the parties was in a state outside of that which took jurisdiction. No mention is made of where the corpus of the trust fund was or in what it consisted. It was not deemed in any way decisive of what law should govern in the disposition of the case, the court proceeding entirely on other grounds to graft the sub-trust on the first one and then to administer it. The demurrer to the bill did not assign the locus of the fund as in any way testing the jurisdiction; the allegation at that point was that the cestuis — both first and secondary — resided in a foreign state. On the authority of that ease Perry, Trusts, Section 71, lays down the unqualified rule, as follows:

“If a trust is created by the will of a citizen of a particular state, and his will is allowed by the probate court of that state, and a trustee is appointed by the probate court, courts of equity will have jurisdiction over the trust, although both tlie trustee and the property are beyond the jurisdiction of the court.”

Our inclination is, so far as the discussion thus far has gone,_ to hold that the undisputed facts of the case are not operative to deprive the Ohio courts of jurisdiction and to measure the rights and liabilities of the parties by the New York law disabling Mr. Lozier in a proper case from making the assignment which evidenced his engagement with his wife, otherwise meritorious and for which he .agreed he had received value.

If, however, we are mistaken in that conclusion, another consideration is urged upon us and on which we feel we can rely with confidence in coming to a result. The principle is this: If the jurisdiction is claimed for two courts, in one of which the transaction is valid and void in the other, the intent of the parties should govern and to establish that, in the absence of stipulation by them or of circumstances pointing to a controlling implication, they must be deemed to have acted imcontemplation of the validity rather than the avoidance of their engagements; in such case the presumption is against an intent to create a barren and inappropriate right.

The proposition, in the main case relied on here, Pritchard v. Norton, 106 U. S., 124, is stated thus:

‘ ‘ A contract is governed by the law with a view to which it is made, because by the consent of the parties that law becomes a part of their agreement, and it is therefore to be presumed in the absence of any express declaration or controlling circumstances to the contrary that the parties had in contemplation a law according to which their contract would be upheld rather than one by which it would be defeated.”

In the opinion in that case Mk. Justice Matthews discusses, painstakingly and clearly, the whole question from both points of view — principle and authority.

The rationale of the rule is found in Phillimore, Int. Law, 469, as follows:

"It is also to be remembered that in obligations it is the will of contracting parties, and not the law which fixes the place of fulfillment — whether that place be fixed by express words or by tacit implication — as the place to the jurisdiction of which the contracting parties elected to submit themselves. * * * As all the foregoing rules rest upon the presumption that the obligor has voluntarily submitted himself to a particular local law, that presumption may be rebutted either by an express declaration to the contrary, or by the fact that the obligation is illegal by that particular law, though legal by 'another. The parties can not be presumed to have contemplated a law which would defeat their engagements.”

We think the same principle has been imposed by the courts of Ohio in the enforcement of contracts supposed to be tainted with usury. In Scott v. Perlee, 39 O. S., 63, it is said:

“Where such a contract, in express terms, provides for a rate of interest lawful in one but unlawful in the other state, the parties will be presumed to contract with reference to the laws of the state where the stipulated rate is lawful, and such presumption will prevail until overcome by proof that the stipulation was a shift to impart validity to a contract for a rate of interest in fact usurious.”

In Pritchard v. Norton, supra, further comment is made of the rule as laid down in Phillimore, as follows:

“At all events, it is a circumstance highly persuasive in its character, of the presumed intention of the parties, and entitled to prevail, unless controlled by more express and positive proofs of a contrary intent.”

We think it has not been so overcome in this case and that it ought to prevail.

The result of its prevailing in holding one to his engagement instead of permitting him to break it, after securing its benefit, does not render the rule any less satisfactory in our estimation. We apply it, however, not for that reason, but because it states the law of the case, as we think and hold.

Upon the facts in the record, the law is with the plaintiff.

It results that the learned court who tried the ease below was in error in applying to the facts the law of New York instead of Ohio.

For that reason the judgment under review is reversed. As the material facts in the case are not disputed; as all parties waived a jury trial in the court below, thereby submitting to the judgment of that court and by consequence to this court which has now overruled that judgment, and .as the judgment that should have been rendered there depends for its liquidation to a money amount only upon a computation, we now proceed to render the judgment which should have been rendered there; that the plaintiff recover according to the prayer of her petition and that the cross-petitioning defendant trustee have judgment of exoneration upon his satisfying the judgment for the plaintiff.

An entry to that effect may be prepared.

Dunlap, J., and Lieghley, J., concur.


source: Caselaw Access Project

author: Richards, J.

license: Public Domain

text:
    CONTEMPT IN FAILING TO PAY MONEY INTO COURT. FOR. SUPPORT OF MINOR CHILDREN.
    Court of Appeals for Lucas County.
    Samuel Elmer Rhynard v. Robert S. Gardner, Sheriff of Lucas County.
    Decided, December 13, 1916.

      Contempt — Procedure Where the Sentence is Illegal But the Conviction Lawful — Validity of an Order in a Divorce Proceeding — Requiring the Bather to Pay Money Into Court to l)e Held for the Future Benefit of His Minor Children.

    1. The court of common pleas has power and jurisdiction in an action for divorce to order the payment of a fixed sum monthly to the clerk of the court to be kept intact by him for the future use and benefit of the children until the further order of the court, and such order can not be questioned collaterally in habeas corpus.
    2. Statutes, authorizing punishment for contempt of court are strictly construed and in a conviction under Section 12142, General Code, the person convicted can not be sentenced to remain in prison for non-payment of fine and costs.
    3. Where the conviction for contempt of court is lawful, but the sentence imposed is illegal, reasonable opportunity will be given the proper tribunal to re-sentence before the discharge in habeas corpus becomes effective.

      Hankison, Axline & Deeds, for petitioner.

      J. C. D’Alton, Prosecuting Attorney, and W. T. S. O’Hara, contra.
   Richards, J.

The petitioner, Samuel Elmer Rhynard, has duly applied to this court for a writ of habeas corpus, and counsel representing the defendant have been notified and the application heard on its merits.

It is claimed that the petitioner is unlawfully restrained of his liberty in the jail of Lucas county by the sheriff of said county. On this hearing it appears that the petitioner had begun an action in 1914 for divorce from his wife, Pernie Rhynard, and that such proceedings were had that he was granted a divorce from her in the court of common pleas. The parties had two minor children. Shortly after the decree of divorce, which also provided for the custody of the minor children, was rendered, the cause came on further to be heard on a motion of Mrs. Rhynard to modify the decree as to the custody of the children, and the decree was thereupon so modified as to give her the custody of one of the children until the further order of the court, and to give the nominal custody of the other child to the husband so long as the child remained in the Ohio Soldiers and Sailors Orphans’ Home in Xenia. The portion of the order immediately following is that which is claimed to be beyond the power and jurisdiction of the court, and is that against which special complaint is made, and for the failure to comply with which the petitioner is imprisoned. It reads as follows:

“It is further ordered that commencing May 1st, 1915, and on the first day of each and every month thereafter, until further order of the court, the plaintiff Samuel E. Rhynard pay to the clerk of the Common Pleas Court of Lucas County, Ohio, the sum of twenty ($20) dollars, which said money shall be kept intact by said clerk of court for the future use-and benefil of said minor children until further order of this court.”

A careful examination of the language of this portion of the decree to which objection is particularly made, will disclose that it is not subject to all of the criticisms urged against it. It is said that the court had no power or jurisdiction to provide for the accumulation of a fund’which might be used at some time in the future for the benefit of the minor children. The children liad, of course', been supported in the past, and the language of the decree prohibits using the money to be paid by the father of the children in satisfaction of any claim for their support already furnished, and contemplates that it shall only be used for such support as may be furnished them after the date of the decree. The court would, of course, retain jurisdiction of the children thereafter without specifically so providing in the decree, but the decree, nevertheless, clearly and by particular language retains such jurisdiction and control of the children and the fund, subject to the further order of the court. It can not fairly be said that the decree contemplates the accumulation indefinitely of a fund to be used in the remote future for the benefit of the children. A more reasonable construction is that the order contemplates the payment of the money to the clerk of the court of common pleas to be safely kept until the court should be better advised as to the specific application to be made of it for the benefit of the minor children. That determination might be made at any time after entering the decree providing, for the payment. We are of the opinion that the court had jurisdiction to make this order and did not exceed its power in so doing, and its judgment can not be collaterally impeached in habeas corpus. Bly v. Smith, Sheriff, 94 O. S., 97.

Samuel Elmer Rhynard was prosecuted in contempt proceedings for failure to comply with this order, and on such prosecution was adjudged to be guilty, and was sentenced to pay a fine of fifty dollars and the costs of prosecution and to be committed to the Lucas county jail for a period of ten days, and to stand committed in such jail until the fine and costs were paid, or he was otherwise released according to law. The conviction was evidently under Section 12142, General Code, which reads as follows:

“Sec. 12142. The court shall then determine whether the accused is guilty of the contempt charged. If it be adjudged that he is guilty, he may be fined not exceeding five hundred dollars, or imprisoned not more than ten days, or both.”

Statutes authorizing punishment for contempt must be strictly construed, and nowhere in this section is there contained any authority to adjudge that the defendant shall be imprisoned until the fine and costs are paid. The sentence may be for such sum as is warranted by the facts and within the limitation named in the section, and the sentence of imprisonment can not exceed the limit specified in the statute, to-wit, ten days. In-the ease, under consideration the sentence is that the petitioner be confined in the jail until the fine and costs are paid or until he is otherwise released according to law. The court was without power to sentence the petitioner otherwise than as fixed by the terms of the statute.

The principle has been directly so announced in Lubbering v. State of Ohio, 19 C. C., 658, and has been re-announced by the circuit court in this county in Miller and Diehl v. Toledo Grain & Milling Co., 21 C. C., 326. It follows that the writ of habeas, corpus should issue and that the petitioner is entitled to his discharge from this sentence.

We discover, however, no illegality apparent in the record in the conviction of the defendant on the charge of contempt and the petitioner is not, therefore, entitled to his discharge without reasonable opportunity being given to the proper authorities to see that he is re-sentenced on said conviction. I call attention to Medley, Petitioner, 134 U. S., 160, 174; also, Savage, Petitioner, 134 U. S., 176; also, In re Bonner, Petitioner, 151 U. S., 242. The proper procedure in cases of this character is discussed and clearly announced in 12 R. C. L., 1252, Section 70. In the cases above cited the Supreme Court of the United^ States had under consideration a situation where the sentence was illegal but the conviction lawful, and were confronted with the practical question of what should be done with the petitioner when the writ of habeas corpus was issued; and in each case delayed the taking effect of the order until such time as the proper authorities could be notified and have opportunity to take such action as they saw fit.

While the writ of habeas corpus is awarded in this ease and, the petitioner ordered discharged, a copy of this opinion will be furnished to the trial judge in the court of common pleas who sentenced the petitioner, for such further action as he may wish to take on the conviction of the petitioner in the contempt proceedings.

The discharge in habeas corpus is ordered not to take effect until four o'clock this afternoon.

Of course, nothing in this opinion is intended to express the views of this court in a case in which the contempt consists in the omission to do an act which the accused can yet perform and the finding and judgment of the court so show, as provided in Section 12143, General Code.

Chittenden, J., and Kinkade, J., concur.


author: Houck, J.

text:
    REARRANGEMENT OF SCHOOL DISTRICTS.
    Court of Appeals for Ashland County.
    The Montgomery Township Board of Education et al v. The County Board of Education of Ashland County et al.
    Decided, October 17, 1917.

      Schools — Action to Enjoin Creation of a New School District — Right of Electors to Withdraw their Names from Remonstrance to Proposed Action — Section 4736.
    Electors signing a remonstrance against the rearrangement of school districts are at liberty to withdraw their names at any time within the thirty day period, or until official or judicial action has been taken.

      C. H. Workman, for plaintiff.

      Mykrantz & Patterson, contra.
   Houck, J.

This cause comes into this court on appeal from the Common Pleas Court of Ashland County. The plaintiffs seek to enjoin the county board of education of Ashland county from creating what is known as the Nankin Rural School District, the same being created out of certain territory lying and being in Orange and Montgomery townships in said county.

Waiving the question as to whether or not the theory upon which the case was presented to this court by counsel is a correct and legal one, we will pass upon the case as thus presented, which was submitted upon a transcript of the evidence taken in the common pleas court. Counsel for plaintiffs insist—

First. That under the facts as established by the evidence submitted and the law governing them, the county board of education was without power or authority to create the school district in question.

Second. That there was an abuse of discretion on the part of the county board of education in the creation of said school district.

Third. That within thirty days after the filing of the notice to the boards of eduction in the territory affected a majority of the qualified electors thereof filed a written remonstrance with the county board against the arrangement of the school district so proposed.

We do not deem it necessary to discuss the first two claims further than to say that we have examined the evidence offered in the case, and from the undisputed "facts we hold that these claims are not well taken, and are entirely without evidential facts or law to support them or either of them.

The third question raised by counsel for the plaintiffs, arises on the referendum part provided by Section 4736, General Code, as found in Volume 106, Ohio Laws, page 397, which reads:

“The county board of education shall .arrange the school districts according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected ,at the same time and in the same manner as the boards of education of the village and rural distiicts.”

The facts in the case at bar are that in said proposed Nankin rural school district there were 220 qualified electors on the date of the filing of the remonstrance, which remonstrance against said proposed district contained the names of 120 qualified electors.

It is further conceded as a fact that 15 of the electors who had signed the remonstrance withdrew their names from same, which was done within the thirty day period, being the period within which the remonstrants could file a remonstrance.

It is earnestly urged by counsel for plaintiffs that after the x'emonstrance was filed the signers thereof were without power to and as ia matter of law had no right to withdraw their names therefrom. In other words, that the signers had lost their power of recall and the board of education its authority or jurisdiction in the premises.

We' can not agree to this principle of law claimed by learned counsel for the plaintiffs in this respect, because we are of the opinion that it is too narrow a construction placed upon these facts, which would.in effect bar an elector from withdrawiixg his signature from a remonstrance, although the full period ixx which the remonstrance could be filed with the board of education had not elapsed. We hold the xmle of law to be in such a case that the electors signing the remonstrance had the right, or as many of them as so desired, to withdraw their names from same at any time within the thirty day period, or until official or judicial action had been taken upoxx the remonstrance; and neither of these having occurred in the present case, in our judgment, the withdrawal of the fifteen electors who signed the remonstrance was not only their privilege but a legal right which they could exercise under the conceded facts ixx this case.

It therefore follows that if fifteen of the electors have withdrawn from the remonstrance, which left only 105 legal remonstrants, and this not being a majority of the electors in the proposed new school district, that no claim can legally be made by plaintiffs that a remonstrance snch as could be claimed under the above section was presented or before the board of education.

Therefore, assuming that such remonstrance, if signed by the proper number of electors and presented within the time prescribed by law would, in effect, invalidate the proposed new school district, it will be observed that inasmuch as this provision of the statute had not been complied with, plaintiffs can not thereby claim any legal rights thereunder.

We do not deem it necessary to discuss further the facts nor the law of the case other that to say that many of the questions here involved have heretofore been determined by this court in other cases, as well as by the Supreme Court of our state. It therefore follows, from what we have already said, that the plaintiffs are not entitled to the relief prayed for in their petition, and it is the judgment of this court that the petition of plaintiffs be dismissed and that the injunction heretofore allowed be dissolved, and that the costs of this case be paid by plaintiffs.

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


text:
    AUTHORITY TO REVIEW THE JUDGMENT OF THE COMMON PLEAS IN A CONTESTED ELECTION CASE.
    Court of Appeals for Lucas County.
    Charles W. McGuire v. Charles M. Milroy et al.
    Decided, March 31, 1916.

      Elections — Contests of, Are in the Natiire of Special Proceedings— Jurisdiction of the Court of Appeals to Review Judgments of the Common Pleas in Such Cases — As to the Exercise of Judicial Power in Political Matters.

    By virtue of the provisions of Section 12247, General Code, as amended 103 O. L., 431, the judgment of a court of common -pleas rendered in a proceeding to contest the election of a mayor of a city, may be reviewed on error in the court of appeals.

      Ray & Cordill and Julian H. Tyler, for plaintiff in error.

      J. K. Hamilton, S. S. Burtsfield and George P. Hahn, for the defendant in error, Charles M. Milroy.
   Richards, J.

Error to the court of common pleas. On motion to dismiss petition in error.

This proceeding in error grows out of a contest of the election held on November 2, 1915, for mayor in the city of Toledo. As a result of that election the election officials returned that Charles M. Milroy was duly elected to the office of mayor. Shortly thereafter proceedings were commenced in the court of common pleas to contest the election, by filing in that court a notice of appeal, the same being filed by Charles W. McGuire, as contestor, and the eontestees named therein being Charles M. Milroy, George A. Murphy and Carl H. Keller. This proceeding was heard in the court of common pleas before three judges of that court sitting together for that purpose, and by the judgment of that court, ,as rendered by said judges, it was found that Charles M. Milroy was duly elected mayor of the city of Toledo, and it was ordered and adjudged by the court that the notice of appeal be dismissed and that the contestor pay the costs of the proceeding.

A petition in error was filed in this court to reverse this judgment, and Charles M. Milroy, by his counsel, has filed a motion for an order dismissing the petition in error for the reason that this court has no jurisdiction of the matters complained of therein. This case has been submitted to this court only upon said motion, and the sole question to be now adjudicated is whether this court does or does not have jurisdiction on a proceed, ing in error of this character.

Article II, Section 21 of the Constitution of Ohio, empowers the General Assembly to determine before what authority and in what manner the trial of contested elections shall be conducted. This provision of the Constitution empowers the General Assembly to confer jurisdiction upon any of the courts to hear and determine election contests; and it is held in Thomp son v. Redington et al, 92 O. S., 75, that authority conferred by virtue of this provision is not judicial power, but political power. See also Link v. Karb, Mayor, 89 O. S., 326.

Pursuant to the authority thus conferred by the Constitution, the General Assembly has enacted, in Section 5169, General Code, .that in cities the election of a mayor may be contested in the manner provided for a contest of the election of county officers. Other sections of the General Code provide the manner of such contest, it being enacted in Section 5148, General Code, that it is to be by appeal to the court of common pleas; and by Section 5151, General Code, that the contest shall be heard and determined by the court, if then in session, and if not then in session, at the next term thereafter. Section 5152, General Code, .provides for the method of conducting the trial, and the following section provides that any matter involved in the proceeding may be determined by the court on motion, otherwise the case shall be heard in its regular order upon the docket. This section concludes with a provision that the court shall render judgment against the party failing in the action, for all costs of the contest.

Counsel for the contestee claim that the judges of the court of common pleas, in sitting as a court to determine the contest; were not exercising judicial power, but were only in the exercise of political power, and that, therefore, any judgment which may have been rendered can not be reviewed on error by this court. The right of review on error is, of course, a matter which must depend on statute, and unless conferred by statute such right does not exist. It is provided in Article IY, Section 6 of the Constitution, that courts of appeals shall have jurisdiction to re-' view, affirm, modify or reverse the judgments of courts of common pleas and other courts of record, as may be provided by law. Following this constitutional provision, the General Code, Section 12247, as amended 103 O. L., 431, provides, in substance that a judgment rendered, or final order made, by a court of common pleas or by a judge thereof, may be reversed, vacated or modified by the court of appeals. Our Supreme Court in a number of cases has sustained proceedings in error brought to reverse judgments rendered by courts of common pleas in election contests. These decisions have apparently been rendered without giving particular consideration to the question whether the lower court was in the exercise of judicial power or political power, the court reaching the conclusion, under the section to which reference has just been made, that the right of the upper court to review such judgments was thereby conferred. Numerous eases of this character are cited by counsel, but I only need call attention to one or two. See Lehman v. McBride, 15 O. S., 573, and Powers v. Reed et al, 19 O. S., 189. The Supreme Court in rendering these and like judgments was evidently not much concerned with the question as to whether the power that was being exercised was political power or judicial power, but assumed that in either event the right to prosecute error existed by virtue of the statutes applicable to actions generally. True, the contest of an election is not a civil action, but a special proceeding, but the statute for prosecuting error applies as well to final orders and judgments entered in special proceedings as to those entered in civil actions. The question was before the Supreme Court of Indiana and that court held that the right of proceeding in the upper court to set aside a judgment rendered in an election contest existed by virtue of the general statutes. See Weakley v. Wolf, 148 Ind., 208, 213.

The method of procedure as set out in the sections of the General Code to which attention has been called (Sections 5148 to 5153, General Code) clearly indicates that the court is required to proceed substantially in the manner in which courts usually proceed in the trial of ordinary litigation, excepting that the issues are not made up by pleadings, and provides that after the trial shall have been concluded the court shall render a judgment based on the evidence and the law. These provisions indicate that the court is invested with all the indicia of judicial action. I call attention to 3 Corpus Juris, 373, where the learned authors of the article on appeal and error state, in well chosen language and in very guarded terms, the rule applicable to the exercise of such authority. It is as follows:

“It may be stated as a general rule that, where any power is conferred upon a court, to be exercised by it as a court, in the manner and with the formalities of a court, and in its ordinary proceedings, the action of such court is to be deemed judicial, irrespective of the original nature of the power, and the determination of the court thereon may be, therefore, appealable.”

It was held in Moore v. Sharp, 98 Tenn., 65, that a court in determining an election contest involving the office of sheriff; does not sit as a special tribunal but as a court in the exercise of its judicial functions.

In a republican form of government the right of franchise is one of the most valuable rights, and in order that it may be preserved and protected the right is provided to contest the election of any candidate for office. If the judgments of the courts rendered in determining mere property rights are subject to review by proceedings in error, much more so should the judgments of tribunals determining the right to an office filled by election. We can not believe that either the people, in adopting the Constitution, or the General Assembly in providing for the contest of elections for such an important office as that of mayor of a city, intended to make the judgment entered in the court of common pleas absolutely final, but are clearly of the opinion that such judgment is one which, within the language of Section 12247, General Code, as amended 103 O. L., 431, may be reviewed on error in the court of appeals.

The motion to dismiss the petition in error will, therefore, be overruled.

Chittenden, J., and Kinkade, J., concur.


author: Allread, J.

text:
    DETERMINATION AS TO THE CHARACTER. OF THE LEGACY BEQUEATHED.
    Court of Appeals for Franklin County.
    Simeon Nash, as Executor of the Last Will and Testament of Mary Maxon Nash, Deceased, v. Darien C. Hamilton et al.
    Decided, January 15, 1918.

      Wills — Bonds Bequeathed But Afterward Sold by the Testatrix — Bequest Demonstrative and Ordered Satisfied Out of Other Funds of the Estate.

    1. A bequest of $2,000 of the first mortgage bonds of the Gallipolis Gas & Electric Company is a demonstrative and not a specific legacy.
    2. The bonds described having been converted by the testatrix, the legacy is not thereby adeemed but may be satisfied from any property or fund of the estate not specifically devised or bequeathed.

      Williams & Nash, for plaintiff.

      G. C. Bibbe, contra.
   Allread, J.

On appeal.

This cause involves a construction of the following clause of the will 'of Mary Maxon Nash:

“To my sister Darien O. Hamilton, wife of F. W. Hamilton, I give and devise the following property: * * *.
“ (c) $2,000.00 of the first mortgage 'bonds of the Gallipolis Gas & Electric Company, said bonds being secured by mortgage upon both the gas and electric plants. ”

At the time of the execution of said will the testatrix owned four first mortgage bonds of the par value of $2,000 issued by the Gallipolis Gas & Coke Company, which operated a gas and electric plant in said city and which were evidently the bonds contemplated in the provision above quoted.

Subsequent to the making of the will, the testatrix sold two of said bonds for the sum of $1,016.92. The other two bonds were, in the lifetime of said testatrix, liquidated, the testatrix receiving therefor the sum of $950.

At the time of the testatrix’s death she held no bonds in said company.

Counsel for Darien C. Hamilton contends that the bequest under consideration is primarily one of $2,000, and that the bonds referred to merely designate the fund from which the bequest is to be raised.

On the other hand, counsel for the executor contends that the primary bequest is of the said bonds, and that the $2,000 is merely descriptive of the bonds.

If the latter contention prevails then it would follow that the bequest was specific and that the sale of the bonds by the testatrix would have the effect of adeeming or revoking the legacy.

If the former contention is adopted the bequest would become a demonstrative one, to be realized first from said bonds and in the absence of such bonds from other funds of the estate not specifically devised.

The respective contentions have been supported by counsel in able and exhaustive briefs in which all the leading authorities have been cited and reviewed.

In proceeding to a consideration of the construction of the clause above quoted, we find that the authorities are practically unanimous that, where the terms of a will are ambiguous or doubtful, the courts are strongly inclined against .a specific legacy, and favor a construction which will make the same either general or demonstrative.

The reason for this is apparent when the nature of a specific devise is considered. The property which is made the subject of a specific devise is often disposed of in the lifetime of the testator, and while the proceeds may remain in the testator’s estate, yet such proceeds can not, for obvious reasons, be made liable to the specific devise. In many cases, therefore, the specific devise fails by operation of law, when the testator did not actually intend to adeem or revoke the legacy.

This rule of construction is thus stated by Wood, J., in Gilbreath v. Winter Ex’rs, 10th Ohio, on page 69:

“The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft repeated language of the boobs that courts lean against the former, and it is with regret the chancellor declares he finds the intention of the testator establishes a specific legacy.”

The same rule- is thus stated in the case of Kenaday v. Sinnott, 179 U. S., 606:

“4. Certain familiar rules of construction of wills reiterated; (a) that the intention of the testator must prevail. * * * (e) That the courts in general are averse from construing legacies to be specific.”

Many other authorities are to the same effect. We, therefore, come to a careful examination of the language employed to determine whether the legacy was clearly intended to be specific.

The case of Rote v. Warner, 17 C. C., 342, is cited. In this case the devise was of $10,000, payable out of certain shares of the capital stock of certain corporations, .and this was held to be demonstrative.

The ease of Ives v. Canby, 48 Federal, 718, is very similar to the case at bar and holds the devise to be demonstrative.

Counsel for the executor insists that the preposition “of” is significant and is consistent only with the theory oE a specific bequest of the bonds. While such construction is possible, yet we have no hesitancy in holding that it does not clearly follow.

Under what we consider to be the almost unanimous trend of authority, we are bound to hold that the provision above quoted creates a demonstrative legacy in favor of Darien C. Hamilton and that, in the absence of the bonds referred to, the legatee is entitled to have the same satisfied out of other funds of the estate not specifically devised.

Decree accordingly.

Kunkle, J., and Ferneding, J., concur.


author: Chittenden, J.

text:
    WHEN THE RESULT OF AN ELECTION AS OFFICIALLY MAY BE SET ASIDE.
    Court of Appeals for Cuyahoga County.
    Judges Chittenden, Richards and Kinkade, of the Sixth District, sitting in place of the Judges of the Eighth District.
    Alva R. Dittrick v. Frank T. Andrews et al.
    Decided, June 4, 1917.

      Elections — Presumption of Regularity of Official Count — Nature of the Evidence Required to Warrant Setting the Result Aside.

    When the official count of an election has been made and declared by the board of deputy state supervisors and inspectors of elections, the result is attended with a presumption of regularity that should not be set aside except upon evidence which fairly shows such uniformity of error in such a large percentage of the voting precincts involved as reasonably leads the court to the conclusion that like errors probably have occurred in the precincts from which no evidence is produced, and to such extent as, taking into account the neutralizing effect of similar errors on the opposing ticket, which, in the absence of evidence tie court may assume if no fraud is claimed or shown, would probably change the result of the election.

      Bernsteen & Bernsteen, for plaintiff in error.

      Pierce D. Metzger, contra.
   Chittenden, J.

Error to tbe Court of Common Pleas.

At the election held on November 7, 1916, the Democratic candidates for county commissioners, Frant 'T. Andrews, Joseph Menning and James T. Kelly, were declared duly elected by the board of deputy state supervisors and inspectors of elections.- Thereupon the Republican candidates, Fred H. Kohler, Alva R. Dittrick and John A. MacDonald, appealed from the decision of the board of deputy states supervisors and inspectors of elections to the court of common pleas as provided by statute, and served the necessary notices of eon-test. This resulted in nine election contests in tbe court of common pleas and these contest cases were consolidated and all proceeded under cause number 153105 entiled Alva R. Dittrick v. James T. Kelly. Testimony was taken before justices of the peace and the cause came on for trial in the court of common pleas, resulting in a finding in favor of the contestees and a dismissal of the appeal at the costs of the contestants. To this judgment error is prosecuted in this court.

The evidence shows that Cuyahoga county had 576 or 578 voting precincts; that at the election in question 133,483 ballots were cast. The deputy state supervisors and inspectors of elections, upon the official count of the ballots, found that 71,533 ballots had been cast in favor of Woodrow Wilson, Democratic candidate for president, and 51,287 ballots in favor of Charles E. Hughes, Republican candidate for president. The remainder of the ballots were cast in favor of minor candidates for the office of president. The declared result of the election for the office of county commissioners was as follows:

For the Republican candidates:
Fred Kohler.......... 56,574 votes
Alvá R. Dittrick, ..... 56,609 votes
John A. MacDonald ... 55,414 votes
For the Democratic candidates:
Frank 'T. Andrews ..........63,471 votes
Joseph Menning,...........61,314 votes
James T. Kelly ...........59,131 votes

It is not claimed by the contestants that there was any fraud in the conduct of the election or in the counting of the ballots. It is their earnest contention, however, that there were mistakes and errors made in the counting of the ballots and that if all the ballots had been correctly counted the result would have been shown to be the election of the Republican candidates for county commissioners instead of the Democratic candidates.

The contestants called seventy-five witnesses who testified as to errors said to have been committed in seventy-five different precincts, and the total number of ballots about which they testified as having been erroneously counted was approximately 1,200. These precincts are said to be distributed generally throughout the city and one or two precincts from each end of the county outside of the city, and that the testimony indicates that errors in the method of counting were being made generally throughout the county, and that if the same ratio of errors was made throughout the county the announced result of the election would of necessity be changed. The mistakes claimed ranged themselves into several classes. 'The evidence does not show that the same class of mistakes was uniform in all precincts. In some precincts the testimony shows that a given-class of claimed errors was made in the counting; that in other precincts another class of errors prevailed; and that in some precincts perhaps errors of each class were testified to.

At the conclusion of the evidence counsel for the contestants moved the court to make an order requiring that all the ballots cast in the county be opened. After argument the court declined to make such an order and dismissed the appeal as above stated. The motion of the contestants was based upon the provisions of Section 5090-1, General Code (106 O. L., 209). This section of the General Code makes provision for the preservation of all ballots for a period of thirty days after the election and for their destruction at the expiration of that time unless there shall be a contest of the election pending at the expiration of the thirty day period. The section reads in part as follows:

“Provided that if any contest of election shall be pending, at the expiration of said time the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections, the parties contesting the same shall have the right, after a prima facie ease of fraud, mistake or error is shown, to have said ballots opened and to have all errors made in counting corrected by the court or body trying such contest; but such ballots shall be opened only in open court or in open session of such body and in the presence of the officers having the custody thereof.”

The real question to be determined in this proceeding is whether the court erred in finding, from the evidence submitted to it, that the contestants had failed to make a prima facie case of mistake or error which would warrant an order to have all the ballots cast in the county opened and recounted.

It may be well to examine the original Section 5090-1 (103 O. L., 265), which was amended by the act above cited. 'The original act provided that “in all cases of contested elections the party contesting the same shall have the right to have the ballots opened and to have all errors in counting corrected by the court,” etc. It was claimed that the original section gave the right to contestants to have all the ballots opened and counted in case of contest.

The correct construction of the act was presented in an election contest case in Jefferson county. That case found its way to the Supreme Court of the state and is found reported as In re Contest of Election of Fremont Tarr; Tarr v. Priest, 93 O. S., 199. The court of common pleas had ordered that only the ballots in the two precincts to which evidence of error had been directed should be opened, and refused to order the ballots in the remaining precincts to be opened for the reason that no evidence had been introduced tending to show mistakes or errors as to those precincts. The court of appeals reversed this judgment of the court of common pleas and remanded the case to the court of common pleas with an order to recount all of the ballots in each precinct of the county. While the ease was pending in the Supreme Court the amendment found in 106 O. L., above cited, was passed. Thereafter the Supreme Court in deciding the case of Priest v. Tarr, reversed the -court of appeals and affirmed the judgment of the court of common pleas. In the course of the opinion the following language was used:

, “We do not think it was the intention of the Legislature, in the enactment of the provision of Section 5090-1 which we have quoted that the ballots should Be used as original evidence for the purpose of discovering errors. Assuming that the grounds of contest set out in the notice of appeal were stated with sufficient definiteness, if, upon the trial before the court, there had been evidence tending to show that errors had been committed in any precinct the court was with authority to order a recount of the ballots in that precinct and have such errors as might be found corrected. In the absence of suck evidence tbe court was without authority to act. We conclude, therefore, that the court of common pleas was correct in its refusal to order the ballots in the precincts other than Warren and Toronto No. 1 opened and recounted.”

It will be observed that the Supreme Court said that if upon the trial there had been evidence tending to show that errors had been committed in any other precinct that would furnish authority to the court to order a recount of the ballots in that precinct, but that in the absence of such evidence the court would be without authority to order a recount.

The. question then is, does this record disclose evidence tending to show that errors were committed in any other precincts than the seventy-five precincts concerning which witnesses testified? It is to be remembeerd that the court of appeals is not sitting as a trial court but only as a reviewing court, and that before a judgment of the trial court will be reversed the plaintiff in error must show manifest error in the proceedings prejudicial to his rights. The duty rested upon the trial court to pass upon the credibility of the witnesses and weigh the evidence under the well known and well settled rules of law. That court stated that much of the evidence adduced was, in its judgment, entitled to little if any credit.

During the course of argument before this court considerable criticism was passed upon the method employed in ascertaining what the witnesses for the contestants would testify to, and it was intimated that their testimony was in accordance with suggestions made at these interviews. We are not much impressed with the force of that argument. It is the duty of counsel in any lawsuit to ascertain what the witnesses know and will testify to upon the witness stand, and in the matter of an election contest where a large number of witnesses are to be examined it may be that the most practical method of ascertaining what their testimony will be is to exhibit sample ballots and either have the witnesses indicate upon those balots what the marking was upon the original ballot, or inquire, as was done in this case, whether certain marks shown upon the sample ballots were seen at the time of the counting, and, if so, how they were counted. It is true that this method might easily be subject to abuse. However, it is apparent that these witnesses very generally were called upon to give their recollection some time after the ballots were counted and it does not appear that they had kept any written record of what was observed by them, and it is self- evident that their recollection would not be very accurate. Other facts appear which bore upon the weight to be given the testimony of the several witnesses and which the trial court might very properly take into consideration in determining the weight to which it was entitled in passing upon the issues presented.

It does appear from the evidence that these mistakes, whatever they were, were a result of the judgment of the election officials in the voting booths as to how ballots marked in a given way should be counted; and, while the inquiry was not pursued, it does appear that mistakes of the kind claimed appeared upon the Republican ticket as well as upon the Democratic ticket. There is an entire lack of evidence, however, as to the extent of those mistakes. A fair inference, perhaps, would be that'sueh mistakes were in about the same proportion upon both tickets. Plaintiff in error, however, earnestly contends that mistakes of a like character upon the other ballots are not material in a contest of this character. 'That it is only necessary for the contestants to show mistakes upon the Democratic ballots that would indicate a change in the result, and that it was not incumbent upon them to show, nor, indeed, was it proper to be determined by the court whether similar mistakes were made upon the Republican ballots which might neutralize the result claimed by them — at least to a very large extent. In the absence of evidence, and no fraud being claimed, the Court is justified in assuming that like errors in the same proportion existed in the other ticket.

The number of precincts involved in the inquiry was approximately one-eighth of the total number of precincts, and the court is required by the claims of plaintiff in error to assume that the errors shown in the one precinct likewise appear in the remaining seven precincts about which no evidence at all is presented, or, in other words, that if errors appeared in seventy-five precincts, that is a prima facie showing that similar erorrs occurred in the five hundred or more precincts concerning which no evidence was introduced. But if the assumption of the plaintiff in error be correct that errors of the kind testified to appear in the remaining five hundred precincts, in the absence of testimony to the contrary, and in the absence of any fraud, we think the court would be justified in assuming that similar errors upon the opposing ticket, in the ballot and the counting, would likewise appear throughout the remaining five hundred precincts. We think this contention of the contestors is carrying the doctrine of presumptions to an unwarranted length, and would be extending the decision in Tarr v. Priest beyond any limits indicated by the language of that decision.

It is true that the right of franchise is perhaps the most valuable privilege of citizenship. Every citizen is entitled to the free and untrammeled right to east his ballot as he desires and to have that ballot counted as east. The state of Ohio, in order to preserve to its citizens, this inestimable right, has provided a system of voting and of counting the votes calculated to effect in every respect the purity of the ballot. Bi-partisan boards of judges and clerks are placed in every voting booth; facilities are afforded for authorized witnesses to observe the counting of the ballots, and as a result the action of the board of deputy state supervisors and inspectors of elections, when the official count has been made and declared, is attended with a presumption of regularity that is and should be as strong as the similar presumption attaching to the action of other administrative boards. We think it would be unwise to permit that presumption to be set aside, except upon evidence which fairly shows such uniformity of error in such a large percentage of the voting precincts involved as reasonably leads the court to the conclusion that like errors probably have occurred in the precincts from which no evidence is produced, and to such an extent as, taking into account the neutralizing effect of similar errors on the opposing ticket which in the absence of evidence the court may assume, if no fraud is claimed or shown, would probably change the result of the election.

It is not claimed that the errors pointed out are the result of general instructions given to the judges and clerks of election in voting precincts by the county board or by the state officials. If such were shown to be the ease a presumption would arise that such instructions had been followed and that like errors would be found in every precinct; but the presumption of errors resulting from instructions of that kind would be made very strong by proof of the giving of such instructions.' If the rule announced in the case of Tarr v. Priest were applied and the ballots in the seventy-five precincts were recounted it is evident that the result could not be changed, even if full force is given to all that is claimed by the contestants. There would therefore be no reason whatever for incurring the expense and loss of time necessary for a recount of the ballots in these precincts.

We have not deemed it necessary to discuss the claimed errors in the method of counting in view of the conclusion at which we have arrived. Some of the methods were clearly erroneous. This much may be said in general upon the subject of counting ballots in Ohio. No state has gone farther to preserve to its citizens the right to express their choice by ballot and have that choice properly counted, than has the state of Ohio. Section 5070, General Code, paragraph nine, reads:

“No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.”

It will be noted that this paragraph is not a direction that the ballot shall be counted if the intention of the voter can be reasonably ascertained, but it is a positive prohibition against rejecting any ballot for any technical error unless such error makes it impossible to determine the voter’s choice. This provision of our law is in recognition of the fact that we have no literacy test for the franchise in this state and that citizens of all degrees of education and intelligence are expected to exercise their right of franchise.

Upon a careful examination of tbe entire record in tbis case we come to tbe conclusion that tbe trial court was not in error in declining’ to direct a recount of all tbe ballots cast in the county.

Kinkade, J., and Richards, J., concur.


author: Hughes, J.

text:
    TRIAL JUDGE WITHOUT AUTHORITY TO DIRECT A VERDICT IN A WILL CASE.
    Court of Appeals for Union County.
    Blanch McFarland and Ira Tomlin, by Lee Strause, His Guardian ad Litem, and also Legal Guardian, v. James E. Clark et al.
    Decided, March 14, 1918.

      "Wills — Contest of — Trial Judge Without Authority to Weigh the Testimony — On Motion for a Directed "Verdict — Statement to Jury "Need Not Cover All the Evidence to "be Offered — Nor is Counsel Restricted by Such Statement as to the Evidence He May Offer— Hypothetical Questions.

    1. In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court ■to ignore the testimony of the physicians and direct a verdict for defendants.
    2. A party is not required to state, nor is he limited by what he does state, as to what the evidence in the case will be; hence failing to make reference in a trial statement in a will contest, to a fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.
    3. A hypothetical question should not be excluded because it is not framed upon the best evidence; it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.

      Cameron & Cameron, for plaintiffs in error.

      Brucker, Voegle & Henkel and Robinson & Hoopes, contra.
   Hughes, J.

This was an action commonly known as a will contest under the statutes.

The record discloses- that there was no evidence offered by the contestant tending to prove a lack of mental capacity to make the will on the part of the testator, nor tending to prove undue influence (there being no other issues suggested throughout the record), except the evidence of two physicians. These two physicians had no personal acquaintance with the testator, but in answer to a hypothetical question, based upon facts that had been testified to with more or less clearness by other witnesses, stated that in the opinion of each the testator had not sufficient mental capacity to make a will.

At the close of the evidence the court, upon the motion of the defendants, directed the jury to return a verdict in favor of the defendants, declaring the paper writing to be the last will and testament of testator.

This was done by the trial court as he then stated, “leaving out the question of the hypothetical question to the two physicians because their answers were based upon statements that were made to them and not upon the facts in the case; they had no personal knowledge or acquaintance with the party,” upon the theory that in a will case the trial court is not bound by the scintilla rule, but is required to first weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by the introduction in evidence of the original will and the record of its probate, by the defendants.

There is to be found authority for this proposition, such as the ease of Gomien v. Weidemier, 27 C.C.(N.S.), 177, and Kammann v. Kammann, 26 C.C.(N.S.), 60, and the eases commented upon in the above named authorities.

In a will contest case the issues are to be first made up and then tried by a jury, and we can see no reason for making an exception of these cases and permitting the court at any stage of the proceedings to weigh the evidence. The contestant has as much right to have the issues of fact determined by the jury in these cases as he has in any other case in which he is entitled to a jury trial.

It is argued that had the verdict of the jury been in favor of the contestant, the court would have been required to set aside the same as against the weight of the evidence, and he therefore was obliged to direct a verdict because of this fact, in conjunction with the fact that the defendants started with a prima facie ease under the statute, which they claim it was the province of the court to say had not been overcome.

Defendants had, ’tis true, made a prima facie case by the introduction of the will and the probate record, yet it was the right of the contestant to have the facts in the ease determined by a jury, and when she had offered evidence tending to prove each material fact involved in the issues, it became just as much a question of fact for the jury in this ease as in any other ease, and there can be no reason why the trial court should be authorized to.weigh the evidence to the extent of determining whether or not it was sufficient to overcome this prima facie case, and if in his opinion it was not to direct a verdict.

It can as well be said in cases of this kind as in the trial of any other jury case, quoting Justice Ranney:

“Aside from the fact that such a practice involves an assumption of power by the court which the 'Constitution and the laws have committed to the jury, in the very ease supposed, the plaintiff would have good cause to complain of injury. A non-suit puts him out of court, and charges him with the costs; a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the benefit'of the statute limiting the power of the court, in granting new trials, to not more than two to the same party.” 4 O. S., 628, at 647.

If the rule were otherwise, what is there to prevent the court from weighing all the evidence that has been offered in any will ease and passing judgment upon it by saying that it is not sufficient to overcome the prima faicie case ? Why could not the court in any ease say that because the witnesses who have testified against the will would profit by setting it aside, are prejudiced and their evidence can not be considered as overcoming this prima facie case ? Or, why could not the court say that those numerous witnesses, who are but business acquaintances, who have testified to the mental incapacity of a testator, are not to be considered competent to overcome such prima facie ease, because they lack an intimate daily acquaintance sufficient to pass reliable judgment?

There is no reason suggesting itself to us why a jury trial in a will case is any other than a common law trial by jury. This we believe is recognized by our Supreme Court in the language it has used in the opinion in 44 O. S., page 59, at page 67.

At any rate the statute provides for trial of the issues by a jury, and this means issues of fact; and when it is a question of fact the jury, and not the court, must determine it.

“If this were a case for the jury, under the issues pleaded and the evidence offered, then the plaintiff had fhe constitu* tional right to a verdict by the jury.” 92 O. S., 387, at 389.

Upon a motion to direct a verdict in these cases as in any other case, the court must review the evidence, concede the truth of every fact which is tended to be proven by the evidence, and when he has found some evidence tending to prove each essential fact, his duty is discharged and it then must be submitted to the jury.

The reasoning of Justice Donahue in 93 O. S., 152, at 155, while not a will case, can be applied to this ease with much soundness.

The only difference in the burden of proof resting upon a contestant in a will case and the burden resting upon an affirmative side in other civil oases is that, in a will case he must furnish evidence sufficient to preponderate not only against the evidence offered for the will, but also to preponderate against that presumption arising from the order of probate and the will itself. When he has offered evidence tending to meet these requirements, there seems no good reason why he should not be entitled to have his case weighed and considered by the jury.

In the case at bar the trial court left out of consideration the testimony of the two doctors, yet by moving to direct a verdict the truth of the fact testified to by them is conceded; that is, that the testator had not the testamentary capacity to make a will. This being conceded true, the paper writing could not be the last will and testament.

It was the province of the jury then to weigh this evidence .and to determine whether it was of probative value sufficient to overcome the prima facie ease and the other evidence in favor of the will. If it had been found sufficient and the court should have then set aside the verdict as against the evidence, it is the right of the contestant to resubmit his case upon the same evidence, and if successful on the second trial to be held secure against a second setting .aside on the same ground. The court, therefore, was in error in directing a verdict.

The record discloses other errors, in themselves not of sufficient importance to reverse, to which attention is called.

First. The court rejected evidence of intemperance because no reference was made to such proof in the trial statement. This was error. A party is not required to state, nor is he limited by what he does state as to what the evidence will be. Evidence that is competent, material or relevant, should be admitted whether reference is made thereto in the trial statement or not.

Second. The first hypothetical question was not permitted to be answered because it was not framed upon the best evidence, as the court said. This is not a correct rule. A hypothetical question is proper .and should be permitted to be answered, if it is supported by evidence tending to prove the facts therein enumerated. What may be termed the best evidence in a case is not required to be sifted out and embodied in the question.

Kinder, J., and Crow, J., concur.