text:
    Oakley Building & Loan Co., Appellant, v. Murphy et al., Appellees.
    (No. 7025
    Decided December 6, 1948.)

      Mr. James O. Headley and Messrs. Rendigs & Fry,. for appellant.

      Mr. Walter Schmitt, for appellee Daniel F. Murphy.

      Messrs. Rendigs & Fry, for appellee Indemnity Insurance Company of North America.
   Matthews, P. J.

This is an appeal on questions of law from a judgment rendered in an action for a declaratory judgment. The plaintiff is a corporation organized under the laws of Ohio relating to building and loan associations, and as such authorized to receive money on deposit. The defendant, the Indemnity Insurance Company of North America, is a corporation qualified to do business in Ohio.

The case comes before this court on a record containing both a separate finding of facts and conclusions of law, and also a bill of exceptions containing all the evidence.

The defendant, Daniel F. Murphy, deposited $100 with the plaintiff on December 29, 1936, and was issued a book in which to record his deposits and withdrawals. During 1937 he made 25 deposits and withdrew nothing, so that at the close of 1937 he bad a balance of $3,000 to his credit. He made no further ■deposits, but by allowing the dividends to accumulate there became due to him on December 18, 1947, a balance of $3,200.32.

In addition to making these deposits which were •credited in his book and upon which dividends were ■credited, Murphy had other transactions with the plaintiff’s cashier consisting of the cashier giving a receipted deposit slip for money which Murphy left .for safekeeping. The controversy between the parties arises out of one such transaction. The circumstances of this transaction áre as follows:

On December 21,1941, Murphy went to the plaintiff’s place of business and delivered two envelopes, each ■containing $1,000, through the receiving teller’s window to the cashier, with whom he had had similar transactions and the cashier gave him a deposit slip •showing $2,000 had been deposited in his account with the plaintiff. The account was identified by its number, the cashier wrote on it “Dup.” and signed his name thereunder and signed Murphy’s name at the bottom under the printed words “Depositor’s Name.” On one of the envelopes, Murphy had written his name and under his name was written “To be called for,” and while he would not identify those words as being in his handwriting, it was conceded by his counsel that it was his handwriting. After the envelope was delivered to the cashier he endorsed thereon “A receipt given” and thereunder placed his initials.

There is evidence that there was a limitation at the time upon the amount of deposit the plaintiff could take from a single depositor, and that this money was left for safekeeping against the time when it could be accepted on an interest or dividend drawing basis. There is also evidence from which the inference can be drawn that the only purpose was to leave it for safekeeping, and to be returned to Murphy upon his demand. There is no evidence that the $2,000 was received for immediate credit in the passbook. Murphy always considered it a different kind of deposit, and when he received a card from the plaintiff stating the balance due him, which card made no reference to the transaction, he signed the card and returned it to plaintiff. The trial court did not choose between these conflicting inferences, concluding as a matter of law that in either event the cashier was acting for and on behalf of the plaintiff at the time.

About six months after that transaction, it was discovered that the cashier had embezzled some of the plaintiff’s funds and had concealed the fact for awhile by using $1,000 of the specially deposited money to satisfy the demands of depositors. In other words, he had taken $1,000 of this money and paid it to the plaintiff, leaving $1,000 in the envelope in his personal box in the plaintiff’s vault at the time of the exposure. The trial court found as a matter of law that as the plaintiff had received the benefit of this $1,000, it would be inequitable for plaintiff to retain it.

During the trial, the $1,000 which remained in the envelope was paid to the clerk of courts to abide the-order of the court.

On these findings, the court entered judgment against the plaintiff for $2,000, with interest on $1,000 at 6% per annum from July 18, 1942. A few days after the-judgment was rendered, the court ordered the clerk of courts to pay to Murphy the $1,000 which had been paid to the clerk to abide the action of the court.

It should be noted that Murphy did not pray specifically for a money judgment. His answer did end' with a general prayer for such relief as might be found to be proper, and as plaintiff has not assigned the-point as error or noticed it in brief or oral argument,, we consider the point to have been waived.

As already noted, the trial court found two principles of law, both of which when applied to the facts found, imposed a liability upon the plaintiff to reimburse the defendant Murphy for the $1,000 used by its-cashier to replace the money embezzled by him: (1) Unjust enrichment by the plaintiff at Murphy’s expense, and (2) the duty of a principal to answer for the-acts of its agent in the course of his employment. While we have concluded that the second principle is sufficient, we shall briefly discuss the first to indicate-our reasons for placing our affirmance on the second.

It will be observed that the purpose of the cashier-in using Murphy’s money was to satisfy his (the-cashier’s) hidden obligation to the plaintiff and that the net result of the double embezzlement was to place-the plaintiff in the same position it would have occupied had there been no embezzlement at all. The question is whether under such circumstances it is inequi■table to permit the sfutus quo to stand. Would it result in the unjust enrichment of plaintiff?

On this subject we find Section 142, Restatement of Law of Restitution, in which it is stated that:

“(1) The right of a person to restitution from an■other because of a benefit received is terminated or ■diminished if, after the receipt of the benefit, circum.stances have so changed that it would be inequitable to require the other to make full restitution.

“2) Change of circumstances may be a defense or a partial defense if the conduct of the recipient was not ■tortious and he was no more at fault for his receipt, retention or dealing with subject matter than was the ■claimant.

“(3) Change of circumstances is. not a defense if

“(a) the conduct of the recipient in obtaining, retaining or dealing with the subject matter was tortious, or

“(b) the change occurred after the recipient had knowledge of the facts entitling the other to restitution and had an opportunity to make restitution.”

And in the “Comment” on this section at page 570, it is said:

“Likewise, although the money so obtained has been used for the payment of the principal’s debts, if thereby the agent is enabled to steal other money from the principal, the fact that the principal has received no net benefit from the payment would prevent the ■existence of a duty of restitution.”

And under “Illustrations” at page 573 this example is stated:

“A, without authority, but having power to bind B thereby, borrows $1000 from C purporting to be ■acting for B. A retains this for his own purposes. To prevent discovery, he borrows $1000 from D, purporting to act for B, but this time without power to bind him. With this he pays C and averts discovery, in the-meantime embezzling larger sums from B. B is under no duty of restitution to D.”

Referring to the general rule, permitting a right of recovery from a principal who, with knowledge of the-facts has received money through the unauthorized act of his agent on the theory that the retention of the money is a ratification of the agent’s act, it is stated in. 2 American Jurisprudence, 183:

“But the principal cannot be said to have received' the benefit of an unauthorized loan where the sum-borrowed does not increase his money in hand or the-amount he is entitled to receive from his agent, or where the money is not used to extinguish outstanding-liabilities against him, and, accordingly, the general rule is held not to apply where the agent, being in default to his principal, borrows money in the principal’s-name and uses it to make good his defalcation.”

The opposite conclusion was reached in Duffy v. Scott, 235 Wis., 142, 292 N. W., 273, 129 A. L. R., 487. The cases on this subject are collected in an annotation to this case in A. L. R. from which it appears that, the weight of authority is against the right of recovery.

We have been referred to no Ohio case on this subject. In view of that fact, our inclination would be to hold in accord with the Restatement and the weight of' authority that such circumstances do not show an unjust enrichment, therefore, no cause of action arises.

However, if the act of receiving this money for safekeeping was within the apparent authority of the-cashier, recourse to the principle of unjust enrichment was not necessary to impose a liability. We think the trial court was justified in so finding.

By Section 9648, General Code, building and loan associations are expressly authorized to receive money-on deposit. This section was applied in Vance, Exr., v. Warner et al., Recrs., 129 Ohio St., 357, 195 N. E., 704, in which the court held that the stockholders of a building and loan association were subject to a double liability upon their stock under Section 3 of Article XIII of the Constitution of Ohio, as it then existed, just as stockholders in corporations organized under the banking laws were liable.

We have found no case dealing with the liability of building and loan associations for special deposits, but have found cases dealing with the liability of banks for. such deposits. Whether the money was accepted for future credit drawing interest or dividend, or it was accepted for safekeeping, and to be returned in specie on demand, we are of the opinion that the act of the cashier was within the scope of his apparent authority and, therefore, was binding upon the plaintiff, whose agent he was.

In 7 American Jurisprudence, 195, Section 264, it is said:

“It has also been settled that the receipt of special deposits for safekeeping is within the power of national banks, and the power of the cashier to receive them and to bind the bank may be inferred from the usage and custom of the bank.”

In Pattison v. Syracuse National Bank, 80 N. Y., 82, 36 Am. Rep., 582, the court analyzed the cases on this subject as to both state and national banks. The court held as stated in the syllabus that:

“The power to receive special deposits is incidental to the business of banking.

“The term ‘special deposits’ includes money, securities and other valuables delivered to banks, to be specifically kept and re-delivered; it is not confined to securities held by the banks as collateral to loans.”

At pages 94 and 95, the court said:

“A reference to the history of banking discloses that the chief, and in some cases the only, deposits received by the early banks, were special deposits of money, bullion, plate, etc., for safe-keeping, to be specifically returned to the depositor; that such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and that the same business was done by the Goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done. The definition of the business of banks of deposit, in the encyclopaedias, embraces the receiving of the money or valuables of others, to keep until called for by the depositors. (1 Encyclopaedia Americana; Bank 543; 1 English Encyclopaedia of Arts and Sciences, 833, 837, 841.) And although, in modern times, the business of receiving general deposits has constituted the principal business of the banks, it cannot be said that the receiving of special deposits is so foreign to the banking business, that corporations authorized to carry on that business are incapable of binding themselves by the receipt of such deposits.”

In American National Bank v. E. W. Adams & Co., 44 Okla., 129, at page 132, 143 P., 508, L. R. A., 1915B, 542, it is said: ‘ ‘ The rule that a bank is bound by the acts of its cashier in accepting deposits which come within the scope and meaning of the term ‘special deposits,’ has become so well settled as to admit of but little question.”

In the syllabus to Busher, Clerk of Courts, v. Fulton, Supt., 128 Ohio St., 485, 191 N. E., 752, it is stated that: “A ‘special deposit’ is a deposit for safe-keeping, to be returned intact upon demand. The relationship of bailor and bailee is created between the depositor and the bank. ’ ’

See, also, 9 Corpus Juris Secundum, 562.

By Section 9648, General Code, building and loan associations are authorized to receive money on deposit without any qualification as to the kind of deposit or the terms of the deposit other than that no more than the legal rate of interest should be paid.

We, of course, are not holding that an Ohio building and loan association has all the characteristics and is governed by all the banking laws of the state. We do hold, however, that where a building and loan association places its business of accepting deposits in charge of an agent held out by it to the public as its cashier, and such officer or agent accepts a deposit either for the purpose of creating the relation of debtor and creditor or of bailor and bailee, such building and loan association becomes bound to the depositor according to the terms agreed upon by its cashier. This is in'accordance with the long-established rule that the cashier is the chief executive officer of a bank. 7 American Jurisprudence, 187, Section 253.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Gardell, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
    (No. 7062
    Decided April 4, 1949.)

      Mr. J. G. Williams, for appellant.

      Mr. Leo J. Brumleve, for appellee.
   Hildebrant, J.

Plaintiff was injured in a collision between the automobile in which she was seated and one of defendant’s streetcars. On trial, on the question of damages alone, the jury returned a verdict for plaintiff, upon which a judgment was pro forma entered.

On defendant’s motion for new trial, duly filed, the following entry, entitled “Entry Setting Aside Judgment and Ordering New Trial” was journalized:

“This cause coming on to be heard upon the defendant’s motion for new trial and the plaintiff’s motion for reconsideration of decision on motion for new trial, was argued by counsel and submitted to the court, who, being fully advised in the premises, finds that the statements of counsel for the defendant in his argument and the statements of counsel for the plaintiff in his closing argument ‘were improper and prejudicial and are of such a nature as to prevent a fair and impartial trial,’ by reason of- all' of which the court hereby sets aside the judgment heretofore rendered herein and orders a new trial.

‘ ‘ To all of which the plaintiff excepts. ’ ’

That is the order appealed from to this court.

Defendant has moved to dismiss the appeal as not being predicated upon a final order.

By judicial construction of the amended Constitution of 1912, Section 6, Article IY, defining the jurisdiction of the Courts of Appeals, the term “judgments” was held to comprehend all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of the parties affected thereby. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620. In the second paragraph of the syllabus it is stated:

“An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it.”

The Appellate Procedure Act (Section 12223-27, General Code), in providing for the exercise of the appellate jurisdiction in appeals on questions of law, refers to judgments and final orders, so that both by judicial and legislative construction, not only judgments in the technical sense, but final orders also are reviewable on appeal.

Effective August 23, 1937, the Legislature amended Section 12223-2, General Code, by providing that vacating or setting aside a general verdict of a jury and ordering a new trial was a final order. Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221, held the amendment unconstitutional, and stated in the second and third paragraphs of the syllabus:

“An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.

‘ ‘ The jurisidiction of- the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action. ’ ’

The present amended Section 12223-2, General Code,passed after the constitutional amendment of Novem"ber 7,1944, effective January 1, 1945, became effective on September 30, 1947. The petition herein was filed on October 15, 1946, so that Section 12223-2, General Code, in its present form has no application to this case. Von Gunten v. New Justice Coal Co., 147 Ohio St., 511, 72 N. E. (2d), 253.

In Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, it is stated in the first and second paragraphs of the syllabus:

“The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

It thus clearly appears that under the Constitution as amended in 1912, in the absence of an abuse of discretion, the granting of a motion for new trial is not an appealable order.

The Constitution as amended on November 7, 1944, effective January 1, 1945, now provides:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district. * * * All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed; provided, that all cases, actions, or proceedings pending before or in any board, commission, officer, tribunal, or court on the first day of January, 1945, shall be heard, tried, and. reviewed in the same manner and by the same procedure as is now authorized by law.”

It is contended that since the Legislature may now by law provide the jurisdiction of the court that the statutes now in force, Section 12223-2, General Code, defining a final order, and Section 12223-27, General Code, providing for appeal on questions of law of a judgment or final order, and Section 12223-3, General Code, making every final order reviewable, as later provided, somehow make the order here reviewable as a final order.

It has been pointed out hereinbefore that Section 12223-2, General Code, as amended, effective September 30, 1947, does not apply in this case, and that the law under the statute in its earlier form was fixed in Hoffman v. Knollman, supra.

In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649, it is stated in the syllabus:

“1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

“2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

The court has not overlooked the query which occurs as to the effect of the amended statutory definition of a new trial, Section 11575, General Code, and the changed character of the motion as being addressed to the vacation of a judgment as set forth in Section 11578, General Code. This court has expressed its views on that query in McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225, to which reference is hereby made.

Nevertheless, the object of the motion remains the same, viz., to secure a retrial free from prejudicial error, and the fact that a pro forma judgment, tentatively entered, is set aside is incidental to the object of the motion, and, on its being’ g’ranted, the order does not in effect determine the action and prevent the judgment, since, on retrial, the same result, for aught that is known, may obtain.

Attention is directed also to the language of Section 12223-2, G-eneral Code, in effect at the time of the adoption of the 1944 amendment of Section 6, Article IY, of the Ohio Constitution, and representing the conception of the bench and bar at that time as to the definition of a final order, to wit: An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment. This court adheres to the view taken by it in Ryan v. Kroger Grocery & Baking Co., 56 Ohio App., 469, 11 N. E. (2d), 204, wherein it is stated in paragraph one of the syllabus :

“A judgment or final order from which an appeal may be taken to the Court of Appeals is one that divests some right in such a manner as to place it beyond the power of the court making it to place the parties in their original position after the expiration of the term at which it is made.”

Prom an examination of the record, this court finds no abuse of discretion on the part of the trial court in granting a new trial.

The appeal is, therefore, dismissed.

Appeal dismissed.

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


author: Guernsey, J.

text:
    The National Bank of Lima, Admr., Appellee, v. Hancock et al., Appellants.
    (No. 969
    Decided December 7, 1948.)

      Messrs. Reid <& Davison and Mr. Oren E. Dickason, for appellee.

      Messrs. Meredith é Meredith, Messrs. Woolley, Rowland <& Bridgewater and Mr. R. W. Kilbourne, for appellants.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Probate Court of Allen county, in an action instituted therein by The National Bank of Lima, Lima, Ohio, administrator of the estate of Sadie D. Musser, deceased, who died intestate, to determine the heirs of the decedent, entitled by the law of the state to inherit such estate. The judgment sustained general demurrers to the amended answers and cross-petitions of the defendants, claiming as heirs through the blood line, to the answers of the defendants, claiming to be the heirs of the decedent through the adoption line, and dismissed such answers and cross-petitions.

In the amended answers and cross-petitions, to which the demurrers were sustained, the following facts are pleaded:

Sadie D. Musser was born on July 23, 1876, near West Hope in Henry county, Ohio. Her mother was Rebecca Wilcox, an unmarried woman, and her father unknown. Decedent’s mother, Rebecca Wilcox, on September 24, 1884, married one Michael Bonner, and of this marriage one child, Frank A. Bonner was born on October 17, 1885. Frank A. Bonner married Jessie Mae Romaker on February 29, 1908, and of this marriage defendant Thelma Bonner Hancock was born on March 6, 1909, defendant Charles N. Bonner was born on August 30, 1910, and defendant George E. Bonner was born on May 21, 1930. Of the marriage of Frank A. Bonner and Jessie Mae Romaker no other children were born. Sadie D. Musser survived Rebecca Wilcox and Frank A. Bonner, her mother and half brother, respectively.

Sadie D. Musser was adopted by Thomas and Rachael Dickerson of Lima, Ohio, on December 20, 1880, and the proceedings of the adoption are recorded in the Probate Court of Allen county, Ohio. Thomas and Rachael Dickerson had one son, William Dickerson, who died on April 30,1946, without issue. Neither Thomas Dickerson nor Rachael Dickerson survived Sadie D. Musser.

Sadie D. Musser, on August 17,1903, married Julius Custis Musser and no children were born of this marriage. Julius Custis Musser died leaving his' surviving spouse and no children or their lineal descendants.

Decedent was known during her lifetime as Sarah Wilcox, Sarah Dickerson and Sadie D. Musser.

After the adoption of Sadie D. Musser by Thomas and Rachael Dickerson, Thomas Dickerson died leaving his wife, Rachael, surviving him. The maiden name of Rachael Dickerson was Rachael Disman and her mother and father were dead prior to the decease of Sadie D. Musser and she had the following brothers and sisters, George Disman, John Disman, Joseph Disman, Israel Disman, Elizabeth Disman, Anna Dis-man, Sarah Disman Gaunsaulus, and Hannah Disman Matthews.

All such brothers and sisters predeceased Sadie D. Musser.

The defendants Rose Ageter and William T. Ageter are the sole and only heirs at law of George Disman, and the defendant Fred S. Disman is the sole and only heir at law of John Disman.

Joseph Disman, Israel Disman, Elizabeth Disman and Anna Disman died without issue and left no surviving spouse or lineal descendants.

Hannah Disman Matthews and Sarah Disman Gaunsaulus predeceased Sadie D. Musser. Hannah Disman Matthews upon her decease left six children surviving her, to wit: Candace Matthews Richmond, since deceased, who left as her sole heirs and next of kin two children, Deane Richmond, London, Ohio, and Louise Richmond, London, Ohio, both of whom are now of legal age; May Matthews Briggs, Newark, Ohio; Herman Matthews, Miami, Florida; Loren Matthews, Washington, D. C.; Harry Matthews, R. D., Athens, Ohio, and Cora Matthews, Kelso Rest Home, Sedalia, Ohio.

Defendants Joseph E. Linville, Marie G. Klinger, Myrtle G. Jones, Estella G. Hoffman, Florence G. Beck, Nana G. Quay, Lena G. Owens and Hoyt GaunsauJus are the sole and only heirs at law of Sarah Dis-man Gaunsaulus.

Among the assets shown in the inventory of the estate of the decedent, Sarah D. Musser, is an amount of money represented as $10,869.98, which is partly represented by a certificate of deposit in The City Loan & Savings Company, in the amount of $6,220.94 and interest. The certificate of deposit is the identical money and deposit which the decedent received by inheritance from her brother by adoption, William Dickerson, at the time of his death on April 30, 1946, and from a joint and survivorship account between Sadie D. Musser and her adopting mother, Rachael Dickerson, in the amount of $3,110.47.

In addition to the foregoing, some of the other assets of the estate came to Sadie D. Musser from the Dis-man family, her adopting ancestors.

William T. Ageter and Rose Ageter claim to be heirs of the estate of the decedent, as lineal descendants of George Disman, one of the brothers of Rachael Dis-man Dickerson, the adopting mother of Sadie D. Musser.

Fred Disman claims to be one of the heirs of the estate of the decedent as a lineal descendant of John Disman, one of the brothers of Rachael Disman Dickerson.

Loren Matthews, Harry Matthews, Cora Matthews, Herman Matthews, Mae Matthews Briggs, Deane Richmond and Louise Richmond claim to be heirs of the estate as lineal descendants of Hannah Disman Matthews, one of the sisters of Rachael Disman Dickerson.

Joseph E. Linville, Marie G. Klinger, Myrtle G. Jones, Estella G. Hoffman, Florence G. Beck, Nana G. Quay, Lena G. Owens and Hoyt Gaunsaulus claim to be heirs of the estate as lineal descendants of Sarah Disman Gaunsaulus, one of the sisters of Rachael Dis-man Dickerson.

Thelma Bonner Hancock, Charles N. Bonner and George E. Bonner claim to be heirs of the estate through the blood line by reason that they are the only children and heirs at law of Frank A. Bonner, brother of the half blood of the decedent.

The general demurrers of the defendants of the blood line to the amended answers and cross-petitions of the defendants of the adoption line effectively raise the issue as to the right of succession and inheritance to the property of the decedent, as between the blood kin and the adoption kin.

The judgment of the Probate Court sustaining the demurrers and dismissing the amended answers and cross-petitions constituted an adjudication that the adoption line had no right of succession or inheritance to any of the property of the decedent.

The questions raised by the general demurrers are: First, whether, under the laws of Ohio when an adopted child dies intestate without a spouse or issue surviving her, intestate property passes to her blood kin or to her adoption kin and, second, if it is the rule of law that such intestate property passes to the blood kin of the decedent, whether an exception exists to such rule whereby property inherited by the deceased adopted child from her adopting mother and her brother by adoption, identifiable at death of decedent as identical, passes to the adoption kin of decedent.

To determine these questions it is necessary to review the statute relating to legal rights and obligations on adoption, which from time to time has been designated as Section 3140, Revised Statutes, Section 8030, General Code, Section 10512-19, General Code, and is now designated as Section 10512-23, General Code.

The first statute relating to legal rights and obligations on adoption was passed in 1859 (56 Ohio Laws, 83). It provided:

“* * * the natural parents shall be divested of all legal rights and obligations in respect to such child,, and the child shall be free from all legal obligations of obedience and maintenance in respect to them, and shall be, to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all the rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in-lawful wedlock: provided, that on the decease of parents who have adopted a child or children under this act, and the subsequent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin, and not to-the next of kin of such adopted child or children.”

This adoption law remained unchanged until 1891. The change made at that time (88 Ohio Laws, 556) did not in any way modify the provisions of the original law hereinbefore quoted.

The law was again amended in 1921 (109 Ohio Laws, 179) to read as follows:

“* * * the natural parents of the child, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them; and the child shall be free from all legal obligations of obedience or otherwise to such parents; and the adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock; and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; provided, such child shall not be capáble of inheriting property expressly limited to the heirs of the body of the adopting parent or parents; and provided also, on the death of the adopting parent or parents and the subsequent death of the child so adopted, without issue, the property of such deceased parent or parents shall descend to and be distributed among the next of kin of said parent or parents and not to the next of kin of the adopted child; and provided, also, if such adopting parent or parents shall have other child or children, then the children by birth and adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock. Nothing in this act shall be construed as debarring a legally adopted child from inheriting property of its natural parents or other kin.”

The next revision in the law was made in 1931, effective January 1, 1932 (114 Ohio Laws, 474).

The only pertinent change in this revision was that, after the phrase relating to the incapacity of the adopted child of inheriting property expressly limited to the heirs of the body of the adopting parent or parents, the following clause was added:

“But shall be capable of inheriting property expressly limited by will or by operation of law to the child or children, heir or heirs at law, or next of kin, of the adopting parent or parents, or to a class including any of the foregoing.”

Effective January 1, 1944 (120 Ohio Laws, 440), there was another revision.

The statute as last revised contains in the main the same provisions as the 1932 revision, except that the proviso, that the property of the adopting parents shall descend to the next of kin of the adopting parents, rather than to the next of kin of the adopted child, on the death of such adopting parents and the subsequent death of the adopted child without issue, is omitted.

As material changes in the statute as it existed at the time of the adoption in 1880 occurred prior to the death of the adopted child, it is necessary to determine whether the rights of succession and inheritance of the parties to this action are governed by the statute as in effect at the time of the adoption, or the statute as in effect at the time of the death of the adopted child.

In the case of Rodgers, Jr., Gdn., v. Miller, Trustee, 43 Ohio App., 198, 182 N. E., 654, it was held, in paragraph three of the syllabus, that the rights of adopted children to take under a trust deed antedating the adoption were fixed by statute in effect when they were adopted, not the statute as subsequently amended.

It will be noted that this holding applies only to the rights of adopted children to take under a trust deed and has no application to their right of succession and inheritance under statutes of adoption and statutes regulating descent and inheritance.

We have been unable to find any reported case in Ohio determining whether in a case such as the instant one the adoption statute as in effect at the time of adoption or the adoption statute as in effect at the time of the death of the adopted child governs the rights of succession and inheritance, but we have found a Wisconsin case determining this question, entitled In Re Estate of Hood, 206 Wis., 227, 239 N. W., 448, and which is cited in 2 Corpus Juris Secundum, 458, Section 64.

In a well considered opinion in that case, the court held that a statute enacted after adoption and in force at the decease of the adopted child determines succession and inheritance.

The reasoning upon which this determination is based is as follows:

A statute relating to succession and inheritance to and from adopted children does not give to past acts .a new effect upon mutual rights or liabilities. Nor does it change or affect existing rights. Rights by inheritance in an estate do not accrue until the death of the owner intestate. A law providing for the future descent of property is prospective. The statute in question, at its passage, related to future inheritances by adopted children. It conferred or took away no present right. A law of inheritance making a change in the prior law as to adopted children — a numerous, permanent, existing class of persons— does not differ in principle from a law making a change in the rules of inheritance of property by force of the relationship of husband or wife or through the relationship between other classes, and no different rule of construction of a statute effecting such change is required.

We adopt the holding of the Supreme Court of Wisconsin, above mentioned, as a correct statement of the law applicable to the adoption statutes of Ohio.

We will now consider the proper construction of the Ohio adoption statute so far as it relates to the succession and inheritance of intestate property.

The statute in its original form was first considered by the Supreme Court of Ohio, in the case of Upson, Admr., v. Noble, 35 Ohio St., 655. That case involved the determination of the question whether the personal estate of an adopted child, dying intestate and leaving its natural mother, its adopting parents and children of the adopting parents surviving, passed to-the natural mother or to the adopting parents and their children born in lawful wedlock.

The court decided that such property passed to the-natural mother, to the exclusion of the adopting parents and their children born in lawful wedlock.

In its opinion, the court based its decision on the-following propositions of law:

1. The right of succession to intestate property, in-this state, is regulated by statute law.

2. The rightful distribution of the intestate property of an adopted child depends upon the construction-of the statute of adoption and the statute regulating, the descent and distribution of intestate property,, which statutes are in pan materia.

3. The statute of adoption, so far as it changes the general course of descent and distribution of intestate property and ignores all merit on account of blood,, should be strictly construed.

4. The General Assembly, in the enactment of the-statute of adoption, other than the proviso therein which explicitly created rights of inheritance varying from those incident to the natural relationship-between the adopted child and its kindred by blood, was dealing with personal rights and duties growing out of the relation of parent and child by transferring them from the natural to the adopted relative.

5. From the proviso of the adoption statute, which is in .these words, “provided, that on the decease of" parents who have adopted the child or children under this act, and the subsequent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin, and not to-the next of kin of such adopted child or children,” it must be inferred that the legislative intent was that, but for the proviso (which was in the statute of adoption of Ohio until January 1, 1944), the inheritance would be transmitted from an adopted child to his or her own kindred of blood, and that this proviso was enacted for the purpose, under the circumstances stated, to preserve an inheritance from the adopting parents, to pass through or from the adopted child, to the next of kin of the adopting parents.

The above-mentioned propositions of law are in conformity with the general rule of law stated in 1 American Jurisprudence, 654, Section 55, as follows:

“The view generally taken, however, has been that as adoption was unknown to the common law, and rests upon statutes entirely, an adoption varies the incidents of the natural relationship between the adopted child and its kindred by blood only as the statute explicitly so provides, and, accordingly, that the property of an adopted child will descend to its relations by blood rather than to its relations by adoption unless the statute, by explicit provision or necessary construction, excludes the former in favor of the latter.”
“It was well said in Upson v. Noble, 35 Ohio St., 658, that in passing the adopting statute ‘the Legislature was dealing with personal rights and duties growing out of the relation of parent and child, by transferring them from the natural to the adopted relation. ’
“The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit cannot be extended beyond where the statute-has fixed it. The statute in this regard must be strictly construed, as held in 35 Ohio St., 658.”

The Upson and Phillips cases, supra, were approved: and followed in the case of Russell v. Jordan, 58 Colo., 445, 147 P., 693, the statute relating to adoption in the state of Colorado having been adopted bodily from the Ohio statute relating to the same subject matter.

The Ohio adoption statute, in its original form, was-further considered by the Supreme Court of Ohio, in the case of Ransom, Admr., v. New York, Chicago & St. Louis Ry. Co., 93 Ohio St., 223, 112 N. E., 586, L. R. A. 1916E, 704, in which it was held that under the federal statute for recovery of damages for wrongful death, by personal representative, and the Ohio-statute to the same effect, the words, “parents,” and,, “children,” are used without any limit or qualification, and include adopting parents and adopted children as the natural parents and natural children; and that under the Ohio adoption statute the adopting parents, as against the wrongdoer, have the legal right to recover for the wrongful death of their adopted child.

It was held further that in applying the adoption statutes the court should give effect to the sound and' wholesome humanitarian policies designed to be promoted by their enactment.

But the holding that the adopting parents are entitled to recover for the wrongful death of the adopted' child is predicated solely upon the proposition that the statute of adoption prescribed that the natural parent is “divested of all legal rights,” one of which is the-right to recover through the personal representative-damages for the wrongful death of a son, and that the natural parent being divested of such right, such legal rights vested in the adopting parents.

The question of the right of succession and inheritance to intestate property was not involved or considered in the decision, nor were the above-mentioned decisions of the Supreme Court relating to the right of succession and inheritance of intestate property, mentioned or considered, so it is clear that in its decision the court did not intend to, and did not, overrule or modify its former holdings, and that the rule of construction adopted by it has no application to rights of succession and inheritance under such statute.

The statute, in its original form, was further considered by the Supreme Court in the case of Kroff v. Amrhein, 94 Ohio St., 282, 114 N. E., 267.

That case involved the question of the right of succession and inheritance to real estate of adopting parents who died intestate subsequent to death of adopted daughter, as between the' devisee of the daughter of such adopted child, who survived her mother, and the kin of the deceased adopting parents, in which it was held that the devisee of the child of the adopted child inherited the property to the exclusion of the kin of the adopting parents, as the facts in the case did not bring it within the proviso to the adopting statute hereinbefore quoted.

In the opinion in that case, Judge Wanamaker, who wrote the opinion in the case last above mentioned, recurred to the principle that the court should apply the language of the adoption statute in the broad and humane spirit in which it was written into the law and policy of this state.

That legal conclusion was not necessary to a decision of the case and was obiter. But giving it full force and effect, the application of such rule of construction is limited to provisions designed for the benefit of the adopted child and its issue.

In the Kroff case, the decisions of the Supreme Court, hereinbefore mentioned, relating to the rights of succession and inheritance, were not mentioned or considered, so it is clear that in the Kroff case the court did not intend to, and did not, overrule or modify its former holdings.

After diligent search we find no case in which the decision in the Upson case, as to the proper construction of the adoption statute so far as it relates to rights of succession and inheritance, is questioned, overruled or modified, so we must conclude it establishes the law of Ohio on the subject.

However, the claimant kin of the adopted child decedent through the adoptive line contend that the Up-son case is not applicable to the construction of the adoption statute in its present form, by reason of the amendments to such statute hereinafter mentioned, which became effective after that case was decided, and that under the present form of the statute they have the right of succession and inheritance to the property of decedent, to the exclusion of her kin by blood.

The first amendment on which they rely as sustaining this contention, is the amendment of the statute in 1921, whereby the phrase, “the natural parents * * * shall * * * be divested of all legal rights and obligations in respect to the child”, was changed to read “the natural parents of the child, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them.”

They argue that this amendment had the effect of cutting off the child for every purpose from her natural blood kin, including her right to transmit by inheritance to such blood kin.

The phrase, as amended, does not explicitly prescribe rights of inheritance varying from those incident to the natural relationship between the adopted child and its kin by blood, so that, under the Upson case, the change in the form of the statute cannot be construed as affecting rights of succession and inheritance, and its application is limited to rights other than rights of succession and inheritance.

The second amendment on which they rely as sustaining their contention, is the amendment in the adoption act of 1921, prescribing “if such adopting parent or parents shall have other child or children, then the children by birth and adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock.” Under that provision, it is argued collateral kin through the adoptive line have the right of succession and inheritance from the adopted child.

The descent and distribution of intestate property is governed by the provisions of Section 10503-4, General Code. The part thereof pertinent to a consideration of this contention reads as follows:

“When a person dies intestate having title or right to any personal property, or to any real estate or inheritance in this state, such personal property shall be distributed, and such real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course: * * *
“6. If there be no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes. ’ ’

This statute is in pari materia with the adoption statute, so where the words, “brothers and sisters,” are used, it is clear that such phrase is intended to include brothers and sisters by adoption.

It will be noted in the instant case that, as the adopted child decedent left no spouse, no children or their lineal descendants, and no parents surviving, the provisions of subdivision six of Section 10503-4, applies to such rights of inheritance as the brother by adoption may have had to inherit from and through the decedent.

It will be further noted that under such subdivision, such right of inheritance of the brother by adoption is limited to him and his lineal descendants, per stirpes, and that such right does not extend to his collateral heirs.

As the brother by adoption predeceased the decedent adopted child, leaving no issue surviving him, any right of inheritance through him to the intestate property of his sister by adoption expired upon his decease, and the claimant kin of the adoptive line, not coming within the class of lineal descendants of the brother by adoption, are not entitled to claim any right of inheritance through him.

The third amendment upon which the claimant kin of the adoptive line rely as sustaining their contention, is the amendment in the act of 1921, prescribing:

“Nothing in this act shall be construed as debarring a legally adopted child from inheriting property of its natural parents or other kin.”

In the statute as amended in 1921, new channels of inheritance were explicitly prescribed for the adopted child through his adoptive parents, and from them through his brothers and sisters by adoption, and for his brothers and sisters by adoption by and through the adopted child.

The rights of inheritance incident to the natural relationship between a child and its kindred by blood are reciprocal. Their character may be changed only by explicit provisions of statute.

As the rules of construction prescribed by the amendment preserve to the adopted child the right of inheritance from its natural parents and other blood kin, it impliedly preserves to the parents and other blood kin, the right of inheritance from the child except as otherwise specifically prescribed, as above mentioned.

Thus, the amendment referred to simply constitutes a statutory affirmation of the rule of law, established by the Opson case, that the parents and blood kin of the adopted child have the right of inheritance and succession to his or her intestate property, except as otherwise explicitly prescribed.

The fourth amendment of the adoption statute, upon which the claimant kin of the adoptive line rely as sustaining their contention, is the amendment to the adoption act, effective January 1, 1944, repealing the original proviso to the adoption act mentioned in the Upson case.

Although the decision in that case was to some extent predicated on the existence of the proviso, it was by reason of the proviso explicitly prescribing rights of inheritance varying from those incident to the natural relationship between the adopted child and its kindred by blood.

Since the Upson case, many of the amendments to the original statute prescribe rights of inheritance varying from those incident to the natural relationship between the adopted child and its kindred by blood, and although the proviso mentioned has been repealed, these amendments are in effect, so that the rules of construction in that case and the rules of law established in that case are applicable to the statute in its present form, and kin of the adoptive line may inherit from an adopted child only where the statute explicitly so prescribes.

As above stated, there is no explicit provision of the adoption statute or the statute of descent and distribution under which the claimants of the adoptive line who are collateral kin of the decedent have any right of succession or inheritance from dr through the decedent.

If the proviso in the original statute had not been repealed, the adoptive kin of the decedent would have the right of succession and inheritance to the specific property the decedent inherited from her adoptive mother, but not to the property inherited from her brother by adoption. However, the statute of adoption, as in effect at the time of the death of the decedent, contained no provision explicitly prescribing such right of inheritance, so in the absence of such explicit provision, the right of succession and- inheritance to such property inures to and is vested in the kin of the blood of the decedent.

For the reasons mentioned, we find no error in the judgment of the Probate Court, and the same is, therefore, affirmed.

Judgment affirmed.

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


author: Matthews, J.

text:
    Madget, Appellant, v. Madget et al., Appellees.

      (No. 7059
    Decided February 21, 1949.)

      Mr. Raymond Huwe, for appellant William Madget.

      Mr. Jack G. Williams, for appellee Alma Madget.

      Mr. Harry E. Marble, for appellee Metropolitan Life Insurance Company.
   Matthews, J.

The trial court sustained a general demurrer to the amended petition and the plaintiff not desiring to plead further, judgment was rendered dismissing the action. This appeal is from that judgment.

The amended petition purports to state three causes of action. As his first cause of action, the plaintiff in substance alleges that he was the insured in a matured life insurance policy; that he had paid the premiums for the first 19 years and the defendant, Alma Madget, who was and is his wife, paid the premiums for the last year and until the policy matured; that thereafter the defendant insurance company issued a check for $442.80, payable to him and his wife; that his endorsement was forged on the check; that his wife appropriated the entire amount of the check to her own use; and that he “was the owner of 19/20ths of said $442.80, that said 19/20ths is his separate property and interest therein.’’ He alleged also that his wife had become a constructive trustee of the proceeds of the check; that he and his wife were not living together at the time she appropriated the check and its proceeds; and that he was entitled to 19/20ths thereof. He prayed judgment for that amount.

As his second cause of action, the plaintiff alleges that he is entitled to the immediate possession of 19/20ths of the money collected by his wife on the check referred to in the first cause of action; and that he is informed and believes that his wife has the money or a sum equal thereto on deposit in The Provident Savings Bank & Trust Company “or in some other bank or financial institution.” He asks that his wife be enjoined from withdrawing the money on deposit in the financial institutions.

As a third cause of action, the plaintiff alleges that he is the insured in two other life insurance policies (numbered 12764745a and 15166844a) issued by the defendant insurance company, having a present value of something over $1,000; that he had paid the premiums for 7 years and his wife had paid them for 2 years on one policy and he was “entitled to 7/9ths of the present value of that policy”; that he had paid the premiums on the other policy for 18 years and his wife had paid them for 2 years and that he was “entitled to 18/20ths of its present value”; that his wife has possession of the policies; and that unless his wife is required by order of the court to surrender the policies he will be unable to obtain his share of the cash surrender value and will suffer irreparable damage. He alleges also that the defendant insurance company has refused to take any action and has given notice that it will take no action until the rights to the policies or the proceeds thereof have been determined by a court; and that he is unable to determine whether he has the right to change the beneficiary with or without the consent of the named beneficiary and under what conditions when the beneficiary has paid part of the premiums. He alleges also that he is unable to determine the rights under the policy that will accrue upon his death.

There are other allegations, but the foregoing are sufficient, we believe, to enable us to apply the determinative principles of law.

The prayer is for a declaration of rights of the plaintiff and his wife in and to the surrender or paid-up value of the policies, and the duties of the defendant insurance company toward the plaintiff and his wife in relation to the surrender or paid-up value of the policies.

It is the contention of the defendant wife that the allegations of the amended petition are insufficient to state a cause of action between persons other than husband and wife, and much less a cause of actiou in favor of a husband against his wife. We shall examine the allegations to determine whether they are sufficient in the abstract to state a cause of action, and then consider whether the fact that the plaintiff is the husband of the defendant Alma Madget prevents a recovery.

(1) While the terms of the insurance policy referred to in the first cause of action are not set forth fully, so as to be sure as to the beneficiary and the power of the insured to change and the right, if any, of the insurer to select the beneficiary, they do show that the plaintiff paid 19 of the 20 premiums and that upon the maturity of the policy the insurer named the plaintiff and his wife as copayees of the check in discharge of its obligation. Surely, those allegations are sufficient to indicate that the plaintiff had some proprietary interest in the check and its proceeds, and the allegations as tó the payments of premiums are a sufficient 'basis to indicate what that interest was.

When to those allegations is added the direct allegation that the plaintiff was the owner of that interest in the check and its proceeds, we think it clear that it is sufficient as an abstract statement of a cause of action when tested by a general demurrer.

In 31 Ohio Jurisprudence, 565, Section 29, it is said: “General averments of ownership are ordinarily considered averments of ultimate facts. Thus, allegations or denials that a party was, at a particular time, the owner or holder of a negotiable promissory note, though perhaps indefinite, are not objectionable on the ground of being mere conclusions of law.”

Then there is another rule of construction that precludes the court from declaring this cause of action insufficient, on general demurrer. This rule is, as stated in 31 Ohio Jurisprudence, 583, Section 49, that in accordance with Section 11345, General Code, which provides for a liberal construction of pleadings, courts “must construe pleadings liberally in favor of the pleader. ’ ’

We do not believe any extended citations of authorities are necessary to support our conclusion. It will be found that the text of Ohio Jurisprudence is supported by the citation of a long list of Ohio cases.

(2) If the second cause of action is sufficient, it must be on the theory that the allegations show the existence of a constructive trust, of which the plaintiff is the cestui que trust, and the defendant wife is the trustee. But for a trust to exist, there must be a trust res. The only possible trust res would be the identical money paid to the wife or a specific fund into which it can be traced. However, there is no allegation that the wife still had the identical money at the time the action was filed or a fund into which it was traced.

That a res is essential to the existence of a trust is fundamental. 40 Ohio Jurisprudence, 186, Section 43. That the res must be identifiable as a separate entity or as a part of an identifiable fund is settled. Barrs, Jr., v. Barrs Rent-A-Car Co., 71 Ohio App., 465, 50 N. E. (2d), 388. “If there is no corpus, there is no trust.” Fulton, Supt. of Banks, v. Gardiner, 127 Ohio St., 77, at 80, 186 N. E., 724. When these principles are applied to the allegations of the second cause of action,, we find them wanting as a statement of a cause of action to enforce a trust.

(3) In this third cause of action it is alleged that the plaintiff is the insured in two specifically identified life policies upon which he had paid certain premiums and his wife had paid other premiums; that his wife has possession of the policies; and that while he owns an interest in the policies commensurate with the premiums paid by him, he has no way of asserting that interest or of knowing his exact rights as against the insurer during his life and upon his death, and, for that reason, he asked for a declaration of his rights by the court. That the courts of Ohio have jurisdiction to entertain an action for a declaratory judgment in a proper case is clear. Section 12102-1 et seq., General Code.

Upon the subject of the averments in a petition in an action seeking a declaratory judgment it is said in 16 American Jurisprudence, 333, Section 64, that:

“In view of the purpose of the statute to settle controversies before they have reached the stage where ordinary legal relief is immediately available, it is clear that the complaint need not state what would be a cause of action apart from the statute. It should, however, disclose the existence, or at least the ripening seeds, of an actual controversy, although it is not essential that it be alleged in so many words that such controversy exists. It should also show that relief is sought under the Declaratory Judgments Act and contain a prayer for such relief, either by itself or in combination with affirmative or consequential relief. ’ ’

The only requirement in pleading in Ohio is that the cause of action or defense shall be stated in ordinary and concise language. Sections 11305 and 11314, General Code. The fact that the allegations are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, is not ground for demurrer. Section 11309, General Code. Such a defect may be cured by amendment. Section 11336, General Code. In discussing the degree of definiteness required in pleading under chancery practice it is said in 31 Ohio Jurisprudence, 603, Section 62, that:

“It was sufficient if the material facts were plainly and succinctly alleged, with the necessary circumstances of time, place, manner, and other incidents; this would seem to be equally true of a petition under the Code, which is largely adopted from principles of equity pleading. Moreover, the rule is considerably relaxed where the facts are peculiarly, and almost exclusively, within the knowledge of the defendant. * * * If the facts in the allegations of the petition are indefinite, uncertain, etc., the proper method of objection is by motion to make-definite and certain. Such an objection cannot properly be raised by demurrer.”

The allegations of the amended petition show that the plaintiff has an interest or ownership in two written insurance policies, in possession of the defendant, that a controversy has arisen not only as to matured rights thereunder, but also as to rights that will mature upon his death, and that he asks for a declaratory judgment as to such matters. It seems to'us that he has brought his case within the specific provisions of Section 12102-2, General Code, providing that: “Any person interested under a * * * written contract * * * may have determined any question of construction or validity arising under the * * * contract.”

In 16 American Jurisprudence, 311, Section 35, it is stated:

“Declaratory judgments have been rendered in numerous cases as to the validity and construction of insurance policies of various kinds and as to the rights arising therefrom.”

We hold that the allegations of the third cause of action in the amended petition are a sufficient statement of an abstract cause of action as against a genera] demurrer.

(4) We are now brought to the question of whether the fact that the plaintiff is the husband of the defendant Alma Madget prevents these causes of action from arising or prevents him from asserting them against her.

In 27 American Jurisprudence, 199, Section 599, it is stated:

“At common law neither spouse can sue the other for a tort on his or her property. However, the view has been taken that the common law merely suspends the remedy for such a tort until discoverture by death or divorce, after which an action can be brought therefor against the other spouse or his or her representative. In some jurisdictions statutes make husband and wife liable to each other for torts by one on the. property of the other. There is a difference of opinion as to whether such liability exists by virtue of Married Women’s Acts. Onder Married Women’s Acts permitting a wife to sue for a tort to her separate property, but not expressly permitting her to sue her husband therefor, she may, despite the absence of an express provision, maintain such a suit against her husband, at least where she is justifiably living apart from him. It has been so held with respect to replevin, detinue, trover and conversion, and trespass and ejectment. Similar actions by a husband against his wife have been held maintainable. However, under some statutes the contrary view has been taken. Some statutes have been construed to enable a wife to maintain a suit in equity against her husband to protect her separate property, but not to enable her to maintain an action at law to protect her property against his claims or acts.”

This common-law incapacity of the wife to resort to the courts to assert rights in personal property owned by her constituted no real limitation upon her right to sue because the wife had no title to personal property during coverture. What had or would have been hers was his upon marriage. In 26 American Jurisprudence, 685, Section 57, it is said:

‘‘A wife’s tangible personal property — her goods and chattels — of which she has actual or legal possession, whether such property is hers at the time of marriage or comes to her during coverture, vests, by virtue of their marriage, in her husband under the rule of the common law, and he has the same degree of property therein and the same powers with respect thereto that she, if she were sole, would have; this is true although he asserts no right in such property and does not reduce it into his actual possession. Money in the hands of the wife at the time of marriage becomes the property of the husband, at common law, to the same extent as her chattels.”

This same rule applied to the wife’s choses in action, and to contingent and limited interests, such as-tenancy in common in personalty (Id., 686, section 59), provided he reduced them to possession. Self-help was sufficient for the husband’s absolute dominion. Resort to the courts was unnecessary.

The question is whether the incapacity of the husband to sue his wife, that existed at common law, has survived the Ohio Married Women’s Act, and prevents him from maintaining an action against his wife' upon a cause of action involving property rights not arising out of the marital relation.

Looking at the statutes it would seem that the purpose of the Legislature was to remove all significance to the marital relation, when considering property rights of the husband or wife that did not arise out of and were not dependent upon the marital relation. By Section 7998, General Code, it is enacted that "Neither husband nor wife has any interest in the property of the other” except the right of support, dower and right to remain in the mansion house, etc., as provided by law. By Section 7999, General Code, it is enacted that “A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried,” but, by the following section (8000) the generality of the preceding section is limited so that they are precluded from altering their legal relations except to agree upon an immediate separation and make provision for the support of either of them and their children during the separation.

Now how have these statutes been construed and applied?

We have been cited to no Ohio case in which the right of the husband to maintain an action of this kind against the wife has arisen. There are cases involving the right of the wife to contract with her husband and to maintain an action against him.

In Shafer v. Shafer, 30 Ohio App., 298, 163 N. E., 507, this court held that Sections 7998, 7999 and 8001, General Code, effected a complete emancipation of the wife except as expressly stated in the statutes, and that, therefore, she could maintain an action in partition of real estate against her husband.

In DuBois v. Coen, Exr., 100 Ohio St., 17, 125 N. E., 121, the court was called upon to decide whether notes executed by the husband payable to his wife in consideration of her release of her right to inchoate dower, and after his death to a-year’s support and to live in the mansion house, and a distributive share m his estate, under the laws of Ohio, were enforceable by the wife’s executors. The court construed Section 8000, General Code, and held as stated in the fourth paragraph of the syllabus that:

“The term ‘legal relations’ used in the act comprises not. only the purely marital relations existing between them, but also the property provisions which the law gave to each upon the death of a consort.*’

The court held that as these notes were not given as part of an agreement for immediate separation they were unenforceable. The power and right of the husband and wife generally to contract with one another and to enforce the contracts by action in court was assumed. It was the exception to the general right to contract and sue that was involved.

Speaking of the effect of the “Act to define the rights and liabilities of husband and wife,” passed March 19, 1887 (84 Ohio Laws, 132), the court said at page 21, that “it lifted the wife above the limitations which restricted her contractual powers and put her upon a plane with her husband, thereby giving to her all the freedom of contract which he himself has.”

It should be rioted that the court was sharply divided. Two of the judges were of the opinion that “legal relations’’ meant “marital relations” and that these notes were binding and enforceable in this action.

In Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585, the court was called upon again to construe these sections in an action in which the question was whether dower and distributive share could be released in an agreement contemplating immediate separation. The husband had died and the action was by his heir to quiet title against the claim of the wife for dower. 'The court held that the contract was binding upon the wife and quieted the title against her claim for dower. The only difference between this ease and DuBois v. Coen, Exr., supra, was that in one case the release of dower and distributive share was a part of an agreement for immediate separation, and in the other separation formed no part of the agreement. In Hoagland v. Hoagland as well as DuBois v. Coen, Exr., no question was raised as to the capacity of the plaintiff to maintain the action. It was the power to contract, not the capacity to sue that was discussed. If the capacity to sue was doubted by any one. silence on the subject would have been broken by some one.

In State v. Phillips, 85 Ohio St., 317, 97 N. E., 976, 40 L. R. A. (N. S.), 142, Ann. Cas., 13B, 250, the court was presented with the question of whether the Married Women’s Act taken in conjunction with the section of the Criminal Code defining larceny, authorized the prosecution of the wife for larceny when she had converted to her own use the personal property of her husband. The court held, as stated in the syllabus, that:

“The common-law rule that neither husband nor wife can be prosecuted for larceny of the goods of the other, is not abrogated by Sections 7995 to 8004, General Code, defining the rights and liabilities of husband and wife, nor by Section 12447, General Code, defining larceny. An intention of the legislature to abolish an established rule of the common law and to create a crime where none existed before, must clearly and unmistakably appear.”

Counsel for defendant Madget relies strongly on this language found on page 324 of the opinion:

‘‘ Moreover, the unity of husband and wife, as recognized in the common law, is founded not merely on a community of goods, but upon the recognized obligation of both to the family and to society. The unit of society is not the individual but the family; and whatever tends to undermine the family, by the irrepealable laws of nature will crumble and destroy the foundations of society and the state.”

We think the trend of the court’s reasoning is more adequately shown on page 323 by this language:

“The legislature was contemplating the expressed purpose of the statutes, and that only. They were not at that time considering crimes and criminal procedure; and surely they cannot be presumed to have intended a thing which they did not clearly express and which is fraught with such far-reaching and radical consequences to the law of the domestic relations, for the abrogation of the doctrine of the legal unity of husband and wife, when pushed to its logical conclusion, would uof only create crimes where there were none before, but would also authorize a husband or wife to maintain civil actions for tort against the other, such as actions for personal injuries, assault, false imprisonment, or slander.”

The two dominant thoughts expressed here are that the Legislature in passing the Married Women’s Act did not have in contemplation the creating of crimes and modifying the application of the criminal laws, and that it did not contemplate the creation of causes of action for purely personal torts of the wife against the husband, or the husband against the wife. We believe a reading of the chapter headed “Husband and Wife” (Section 7995 et seq., General Code) makes this manifest. Those sections modify the common law in certain respects. The common-law rights of the husband and wife in the property of the other were abolished, and it was enacted that neither should have any interest in the property of the other except as stated in the statute. With certain stated exceptions, they were given the right to contract as freely with one another and with others as though they were unmarried.

By providing that neither should have any interest in the property of the other except as stated, the Legislature in effect enacted that the state would lend its aid to the husband or wife in preventing the other from invading the property rights of the other. As stated by Justice Cardozo, property is no more than “the bundle of privileges” sactioned by law — and the usual method of securing such property rights is by recourse to the courts for their enforcement, in the proper forum by the appropriate remedy, regardless of whether it would have been called ex contractu or ex delicto at common law. A right conferred by law is a right enforceable by law. There can be no right without a remedy.

When the Legislature enacted that husband and wife might contract with one another as though unmarried except that they could not alter their legal relations, it necessarily meant that the state would assist the promisee to enforce the contractual obligation against the promisor. By so doing, it would be no more than assisting in protecting the property right created by the contract.

We find no case in Ohio denying the right of the husband to maintain an action to recover his property from his wife or seeking damages on account of its conversion. In Finn v. Finn, 19 Ohio App., 302, the court held that the wife could not maintain an action to recover damages on account of personal injuries caused by defendant’s negligence and did make the broad statement in the opinion that “had it been the intention of the Legislature to permit husband and wife to sue each other for injuries to the person or property caused by the other, it surely would have so declared by express and clear legislative enactment,” but that statement was purely gratuitous. Neither State v. Phillips, supra, or any other case cited by the court supports the broad statement. They ail relate to torts causing injury to the person. None of them relates to torts causing damage to property.

Nor have we found any Ohio case holding that the husband could maintain an action in replevin or conversion against the wife. In other jurisdictions, varying results have been reached, depending on the exact wording of the statutes in the different states. We believe in none of them has the Legislature granted greater freedom to contract and to hold property free from the common-law disabilities than Ohio.

In Eddleman v. Eddleman 183 Ga., 766, 189 S. E., 833, 109 A. L. R., 877, the court held as stated in the syllabus, that:

“While the statutes of this state embodied in the Code of 1933, Sections 2-2201, 53-501, 53-502, 53-503, do not purport to change the common law in respect to personal torts committed by one spouse against the other, they do change, the common law in respect to property rights of the wife. With respect to such rights she is a feme sole, and may be sued by her husband in a bail-trover proceeding for recovery of his persona] property converted by her.”

That result was reached in construing a statute which is certainly no broader than our statute. In construing the statute to authorize an action in conversion by the husband against the wife, the court, quoting from an earlier Georgia case, said at pages 769, 770:

“In Huff v. Wright, 39 Ga., 41, 43, it was declared by this court that husband and wife are no longer a unit, one person in law, with all the property vested in the husband as the head of the family, but, so far as property is concerned, two distinct persons, with separate and distinct rights. In a word, the common-law rule upon this subject no longer prevails in this state. Every married woman is, as to her property, a feme sole, with power to purchase, hold and convey property, contract and be contracted with, sue and be sued as a feme sole. This, under the new order of things, being the status of married women as to their property rights and liabilities, why may not this wife be sued as a man could be sued, and made to respond precisely in the same manner, as to all contracts upon which she could bind her estate? We see no reason.”

And, at page 771, the court, after reviewing the authorities, stated its own conclusion thus:

“While the statutes of this state, embodied in the Code, Sections 2-2201, 53-501, 53-502, 53-503, do not purport to change the common law in respect to personal torts committed by one spouse against the other, they do change the common law in respect to property rights of the wife. With respect to such rights she is a feme sole, and may be sued by her husband in a bailtrover proceeding for recovery of his persona] property converted by her. It follows that the Court of Appeals erred in affirming the judgment granting a nonsuit.”

In the case of Geary v. Geary, 338 Pa., 385, 12 A. (2d), 23, the facts bear a striking resemblance to the facts in this case. In that case the husband sued in equity to recover from his wife the possession of three policies of life insurance which she was withholding from him. The husband was the insured and the wife was the beneficiary, with the right reserved in the insured to change the beneficiary. The parties had separated and the wife had taken the policies with her without the husband’s consent. The husband had been ordered to pay for the support of the wife. On this subject, the court said at page 388:

“There is no merit in defendant’s contention that as a creditor of her husband under the order of support she is justified in retaining these policies. They were not pledged to her as security for plaintiff’s obligation, nor has she asserted any facts which would entitle her to such security. It does not appear that plaintiff intends to dispose of the policies without adequate consideration, or that such a disposition would render him insolvent. Furthermore, a creditor may not seize possession of the property of his debtor upon the mere apprehension that a fraudulent conveyance of the property in the future is contemplated.”

And on the right of the husband to maintain the action against the wife to recover his property the court, at page 389, said:

“Since, as we have concluded, plaintiff has the sole right to' possession of the policies evidencing the insurance contracts, the present action is clearly permitted by the quoted provision of the Act. See Schomaker v. Schomaker, 247 Pa., 444 [93 A., 460]; Burke v. Burke, 307 Pa., 518 [162 A., 199]. Regardless of whatever rights defendant may have in the proceeds of the policies, the documents themselves are the ‘separate property’ of the husband within the meaning of the Act, wherein the term is used ‘not * * * in any technical, but in a broad and comprehensive, sense’: Morrish v. Morrish, 262 Pa., 192, 198 [105 A., 83, 85].”

An examination of the legal encyclopedias and textbooks discloses that the divergent results reached by the different courts have resulted from the difference in statutory language. We believe, however, that the distinction between purely personal torts and torts affecting property rights is generally recognized.

In the case at bar, we áre required to determine only whether the plaintiff has any remedy of any sort whereby he can assert his right in the insurance policies against his wife. He prays for a declaration of his rights. On demurrer, it is sufficient if his amended petition shows a right enforceable in any form of action to require the overruling of the demurrer. We are of the opinion that his amended petition shows a right, and that the law affords a remedy.

For these reasons, we are of the opinion that the court erred in sustaining the demurrer.

The judgment is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed.

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