text:
    Vandervort, Exr., Appellee, v. Hodge et al., Appellees; Bosworth, a Minor, et al., Appellants.
    (No. 173
    Decided January 7, 1953.)

      Messrs. Smith & Smith, for appellee executor, P. H. Vandervort.

      Mr. Max Dennis, for appellees Mrs. John Hodge, John William Hodge, Charles Hodge and Donald Hodge.

      Mr. John Von Klinger, for appellees Margaret Roberts, Cecil Vaughn Roberts, Lulu Grace Roberts, Edith Matilda Roberts and William Vance Roberts.

      Mr. L. R. Curtis, for appellees Robert Roberds and Della Roberds.

      Mr. Lawrence R. Lyons and Mr. Sanford A. Headley, for appellants Janie Bosworth, Charles A. Bosworth, George M. March, Erwin P. Bosworth and Wilbur Stump.

      Mr. Kenneth O. Stone, for appellants Ida Cowgill and Kenneth O. Stone, guardian.

      Messrs. Wead £ Aultman, for appellants W. L. Wead and F. F. Hubbell.
   Per Curiam.

This is an appeal from a judgment of the Probate Court in an action by the executor, seeking a construction of certain provisions of the will of Alfred L. Cole and the direction of the court in the execution of his trust. In his petition the executor pointed out twelve respects in which he desired the decision and direction of the court as to the true meaning and intent of the testator. However, on this appeal only three assignments of error have been urged.

(1) It appears that the testator left an estate of an appraised value of about $580,000. Among the assets were three farms appraised at $83,553.25, $68,490.70, and $38,505.60, respectively, thus constituting about one-third of the total value of his estate. These farms were occupied at the time of his death and had been for many years by persons whom he described in his will as “tenants.” The terms of the tenancy do not appear. He devised each of these farms to the occupying tenant in identical terms. However, the first question presented is as to the'extent of the farm devised to Mrs. John Hodge for life and thereafter to her sons. The farm, of which they had been in possession for many years, contained 291 acres and had been considered at all times as a unit in dealings between the testator as landlord and the Hodge family as tenant. In devising this farm to the Hodge family, the testator used this language:

“I give, devise and bequeath to my tenant Mrs. John Hodge my farm of 270 acres situated in the township of Wilson, Clinton county and Jasper township, Fayette county, state of Ohio, for and during the term of her natural life.

“It is my will that the said farm shall continue to operate as a going concern immediately from the date of and after my death, and I therefore give and bequeath to the said Mrs. John Hodge all live stock and all farm implements on said farm at that time.

“Third: After the death of the said life tenant, Mrs. John Hodge, I give, devise and bequeath to John William Hodge, Charles Hodge and Donald Hodge, the said farm of 270 acres, absolutely and in fee simple, to them and their heirs forever, share and share alike. ’ ’

It will be noted that reference to the acreage as 270 acres is inaccurate or erroneous. It is not claimed that this inaccuracy invalidates the whole provision, but it is claimed that it limits the devise to 270 acres and excludes a tract of slightly over 21 acres which the testator acquired by inheritance, which, however, even at that time was integrated into a larger part of this same farm, and which the testator acquired at the same time from the same ancestor.

The Probate Court held that under the circumstances it was clear that the testator intended to devise the entire farm. The devise was of his “farm” to his “tenant,” and as there was no other farm belonging to the testator where that land, as described in the will, was situated, the description was sufficient without any reference to the acreage. The court also pointed out, as fortifying its conclusion, that the testator had taken great pains to make specific devises of all the numerous tracts of real estate owned by him, thereby showing an intent to leave no real estate as a part of the residuum of his estate.

We are of the opinion that the Probate Court reached the correct conclusion as to the extent of this farm devised to the Hodge family, and its decision in that respect is, therefore, affirmed.

(2) Located on these farms at the time of testator’s death were various items of personal property in addition to live stock and farm implements. The principal item in dispute relates to about 6,000 bushels of corn, a small portion of which was in the shock.

The question presented is whether this corn and other items not answering to the description of “live stock” or “farm implements” pass under this bequest. The Probate Court held that they did. We are unable to agree with the court in this conclusion.

Although it is true that the testator expressed the desire that his death should not interrupt the operation of his farms as going concerns, neverthless, that expression disposed of nothing. While the Probate Court may authorize an executor or administrator to carry on a business for a limited time and with limited power to bind the estate (Section 10509-9, General Code), and a testator may confer such power upon an executor, we know of no law that would justify a testator or a court in delivering personal assets to a legatee immediately upon decedent’s death to be used in continuing a business or for any other purpose.

Of course, the expressed general desire of the testator is a circumstance to be considered in determining the meaning of his dispositive provisions, but such general expressions cannot enlarge specific and definite provisions.

Here, the testator gave as a reason for bequeathing his livestock and farm implements to the devisees of the farms, his desire that the farms continue to operate as going concerns. Undoubtedly, if he had had the power to enforce that desire, the bequest of the livestock and farm implements would have contributed to that end. He could have made many other provisions which would have tended to effectuate that result, but none would have assured it. The inclusion of the corn would not do so. The testator expressed a desire and made a provision which he deemed sufficient to effectuate that desire. The court cannot enlarge it.

Our conclusion is that only livestock and farm implements in their ordinary meaning are included in these bequests, and that corn and other grain on the farm are not included.

The construction placed upon these bequests is, therefore, modified in that respect.

(3) The last question presented relates to the federal estate tax.

In addition to the specific devises of these and other tracts of real estate, the will contains several specific bequests and ends with the usual residuary clause.

The Probate Court held that as the tax was a charge against the estate it must be paid before carrying out the dispositive provisions of the will. The result was that the specific devisees and legatees received their devises and bequests in full, and the residuary legatees received what was left in the estate after the other charges imposed by law and the will of the testator had been satisfied. The court followed Young Men’s Christian Assn. v. Davis, 106 Ohio St., 366, 140 N. E., 114 (affirmed, 264 U. S., 47, 68 L. Ed., 558, 44 S. Ct., 291). It was urged by counsel for the residuary legatees that the rationale of that case is limited or modified by Miller et al., Exrs., v. Hammond, 156 Ohio St., 475, 104 N. E. (2d), 9; and McDougall, Admr., v. Central National Bank of Cleveland, Trustee, 157 Ohio St., 45, 104 N. E. (2d), 441. We have read those opinions, and are of the opinion that they rather affirm and approve of Young Men’s Christian Assn. v. Davis, supra. In fact, the court expressly approved the Y. M. C. A. case and distinguished it from the cases it was considering. Young Men’s Christian Assn. v. Davis held that where a will contains specific bequests and a residuary bequest without any reference to what fund should be used to pay the federal estate tax, the tax and the specific legacies must be paid in full before any amount is distributable to the residuary legatee.

In its own language, the court held, as stated in the third paragraph of the syllabus:

“A residuary devisee or legatee is presumed in law to be in the position of the last lienholder, after all prior lawful claims and charges have been satisfied out of the estate.”

Miller et al., Exrs., v. Hammond, supra, presented the question whether the widow’s share upon her election to take under the law rather than under the will could be charged with any portion of the federal estate tax. Section 812 (e), Title 26, U. S. Code, effective in 1948 (which, was after the decision in Young Men’s Christian Assn. v. Davis, supra), provides for a marital deduction in the calculation of the tax on the death of a spouse. The inheritance of the widow, upon election to take under the law, answers the description of a marital deduction and is allowable as such in computing the tax against the whole estate. The question presented was whether the widow’s inheritance, after having been expressly excepted from the tax by the federal estate tax law, could, in the absence of any state statute or testamentary expression, be charged with any portion of the estate tax. The court held that it could not be so charged. After distinguishing Young Men’s Christian Assn. v. Davis, by pointing out that it was decided prior to the enactment of Section 812 (e), Title 26, U. S. Code, and that it related to testate property and not intestate property as in the instant case, the court, at page 490, said:

“From our examination of the authorities we are convinced that an entirely new question is presented in this case on which.there is neither specific legislation nor applicable decisions of this court. ’ ’

It should also be noted that while one of the judges dissented, it was for the reason that in his analysis of the facts and applicable statutes, he found evidence that the deceased spouse intended that the widow’s inheritance should bear its share of the tax. By reading both the majority and minority opinions, it is clear that the disagreement resulted from different conclusions as to the intent of the testator, determined in the light of the applicable statutes.

In McDougall, Admr., v. Central National Bank of Cleveland, Trustee, supra, the court was not considering testate property. It was presented with the question of whether assets not forming any part of the decedent’s estate, but required to be considered as a part of the estate for estate tax calculation, should be charged with the tax caused by their inclusion in the taxable estate in the absence of any specific declaration by the testator. The court held that there was an obligation to contribute a proportionate share of the common obligation. The court applied the general equitable principle that where two or more are charged with a common obligation and one discharges more than his share, the other may be required to contribute.

The dissenting judge in Miller et al., Exrs., v. Hammond, delivered the opinion of the court in the McDougall case. On the subject of Young Men’s Christian Assn. v. Davis, he said for the court at page 58 ;

“The instant case is not like Young Men’s Christian Assn. v. Davis, supra, where, by the terms of her will, the testator indicated a preference for certain legatees by providing for them specifically and then specifically stating that what was left was to go to other legatees. In such an instance, especially where only probate assets are involved, it is apparent that those who are designated by the testator to take what is left over were intended by the testator to bear the burden of the debts, estate tax and other obligations of the estate, while the testator did not intend that those who were specifically provided for were to bear that burden. ’ ’

While two of the judges dissented it was not because of any criticism of the decision in Young. Men’s Christian Assn. v. Davis. On the contrary, notwithstanding the many features of dissimiliarity, they still were of the opinion that Young Men’s Christian Assn. v. Davis was “determinative of the questions involved in the present case.”

For these reasons, the judgment is modified in the respect indicated, and is affirmed as modified.

Judgment accordingly.

Hildebrant, P. J., and Matthews, J., concur.


source: Caselaw Access Project

author:
Doyle, J.
      Doyle, J.

license: Public Domain

text:
    Magennis, Appellee, v. Myers et al., Appellants.
    (No. 4241
    Decided February 6, 1952.)

      Mr. Chester L. Dinsmore, for appellee.

      Mr. C. F. Schnee and Mr. Scott Belden, for appellants.
   Doyle, J.

This is an action in equity, instituted in the Court of Common Pleas of Summit County, and there terminating in a judgment in the plaintiff’s favor. Thereupon, an appeal was perfected by the defendants to this court on questions of law and fact. A trial de novo has been held, and our decision with reasons here follows.

The case involves the sale of 38 lots by the state of Ohio to Marian H. Myers in a dedicated and platted allotment in the city of Akron, which lots had been, by statutory authority, forfeited to the state for nonpayment of taxes by the former owner, Frank T. Magennis. The relief sought by the said former owner is primarily a cancellation of the deed given to the purchaser, on the ground that the sale was “contrary to statute and illegal. ’ ’

There is no issue created involving the legality of the proceedings of forfeiture. The sole issue relates to the procedure from there on, culminating in the deed to the purchaser.

It appears that, prior to forfeiture, each lot was separately entered on the county tax lists, wherein there was printed the name of the owner, the valuation, and the taxes due on each lot. In the statutory advertising for forfeiture to the state of Ohio, each lot with its valuation and taxes due was likewise set out. However, when the auditor advertised them for sale after the forfeiture, the separate identity of the lots, the separate valuation of each, and the individual taxes due thereon, were abandoned, and the notice only showed the lots in aggregate, the aggregate valuation, and the aggregate delinquent taxes. The following is a copy of the advertising:

“Forfeited Land Sales

“G-en’l Code, Sec. 5751 - - 4

‘ ‘ The lands, lots, and parts of lots, in the county of Summit, forfeited to the state for the nonpayment of taxes, together with the taxes, assessments, penalties, interest and costs charged thereon, agreeably to law, and the dates on which said lands, lots, and parts of lots will be offered for sale, are contained and described in the following list; viz;.:

(t # # *

“April 27th — 10 a. m.

í Í iff *•

“Magennis, Frank T. * * *, South Pk. 64, 65, 67, 68, 94 to 103 inc., 105 to 119 inc., 134 to 142 inc., all. V [Valuation] 1680. T [Taxes] $717.84.”

At the sale, the lots were offered together as a group, and a single bid of $500 predicated the issuance of a certificate of purchase for the entire group; which ended in the delivery of the deed here under attack. The evidence shows that the lots were not all contiguous, nor were the lots in the folio-wing illustrated grouping contiguous: 94 to 103, inclusive; 105 to 119, inclusive; 134 to 142, inclusive. The groupings in the advertisement for sale were groupings solely through continuity of numbers.

As heretofore stated, no claim is made of irregularity in the proceedings whereby the lots were forfeited to the state for the nonpayment of taxes. Consideration therefore will be directed to an examination of the statutes giving the right to sell pursuant to a proper forfeiture to the state.

It is the claim on one side that the statutes contemplate only the sale of individual forfeited lots, and that when the words “lands,” “tract,” “parcel” or “lot” are used in the Code, they have no invariable meaning, and in different circumstances may vary in scope; and that the provisions of the Code are mandatory in respect to the separate sale of individually-taxed lots or tracts. To the contrary it is claimed that the statutes are directory, and that lots may be grouped for sale within the discretion of the auditor; and that “tracts” are not synonymous with “lots.”

Section 5751, General Code, relates to the requirement of publication before public sale. It provides in part:

“If the taxes, assessments, penalties, interest and costs due on the forfeited lands have not been paid when the auditor fixes the date of his annual sale, the county auditor shall cause notice thereof to be advertised once a week for two consecutive weeks * * * in two newspapers * * *. Such notice shall state that if the taxes, assessments, penalties, interest and costs charged against the lands forfeited to the state * * * are not paid into the county treasury and the treasurer’s receipt produced therefor before the time specified in said notice for the sale of said lands, which day shall be named therein, each tract, so forfeited, on which the taxes, assessments, penalties, interest and costs remain unpaid will be offered for sale * * (Emphasis ours.)

It is obvious that, by the use of the words “each tract, so forfeited,” the word “tract” was intended to apply to a lot, if the unit of land forfeited was carried on the tax duplicate as a lot in an allotment, and as such was forfeited. And it further appears to have been the intent of the Legislature that the advertising-should carry the instruction to the public that the lot would be sold to pay the taxes, assessments, etc., standing against it alone. There is no language in this section, nor in Section 5754, General Code, prescribing the form of the notice of sale, which permits the lumping-together of a group of lots, their total valuation, and the total of the liens against them. Such a group listing would defeat the purpose of the advertising, which is to inform the propsective buyers of the taxes, assessments, etc., unpaid on each forfeited unit of property carried on the tax lists and duplicates.

We conclude that the notice of sale in the instant case did not meet the requirements of Section 5751, General Code.

Proceeding now to the sale. Section 5752, General Code, authorizes and prescribes how the sale shall be conducted. It is in part:

“The auditor in each county, on the day set for said sale shall attend at the court house and offer for sale the whole of each tract of land as contained in the list heretofore provided for, at public auction, to the highest bidder for an amount sufficient to pay the taxes, assessments, penalties, interest and costs which stand against it. He shall offer each tract separately, beginning with the first tract contained in the list. If no bid is received for any of said tracts in an amount sufficient to pay the taxes, assessments, penalties, interest and costs which stand against it, the auditor may offer such tract for sale forthwith, and sell it for the best price obtainable, irrespective of the amount of taxes, assessments, penalties, interest and costs due upon it.” (Emphasis ours.)

Various sections of the Code provide for the creation and the use to be made of delinquent land lists. Some of these sections establish the predicate for forfeiture proceedings. The lists contain a description of each taxable unit of property, the name of the person in whose name it is listed, and the amount of taxes, assessments and penalties due thereon. The lists in the instant case properly listed each lot separately.

If we are to give effect to the directions in the statute that “he shall offer each tract separately, beginning with the first tract contained in the list,” we must conclude that there was a failure to comply with the requirement, because each tract contained in the list was an individual, separately-taxed lot which had been forfeited. Here it is obvious that the word “tract” was meant to apply to a “lot.”

Section 5757, General Code, provides:

“If any of such forfetied lands are sold for a greater sum than the amount of such tax, assessment, interest, penalty, and costs of sale, the county auditor shall charge the county treasurer separately in each case, in the name of the supposed owner, with the excess above such amount. The treasurer shall retain such excess in the treasury for the proper owner of the forfeited lands, and upon demand by such owner, within six years from the day of sale, shall pay the excess to him. ’ ’

This section clearly means that the excess received on the sale of each taxable unit, whether it be a lot in a dedicated allotment or a farm described by metes and bounds, shall be held for the former owner. It is difficult to see what fair yardstick could be used to carry out the terms of this statute if several lots were permitted to be sold in bulk for one lump sum, when the lots had different valuations and different tax delinquencies. In this section the word “lands” was clearly meant to apply to a single lot.

In determining the question whether a statute is mandatory, consideration is generally given to whether it relates to a matter of substance, affects substantial rights, and is of the essence of the thing required to be done. In the case before us, the thing to be done was the sale of a forfeited piece of real property, to secure to the taxing unit the money due on it, and to hold any excess for the former owner. The sale directly affected the rights of the political subdivision, as well as the rights of the former owner. The sale of a single taxable unit to secure payment of delinquent taxes was of the essence of the thing required to be done. The statute prescribes the procedure and in our view is mandatory.

It is our conclusion that, for the failure to follow the statutes in the manner indicated above, the purported sale is void, and the deed should be cancelled. It will be so ordered.

Decree for appellee.

Htjnsicker, P. J., and Stevens, J., concur.

(Decided February 21, 1952.)

On Reconsideration.

Doyle, J.

The following language appears in the opinion of this court in the above-entitled case: ‘ ‘ the purported sale is void, and the deed should be can-celled.”

We have used the word “void” in the sense that the sale was a nullity when attacked by the former owner of the forfeited land within a period of one year from the date of the sale. We are not called upon to decide, nor do we decide, that the deed was void for all purposes and could be attacked by others than the former owner, nor are we called upon to determine whether the one-year limitation in Section 5762-1, General Code, would apply in similar circumstances.

We do not attempt to state the law as to any other description of persons than a former owner of delinquent lands who has brought his action within one year from the time when the deed was filed for record.

Hunsickbr, P. J., and Stevens, J., concur.


author: Savord, J.

text:
    Cornell, Admr., Bureau of Unemployment Compensation, Appellee, v. Perschillo et al., Appellants.

      (No. 4632
    Decided June 16, 1952.)

      Mr. 0. William O’Neill, attorney general, for appellee.

      Mr. G. William O’Neill, attorney general, and Mr. John W. Hardwick, for appellants.
   Savord, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court.

The record discloses an undisputed factual situation substantially as follows: On September 21, 1950, Grace P. Perschillo, as claimant, filed an application for determination of benefit rights, in such application indicating that she had been employed as an- assistant foreman by the Unitcast Corporation from 1943 until September 21, 1949. The application revealed further that claimant had filed a prior claim on September 30, 1949, under which the benefit year commenced on September 18, 1949, and that claimant had had no employment between September 21, 1949, and September 21, 1950.

On September 27, 1950, the application for determination of benefit rights was allowed, such benefits being computed on the basis of 26 times a weekly benefit amount of $25, the first claim for benefits for the week ending September 23, 1950, being allowed on October 2, 1950.

Thereafter, the Administrator of the Bureau of Unemployment Compensation proceeded to reconsider the claim and on October 13, 1950, announced the following decision:

“Under the authority contained in Section 1345-256 [sic], claimant is denied credit for waiting period and benefit rights for any week of unemployment for the duration of the benefit year of this application dated 9-21-50.”

Upon appeal by claimant, the referee found that the administrator lacked power or authority in law to make the above order. Application of the administrator to institute further appeal was denied by the Board of Review. The Common Pleas Court having reversed the finding of the referee, appellants now seek reversal of such order.

It is apparent that correct determination of the issue here presented is dependent upon the construction accorded the pertinent portions of subdivision (b) of Section 1345-25, General Code (122 Ohio Laws, 695, 713); subdivision p of Section 1345-1, General Code (123 Ohio Laws, 559); and Section 1346-4, General Code (123 Ohio Laws, 559, 584), as in effect at the time of the various happenings herein involved, and the application thereof to the facts involved in the instant case.

As already noted, at the time of filing the application on September 21, 1950, claimant had received unemployment benefits for a benefit year commencing on September 18, 1949, and had continued unemployed from September 21, 1949, to September 21, 1950. Therefore, it clearly follows that on September 27, 1950, the date upon which the second application for determination of benefit rights was allowed, claimant had not met the conditions requisite to the constituting of a valid claim as contemplated by the provisions of Section 1346-4 and subdivision p of Section 1345-1, General Code. The latter section, in part, provides that any application made in accordance with Section 1346-4, General Code, shall be valid “if the individual at the- time of filing such application is unemployed, has been employed by an employer (or employers) subject to the unemployment compensation act in at least fourteen calendar weeks within his base period, and has earned wages in his base period of not less than $240.”

It was because of such fact that the administrator upon reconsideration entered his order of October 13, 1950, denying claimant credit for waiting period and benefit rights.

Appellees assert that the administrator, because of the limitation expressed in Section 1346-4, General Code, was without right or power to enter the order of October 13,1950, claiming that more than 10 days having ensued from the date of determination of benefit rights with respect to the application of September 21, 1950, the order of September 27,1950 had become final and could not as a matter of law be vacated.

The sustaining of such contention would inevitably result in compelling the administrator to continue payments on a claim which, as a matter of law, was invalid ab initio. While the apparent intent of the Legislature to clothe the action of the administrator with early finality by limiting the time in which an appeal is to be perfected to 10 days is evident, nevertheless, it is not to be presumed that its intent was to enact a law producing unreasonably or absurd consequences. “Hence it is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result.” State, ex rel. Cooper, v. Savord, Judge, 153 Ohio St., 367, 92 N. E. (2d), 390.

It is to be observed further that appellees fall into error when they submit that subdivision b of Section 1345-25, General Code, has no application to the case at bar. By this subdivision, the administrator is authorized in an instance where it is found that an applicant has been credited with a waiting period or paid benefits to which the applicant is not entitled, within any time within three years, to cancel such waiting-period or any payments which have been made. Consistent with the language of this portion of Section 1345-25, General Code (122 Ohio Laws, 695, 713), the administrator may so act “notwithstanding any other provisions of the unemployment compensation act

Surely this section would be without meaning and effect if the administrator were to be denied the power to cancel and set aside action previously had with reference to what later unquestionably proves to be an invalid application.

The original finding of the administrator in favor of claimant being without authority of law, it follows that the action of the administrator upon reconsideration of the claim of Grace P. Perschillo being neither unlawful, unreasonable nor against the manifest weight of the evidence, the Court of Common Pleas did not err in holding as it did, and, therefore, the order and judgment of the court should be and is affirmed.

Judgment affirmed.

Fess and Conn, JJ., concur.


author: Wiseman, J.

text:
    Enyeart, Appellant, v. Driver, Appellee.
    (No. 471
    Decided November 14, 1952.)

      Mr. Leo H. Faust, for appellant.

      Mr. Paul G. Gingrich, for appellee.
   Wiseman, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Miami County in a will construction suit. It was stipulated by counsel that the matter be submitted to the court on the allegations in the pleadings.

The testatrix, Elizabeth E. Enyeart, died January 27, 1922. Thereafter, her last will and testament was admitted to probate by the Probate Court of Miami County. The testatrix died seized in fee simple of a piece of real property. The second item of her will provides:

“Second: I give, devise and bequeath to my son, Charles F. Enyeart and my daughter, Leatha Driver my farm located in Newberry township, Miami county, state of Ohio, and containing about forty-two acres of land, for the term of their natural lives, and at their death said lands shall descend to my nearest blood descendants if any are living, but, if any such blood descendants shall not exist then said lands shall pass to my three sisters if living, and if deceased then to their descendants in equal shares.”

Both the son, Charles F. Enyeart, and the daughter, Leatha A. Driver, survived the testatrix and took a life estate in the property. On May 25, 1945, Charles F. Enyeart died intestate, leaving the plaintiff, Harold F. Enyeart, his only child and the nearest blood descendant of Elizabeth E. Enyeart, except Leatha Driver, the daughter of the testatrix who is still living.

The question presented is: On the death of Charles F. Enyeart, did the plaintiff take -a vested estate in fee simple in the undivided one-half interest in the real property free of the life estate of Leatha A. Driver, or did the defendant, Leatha A. Driver, as survivor of the life tenants, become possessed of a life estate in the entire property?

Plaintiff, appellant herein, contends that at the death of Charles F. Enyeart, there being no express survivorship provision in the will, the life estate of Charles F. Enyeart terminated and did not inure to the benefit of Leatha A. Driver during her life, and that upon the death of Charles F. Enyeart, the plaintiff, as the nearest blood descendant of Elizabeth E. Enyeart, was entitled to immediate possession of an undivided one-half interest in such property.

This construction would do violence to the clear and unambiguous provisions of the will. The property does not pass to the blood descendants until the life estates are terminated, and, when the property passes, the entire interest, and not an undivided interest, passes to the nearest blood descendants. At this date the nearest blood descendant is Leatha A. Driver, but clearly tbe testatrix did not include Leatba A. Driver in tbe class of nearest blood descendants. Tbe “nearest blood descendants” are to be determined as of the date of tbe termination of tbe life estates.

The law of Ohio with respect to joint ownership with the right of survivorship under contract (In Re Estate of Hutchison, 120 Ohio St., 542, 550, 166 N. E., 687) has no application here. In the case at bar, the matter to be determined is the intention of the testatrix. The question presented is whether, construing the will from its four corners, the testatrix intended to give Leatha A. Driver a life estate in the whole or in only the undivided one-half interest in the real property. It is reasonably clear that the testatrix expected one of her children to survive the other, and that the survivor would be entitled to the life estate in the whole. In truth, only one life tenancy was created, which terminates upon the death of the survivor. The life tenancy is to be enjoyed by two persons until the death of one, and thereafter, it is to be enjoyed by the survivor in the whole of the property. This construction is in accord with the manifest intention of the testatrix.

Judgment accordingly.

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


author: Per Curiam.

text:
    The Phoenix Insurance Company, Appellant, v. Cook, Appellee.
    (No. 7692
    Decided February 24, 1953.)

      Mr. Edward J. Utz, for appellant.

      Mr. Paul E. Rifle, for appellee.
   Per Curiam.

In this case the plaintiff, appellant herein, as subrogee and assignee of its insured, seeks to recover from the defendant the amount which it paid to the insured because of damage by fire to insured property. The basis of the claim is that the fire was caused by the defendant’s negligence while he was using a soldering torch in repairing the tin roof of the property.

At the conclusion of the plaintiff’s evidence, the court sustained the defendant’s motion for an instructed verdict and later entered judgment on the verdict for the defendant.

An examination of the bill of exceptions leaves little, if any, doubt that the fire resulted from the heat of the molten metal, developed in the act of soldering of the tin joints.

The evidence shows also that this tin roof or gutter rested upon wood and that it is a question of fact whether a reasonably prudent person would not foresee the likelihood of the heat igniting the wood. Thus, the evidence raises the question of whether reasonable prudence did not require that precautions should be taken. The record shows that the defendant, through Ms employees, applied tMs heat and immediately left, apparently without tailing any precautions.

We find that the facts in this case differ in no essential respect from the facts in the case of Reliance Ins. Co. of Philadelphia v. Pohlking, 60 Ohio App., 156, 19 N. E. (2d), 906, and that the reasoning there employed is equally applicable to this case, and requires a reversal of this judgment.

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

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


text:
    Vest, Appellee, v. Board of Review, Bureau of Unemployment Compensation et al., Appellants.

      (No. 2195
    Decided November 20, 1952.)

      Mr. Robert G. Knee and Mr. Ray E. Schmidt, for appellee.

      Mr. G. William O’Neill, attorney general, Mr. John W. Hardwick and Mr. William M. Qemmill, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, which reversed the decision of the Board of Review, Bureau of Unemployment Compensation of Ohio.

The claim of Harold Vest,, appellee herein, was allowed by the administrator. Upon hearing before the referee the decision of the administrator was reversed and the claim disallowed. Upon appeal, the decision of the referee was affirmed by the board of review. Thereupon, claimant appealed to the Common Pleas Court, which reversed the decision of the board of review. The Common Pleas Court based its judgment of reversal on its finding that the decision of the board of review was incorrect. The pertinent part of the finding, as contained in the judgment entry, is as follows:

“The court being fully advised in the premises finds that the decision of the board of review in upholding the referee in said referee’s reversal of the determination of the administrator is incorrect.”

Prom this order an appeal was taken by the board of review to this court.

Appellant assigns as error that the Common Pleas Court erred in finding that the decision of the board of review in sustaining the referee is incorrect, and that the judgment of the Common Pleas Court is contrary to law.

The power of the Common Pleas Court in such matters is found in the last paragraph of Section 1346-4, General Code, which, in part, provides:

“If the Common Pleas Court shall find that the decision was unlawful, unreasonable, or against the manifest weight of the evidence it shall reverse and vacate the same or it may modify the same and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision.”

Under this provision of the Code, before the Common Pleas Court has the power to reverse the decision of the board of review, it must find that such decision was “unlawful, unreasonable, or against the manifest weight of the evidence.” The judgment of the Common Pleas Court contained no such finding. The finding was that the decision of the board of review was ineorrect. This finding does not meet the mandatory requirements of the statute. Thus, the finding and judgment of the Common Pleas Court does not form a proper predicate for review by this court. For this reason, we do not reach and do not pass upon the third assignment of error.

The judgment is reversed and the cause remanded to the Common Pleas Court for further proceedings according to law.

Judgment reversed.

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


author: Conn, J.

text:
    The Perfect Measuring Tape Co., Appellee, v. Notheis, Jr., et al., Appellants. In re Notheis, Jr. In re Bell.
    (Nos. 4665, 4669 and 4670
    Decided January 12, 1953.)

      Mr. George B. Effler and Messrs. Streicher, Gorman & Barone, for appellee, The Perfect Measuring Tape Company.

      Mr. Theodore Marhwood, for appellants, Herman A. Notheis, Jr., and Lawson R. Bell.
   Conn, J.

The first cause given consideration, No. 4665, is an appeal on questions of law and fact from an order of the Common Pleas Court overruling a motion of defendants for a temporary injunction. Having determined that the order so entered was “an order affecting a substantial right made in a special proceeding,” pursuant to Section 12223-2, General Code, the cause has been submitted on the original papers, a transcript of the docket and journal entries, and a transcript of the evidence taken by deposition.

It is alleged in the petition that plaintiff is engaged in manufacturing and marketing paper measuring tapes, which are used in the textile industry; that plaintiff uses unique machines in the manufacture of such tapes; that prior to the activities of the defendants herein, plaintiff was the sole manufacturer of the type of tapes described in its petition and the sole suppliers of such tapes in the United States, Canada and elsewhere within the marketing areas of such product; that for about 15 years prior to August 10, 1951, the defendant Herman A. Notheis, Jr., had been a trusted employee of plaintiff and its predecessor in title; that during such period of employment, said employee had access to plaintiff’s records, including its suppliers, its customers, its price lists and shipments; and that during such employment such defendant operated the machines of plaintiff which “are secret precision devices of complicated mechanical construction” for the manufacture of tapes, including dispensing devices essential to the use of measuring tapes by its customers.

It is alleged further that during the year 1950, while defendant Notheis, Jr., was employed by plaintiff, he conceived the idea of constructing a machine similar to plaintiff’s and, later, about June 1951, he and defendant Lawson R. Bell entered into a copartnership for the purpose of manufacturing and selling paper measuring tapes and for that purpose used the machine which defendant Notheis, Jr., had “secretly and surreptitiously” built in “functional imitation of plaintiff’s secret machines”; that said defendant had access to the trade secrets of plaintiff’s business, its customers and price lists and subsequently entered into competition with plaintiff and made nse of the above-mentioned and other secret trade information acquired during his employment by plaintiff; that on August 10, 1951, said defendant terminated his employment ; that since such date he has devoted his entire time to the business of such partnership, using secret trade information which he had obtained from plaintiff; and that defendants have appropriated unto themselves property rights of plaintiff of great value. Plaintiff prayed for a restraining order, an accounting, and damages.

The motion of defendants, above referred to, was filed following notices to take depositions of defendants and also the issuance of subpoenas duces tecum. The motion seeks to restrain plaintiff from proceeding with the depositions, so far as such depositions may pertain to questions in the field of the trade secrets of defendants, including suppliers of merchandise, customer and price lists, and correspondence and financial information concerning defendants’ business, on the ground that these matters are privileged, confidential and constitute trade secrets.

Defendants also seek to restrain plaintiff from requiring defendants to produce books and records of defendants’ business, including records of the procurement of materials, the manufacturing of measuring-tapes, the names of customers, price lists, dates of shipment and correspondence, etc., for the reason that same are privileged, confidential and embrace trade secrets.

While a motion is not dignified as a pleading under the Code (Section 11303, General Code), yet it is commonly adopted by a litigant who seeks a provisional order, as in the instant case, under which it is sought to protect the asserted property rights of defendants during the pendency of an action.

Defendants’ motion contains numerous allegations of fact, but, notwithstanding its factual content, it is not verified or supported by an affidavit. Neither do we find any evidence offered in support of the motion or tending to support any one of the several allegations of fact. On the record before us, it is our opinion that the overruling of defendants’ motion by the Common Pleas Court was not erroneous.

We next proceed with the appeals in the habeas corpus cases, numbered 4669 and 4670. The original appeals on questions of law and fact were dismissed by the court on its own motion and each cause retained as an appeal on questions of law. As the issues are substantially identical, these appeals will be considered together. The respondent-appellee and appellants herein will be designated plaintiff and defendants respectively, as in the original action.

Following the filing of the petition outlined above and the service of summons, the plaintiff served on defendants notices and subpoenas to take depositions as upon cross-examination under the statute, and, also, subpoenas duces tecum, directing defendants to bring with them certain specified books and records of the International Tape Company, under which name defendants were doing business.

Pursuant to such notice and subpoena, the deposition of defendant Notheis, Jr., was taken on June 4, 1952, and thereafter continued from time to time. The witness was examined at length relative to the business of defendants, as copartners doing business under the name International Tape Company, including specific inquiries as to the time defendant conceived the idea of a measuring tape machine and the building thereof; the time defendant began construction of such machine; his sources of information; the dates when tapes were first produced on said machine and first sales made; his source of materials and profits; and the production of books and records of defendants’ business. Approximately 60 questions of the general character indicated were asked and, on advice of counsel, answers were refused on the ground of privilege.

The deposition of defendant Lawson R. Bell was also taken. Many inquiries made of this witness were similar to those made of defendant Notheis, Jr., including some additional questions respecting sales made in competition with plaintiff. Answers were refused on advice of counsel, based on the ground already stated.

At the time the depositions were taken, the only pleading which had been filed was plaintiff’s petition and, therefore, the issues were not as yet made up on the pleadings.

We observe that plaintiff does not claim its method of producing measuring tapes and the mechanical devices used for that purpose were protected by patent, or that defendant Notheis, Jr., had violated his contract of employment when he engaged in business in competition with plaintiff.

As already pointed out, it is the claim of plaintiff that such defendant had been its trusted employee and engaged in operating plaintiff’s machines, which were secret precision devices; that as such employee, he became acquainted with the business of plaintiff and the methods of manufacturing and marketing the measuring tapes of plaintiff; that defendants secretly set up machinery and opened a place of business; and that, thereafter, defendants manufactured and placed on the market measuring tapes in competition with plaintiff.

The record discloses that the advice of counsel given the defendants at the time they respectively refused to answer the several questions was predicated on the claim that plaintiff, prior to the time the depositions were taken, had not offered any evidence that it had any trade secrets during the employment of defendant Notheis, Jr., and, further, that the inquiries made of defendants and the books and records of the International Tape Company directed to be produced were privileged and constituted confidential trade secrets. It was further stated by counsel that the inquiries related directly to such matters as dates of invention and conception, “which are particularly important information in the patent field and concern the patent interests of this defendant.”

Following the refusal of defendants to answer certain questions and to produce books and records on order of the notary to do so, and the further refusal to answer, each of the defendants was adjudged guilty of contempt and ordered imprisoned in the county jail until they respectively consented to testify.

Thereupon separate citations for writs of habeas corpus were filed and writs obtained by both defendants. Upon hearing, the trial court determined that each defendant was lawfully detained and remanded the defendants to the custody of the sheriff, there to remain until they severally consented to answer the questions propounded to them and obey the subpoenas duces tecum.

In separate appeals to this court, defendants assign as error, briefly restated, that the trial court erred in adjudging that the petitioners were lawfully restrained of their liberty and in failing to order their discharge from custody. Further, that the court erred in not ordering the proceedings placed “in camera” for the protection of the property rights of all parties.

No claim is made that defendant Notheis, Jr., in consideration of his employment had agreed not to divulge any trade secrets of plaintiff or that any measures had been adopted by plaintiff by contract or patent to protect trade secrets it may have had relative to the character and operation of its mechanical devices or methods of manufacturing and marketing its product.

As already noted, no evidence had been adduced in support of plaintiff’s claim, prior to the time the depositions of defendants were taken, that the machines used and the methods of manufacture employed by it constituted trade secrets, or that there was an obligation, implied or contractual, owing plaintiff by defendants or either of them to refrain from engaging in a competing business.

It may be suggested further that when it is made to appear that particular trade practices and trade secrets of the employer, as distinguished from general secrets of trade, have been entrusted to an employee in confidence, in the course of his employment, the law implies an obligation on such employee not to disclose such trade secrets or use them to his own advantage in any manner which would amount to a breach of confidence or of good faith. On the other hand, in the absence of such implied obligation or any restrictive covenant, an employee who has quit the service of his employer may use in his own business or in the business of another, his experience, skill, acumen, memory and general knowledge. The following authorities throw light on the questions presented by the record before us: Curry v. Marquart, 133 Ohio St., 77, 11 N. E. (2d), 868; Imboden v. L. W. Hawker, Inc. (Ohio App.), 41 N. E. (2d), 271; National Tube Co. v. Eastern Tube Co., 13 C. D., 468, 3 C. C. (N. S.), 459; In re Deye, 85 Ohio App., 302, 88 N. E. (2d), 60; Crocker-Wheeler Co. v. Bullock, 14 Ohio Fed. Dec., 561, 134 F., 241; Griffin Mfg. Co., Inc., v. Gold Dust Corp., 245 App. Div., 385, 282 N. Y. Supp., 931; Junker v. Plummer, 320 Mass., 76, 67 N. E. (2d), 667, 165 A. L. R., 1449; annotation 126 A. L. R., 758; 35 American Jurisprudence, 527, Section 99; 56 Corpus Juris Secundum, 483, Section 72.

While there appears to be some conflict among the decisions of- the reviewing courts, the prevailing rule, to which attention has been directed, is concisely stated in the syllabus of Curry v. Marquart, supra, as follows:

“In the absence of an express contract not to engage in a competitive pursuit, an employee, upon taking a new employment in a competing business, may solicit for his employer the trade or business of his former customers and will not be enjoined from so doing at the instance of his former employer where there is no disclosure or use of trade secrets or confidential information relative to the trade or business in which he had been engaged and which he had secured in the course of his former employment. ’ ’

Counsel for plaintiff cite the case of Ex parte Bevan, 126 Ohio St., 126, 184 N. E., 393, affirmed in Bevan v. Krieger, Sheriff, 289 U. S., 459, 77 L. Ed., 1316, 53 S. Ct., 661, wherein a charge of fraudulent conspiracy was made against the officers of a corporation by plaintiff. Notice to take depositions and subpoenas duces tecum were served on the officers, but they refused to answer or to produce books and records, on the advice of counsel. It was pointed out in the opinion of the court that no question of privilege had been raised. The case of In re Bott, 146 Ohio St., 511, 66 N. E. (2d), 918, is also relied on by plaintiff. In that case the witness refused to produce papers and documents “for no reason than that his refusal is on advice of counsel.” No claim of privilege had been asserted. These cases are unlike the cases before us.

To further distinguish the instant case from those cases where no claim of privilege is made, we call attention to In re Martin, Jr., 141 Ohio St., 87, 47 N. E. (2d), 388. In that case the witness was advised by counsel not to answer on the ground that the testimony sought “was not relevant, competent or material.” Judge Bell, in the opinion of the court, pointed out that the witness “by such action constituted himself the judge as to what testimony was relevant, competent and material.” The court also distinguished the earlier cases of DeCamp v. Archibald, 50 Ohio St., 618; Ex parte Jennings, 60 Ohio St., 319; and Ex parte Schoepf, 74 Ohio St., 1. It appears that in each of these cases a question of privilege was raised and asserted. See, also, In re Hyde, 149 Ohio St., 407, 79 N. E. (2d), 224, and 2 Restatement of the Law of Agency, 896, Section 396.

In the instant case, equitable considerations require that the trade practices and secrets of defendants’ business, and also the mechanical devices and processes employed therein, be given a cloak of protective security as potent and efficacious as that to which plaintiff may be entitled. A court of equity imposes on those who seek equity the obligation to do equity.

In the light of these considerations, the assertion of the right, privilege or immunity which plaintiff alleges has been transgressed by defendants is not unlike in substance or superior in quality to that privilege or right which was asserted by defendants at the time their depositions were taken and immunity claimed, including the right to be protected in relation to any “new and useful” mechanical device or process which has been discovered by them.

It should be observed also that at the time the depositions were taken the issues were not made up on the pleadings and plaintiff had not made any showing in support of the allegations in its petition, including the allegations that plaintiff’s business embraced certain trade secrets and that they were surreptitiously taken by defendants. It appears to follow that plaintiff must at least make a prima facie showing in support of its petition that it has business or trade secrets which were wrongfully appropriated by defendants before it can claim the right to pry out or curiously inspect the alleged trade secrets of defendants.

In view of .the conclusions we have reached, it becomes unnecessary for the court to consider and determine the claim that the trial court erred in not making an order protecting the property rights of the parties by impounding the testimony, that is, placing the evidence “in camera.”

In cause No. 4665, this court enters judgment similar to that of the trial court, overruling the motion of defendants for a temporary restraining order.

The judgments entered by that court denying the writs of habeas corpus in cases Nos. 4669 and 4670, are reversed and said defendants are discharged from custody.

Judgments accordingly.

Fess and Savord, JJ., concur.


text:
    City of Columbus, Appellee, v. Jackson, Appellant.

      (No. 4793
    Decided October 6, 1952.)

      Mr. Richard W. Gordon, city attorney, and Mr. Walter W. Grelle, for appellee.

      Mr. Isadore Margulis, for appellant.
   Wiseman, J.

This appeal is on questions of law from a judgment of the Municipal Court of Columbus. The defendant was convicted on the charge of driving while intoxicated.

The affidavit was in the usual form. The only witness called was the arresting officer. On cross-examination he testified that he had not sworn to the affidavit, although it purported to have been sworn to before a deputy clerk. At this juncture the defendant’s counsel moved for a dismissal of the case on the ground that the court was without jurisdiction. The motion was overruled. Then, at the request of the prosecutor, the officer was sworn to the affidavit. The prosecution then rested. The defendant’s counsel again moved for a dismissal of the case on the ground that the court was without jurisdiction and that the evidence failed to establish the guilt of defendant beyond a reasonable doubt. The motion was overruled, after which the defendant rested. The court found the defendant guilty and pronounced sentence. Motion for a new trial was duly filed and overruled.

While several errors are assigned, we find only one to be well made, to wit, a valid affidavit was not filed by which to confer jurisdiction.

The defendant contends that he was tried on a void affidavit; that the court did not acquire jurisdiction; and that the entire proceedings were void ab initio.

The filing of a proper affidavit is a necessary prerequisite to the acquisition of jurisdiction.

In State v. Lanser, 111 Ohio St., 23, 144 N. E., 734, the court, at page 26, stated:

“It should be borne in mind at the outset that the jurisdiction of one accused of an offense before a justice of the peace, mayor, or police judge can be acquired only upon the filing of an affidavit under the provisions of Section 13496, General Code. The filing of the affidavit is prerequisite to the issuing of the warrant, and without the filing of a proper affidavit no jurisdiction is acquired.”

This court in the case of In re Van Hoose, 61 Ohio Law Abs., 256, 103 N. E. (2d), 842, held:

“The filing of a proper affidavit is a prerequisite to the acquiring of jurisdiction of subject matter in a criminal case.”

A case where the facts bear a striking similarity to the facts in the instant case was decided by the Common Pleas Court of Butler County, Ohio. State v. Hayes, 13 Ohio Supp., 76. In that case it was held that defendant, in raising the jurisdictional question, is not restricted to a plea in abatement, and where the lack of jurisdiction was first disclosed by the evidence presented by the state, a motion to dismiss at the close of the state’s case was timely.

The.sixth paragraph of the headnotes is as follows:

“Where arresting officer testified that he signed purported affidavit on which prosecution for drunken driving was based before a police sergeant, and did not swear to such affidavit before clerk of Municipal Court, whose jurat was attached thereto, purported affidavit was not verified and was insufficient to give Municipal Court jurisdiction to try defendant.”

We approve and apply the principles of law announced in the above cited cases. The two cases cited by the state — State v. Orby, 2 Ohio Law Abs., 777, and Mignery v. State, 10 Ohio App., 232 — are distinguishable on the facts.

In the instant case, the affidavit being void, the court was without jurisdiction, and the entire proceeding was a nullity. The case should have been dismissed for lack of jurisdiction, and that will be the order of this court.

Judgment accordingly.

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


text:
    Wright, Appellee, v. Youkilis, Appellant.
    (No. 7645
    Decided December 8, 1952.)

      Mr. John C. McCarthy, for appellee.

      Mr. John B. Freiden and Mr. Melvin J. Kessel, for appellant.
   Per Curiam.

This is an action to recover an alleged rental charge exceeding the maximum fixed by the area rent office under the provisions of the United States Housing and Rent Control Act (61 Stats. at L., 199, Title 50, Section 1895 Appendix, U. S. Code). The Municipal Court of Cincinnati, in which this action was instituted, found that there had been an overcharge of $25 per month and awarded judgment based on that finding for 11 months together with an attorney’s fee of $150. It is from that judgment that this appeal is taken.

The plaintiff was a lessee of an apartment on the second floor of a building identified as 4610 Montgomery road at the time the defendant acquired title to the building. She and her daughter had occupied this second floor apartment for perhaps six or seven years, when her daughter married.

Shortly before the marriage of the plaintiff’s daughter an apartment on the third floor became vacant, and negotiations were entered into between the plaintiff and defendant concerning the removal of the plaintiff and her daughter and son-in-law from the second floor apartment to this recently vacated apartment on the third floor. Who initiated these negotiations is in dispute. There is no doubt that before the plaintiff moved from the second floor apartment to the third floor apartment, the defendant made substantial repairs and changes in the third floor apartment, enlarging the living space and equipping it so that the daughter and her husband could have a bedroom and kitchen detached from the rest of the apartment, although they would be obliged to use the bathroom in common with the other occupants of the apartment. In making these alterations, the defendant expended about $900 and performed labor in person thereon. The defendant estimated that the value of the improvements was $1,500. Whether the improvements and alterations were such as to answer to the description of a “major capital improvement” within the meaning of the law entitling the defendant to an increase over the maximum rent fixed for the original apartment we do not stop to consider, as in our view we lack the power to decide that question.

In 1942, when this building was owned by Bexley Realty, Inc., the maximum rent for the third floor apartment was fixed at $35 per month, and that was the rent being paid therefor when the defendant acquired title. There is no doubt that the plaintiff, with full knowledge of the dimensions and facilities of the apartment in its original condition and of the alterations being made, agreed to pay a rent of $60 per month. "Whether these alterations were made specifically to accommodate her needs is in dispute, but there is no dispute that her obligation to pay rent was deferred until their completion, to wit, April 1, 1949.

The defendant did not petition for an adjustment of the rent of the apartment until February 12, 1952. In that petition, the defendant recited that the maximum rent for the apartment was $35 per month — the rent fixed for the apartment prior to the alterations. On March 17, 1952, the rent was fixed at $70 per month, effective February 12, 1952.

This action was commenced on April 28,1952.

We see no substantial difference between the facts of this ease and the facts of Dunaway v. Torline, 90 Ohio App., 516, 105 N. E. (2d), 75. We do not regard the finding and order fixing the maximum rent at $70 per month, effective February 12, 1952, as an adjudication that $70 per month would be an excessive rent for the period from April 1, 1949 to April 1, 1950. As the condition of the apartment was the same during that period, the implication would seem to be just the contrary. It appears in this case, as it did in that case, that the rent control office has not fixed a maximum rent for this remodeled apartment for the period before February 12, 1950. Nor has any governmental authority determined that the remodeling did not constitute a “major capital improvement” justifying a rental of $60 per month, fixed by the defendant in agreement with the plaintiff.

In the course of the opinion of this court in Dunaway v. Torline, supra, it is said at page 521:

“It is clear that no authority has been conferred upon the courts to fix a maximum rent. Indeed, under the Constitution, no such authority could be conferred. It (fixing a maximum rent) is no more a judicial function than is the fixing a tax rate or a public utility rate. The authority over such matters is conferred upon the other departments of government. Under the Rent Control Act Congress has delegated this power to the Housing Expediter, with right of appeal from his decision to an administrative board. ’ ’

And, on page 522, we said:

“No matter how this situation is viewed, the defendant, at least, had a right to have the rent control office determine whether the improvements and modifications constituted a major capital improvement justifying an increase in the maximum rent, and until such ruling is made no action can be maintained by the tenant in any court to recover an excess of payment. ’ ’

We are still of the opinion that those quotations correctly state the law and are applicable to this case.

The first paragraph of the syllabus to Connor v. Wheeler, 77 P. Supp., 875, is as follows:

“Where landlord fails to notify Area Rent Director that there has been a change in rental premises, landlord may continue to collect unapproved rental subject to a revision by public authority and to a refund of anything then found to have been excessive. Emergency Price Control Act of 1942, Section 1, et seq., 2(b), 205(e), as amended, 50 U. S. C. A. Appendix, Section 901, et seq., 902(b), 925(e).”

In the body of the opinion, at page 877, the court says:

“Where the landlord fails to notify the Area Rent Director that there has been a change in the rental premises, the landlord may continue to collect the unapproved rental but only on condition that it is subject to a revision by public authority and to a refund of anything then found to have been excessive. ’ ’

In an elaborate annotation to the case of Graylyn Bainbridge Corp. v. Woods, Housing Expediter (173 F. [2d], 790), 10 A. L. R. (2d), 242, it is said at page 306:

“A determination of the actual maximum rental to which the landlord is entitled is a necessary preliminary to a finding of overcharge, or the computation of the amount of damages. Since the statute vests in the Expediter the power to determine maximum rent figures, the courts have generally accepted the figure fixed by him and have, on occasion, refused to act in the absence of such an administrative determination. ’ ’

Many cases are cited and commented on following that statement.

We are of the opinion that there had been no administrative action fixing the maximum rental for this remodeled apartment, and that such action is a condition precedent to any action by a tenant to recover excessive payments.

For these reasons, the judgment is reversed, and the cause is remanded with instructions to dismiss the action.

Judgment reversed.

Hildebbant, P. J., and Matthews, J., concur.


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Kiessling, Appellant.
    (No. 699
    Decided December 6, 1952.)

      Mr. Reeder C. Hutchinson, prosecuting attorney, for appellee.

      Mr. Otto W. Hess, Mr. George A. Meehison and Mr. Edwin 8. Diehl, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Juvenile Court of Defiance County, Ohio.

On February 19, 1952, one Don Kehnast, a deputy sheriff of Defiance county, Ohio, filed his complaint in the Juvenile Court of Defiance County, Ohio, which, omitting formal parts thereof, is in the words and figures following, to wit:

“That on or about the first day of January, 1952, in the county of Defiance and continuing until the present day aforesaid, one Orvil Kiessling residing at Defiance, Ohio did contribute toward the delinquency the following child, to wit: Wilbur Shirk, age 15 years, in that he did act as a receiver of stolen property from the said minor.”

On the 19th day of February, 1952, the said Orvil Kies sling, named as the offender in said complaint, was duly arraigned thereon in the Juvenile Court of Defiance County, Ohio, and pleaded not guilty to the charge preferred against him in the complaint.

Subsequently, the said Orvil Kiessling duly demanded a jury trial and on the 22nd day of April, 1952, a jury was empaneled and sworn in said Juvenile Court to try the same. After said jury was empaneled and sworn the cause based on said complaint was adjourned until April 23,1952. Upon said court reconvening upon April 23, 1952, one Donald V. Kehnast was sworn as the first witness for the state and had testified as to his name only when the defendant made the following objection and motion:

“If Your Honor, please, at this time we want to object to any evidence being offered in this case under this complaint against this defendant and move the court to discharge this defendant at this time from further prosecution, under the complaint that is filed here.”

This objection and motion were overruled by the court, which then proceeded with the trial.

The state introduced its evidence consisting of the testimony of witnesses and certain exhibits. The defendant cross-examined all but one of the state’s witnesses.

At the close of its evidence the state rested and the defendant then made a motion as follows:

“If Your Honor, please, we want to move the court at this time to discharge this defendant from further prosecution in this case and renew our motion that we made at the beginning of the case, that he be discharged from any further prosecution and released, under the charge as it stands in the complaint. ’ ’

This motion was overruled by the court and the court thereupon adjourned until the following day. Immediately upon the court reconvening, pursuant to adjournment, one of the attorneys for the defendant stated in open court that “the defendant offers no evidence in his defense under this affidavit and again renews the motion to discharge the prisoner from further prosecution and rests. ’ ’

The court denied this motion.

The state then argued the cause to the jury and the defendant, not desiring to argue the same, the court instructed the jury which subsequently returned a verdict finding the defendant guilty as charged in the complaint. The court thereafter rendered judgment on said verdict sentencing the defendant to commitment in the workhouse at Whitehouse, Ohio, for a period of six months and to pay the costs of prosecution. That is the judgment from which appeal is taken.

The defendant assigns error in a number of particulars, but in the view we take of this case it is necessary to consider only two of the assigned errors as a consideration of such assignments disposes of the entire case. The assignments the court will consider are the following which will be considered together, to wit:

'“1. The court erred in overruling defendant’s motion to reject the evidence offered in this case under the complaint against this defendant and in refusing to discharge the defendant from prosecution to which ruling of the court the defendant at the time excepted. ’ ’

“4. The court erred in refusing to discharge the defendant from prosecution at the time the state of Ohio concluded its case to which ruling of the court the defendant at the time excepted.”

Whether either of these assignments of error is well-taken depends entirely upon whether the complaint hereinbefore set forth charges the defendant with the commission of an offense under the laws of Ohio.

The complaint attempts to charge the commission of an offense within the purview of Section 1639-45, General Code, the pertinent part of which reads as follows:

“Whoever * * * contributes toward the * * * delinquency, as herein defined, of a child * * *, or acts in a way tending to cause delinquency in such child, * * * shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. Each day of such contribution to such * * * delinquency, shall be deemed a separate offense.”

The phrase, “delinquency, as herein defined,” as used in the above General Code Section refers to the definition of “delinquent child” appearing in Section 1639-2, General Code, the parts thereof which might possibly he construed as applying to the conduct of the child mentioned in the complaint, reading as follows :

“[‘Delinquent child’ defined]. For the purpose of this chapter, the words ‘delinquent child’ includes any child:

“1. Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state.

a # # #

“4. Who so deports itself as to injure or endanger the morals or health of itself or others.”

The offense of receiving stolen property is defined in Section 12450, General Code as follows:

‘ ‘ [Receiving stolen property, etc.]. Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, embezzled or obtained by false pretense, knowing it to have been stolen, taken by robbers, embezzled or obtained by false pretense, if the value thereof is sixty dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value thereof is less than that sum, shall be fined not more than three hundred dollars or imprisoned not more than ninety days, or both.”

In the case of Fisher v. State, 84 Ohio St., 360, 95 N. E., 908, in which the sufficiency of a complaint of contributing to the delinquency of a minor child, based upon the provisions of sections of the General Code then designated as Sections 1654 and 1644, which are analogous to Sections 1639-45 and 1639-2, respectively, General Code, it was held that the offense of contributing to the delinquency of a child is “predicated upon the fact that S- is a ‘delinquent child,’ and that fact is the first one necessary to be proven, for it is only when she, by his aid, inducement and encouragement has become a ‘delinquent’ within the meaning of Section 1644, General Code, that the crime of contributing to her delinquency is complete. ’ ’

In the case of Edmonds v. State, 30 Ohio App., 195, 164 N. E., 649, in which a similar complaint was under consideration, it was held:

“1. There can be no valid conviction on an affidavit which charges no offense against laws of state.

“2. Affidavit charging defendant contributed to delinquency of a minor held fatally defective, even after judgment of conviction, where it did not specify some facts showing minor was delinquent child, within meaning of Section 1644, General Code.

“3. It is not sufficient to charge offense of contributing to delinquency of minor in language of Section 1654, General Code.

“4. Affidavit charging one with contributing to delinquency of a minor states no charge, under Section 1654, General Code, unless it charges some one or more acts of delinquency specified in Section 1644, since words ‘as herein defined,’ as used in Section 1654, insofar as they relate to delinquency, refer to definition of delinquent child contained in Section 1644.”

The foregoing holdings were followed by this court in the case of State v. Zaras, 81 Ohio App., 152, 78 N. E. (2d), 74, wherein.a complaint based upon the provisions of Sections 1639-45 and 1639-2, General Code, now in effect, which sections are analogous to former Sections 1654 and 1644, General Code, above mentioned.

In the last mentioned case the court, among other things, held:

“2. An affidavit drawn pursuant to Section 1639-45, General Code, charging an accused with contributing toward the delinquency of a minor by furnishing, aiding or participating in the sale of beer to such minor, but which does not set forth facts showing such minor to be a delinquent within the purview of Section 1639-2, General Code, does not charge an offense against the laws of Ohio.

‘ ‘ 3. There can be no valid conviction on an affidavit which does not charge an offense against the laws of the state, and a plea of guilty will not cure such defect in the affidavit. ”

In an earlier case, that of State v. Krauss, 81 Ohio App., 453, 80 N. E. (2d), 164, this court held:

“An affidavit charging that the accused contributed to the dependency of a minor child and acted iii a way tending to cause such dependency, without charging that the minor was a dependent child as defined in Section 1639-4, General Code, does not charge an offense under the laws of Ohio. ’ ’

While that case involved dependency and not delinquency, the reasoning upon which the decision is based applies as well to charges of delinquency. »

We will consider the sufficiency of the complaint in the instant case in the light of the authorities mentioned.

An examination of the complaint, which is quoted above, discloses that it is not charged in the complaint that the child, Wilbur Shirk, is a delinquent child, nor does it set forth facts showing that Wilbur Shirk is a delinquent child as defined in Section 1639-2, General Code, above quoted. Nor does it set forth any facts showing that the defendant, Orvil Kiessling, has in any way contributed to the delinquency of said child.

So far as the complaint shows the said child may have come into possession of the property mentioned in the complaint without notice or knowledge that it was stolen property and the said property may have been received by the defendant without notice or knowledge on his part or on the part of said child that it was stolen property.

The complaint therefore fails to charge facts showing that said child violated “any law of this state, the United States, or any ordinance or regulation of a subdivision of the state” and further fails to charge facts showing that sáid child deported “itself as to injure or endanger the morals or health of itself or others; ” and it fails to set forth facts showing that the defendant contributed in any way to the delinquency of said child.

For the reasons mentioned the complaint in the instant cause was wholly ineffectual to charge an offense and the court therefore erred in overruling the objections and motions of the defendant mentioned in his assignments of error filed herein. ■

For these errors, the judgment of the Juvenile Court is reversed and this court, rendering the judgment the Juvenile Court should have rendered on said objections and motions, renders final judgment herein discharging defendant and adjudges that the state shall pay all the costs herein, both in the Juvenile Court and this court, in the manner provided by law.

Judgment reversed.

Middleton, P. J., and Younger, J., concur.


author: Hunsicker, P. J.

text:
    Basickas, Appellee, v. Basickas, Appellant.
    (No. 4341
    Decided January 28, 1953.)

      Messrs. Roby & Arenson, for appellee.

      Messrs. Carson & Roderick and Mr. Bernard l. Rosen, for appellant.
   Hunsicker, P. J.

This is an appeal on questions of law.

Evelyn Basickas, the plaintiff below, appellee here, is the niece of Yirsa Basickas, the defendant below, appellant here. Evelyn and Yirsa, with knowledge that they sustained the relation to each other of niece and uncle, obtained a marriage license in Meigs County, Ohio, and immediately had their marriage solemnized by a justice of peace. The parties signed the application for the marriage license and therein stated that “Said parties are not nearer of kin than second cousins, and there is no legal impediment to their marriage.” Evelyn and Yirsa thereafter lived together as husband and wife in Havana, Cuba. Evelyn left Yirsa and returned to the home of her mother in Akron, Ohio, where she established her residence. On June 6, 1951, Evelyn filed an action for divorce against Yirsa, on the ground “that said marriage was fraudulently contracted.”

The appellant, Yirsa, filed an answer to the petition and stated that: he, as a national of the Republic of Cuba, was not familiar with the English language; “all statements, representations and ceremonial requirements furnished incident to the obtaining of said marriage license were translated to, for and on behalf of him by the said plaintiff”; the statements were made as the ‘ ‘ result of the plaintiff’s sole, independent and unilateral translation, representation and failure to truthfully state the same, all of which constitutes individual fraud of the plaintiff motivated by her own design and intent without the defendant’s knowledge”; and that plaintiff was not a resident of Summit County, Ohio.

The judgment of the trial court found that: Evelyn, the appellee herein, was a resident of Summit County, Ohio; the parties “were married as set forth in the petition”; no children were born as the issue of such union; the parties are niece and uncle by consanguinity; “that said marriage was illegal, ab initio, was contracted in fraudem legis, and that, by reason thereof, the plaintiff is entitled to a divorce as prayed for in the petition herein on the ground of fraudulent contract.” The trial court thereupon dissolved the marriage and- restored the plaintiff to her maiden name.

It is from the judgment of divorce and dissolution of the marriage that the appellant, Yirsa Basickas, appeals to this court, saying that the trial court erred as a matter of law in awarding a judgment of divorce to Evelyn Basickas on the ground of fraudulent contract.

The question dispositive of the case before us is: Can one, who has entered into a marriage contract with full knowledge of a consanguineous relationship within a degree which is prohibited by the law of Ohio, obtain a divorce on the statutory ground of fraudulent contract, where such one, in the application for the marriage license, has, under oath, stated that the parties to the marriage are not nearer of kin than second cousins ?

Divorce is a creature of statute. Section 11979, General Code, which was in effect at the time the petition for divorce was filed in the Common Pleas Court, and the present statute (Section 8003-1, General Code, effective August 28, 1951), provide that the Court of Common Pleas may grant a divorce on the ground of fraudulent contract.

In the case before us, neither party made a fraudulent representation to the other, since both of the parties knew that they sustained the relationship to each other of niece and uncle. The license was obtained and a ceremonial marriage performed as a result of both parties making oath before a deputy of the Probate Court of Meigs County to statements that they knew were untrue.

The marriage herein is void ab initio. Arado v. Arado, 281 Ill., 123, 117 N. E., 816, 4 A. L. R., 28; Osoinach, Admx., v. Watkins, 235 Ala., 564, 180 So., 577, at p. 579, 117 A. L. R., 179; McIlvain v. Scheibley, 109 Ky., 455, 59 S. W., 498, at 500. See, also, 9 Cincinnati Law Review, 82.

Can such void marriage be judicially decreed to be dissolved on the ground that a fraudulent contract of marriage has been entered into? In the instant case it is not a fraud of a guilty party perpetrated on an innocent party, but rather it is the fraud of both parties upon the court that issued the license.

Divorces are not granted on the basis of public policy, but upon satisfactory proof of one or more of the grounds set out in the statutes. If by the term “fraudulent contract” there is meant any fraud whereby the contract of marriage was entered into, then a ground for relief is established in this action. If, however, the term “fraudulent contract” means that, by false representations, a party has caused an innocent party to enter into the marriage relationship, then the instant case fails to show a ground for relief.

The Supreme Court of Ohio in the case of Eggleston v. Eggleston, 156 Ohio St., 422, at p. 428, 103 N. E. (2d), 395, said:

“It is to be observed that ‘fraudulent contract’ is another ground specified as a ground for divorce, and that also goes to the validity of the marriage. ’ ’

And at page 429, the court said :

“Causes dealing with situations not covered by the statute clearly come within the jurisdiction of a court of equity.”

If the term “fraudulent contract” is to be construed as covering all phases of fraud which go to the validity of the purported marriage, then the remedy for a situation as is shown to exist in the instant case is an action for divorce based on such ground in the statute.

Cases wherein fraud is charged have been before the courts many times, and, although it is difficult to phrase a definition to fit all cases, it usually implies a deception practiced whereby an unnatural state of the will is brought about, and hence goes to the question of mutual consent so essential to every contract, including the contract of marriage.

The consent in a marriage contract is primarily that of the two parties to the contract — the prospective husband and the prospective wife. There is, however, a third party to all contracts of marriage — the state; for it is the state that by law provides the conditions and the limitations of the marriage.

The fraud practiced in the instant case goes to the very essence of the contract — a strict injunction that such consanguineous union is not permitted by the law of this state. (Section 11181, General Code, now Section 8001-1, General Code.) The relationship engaged in by the parties in the instant case is the crime of incest, as defined by the law of Ohio (Section 13023, General Code, and State v. Brown, 47 Ohio St., 102, 23 N. E., 747, 21 Am. St. Rep., 790).

In Martin v. Martin, 54 W. Va., 301, 46 S. E., 120, and in Arado v. Arado, supra, the courts held that the general rule that equity will not entertain the complaint of one who comes into the court with unclean hands does not apply where one seeks to declare a marriage within the prohibited degrees of kinship an illegal marriage.

Coming now to the principal question before this court, we have searched the Ohio digests for a case with a similar factual situation, and are unable to discover that the precise question herein has been passed upon by the courts of this state. There are cases involving the question of fraudulent contract, but in all instances they are confined to the question that arises where one has been guilty of perpetrating a fraud upon another, and where, as a result of such fraud, the marriage has been contracted.

Blackstone, in his “Commentaries,” Vol. 3, Chapter 7, page 94 (3 Blackstone [Hammond Edition] 124), in speaking of divorce, says:

“But if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporeal imbecility, or the like; in this case the law looks upon the marriage to have been always null and void, being contracted in fraudem legjs, and decrees not only separation from bed and board, but a vinculo matrimonii itself.” (Emphasis ours.)

The statutes of some states provide for divorce on the ground of fraudulent contract. Among them are Connecticut, Kansas, Ohio and Oklahoma. Many other states provide for divorce on the ground of fraud and duress.

In the cases we have examined, only a few discuss fraudulent contract, and in nearly all such cases an injured and innocent party sought relief from the marriage which resulted from the fraud of the other party.

The subject of fraudulent contract has come before the courts of Connecticut several times, the earliest case called to our attention being Benton v. Benton (1803), 1 Day (Conn.), 111, wherein the court at p. 114 said:

“The phrase fraudulent contract, as applied to the subject of marriage and divorce, in the books, has obtained an appropriate and technical meaning; and is taken to imply a cause of divorce which existed previous to the marriage, and such a one as rendered the marriage unlawful ab initio, as consanguinity, corporeal imbecility, or the like; in which case, the law looks upon the marriage as null and void, being contracted in fraudem legis, and decrees a separation a vinculo matrimonii.”

And at p. 116, the court said:

“A marriage void ab initio, is a marriage contracted in fraudem legis, and cannot be made valid, by the volition of either, or both, of the parties.”

In the case of Gould v. Gould, 78 Conn., 242, 61 A., 604, 2 L. R. A. (N. S.), 531, the court extended the scope of the Benton v. Benton case, supra, saying at p. 250:

“The fraud which makes the contract of marriage fraudulent, as that word is used in the statute of divorce, is a fraud in law and upon the law. ’ ’

A later Connecticut case, Lyman v. Lyman, 90 Conn., 399, 97 A., 312, L. R. A. 1916E, 643, adopted the limit which the former case of Gould v. Gould, supra, announced, and said that a fraud by one party in the essentials of the marriage relation is such “fraudulent contract” as entitled the deceived spouse to a divorce.

The instant case, it should be again noted, does not raise the question of the act of but one guilty party, for, in the case before us, both parties were guilty of conduct that is reprehensible. One of such guilty parties is asking for the relief which she claims the statute gives her. In the case of Eggleston v. Eggleston, supra, the statutory remedy of divorce was deemed to be the exclusive method to relieve the situation therein set out. We here view the present problem in much the same way — that is, the statute has provided the manner to judicially declare null a marriage that was, as a result of fraud, void from its inception. The contract of marriage was a fraud upon the law — it could never have been made valid by any act of the parties. In such a situation, the remedy of divorce on the ground of fraudulent contract is proper.

We therefore hold that, where one has entered into a marriage contract within the degree prohibited by the law of Ohio, either party to such marriage may obtain a divorce on the statutory ground of fraudulent contract, since such marriage is void ab initio, and the relief provided for by the statute includes a fraud perpetrated on the law.

The judgment of the trial court is affirmed.

Judgment affirmed.

Doyle and Stevens, JJ., concur.


author: Phillips, J.

text:
    Perdue, Appellant, v. Morris et al., Appellees.
    (No. 878
    Decided May 19, 1952.)

      Messrs. Thornburg & Lewis, for appellant.

      Messrs. Walker é Lineh, for appellees.
   Phillips, J.

By items one and two of Ms last will and testament, Meredith D. Morris, called testator herein, disposed of real and personal property as follows :

“First, I order and'direct that my executrix hereinafter named, pay all my just debts and funeral expenses as soon after my decease as conveniently may be.

“Second, after the payment of such funeral expenses and debts, I give, devise and bequeath all my property both real and personal to my wife, Estella May Parks Morris.

“At her demise, I request that each of our children Thomas E. Morris, Kenneth E. Morris and Ruth E. Morris be given Ms or her proportionate share of the estate due consideration being given to those children and persons working and caring for the farm property.”

By duly executed codicil testator revoked, in part, item I of Ms will, which revocation this court, like the trial court and counsel, interprets as referring to item II. In the codicil he devised to plaintiff part of such real property, consisting of 48 acres, and ratified and confirmed his “will in all other respects.”

On March 17,1948, Estella May Parks Morris, designated as widow in this opinion, quitclaimed to defendant any interest she had in the real property described in plaintiff’s petition.

In her petition filed in the Court of Common Pleas in her action in partition, plaintiff claimed a legal right to, and alleged that she was seized in fee simple of, an undivided one-tMrd part, or share, of the real estate described therein, consisting of one tract of 141 acres plus and another of 53 acres plus of land situated in Belmont county, and referred to in item II of testator’s will; that defendants are tenants in common with her in such lands, and each are entitled to an undivided one-third part thereof; and that she and defendants derived title to such lands from the same source.

The question presented to the trial judge was whether testator’s widow was devised a fee simple estate in such real estate, or merely a life estate therein with remainder over to plaintiff and defendants.

The trial judge found, and entered his judgment accordingly, that the widow was devised a fee simple estate in such real estate; that plaintiff had no interest in the real estate sought to be partitioned; and that she was not entitled to have it partitioned. The court dismissed plaintiff’s petition.

Plaintiff appealed from the judgment of the trial court on questions of law, and by assignment of error contends “that the decision and judgment of the Court of Common Pleas should have decreed to the plaintiff, Ruth M. Perdue, the one-third (1/3) interest in the real estate described in the petition”; that “the decision and judgment of the court is against the weight of the evidence”; and that “the judgment and order of the Court of Common Pleas is [sic] contrary to law. ’ ’

The question presented to this court by plaintiff’s appeal is the same as that presented to the trial court, stated supra.

The cardinal rule in the interpretation of wills that the court must ascertain from and give effect to the intention of the testator as gathered from the “four corners” of his will may be modified somewhat by other recognized and applied rules.

Section 10504-72, General Code, providing a rule of construction, and not of property, to be employed only when it aids a court in ascertainment of intention and disregarded when its observance is plainly subversive of such ascertainment, provides:

“Every devise in a will of lands, tenements or hereditaments, shall convey all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.”

In considering that section of the General Code, courts favor the creation of a fee and cast the burden of proving a lesser estate in real property upon the one asserting that a devise is of a lesser estate than a fee simple.

As was said by the trial judge in his opinion: “Another rule of construction is that an estate in fee simple is the full and absolute estate in all that can be granted and subsequent provisions of the will will not avail to take away from such estate certain qualities that the law regards as inseparable therefrom. It is therefore the law that when a testator makes a gift Avith a condition repugnant to the gift, the condition is void. However, it is obvious that a testator may, by the use of language in other parts of the will, give a lesser estate than the meaning of the words of the gift standing alone would import. Therefore, the rule is, as is well set out in the case of Winn v. William, a Kentucky case reported in 165 S. W. (2d) at page 961, as follows:

“ ‘The rule that an early vesting of an estate is favored in the absence of a clear manifestation of a contrary intention, and the statute declaring that a legacy shall be regarded as absolute rather than a qualified fee in case of doubt, are parts of every will.’ ”

While it is true that other jurisdictions are more liberal in construing wills favoring remainders than is Ohio, we are bound by Ohio decisions and, construing testator’s mil and item II thereof particularly, we hold, as did the trial judge, that by the terras of testator ’s will the widow was devised a fee simple estate in the real property sought to be partitioned.

See Dean v. Hart, 23 Ohio Law Abs., 617; Krumm, Exr., v. Cuneo, 71 Ohio App., 521, 47 N. E. (2d), 1003; Howe v. Fuller, 19 Ohio, 51; Johnson v. Johnson, 51 Ohio St., 446, 38 N. E., 61; Watkins v. Price, 16 Ohio App., 27; Powell, Jr., v. Layton, 79 Ohio App., 279, 69 N. E. (2d), 444; Trumbull v. Stentz, 30 Ohio App., 34, 164 N. E., 57; Gill, Exrx., v. Leach, Admx., 81 Ohio App., 480, 80 N. E. (2d), 256; Stophlet, Exrx., v. Stophlet, 22 Ohio App., 327, 153 N. E., 867; Steuer v. Steuer, 8 C. C. (N. S.), 71, 18 C. D., 145; Tax Commission of Ohio v. Oswald, Exrx., 109 Ohio St., 36, 141 N. E., 678; In re Estate of Tooley, 170 Cal., 164, 149 P. 574, Ann. Cas. 1917B, 516; Presbyterian Bd. of Foreign Missions v. Culp, 151 Pa., 467, 25 A., 117; Cales v. Dressier, 315 Ill., 142, 146 N. E., 162; Gahan v. Golden, 330 Ill., 624, 162 N. E., 164; In re Estate of Hayward, 57 Ariz., 51, 110 P. (2d), 956; Keiser v. Jensen, 373 Ill., 184, 25 N. E. (2d), 819; and In re Estate of Cook, 58 Cal. App. (2d), 376, 136 P. (2d), 338.

Likewise we concur with what the trial judge said in his opinion that:

“Assuming that the court could find that only a life estate was granted to the widow, what then would be the status of the shares of the three children? The language reads ‘at her demise, I request * * * that Thomas E. Morris, Kenneth E. Morris and Ruth E. Morris be given his or her proportionate share of the estate due consideration being given to those children and persons working and caring for the farm property.’ What would be the interest or estate of each? The will does not provide for a division. If we could construe the term ‘proportionate share’ to mean one-third each, who would determine what monetary consideration should be given to ‘those children and persons working and caring for the farm property’? That would not be within the authority of the personal, representative because the personal representative would have no authority to make a will for the testator. Obviously the language is vague, uncertain and ambiguous in meaning and would therefore not satisfy the provisions of Sec. 10504-72 under which a remainder over would be valid.”

We find no error prejudicial to plaintiff on any of the grounds stated in her assignments of error.

Therefore, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Nichols, P. J., and Griffith, J., concur.