author: WALTERS, J.

text:
    TRUSTS AND TRUSTEES.
    [Highland (4th) Circuit Court,
    October Term, 1909.]
    Cherrington, Jones and Walters, JJ.
    Charles C. Redkey, Exr., v. William Worthington, Admr.
    Instrument Transferrins Money to Trustee for Distribution after Donor’s Death, Providing for Appointment by Probate Court of Successor Upon Death of Trustee and Reserving Right to Revoke such Appointment, Makes Grantor Trustee Upon Delivery of Fund, Passes Present Title to Trustee, and no Revocation having been Effected, Right of Possession Tests in Beneficiaries at Donor’s Death.
    On October 14, 1905, J W being seriously ill, transferred by writing the sum of $6,200 to one M R as trustee to receive and hold and after the donor’s death, to distribute the same to designated beneficiaries therein named, in various amounts. The written instrument provided, that, if M R, the nominated trustee, should die, that the probate judge should nominate his successor, but reserved the right to “revoke this appointment at anytime” during his life. J W drew a check payable to M R, trustee for the amount, and said trustee deposited the same in bank in the name of himself as trustee for J W. Action by J W’s administrator to recover from M R’s executor the amount named as part of J W’s estate. The beneficiaries named in the instrument, by interpleader, also seek to maintain their respective rights to the fund: Held, (1) Under the terms of the instrument M R became the trustee for the beneficiaries therein named, and not the agent or trustee of •the. donor. (2) The written instrument was a valid declaration of trust and passed a present legal title to the trustee, under a trust to deliver the amounts named to the designated beneficiaries after the death of the donor. (3) The requirements and formalities of testamentary disposition are not necessary where the corpus of the property is transferred to a trustee by an instrument containing plain and unequivocal declarations of the trust and its uses, although its ultimate distribution is not to be made until after the death of the donor. (4) The power of revocation in the instrument is construed to - mean a veto upon the appointment that might be made by the probate judge; but should it be construed as a power reserved by the donor to revoke the trust, inasmuch as the power was not exercised in the life of the donor, the trust remained absolute, and at the death of the donor, the property and the right of possession passed to the beneficiaries named. •
    [Syllabus by the court.]

      S. F. Steele, for plaintiff in error.

      John Logan and Post & Reid and Irvin McD. Smith, for defendants in error.

      D. Q. Morrow and Boyd & Slutes, for the Board of Home Missions and Church Extension of the Methodist Episcopal Church, the Woman’s Home Missionary Society of the Methodist Episcopal Church, and the Board of Foreign Missions of the Methodist Episcopal Church.

      D. Q. Morrow and Roettinger & Roettinger, for the Woman’s Foreign Missionary Society of the Methodist Episcopal Church.

      D. Q. Morrow and Wm. W. Prather, for the Methodist Home for the Aged.

      George L. Garrett, for trustee and East Monroe Methodist Church.
   WALTERS, J.

Action by Charles C. Bedkey, as executor of the last will and testament of Martin Bedkey, deceased, against William Worthington, as administrator de bonis non with the will annexed of Joseph Worthington, deceased, the Board of Home Missions and Church Extension of the Methodist Episcopal Church, the Board of Foreign Missions of the Methodist Episcopal Church, the Woman’s Foreign Missionary Society of the Methodist Episcopal Church, the.Woman’s Home Missionary Society of the Methodist Episcopal Church, the Methodist Home for the Aged, the Trustees of the East Monroe Methodist Episcopal ^Church, the Leesburg bank of Leesburg, Ohio, and George L. Garrett, Trustee.

Charles C. Bedkey, as executor, etc., plaintiff in error, against William Worthington, as administrator, etc., defendant in error, is in this court on petition in error to reverse the judgment of the court of common pleas.

Joseph Worthington, a resident of this county, died on May 28, 1906, testate. He appointed Martin Bedkey executor of his will. Martin Bedkey died March 18, 1907, before the 'completion of the settlement of his trust under that will. Charles C. Bedkey was appointed executor of Martin Bedkey’s will. On October 13, 1905, by the testimony as it is shown here, a will was executed by Joseph 'Worthington. Martin Redkey was present and wrote the will. On the morning of October 14, 1905, Martin Redkey repaired to the residence of Joseph Worthington and informed him that after thinking the matter over he was doubtful as to whether or not certain clauses in the will, by which certain associations, which are to be hereafter named, and which were named in a contract or declaration of trust, would be valid, and that there might be some trouble after his death in regard to the same by virtue of the provisions of Gen. Code 10504 (R. S. 5915), of our statutes, which provides that bequests, where persons have lineal descendants, to charitable associations, unless executed within a year before the death of the testator, are invalid. Thereupon the old will was destroyed and it was suggested that these associations or beneficiaries that were named in the will of October 13, should be provided for by what they please to term a “Trust Instrument.”

Thereupon the following instrument was drawn up and signed: ]

“I, Joseph Worthington, of Highland county, Ohio, hereby appoint Martin Redkey a trustee in trust to receive and hold and after my death, disburse the following sum of money and other valuable assets, to-wit: Six thousand two hundred dollars, which sums are to be disbursed as follows, to-wit:

To the trustees of East Monroe Methodist Church, one thousand dollars in perpetuity. ,

To the Foreign and Home Missionary Societies and Women’s Home and Foreign Societies of the Methodist Episcopal Church, one thousand dollars each.

To the Wednesday Club Library Association of Leesburg, Ohio, the sum of two hundred dollars, in perpetuity, the proceeds to be used to pay expense of keeping up said library. In the event the society disbands I direct my said trustee to collect and pay over to the Methodist Church of Leesburg, Ohio, the said sum for the support of the church.

Also in the event of the dissolution of the Angeline Johnson Altruistic Society, to recover the one thousand dollars previously given to it and pay the same to the Methodist Church of Leesburg for the benefit of the poor as provided for in another -paper now on record in the reeorde'r’s office, Hillsboro,. Ohio.

To the Methodist Home for the Aged at Cincinnati, Ohio,, one thousand dollars.

In the event of the death of said trustee, I request the-probate court to appoint a trustee to serve in his stead and complete the trust as above set forth.

.1 reserve the right to revoke this appointment at any time-during my life.

In testimony whereof I have subscribed my name this 14th day of October, 1905.”

Signed “Joseph Worthington.” “Attest: J. W. Rains,. Hattie Leaverton.”

Upon the death of Martin Redkey, the plaintiff below,. William Worthington was appointed administrator de bonis non with the will annexed of Joseph Worthington’s estate, and he, as such administrator, brought suit against Charles C. Red-key and the different associations that are named in the paper which I have just read, for the purpose of recovering for the-estate of Joseph Worthington the sum of sixty-two hundred dollars named therein.

Issues were made up and the whole contention rests upon the construction the court will be pleased to give to this instrument called a “Declaration of Trust,” and signed by Joseph Worthington.

It is claimed on behalf of the administrator for Joseph Worthington that this sum falls back into his estate because the instrument is not such a one as is recognized by law to pass, to the beneficiaries namied, the several sums of money therein provided, and - the first question that presents itself for the consideration by the court is:

Did the instrument executed by Joseph Worthington ere-ate a valid trust, or did it fail by reason of some incompleteness or some informality? ' /

It is claimed on behalf of the attorneys of the personal representative of Joseph Worthington’s estate that the instrument is invalid to pass title to these beneficiaries named, because'it is in the nature of a testamentary disposition, and not being executed according to the formalities prescribed by the statutes for the execution of wills, that it is for that reason invalid. s

It is claimed on behalf of the attorneys for the beneficiaries named in the instrument that it is a valid declaration of a trust and that the money should be paid to them as indicated therein.

The Supreme Court of Ohio, in Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562], has defined the elements of a trust as follows:

“Wherevfer there is a trustee there is necessarily a subject of the trust — the estate; an object of the trust — the use, and a cestui que trust — the beneficiary of the trust.”

And in the same case defines a trust thus:

“A trust is where property is conferred upon and accepted by one person on the terms of holding, using or disposing of it for the benefit of another.” '

The counsel for the representative of the estate of Joseph Worthington rely upon three cases that have been cited, and decided by the Supreme Court of Ohio, as settling the construction that should be given to this instrument, and the learned trial judge below based his decision upon the invalidity of that instrument upon those three cases.

It will therefore necessitate an examination of those eases to determine whether or not the learned judge below was correct in his conclusion.

The first case is Phipps v. Hope, 16 Ohio St. 586, where one Joseph Hope had a note secured by mortgage in the sum of $4,000, and he attempted to give that note to a young man by the name of Phipps, his nephew, who had worked for him and labored for him on his farm for a long time, and he attempted to give it to him by the following language:

“The contents of this envelope is to be given to Thomas H. Phipps, in payment of wages for services rendered since he lias been living with me,on the farm.
“N. B. He is also authorized by me to indorse this note, and to collect and enter satisfaction at the recorder’s office in Chillicothe, when paid. Joseph Hope.”

•The writing on said envelope is in these words and figures:

"“Jan. 13, 1862. This is to be given to Phipps by the person legally authorized to examine contents. J. Hope.”

After the execution of this paper or these papers, the decedent, Joseph Hope, about March 26, 1862, received one year’s interest on said note, and the said note together with the memorandum that he had made upon the same and the envelope, were continued in the possession of the attempted donor until after his decease.

On that state of facts, the Supreme Court say, in an action Brought by Phipps to recover, that he cannot do so; that the “ directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity unless made through the medium of a last will and testament. ’ ’

The decision is planted upon the idea and principle that there was an attempted gift to be made by the donor in this case, and that it failed for want of delivery; that it was neither g, gift inter vivos nor causa mortis, and the decision is planted, upon that ground.

There is no suggestion either in the syllabi or in the opinion delivered by the court which negatives the idea that a valid declaration of a trust in Ohio may not be made.

We think, therefore, very little light is shed upoa this case by the' decision of the Supreme Court in that ease.

The next case relied upon is a case of Gano v. Fisk, 43 Ohio St. 462 [3 N. E. Rep. 532; 54 Am. St. Rep. 819].

Mr. Gano, an old gentleman, believing that death was near, said to his daughter: “My notes are in a little box on the bureau, there; I want you to take them and divide them equally among you children.” He told her to get the key to the box, and she got the key and tried it in the box, and gave the key to her husband for safe-keeping. After.his death intestate, she took the box and did not divide the notes, but returned them to the administrator, and they were appraised and held as part of the estate. In an action by the daughters, claiming for themselves and the son, the notes and their proceeds, as. against the administrator and the widow.

Held first these facts do not show such a delivery as constitutes a valid gift “causa mortis

The whole decision in that case was planted upon the fact that there was no valid delivery of these notes (there were quite a good many of them, some thirty-eight notes for various amounts) and the Supreme Court in delivering the opinion says, among other things, how were these notes to be divided; some of the notes were supposed to be good and some not good, and the different amounts, how were they to be divided? No directions were given, and the donee or the person to whom they were given for distribution did not distribute them, but delivered them to the administrator, together with the box wherein they were contained, and they were appraised, and after that the action was brought, and the court says, in delivering the opinion:

“To constitute a valid gift the transfer must be consummated, and not remain incomplete, or rest in mere intention; and this is so whether the gift is by delivery only, or by the-creation of a trust in a third person, or in the donor; enough-must be done to pass the title.”

The only thing said about a will is in the last paragraph of the opinion, in which the writer of the opinion says:

“This attempt to make a will for the father and to dispose of his property, ‘different from such as the law would prescribe in case of intestacy,’ is ‘of no validity.’ ”

So that case passed off on the fact that there had been no delivery.

It is confidently relied upon by counsel for Joseph Worthington’s estate though, however that case may be decided, that Flanders v. Blandy, 45 Ohio St. 110 [12 N. E. Rep. 321], comes more nearly deciding the question in this case.

In that case it seems a father set apart some United States bonds as a gift to his daughter. The bonds were never delivered to her, but he collected the interest and paid over the interest to her, and while she was away in a distant part of the country he took these bonds and had them cashed and put them in a Cashmere goat business, and he wrote his daughter a letter telling her what he had done, and had the letter stamped as a contract, and he promised her if she did not elect to accept the investment in lieu of the bonds, that he would retain it himself and pay her $2,000, with interest in lieu thereof. She concluded to take the $2,000, and after his death she brought an action to recover.

In the ease the Supreme Court held: '

“First. That there was no good and sufficient consideration to support the promise on which the suit was brought. Second. That the transaction between the father and daughter was not a valid gift inter vivos. Third. That there was no valid declaration of trust of the bonds in favor of the daughter.” . '

As we look at this case, it was certainly decided right on the particular or peculiar facts of that case. The bonds were never delivered; they were susceptible of easy and quick delivery; they were never delivered to the daughter. The donor (the father) held possession, and it is true he collected the interest and paid her the interest, but in her absence he exercised such dominion over them as that he converted them into money and put them in a separate business, and then made this proposition to give her an interest in the business or pay her $2,000.

In the opinion is found the following memorandum from the ease of Young v. Young, 80 N. Y. 422, 430 [36 Am. Rep. 643].

“The transaction,” says Rapallo, J., in delivering the opinion of the court, “is sought to be sustained in two aspects. First, as an actual executed gift, and secondly, as a declaration of trust. These positions are antagonistic to each other, for if a trust was created, the possession of the bonds and the legal title thereto, remained in the- trustee., In that case there was no delivery to the donee, and consequently no valid executed gift, while if there was a valid gift, the possession and legal title must have been transferred to the donee, and no trust was created.”

The Supreme Court, Flanders v. Blandy, supra, p. 115, now say:

“It is manifest that there was an inchoate gift of the bonds by the decedent which he never completed; but we find nothing that can be construed in to a declaration that he held them in trust, or that he regarded himself as standing, in reference to the bonds, in a fiduciary relation to his daughter.” And further says, p. 116:
“It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee, not that the owner should use technical words or language, but he should declare in unmistakable terms that be means to stand in a fiduciary relation to the object .of his bounty. The record shows no such declaration by the decedent, and his acts were wholly inconsistent with the idea of making himself a trustee.”

The Supreme Court in the opinion, while not in the syllabus, recognizes that a trust in property may be declared in Ohio if it is done in unequivocal terms.

It is evident to our minds that these three cases furnish no authority for the decision of the case at bar.

In this ease at bar the undisputed testimony, and in fact the admissions in the pleadings by the parties, shows that there was a delivery of the $6,200, and therein is the distinction between these three cases and the one at bar. The three cases going off on the proposition that there had been no delivery, and, in the last case of Flanders v. Blandy, supra, that there had been no declaration of trust, which was very apparent from the statement of the facts and the pleadings in the case; and if there had been there an inconsistency, as ,the Supreme Court say, and the claim first, it was a gift, and nest, a declaration of trust, were wholly antagonistic and inconsistent with each other, and they could not be maintained.

So we are of the opinion that the learned court below was in error in basing his decision in this case upon the decisions just adverted to, and for the reasons we have already stated.

Now, can a trust of this character be made or declared in Ohio and be legal, as is set forth in the instrument which I have just read?

In Watkins v. Schlecter, 9 Dec. 590, 594 (7 N. P. 42), is an interesting decision by the superior court of Cincinnati in 1886, and the facts in that case are, briefly, that A being solvent and childless, had a wife who was hopelessly insane, and by an instrument he created himself and another, trustees, to pay the income to himself during his life, and upon his dying in the lifetime of his wife,.the surviving trustee was to hold for certain designated kindred; but in case of the death of his wife during A’s life, the trust thereupon to determine and cease, and the property to be retransferred to him. He died leaving his insane widow surviving. The guardian of the widow brought suit to recover the sum so alleged to be in trust, being in the sum of $100,000.

The superior court, in deciding the case against the guardian of the widow, says:

“By the deed Mr. Adams transferred and assigned outright, to the trustee named, all the property named in the deed. It passed outright to them, and, after that, was no longer in his control. He was one of the trustees, but both of the trustees were to act, and therefore it passed away from his control. It is true, it was a voluntary act, it was a gift, a settlement; but it was a settlement for uses named in the deed, for one use in his lifetime, for other uses after his decease. Certainly since the case of Kekewich v. Manning, I. D. M. & G. 176, it cannot be disputed that this was an irrevocable distribution of his property. And while the case In Re Lady Way’s Trust, 2 D. J. & S. 365, is not a leading ease, it is more clearly explicit that the disposition made by this deed of trust is an irrevocable ‘disposition.

Hence, during the life of the trust, this property was beyond the control of Mr. Adams. He could not revoke the trust by any subsequent deed or by will. During the life of that trust the property was.to be disposed of according to the terms of the deed. It is true, if his wife had died during his life, the property would go to him; but it would go to him, not because he, by any subsequent deed, could bring it back to him, but because it came to him by the terms of the trust itself.

Then the property was in the hands of the trustees; the legal title was in them; the beneficiary interest in the beneficiaries named in the deed. He dying, therefore, during the Continuance of the trust, could not be said to be, at the time of his death, the possessor of that property, or the owner, and, therefore, the property could not be considered as part of the assets of his estate, and therefore, cannot be distributed as part of his estate.”

This judgment was affirmed by the Supreme Court, Min-shall, J., dissenting, without report, March 2, 1892.

In Martin v. Funk, 75 N. Y. 134 [31 Am. Rep. 446], it was held:

“To constitute a valid gift the transfer must be consummated, and not remain incomplete, or rest in mere intention; and that is so whether the gift is by delivery only, or by the creation of a trust in a third person, or in the donor; enough must be done to pass the title.”

And in the opinion the court says:

“The intestate, Mrs. Boone, in 1886, deposited in the Citizens’ Savings Bank $500, declaring at the time that she wanted the account to be in trust for Lillie Willard, who is the plaintiff. The account was so entered and a pass book delivered to the intestate, which contained 'these entries: ‘The Citizens’ Savings Bank in account with Susan Boone, in trust for Lillie Willard. 1866, March 23, $500.’
“A deposit of the same amount, and in the same manner, was made in trust for Kate Willard, now Mrs. Brown. This money belonged to the intestate at the time of the deposits. ’ ’

Quoting from Lord Ch. J. Turner, p. 138, in Milroy v. Lord, 4 De Gex, F. & J. 264, the ruling general principles, he says:

“I take the law of this court to be well settled that in order to render a voluntary settlement valid and effectual the settler must have done everything which according to the nature of the property comprised in the settlements was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intended to provide, and the provision will then be effectual, and it will be equally effectual if he transfer the property to a trustee for the purposes of the settlement, or declare that he himself holds it in trust for those purposes, and if the property be personal, the trust may, I apprehend, be declared either in writing or by parol.”

Again at page 141, he says:

“Mr. Hill in his work on trustees, after saying ‘that it is extremely difficult in the present state of authorities, to define with accuracy the law affecting this very intricate subject,’ lays down the following as the result: ‘When the author of the voluntary trust is possessed of the legal interest in the property, a clear declaration of trust contained in, or accompanying, a deed or act which passes the legal estate, will create a perfect executed trust, and so a declaration or direction by a party, that the property shall be held in trust for the object of his bounty, though unaccompanied by a deed or other act divesting himself of the legal estate, is an executed trust. ’
“If there is a valid declaration of trust, that is sufficient of itself, I apprehend, to transfer the title, but the difficulty is in determining what constitutes such a declaration, and whether a mere formal transfer of the property, as in the case of the medical attendant,, is sufficient, is a question upon which there is some difference of opinion. No particular form of words is necessary to constitute a trust, while the act or words relied upon must be unequivocal, implying that the person holds the property as trustee for another.”

So in Young v. Young, supra, it is said:

“To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown.”

And Rapallo, J~ says, page 438:

“To create a trust, the acts or words relied upon must be unequivocal, implying that the person holds the property as trustee for another.”

So, in Barry v. Lambert, 98 N. Y. 300, 306 [50 Am. Rep. 677], Ruger, C. J., says:

“It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply, that the party making them intended to divest himself of his interest in the property, and to hold it in trust for the use and benefit of another.”

So, in Wadd v. Hazelton, 137 N. Y. 215 [33 N. E. Rep. 143; 21 L. R. A. 693; 33 Am. St. Rep. 707], Peckham, J., says:

“While it is true that no particular form of words is necessary to create a trust of this nature, and while it may be created by parol or in writing, and may be implied from the acts or words of the person creating it, yet it is also true that there must be evidence of such acts done or words used on the part of the creator of the alleged trust, that the intention to create it arises as a necessary inference therefrom, and is unequivocal;. the implication arising from the evidence must be that the person holds the property as trustee for another. The acts must be of that character which will admit of no other interpretation than that such legal rights as the settler retains are held by him as trustee for the donee; the settler must either transfer the property to a trustee or declare that he holds it himself in trust. An intention to give, evidenced by writing, may be most satisfactorily established, and yet the intended gift fail because no delivery is proved. And where an intention to give absolutely is evidenced by a w'riting which fails because of its nondelivery, the court will not and cannot give effect to an intended absolute gift by construing it to be a declaration of' trust, and valid, therefore, without delivery.”

In Hiserodt v. Hamlett, 74 Miss. 37 [20 So. Rep. 143], it is held:

“We must not allow ourselves to be confused by the fact that the event upon the happening of which the interest to be enjoyed was death. It is as competent for one to make the event in the future upon the happening of which the estate is. to come into possession, the death of the donor, as any other' event. The fact, in such case, that the event named is death, rather than some other selected event, is not at all déterminative, of the quality or legal character of the trust. There is. no testamentary feature here. One may do what he will within legal lines with his own.”

So there are quite a large number of other authorities, and it is unnecessary to quote more from them, holding that a. trust may be created. The question now is, whether or not this attempted declaration of a trust here is really one which comes within the definition in Mannix v. Purcell, supra, and within the principles laid down in the decisions which we have-just referred to.

In this case, in this instrument there is a trustee — Martin Redkey; there is a subject-matter — the money; there is a use-—the holding of the money for the use of these people, and there are beneficiaries; so that every element that is necessary to constitute a trust within the definition referred to by the-Supreme Court, is contained within this written instrument.

The money, $6,200, was delivered to the trustee, and it seems as though everything that was necessary to be done to-create a distinct, perfect trust, fully identified and complete, and passing beyond the control of the donor or creator of this fund, is declared within this instrument, and that it fully comes: within, the definition of a trust as fully defined by all of the authorities.

It must not be lost sight of, and we think maybe it has been to some extent in this case, — it must not be lost sight of that the delivery in law of this $6,200, to the trustee, Martin Redkey, was a delivery and passed the legal title to the $6,200, effectually beyond the control of the creator of the trust.

Now, that is the difference between the Ohio cases that the learned counsel rely upon, and this case, and it is a very important distinction. There is no question here about the object to be attained. It is fully set out, the beneficiaries are named, the amount and terms appear, and the use.

It is said, however, that by the very language of this instrument it shows that Martin Redkey was the agent of Joseph Worthington,- that he called Martin Redkey “my” trustee, and that when he gave him the check, he gave him the cheek as trustee of Joseph Worthington, and Martin Redkey, when he deposited it in the bank, the deposit slip shows the account was opened by Martin Redkey, as trustee for Joseph Worthington.

It may be said so far as the entries in the book of the Leesburg Bank are concerned, made by Martin Redkey after the instrument was executed, would give no character to that instrument one way or the other. Its character was fixed upon its execution, and so far as Joseph Worthington using the language “my trustee” as conveying the idea he was his trustee, and not the trustee of the beneficiaries, is concerned, it is simply an expression denoting that he, Redkey, is the person he has chosen to carry out this trust. And in a strict sense, as he used it, he was his trustee; that is, in the sense he had selected him, and that is what he means by “my trustee,” but the whole instrument shows that there wasn’t one single thing that Martin Redkey, his trustee, was to do for Joseph Worthington with the $6,200; everything that is to be done by the written instrument shows that Joseph Worthington considered it passed entirely Beyond his control and possession, and that the legal title passed to his trustee; everything that was to be done was to be done for the benefit of these beneficiaries, and not for the benefit of Joseph Worthington; wasn’t a single' act, as agent or otherwise, that Martin Redkey was to do, that is not referable to the turning over of the funds to these beneficiaries.

Notv, it is said they were engaged in a testamentary'act at. the time this instrument was executed; that on October 13, 1905, Joseph Worthington made his will, and Redkey appeared the next morning and talked the matter over, and was afraid these provisions would not be legal, and there would be some trouble about it, and that instead of incorporating it in the will, or leaving it there, they then devised this scheme by which they would evade the law by way of passing property under will, but would pass it under the name and title of “trustee,” and that being so engaged at this time in a testamentary act for the disposition of his property, that that same character is imparted to this. On the other hand it may be argued from the testimony in this case that what they were doing at that time was to get away from the testamentary act because they discussed that, and while they were executing this paper writing, they, by their own declared intentions, were not engaged in a testamentary act; they were engaged in something other than making a will, and if they have-not accomplished what they desire to do, viz., to not make this instrument a will, then they have not succeeded in carrying out their intentions.

We can hardly see how an instrument can be more effectual to create a trust than this. The very object and purpose of it was that Redkey should act as trustee for these people; that he should hold this money, and it was delivered to him, and the legal title passed!

It is said, however, that Joseph Worthington reserved in the paper a right to revoke this during his life.

In what you may call a “granting clause,” if such a thing is applicable to a declaration like this, he used the word “appoint” — I “appoint Martin Redkey,” and after, in the instrument, he has made the disposition creating the trustee and the beneficiaries, and directing what his trustee shall do, then he says:

“In the event of the death of said trustee, I request the probate court to appoint a trustee to serve in his stead and complete th<s trust as above set forth.
“I reserve the right to revoke this appointment at any time during my life.”

We are inclined to think that what he means there is, that he reserves the right to revoke the appointment that the probate court may make in case Martin Redkey died before Worthington, and the probate judge appoint somebody that he didn’t like. It couldn’t have reference very well to the whole trust or instrument. He doesn’t say “I reserve the right to revoke this trust,” but only the appointment that the probate judge might make. He probably wanted some one that was satisfactory to himself. ' ,

It is claimed, however, that if he reserved the power to revoke the appointment, that it would therefore carry with it and include with it, the revoking of the trust.

It is a well known rule of law, and needs no citing of authorities, that the court will never allow a trust to fail for want of a trustee; that the court, when applied to, will appoint a trustee rather than the trust fail.

Martin Redkey was simply the vehicle, the instrument, that Worthington made use of to carry out this trust, and the trust would not fail for the want of a trustee.

We are of the opinion that the language used by the- settler or creator of this trust, being at the close, and wholly separated from the whole disposition of the trust property, shows an anxiety on his part that in no event the trust should fail for want of a trustee, and the whole instrument shows that the word “appoint” could not refer to, in his mind, nor includethé trust.

The appointment is one thing, and the trust is another. But however that may be, even supposing that clause does refer to and give the creator of this trust in his lifetime a right to revoke it, does that extinguish the trust ? Does that show that Martin Redkey was simply the agent or trustee or attorney in fact of Joseph Worthington, and that he could recall this at any time?

Thornton, Gifts Sec. 436, says:

“When a trust has been completely created, by no act of the donor can it be revoked without the consent of the donee, unless he has reserved the power to do so. This is true even though by some accident the estate has become revested in the donor. The donor is bound, if the trust be completed, though ■ somie contingency was forgotten and unprovided for; and if the trust is created by deed a mental or oral revocation is void. But the donor may reserve the right to revoke the trust; and the trust will remain until he exercise his authority under the power reserved. ’ ’

Now, here is the syllabus in Stone v. Hackett, 78 Mass. (12 Gray) 227, which was relied upon by the superior court of Cincinnati in Urner v. Yager, 9 Dec. Re. 592 (15 Bull. 264).

“A delivery, without consideration, of shares in railroad corporations, with blank assignments endorsed thereon, upon trust to pay the income to the settler for life, and at his death to transfer the shares to certain charitable objects (the settler reserving the right to modify the uses or revoke the trust) is valid, and will be upheld in equity against the settler’s widow, claiming the share which the law allows her in property of which he died possessed.”

So, in the case of Van Cott v. Prentice, 104 N. Y. 45, 46 [10 N. E. Rep. 257], the following clause was in the declaration of trust:

“subject in the meanwhile to my direction and pleasure,' and to be returned to me in the event of my surviving him; and absolutely subject to my direction and. control until the event of my death.”

Now, the Supreme Court say in that case, in respect to that portion of it, in the syllabus:

“That a valid trust was fully and completely constituted, and as the same was not revoked by the settler during his life, the trustee was entitled to the possession of the trust property; that it was immaterial that the grant was voluntary, and without consideration; that the declaration that the beneficiaries should have no legal or equitable right to enforce the trusts as against the trustee while the settlement should remain unrevoked, but only as a denial of any right as against the settler; also that the validity of the title of the trustee was not effected by the fact that he held subject to the control and direction of P; that while the trust continued and existed only at the will of the settler, it was good and effectual, until revoked.”

There are a large number of other authorities that go to the same effect, and it seems to be held by an unbroken line of decisions that even where the settler has provided in the declaration of trust that he has the power of revoking during his life, that if he doesn’t exercise it, the trust is still valid.

There are some other objections that the counsel have urged upon us as to the construction to be placed upon this instrument. We have gone over the eases thoroughly and read all the briefs, and we think that the construction aimed to be given to this paper writing by the learned counsel for the Worthington estate is worthy of consideration, but that we cannot overlook the plain provisions of the instrument itself and the words used. That which the words declare is the meaning of an instrument.

When he says: “I, Joseph Worthington of Highland county, Ohio, hereby appoint Martin Bedkey a trustee in trust to receive and hold” — he doesn’t call him “my” trustee-

He appoints him “a” trustee. It is said, however, that these beneficiaries had no knowledge of this, and never consented to it.

We think that is wholly without merit. Our Supreme Court has decided in Mitchell v. Ryan, 3 Ohio St. 377, that where the instrument is for the benefit of the donee or grantee, that his acceptance is not only a presumption of fact, but a presumption of law.

The judgment, therefore, will be reversed and remanded to the court of common pleas below for further proceedings.

I will note on the docket that the judgment is reversed because same is contrary to law, and for the reason the judgment below should have been for plaintiffs and cross petitioners in error, instead of for said Worthington, administrator, defendant in error. Cause remanded to common pleas court for further proceedings according to law.

Exceptions.

Cfaerringfon and Jones, JJ., concur.


source: Caselaw Access Project

author: METCALFE, J.

license: Public Domain

text:
    AMERCEMENT — BAILMENTS—SHERIFFS.
    [Columbiana (7th) Circuit Court,
    1910.]
    Laubie, Cook and Metcalfe, JJ.
    George P. Ikert, Admr., v. Robert Wells.
    1. Sheriff's Liability fob Money Lost in Official Capacity is that op Bailee.
    A sheriff who receives money in his official capacity is a bailee, and his liability for the loss thereof is to be determined by the law of bailment.
    2. Sheriff cannot be Amerced fob Money Lost in Bank Failure.
    A sheriff having received a sum of money from the sale of lands' made under an order of court in a partition case, and pending an order of distribution, deposited the money in a local bank of good standing and credit, in a separate account to his credit as sheriff and not mingled with his private funds, is not liable to amercement for the money because before the fund was paid out the bank failed, and no negligence or bad faith being charged or shown on the part of the sheriff.
    [Syllabus by the court.]
    Error to Columbiana common pleas court.

      W. E. Spence, for plaintiff in error.
    P. M. Smith and J. G. Moore, for defendant in error.
   METCALFE, J.

This action originated in the common pleas court by the filing of a motion to amerce the sheriff. The defendant, as sheriff of Columbiana county, sold certain real estate on the order of the court in a partition case. The money received from the sale was deposited by the sheriff in the bank of the Lisbon Banking Company to his account as sheriff, ho part of it being mingled with his private funds. Pending an order of distribution the bank failed. The Lisbon Banking Company, at the time the deposit was made, was a banking institution ip good standing and credit, and no negligence or bad faith is charged or shown on the part of the sheriff. The question is presented r Is the liability of the sheriff to be determined by the law of bailment, or is he, by virtue of his office, or by the terms of his bond, held to a stricter accountability than that of a bailee for hire In effect an insurer of the money that came into his hands in the performance of his duties. We are aware that there is a considerable amount of respectable authority which seems to sustain the latter view of the question. The case of State v. Harper, 6 Ohio St. 607, is cited as sustaining the contention of the plaintiff. The treasury of Wyandotte county-had been broken into and the money stolen, and action was brought on the official bond of the treasurer. It was held that the felonious taking of the money did not excuse the treasurer from the repayment thereof. The decision was put entirely upon the basis that the contract made by the treasurer when he executed his bond, which ran to the effect that he should pay over all moneys coming into his hands as treasurer. Of course it cannot be disputed that a public officer may not be made liable by statute or by the provisions of his bond to pay over moneys which come into his possession by virtue of his office,, even though they may be lost without his fault. But it hardly seems consonant with sound principles of equity and justice to hold over a public officer a rule so strict unless the statute or the bond of the officer require it. The sheriff is made by law the custodian of the fund. The fund belonged to the parties who owned the property from the sale of which it arose. Gen. Code 12039 (R. S. 5767) prescribes the duties of the sheriff with reference to it, and makes him liable for a misapplication or misappropriation of it, but does not of itself hold him otherwise accountable.

In United States v. Thomas, 82 U. S. (15 Wall.) 337 [21 L. Ed. 89], Mr. Justice Bradley in delivering the opinion of the court said:

“The basis of the common law rule is founded on the doctrine of bailment. A public officer having property in his custody in his official capacity is a bailee; and the rules which grow out of that relation are held to govern the case. But the legislature can undoubtedly, at its pleasure, change the common law rule of responsibility.”

And again:

“Where, however, the statute merely prescribes the duties of the officer, as that he shall safely keep money or property received or collected, and shall pay it over, when called upon to do so by the proper authority, it cannot, without more, be regarded as enlarging or in any way affecting the degree of his responsibility. . The mere prescription of duties has nothing to do with thie question as to what shall constitute the rule of responsibility in the discharge of those duties.”

We think the right rule is stated in Mechero, Public Officers Bee. 301. After discussing the various views expressed in the different authorities, the author says:

“But another view less stringent, and in the opinion of the writer, more consonant with reason and justice, has also met with favor, although the cases which maintain it are few. By this view the officer is regarded as standing in the position of a bailee for hire, and bound virtute officii, to exercise good faith and reasonable skill and diligence in the discharge of his trust, or, in other words, to bring to its discharge that prudence, caution and attention which careful men usually exercise in the management of their own affairs, but not responsible for any loss occurring without any fault on his part. The statute may, of course, impose, or the officer may himself assume, a more onerous responsibility, but in the contemplation of this theory, a greater liability does not result from a simple Undertaking to faithfully discharge the duties of the office.”

The following authorities also recognize this view: United States v. Thomas, 82 U. S. (15 Wall.) 337; People v. Faulkner, 107 N. Y. 477, 483 [14 N. E. Rep. 415]; Pueblo Co. (Comrs.) v. Smith, 22 Colo. 534 [45 Pac. Rep. 357; 33 L. R. A. 467]; Greenwood Cemetery Land Co. v. Routt, 17 Colo. 156 [28 Pac. Rep. 1125; 15 L. R. A. 369; 31 Am. Rep. 284]; McKay v. Telegraph & Tel. Co. 111 Ala. 337 [19 So. Rep. 695; 41 L. R. A. 589; 56 Am. St. Rep. 59]; Chicago, B. & Q. Ry. v. Bartlett, 120 Ill. 603, 619 [11 N. E. Rep. 867].

The bond of the sheriff: in this case does not provide for the unconditional payment of any moneys which might come into his hands by virtue of his office, but simply provides that he shall faithfully discharge the duties of his office. Nor do we think that the statute imposes upon him an unconditional liability. The statute defines his duty with reference to the money, but does not attempt to fix any liability except for a misapplication or misappropriation of the fund, and we think his liability is to be determined by the rules of the common law as to bailees for hire.

The judgment of the court below is affirmed.

Laubie and Cook, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Ashtabula (7th) Circuit Court,
    September, 1910.]
    Marvin, Metcalfe and Fillius, JJ.
    (Judge Marvin of the 8th circuit sitting in place of Judge Laubie.>

      William G. Haas v. B. E. Thayer, Treas., et al.
    Aiken Law Tax Lien does not Attach to Boat Surreptitiously: Employed by Lessee to Being Liquor in Rose Law County.
    H, a resident of the state of Pennsylvania, was the owner of a. boat which he leased to D to be used exclusively on the waters of Erie bay within said state. D without the knowledge or consent of H brought said boat within the jurisdiction of a county-in Ohio which had voted “dry” under the provisions of 99 Q-Xi. 35 (Gen. Code 6108 et seq.), known as the “Rose Law” where he used it for the sale of intoxicating liquor. Held, Such boat cannot be levied upon and sold under the provisions of Gen. Code 6078 (R. S. 4364-12) to pay the tax assessed against D.
    [Syllabus by the court.]

      Allen M. Cox, for plaintiff.

      JPred B. Hogue & Wayne B. Wheeler, for defendants.

      See former decision, Haas v. Remick, 31 O. C. C. 591.

   METCALFE, J.

The plaintiff seeks by injunction to restrain the sale of his property for the payment of a Dow tax levied thereon by the defendants. The plaintiff is a resident of Erie, Pennsylvania, and is the owner of a gasoline launch known as the Ah-go-on. In the summer of 1909 the plaintiff granted to Doering & Fluster the right to use his boat on Erie bay, but it does not .appear that there was any written lease or other agreement 'executed between them. There are iin evidence two copies of ;a written lease in form from Haas to Doering & Huster, but neither of these copies were signed' by any of the parties. The ■petition alleges that there was a lease from Flaas to Doering & '.Fluster, and it seems to be regarded by counsel in argument as of some importance whether there was or was not a written lease, but in our judgment it is entirely immaterial whether the boat got into Doering’s possession by virtue of a written lease or by verbal permission only. The extent of the power granted by Haas to Doering & Huster was limited to the right to use the boat within the waters of Erie bay, and wholly within the state of Pennsylvania. After Doering & Huster had been in possession of the boat for some time Doering loaded it with intoxicating liquors and ran it out of Erie bay into the lake two or three miles from Conneaut, Ohio, and proceeded to dispose ■of his cargo to the thirsty souls of Conneaut and'vicinity who were unable to solace themselves on shore. It is conceded that Ashtabula county had voted “dry” under the provisions of the Rose county local option law prior to the visit of the Ah-go-on, and that the waters of Lake Erie where Doering was operating are within the jurisdiction of that county. When knowledge of Doering’s proceedings came to the 'prosecuting attorney he caused the Dow tax to be placed upon the duplicate of the county, and a levy was made in pursuance of the statute upon the boat, its fixtures and cargo, and the property was advertised for sale.

Thereupon the plaintiff brought this action to restrain tbe sale of the boat, alleging his ownership of the property, his residence in the state of Pennsylvania; his contract with Doering & ITuster permitting them, to use the. boat in Brie bay; and that the property was taken out of his possession and out of the state of Pennsylvania against his wishes, and without his knowledge or consent; and that he had no knowledge of the purpose to which the boat was devoted by Doering. And these facts we find are sustained by the evidence. The question thus arises, can the collection of the Dow tax assessed against Doering be enforced by a levy upon and sale of the property of the plaintiff which had been brought in to the state of' Ohio from a neighboring state without his knowledge or consent, and devoted to a business made illegal by the laws of Ohio? We must answer this question in the negative. The claim of the right of the defendants to sell this boat regardless of the rights of the plaintiff is founded on language found in Gen. Code 6078 (E. S. 4364-12). Without quoting the entire section which provides the course to be pursued when property has bieen levied upon for the payment of a Dow tax, the statute reads:

“Nor shall any claim of property by any third person to such goods and chattels so used in carrying on such business avail against such levy so made by the treasurer.”

On the one hand it is urged that this section absolutely precludes the owner of property used in an unlawful sale of intoxicating liquors from asserting any claim' thereto even though he had no knowledge of such sales or his property be brought from ^mother state without his consent. And on the other hand it is claimed that the quoted portion of Gen. Code 6078 is unconstitutional in that it deprives an owner of his property arbitrarily, and without due course of the law, or that if not unconstitutional it can have no extraterritorial application, and cannot affect the rights of a citizen of another state where the property is brought within the state of Ohio without the owner’s knowledge or consent. The simple question here-is, where a resident of the state of Pennsylvania gives to another, by contract or otherwise, the right to use his property within the state of Pennsylvania and the renter, without the knowledge of the owner brings the property into the state of Ohio and devotes it to an illegal purpose, can the property itself' be taken to discharge a tax or fine imposed upon the wrongdoer who has taken it away? The act of taking the property out of' the state of Pennsylvania and bringing it into the state of Ohio was an act of trespass. 20 Am. & Eng. Enc. Law 571.

It is said that the levy upon this property while an exercise of the taxing power, is also an exercise of the police power of the state made necessary in dealing with the traffic in intoxicating liquors in consequence of the great evils that flow from that traffic, and the difficulty in enforcing the law. We do not question that the dealing with the traffic in intoxicating liquors is a proper subject of the exercise of the police powers of the state, but the exercise of that power must not be unreasonable and oppressive, and it must be viewed in the light of those constitutional provisions which protect and safeguard the rights, of the individual citizen, especially if that citizen be innocent of wrongdoing. In any event the police laws of a state have no extraterritorial effect. If the plaintiff had brought his property voluntarily within the state of Ohio, or had permitted it to be brought here then it would at once become amenable to the police laws of the state, ibut that is not the ease here. The property was brought within the state of Ohio without the owner’s consent. The situs of the property at the time it was. taken from, the plaintiff was the state of Pennsylvania. The-plaintiff granted the right to Doering to use it within the state-of Penrisylvania. Can it be said that when the plaintiff made his contract with Doering that the police laws of the state of Ohio entered into and formed a part of that contract? Certainly not unless that contract was to be performed within the-state of Ohio. He was only bound to take notice of the laws of the state where his contract was made and to be performed. A contract is made with reference to the laws of the place where it is to be performed, and those laws enter into and become a part of it. So that the laws of the state of Ohio which deal with the traffic in intoxicating liquors enter into every contract which a man makes with reference to his property within the state of Ohio, and this is the basis on which the cases dealing with questions relating to priority of liens or the priority of the tax over the rights of lessors and lienholders rest.

In Simpson v. Serviss, 2 Circ. Dec. 246 (3 R. 433), it is said:

“The lien for the assessments and penalties prescribed by the act entitled 'An act providing against the evils resulting from the traffic in intoxicating liquors? attaches to the real property on and in which the business of such traffic is conducted by a lessee, although the lease forbids sales on the premises, * * * it is a universally recognized principle that laws which exist at the time of making a contract, and in the place where it is made and is to be performed, enter into and make a part of it.”

In Mullen v. Peck, 49 Ohio St. 447 [31 N. E. Rep. 1077], the lessor of premises was held for the payment of damages caused by unlawful sales of intoxicating liquors without her knowledge or consent where the sale was made contrary to an express stipulation in the lease but “where the premises on which the liquors were sold were occupied by the seller under a lease from the owner of a life estate therein the estate in remainder cannot be held for the damages caused by such sales. ’ ’

On page 462, the court say:

“We are satisfied it is only her (Mrs. Peck’s) estate in the property that can be subjected to the payment of the plaintiff’s judgment and that the estate in remainder cannot be taken * i* * nor can it with propriety be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors, for during the continuance of the life estate they had no control over them. And their estate in the property could not be made liable by any act of the owner of the estate .'for life. ’

In Pioneer Trust Co. v. Stich, 71 Ohio St. 459, 463 [73 N. E. Rep. 520], the court say:

“The laws in force at the time and place where a contract is made, and where it is to be performed, which in their nature are applicable, enter into and become a part of the contract, and the contract, as well as subsequent legislation, is to be construed, with respect to its efficacy as well as its meaning in the light of all such statutes as are applicable. ” So in this case the contract of the plaintiff with Doering which permitted the latter to use his property in the state of Pennsylvania was made with reference to the laws of that state and not Ohio, and the act of Doering in bringing the boat into Ohio was not anticipated in the contract with Haas nor was it in accordance with its terms; and the unlawful act of a trespasser in bringing the property into Ohio and using it for an illegal purpose would not affect the right of the owner to reclaim it. We are not going so far in this case as to say that the clause in Gen. Code 6078 above quoted is unconstitutional. Such a holding is unnecessary. We simply say that it has no application in this case, that it cannot apply where the property is brought by a trespasser from another state into this. While we may sympathize with what has been said by distinguished counsel in this ease about the necessity for drastic measures in enforcing the laws relating to the liquor traffic, yet zeal for the enforcement of righteous laws should hot override the rights of the citizen who is innocent of wrongdoing.

Arriving at this conclusion we deem it unnecessary to discuss other questions in the case arising from the former holding of this court on demurrer to the petition.

The decree in this ease must be entered for the plaintiff.

Marvin and Fillius, JJ., concur.


text:
    APPEALS — CONSTITUTIONAL LAW — RAILROADS.
    [Harrison (7th.) Circuit Court,
    1910.]
    Laubie and Metcalfe, JJ.
    (Cook, J., not sitting.)
    B. F. Rowland v. Baltimore & O. Ry.
    Statute Taxing Attorney Fees on Appeal in Fire Damage Cases against Railroads is Unconstitutional.
    Gen. Code 8973 (R. S. 3365-7) which' provides for the taxing of an attorney fee where an appeal is taken in certain actions for damages on account of fires caused by railroads is unconstitutional and void.
    [Syllabus by the court.]
    Error to Harrison common pleas court.

      Perry & Rowland, for plaintiff in error.

      J. M. Lessick and Hoilingsivorth <& Worley, for defendant in error:
    Cited and commented upon the following authorities: Baltimore & Ohio Ry. v. Kreager, 61 Ohio St. 312 [56 N. E. Rep. 203] ; Hocking Val. Coal Co. v. Rosser, 53 Ohio St. 12 [41 N. E. Rep. 263; 29 L. R. A. 386 - 53 Am. St. Rep. 622],
   METCALFE, J.

The plaintiff in error brought this action originally before a justice of the peace to recover for damages to his property caused by fire originating in the railroad company’s right of way. The ease was tried before the justice and appealed to the common pleas court, where a verdict and judgment was rendered in favor of the plaintiff. The plaintiff thereupon moved the court to include in the judgment an attorney fee which the court refused to do, and such refusal is the only ground of error assigned here.

The plaintiff claims the right to an attorney fee to be taxed against the defendant under favor of act 91 O. L. 187, Gen. Code 8973 (R. S. 3365-7), and the defendant resisted on the ground that the statute which permits it is unconstitutional. The section reads as follows:

“In case either party appeals from the judgment of a court in which an action under the three next preceding sections is begun, or carries the case up on error, the party in whose favor judgment finally is rendered shall have included in his bill of costs against the adverse party, an attorney fee of fifty dollars, if it is not carried beyond the circuit, court. But if carried to the Supreme Court of Ohio an attorney fee of one hundred dollars shall be included in his bill of costs.”

In the case of Hocking Val. Coal. Co. v. Rosser, 53 Ohio St. 12, 15 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622]; original R. S. 6563a, which authorized the taxing of an attorney fee in favor of the plaintiff in suits on certain claims for labor, was held unconstitutional on the ground that it was class legislation. But it is urged that this holding does not apply to Gen. Code 8973 (R. S. 8365-7), inasmuch as the latter section permits an attorney fee to be taxed in favor of the winning party, whether plaintiff or defendant, and against the loser. In our judgment the provision making the fee assessable against the loser does not relieve the statute from its objectionable features. It is still class legislation. Those who are so unfortunate as to have litigation over fires caused, or claimed to be caused by railroads, are singled out as a class by themselves and the one who wins is granted a favor which is denied to all other litigants, and the loser has inflicted upon him an added burden of costs which is not imposed upon any others. In Hocking Val. Coal Co. v. Rosser, supra, it was not the fact that one of the parties only was given the right to have his attorney fee charged against his adversary, that made the statute unconstitutional. It was the fact that a class of litigants was separated from all others and favors granted or burdens imposed which other litigants were not obliged to bear. “All courts shall be open and every person, for a¡n injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.” Art. 1, Sec. 16 Const, of Ohio. “No state shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth amendment U. S. Const. Every person has an equal right with every other person to invoke the action of the courts of the state for the protection of his person or property and it is not “due course of law” or “equal protection of the laws” where those who have property destroyed by fire caused by a railroad are put in a class by themselves and are offered a reward in the shape of an attorney fee if they win their cases and are required to pay one to their adversary if they lose.

Judgment is affirmed.

Laubie, J., concurs.


author: SMITH, J.

text:
    BURGLARY — CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    April 30, 1910.]
    Giffin, Smith and Swing, JJ.
    Jerry Brown v. State of Ohio.
    1. Hearsay Evidence as to Livelihood of Accused is Incompetent in Prosecution for Possession of Burglars’ Tools..
    In a prosecution for having certain burglars’ tools in his possession with burglarious intent, proscribed by Gen. Code 12439, hearsay or secondary evidence as to the livelihood of accused is incompetent, notwithstanding proof of his occupation as bearing upon the intent with which he was carrying the tools be competent.
    2. Charge to Jury Implying Necessity of Accused’s Producing Evidence of Good Character is Erroneous.
    The presumption is in favor of good character and reputation, and a charge to the jury which seems to imply that, if the accused did not produce evidence as to his good character arid reputation, he thereby did not claim good character, is erroneous.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Thomas J. Gog an, for plaintiff in error.

      Arthur G. Friche, for defendant in error.
   SMITH, J.

The plaintiff in error was convicted in the court of common pleas of this county under Gen. Code 12439, for having in his possession certain implements used by< burglars for breaking and entering houses, with the intention of using the same burglariously, and upon said conviction was sentenced to the penitentiary of the state.

The conviction is attacked upon' the ground that hearsay or secondary evidence was admitted by the trial court on behalf of the state, to prove the calling or livelihood of plaintiff in error and his associates at the time of his arrest, to-wit, that of being a thief or burglar.

While it is competent to prove the calling or livelihood of the plaintiff in error or his associates as bearing upon the intent with which he was carrying the implements which were found in his possession, yet this livelihood or business if it may be so designated is a fact and should be proven as other facts in the case.

We do not think that the character or reputation of the associates of the accused could be placed before the jury, as disclosed by the record in this case, to establish their means of livelihood or business, by statements made by the various witnesses as to what other people had told them in regard to the calling or business of these individuals.

It was competent to show the work that the associates of the plaintiff in error had been engaged in, or that the plaintiff in error himself, as a fact in the case; but this fact could not be deduced from or proven by secondary evidence as to reputation of the parties, based upon what other persons had told the witnesses these parties were engaged in.

We are also of the opinion that the admission by the trial court of evidence pertaining to the reputation" of the plaintiff in error as to his being a criminal or thief, was prejudicial, notwithstanding that the same was later stricken from the record and withdrawn from the consideration of the jury.

Until the reputation of the accused had been put in issue by himself, it was error to have allowed it to enter into the case; and in instructing the jury to disregard the same the court said, “that so long as the defendant had not put his own character and reputation in issue before the jury by claiming to be of good character, the state was not authorized to introduce any evidence to impeach his character.”

This would seem to imply, that if the. plaintiff in error did not produce evidence as to his good character and good reputation he thereby did not claim to be of good character or to have a good reputation. This we think was prejudicial, for the presumption is in favor of the good character and the good reputation of the plaintiff in error and these can not be attacked until he himself has offered evidence bearing upon the same beyond the presumption of law.

Judgment will be reversed. .

Gifien and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    DEEDS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    June 26, 1909.]
    Giffen, Smith, and Swing, JJ.

      John H. Taphorn v. Theodore Taphorn et al.
    1. Deeds Accomplishing Results of Will Previously Executed Will not be Set Aside fob Undue Influence of Infirm Parent After Stroke of Paralysis.
    Deeds executed hy a father to his sons accomplishing the same result achieved by the grantor’s executing a will six years before when no doubt existed as to his mental condition or freedom of action, will not be set aside for undue influence .and lack of mental capacity of grantor fallowing an attack ■of paralysis, notwithstanding doubt by the reviewing court as to the weight of evidence as to his mental capacity and fairness of the influence exerted by his sons.
    2. Burden of Proof upon Grantor to Set Aside Deeds for Undue Influence.
    Undue influence in deeds of gift from parent to child will not be presumed as in like deeds from child to parent but it must be proved by clear and convincing evidence by grantor to set •aside such conveyances; hence, the burden of proof is not on grantees to show that the transaction is fair and free from such influence.
    Error to Hamilton common pleas court.

      J. C. Eealy, for plaintiff in error.

      Louis J. Dolle, Walter C. Taylor and J. B. O’Donnell, for defendant in error:
    As to tbe capacity of the grantor. Kime v. Addlesperger, 24 O. C. C. 397 (2 N. S. 270); Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43).
    As to the effect of the hemiplegia. Delaplain v. Grubb, 44 W. Va. 612 [30 S. E. Rep. 201; 67 Am. St. Rep. 788]; Meyer v. Jacobs, 123 Fed. Rep. 900; Bowdoin. College v. Merritt, 75 Fed. Rep. 480; Ralston v. Turpin, 129 U. S. 663 [32 L. Ed. 747] ; Sawyer v. White, 122 Fed. Rep. 223; Lore v. Truman, 1 Dec. Re. 510 (10 W. L. J. 250); Kime v. Addlesperger, 24 O. C. C. 397 (2 N. S. 270) ; Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43) ; 13 Cyc. 573; Taphorn v. Taphorn, 18 Dec. 743 (6 N. S. 579) ; Willis
      v. Baker, 75 Ohio St. 291 [79 N. E. Rep. 466]; Commercial Nat. Bank v. Wheelock, 52 Ohio St. 534 [40 N. E. Rep. 636; 49 Am. St. Rep. 738]; Stewart v. Gordon, 60 Ohio St. 170- [53 N. E. Rep. 797]; Ford v. Osborne, 45 Ohio St. 1 [12 N. E. Rep. 451; 4 Am. St. Rep. 507] ; Potter v. Potter, 27 Ohio St. 84; Bigelow, Fraud pp. 357, 358, 359; Clark v. Clark, 174 Pa. 309 [34 Atl. Rep. 610] ; Saufley v. Jackson, 16 Tex. 579; 2 Pomeroy, Eq. Jurisp. (3 ed.) Sec. 962; Burwell v. Burwell, 103 Va. 314 [49 S. E. Rep. 68]; Orr v. Pennington, 93 Va. 268 [24 S. E. Rep. 928]; Mackall x. Mackall, 135 U. S. 167 [10 Sup. Gt. Rep. 705; 34 L. Ed. 84]; Towson v. Moore, 173 U. S. 17 [19 Sup. Ct. Rep. 332; 43 L. Ed. 597]; Oliphant v. Liversidge, 142 111. 160 [30 1!. E. Rep. 334]; Prescott v. Johnson, 91'Minn. 273 [97 N. W. Rep. 891]; Wessell x. Rathjohn, 89 N. C. 377 [45 Am. Rep. 696] ; Yeakel x. McAtee, 156 Pa. St. 600 [27 Atl. Rep. 277] ; Haynes v. Harriman, 117 Wis. 132 [92 N. W. Rep. 1100]; Vance v. Davis, 118 Wis. 548 [95 N. W. Rep. 939]; Truman x. Lore, 14 Ohio St. 144; Wise v. Foote, 81 Ky. 10; Bewell x. Warden, 24 O. C. C 344 (4 N. S. 545); Hammond x. Welton, 106 Mich. 244 [64 N. W. Rep. 25]; Francis x. Wilkinson, 147 111. 370 [35 N. E. Rep. 150] ; Sturtevant ■x. Sturtevant, 116 111. 340 [6 N. E. Rep. 428] ; Hamilton x. Smith, 57 Iowa 15 [10 N. W. Rep. 276; 42 Am. Rep. 39]; Howe x. Howe, 99 Mass. 88; Taylor x. Taylor, 41 N. G. 26 [51 Am. Dec. 412]; Likins x. Likins, 122 Mo. 279 [27 S. W. Rep. 531] ; Millican x. Millican, 24 Tex. 426; Robinson x. Allbee, 4 Circ. Dec. 185 (12 R. 663).

      Affirming Taphorn v. Taphorn, 18 Dec. 748.

   GIFFEN, P. J.

The original action was commenced to set aside, on the ground of undue influence and mental incapacity, four deeds conveying all the real estate of the grantor to his two sons, Theodore and John. A decree was entered for the defendants which it is now sought to set aside.

In deeds c-f gift from parent to child undue influence will not, because of that relation, be presumed as it sometimes is in deeds of gift from child to parent, but must be proved like other issues of fact.

The due execution and delivery of the deeds having been established, the burden did not rest upon the defendants to show that the transaction was fair and free from undue influence; but on the contrary the burden was cast upon the plaintiff to establish by clear and convincing proof one of the grounds relied upon to set aside the deeds. Willis v. Baker, 75 Ohio St. 291 [79 N. E. Rep. 466].

The degree of influence that will be undue is relative and dependent upon the circumstances of each case. If the grantor is old and his mind weakened by disease, slight influence may be-sufficient to overcome his power of resisting the importunities of those about him, and thereby become undue, although under other conditions it could not be so regarded. The relation of the sons to the father in this case prior to January 5, 1907, was. one of dependence rather than authority over him, and if at the time the- deeds were executed (January 10, 1907), they exerted any undue influence, it was possible only because of his weak mental condition resulting from a stroke of paralysis suffered on January 5, 1907.

It is important, therefore, to inquire to what extent, if any,, his mind was affected thereby. The testimony shows that he suffered a marked and distant hemiplegia as the result of a hemorrhage of the brain, from which he has never fully recovered, although the improvement has in many respects been remarkable. He was, at the time, past eighty years of age but apparently in good health except a condition of arterio-sclerosis thickening and hardening of the arteries.

The only expert testimony in the ease was offered by the plaintiff, and Dr. G. A. Fackler, a specialist in nervous diseases who examined the patient on the morning of the day following the stroke, testified as follows:

“At the time of my visit he was almost totally unconscious. "With some difficulty and some efforts at arousing him, he would be aroused. Nothing more than an exclamation. One or two words. Nothing further. He was to all intents and purposes in an unconscious state. His entire left side was immovable. No motion to the arms or legs or the left side of the face.
‘ ‘ Q. .What was the condition of his intellect at that time ? A. Absolutely in abeyance. He had no intellect at the time at all.
“Q. And with reference to the will what would you say was his power ? A. He had no will power at all at that time. He was unconscious practically.”

It is manifest from this testimony that the patient, at that time, was incapable of transacting any business or of knowing the amount of his property and the natural objects of his bounty.

Dr. LaFayette Neufarth, the attending physician, testified as follows:

“Q. Do you remember whether or not you saw him with Dr. Fackler? A. Yes, sir; I seen him with Fackler. I believe that was on Sunday evening.
‘ ‘ Q. "What was his condition at that time ? A. That left side was devoid of feeling and motion and I think even the face. Although he could use his tongue, and drink some, he could not use his lips very well, or drink without spilling a good deal of the water that he attempted to drink. I don’t remember whether he could take several swallows of the liquid, but he could drink some; but the sense of feeling and motion was completely gone.
“Q. How was he at that time with regard to maintaining a conversation with anyone? A. I guess he was very much in the morning as the day before. • You could get his attention, and get an answer straight, but his mind would not say, didn’t slay long enough to carry on much of a conversation, or remember very much of what was going on.
‘ ‘ Q. Fully a week or ten days before there was any marked change? A. Yes, sir.
‘ ‘ Q. Do you remember being present when Mr. Hauck was there with some papers for the purpose of having him sign them ? Did he ask you any questions with regard to his condition? A. Yes, sir.
‘‘Q. Was that the day on which the papers were signed or before, do you remember? A. I don’t know that. I was in there one day to see the old gentleman when Mr. Hauck was there in the sitting room, and asked me whether Mr. Taphom. was in a condition to do business. Of course standing right on the side of the bed with Mr. Taphorn in it and looking right at me. I said he was. The old gentleman was in bed right in front of me lying down.
‘ ‘ Q. I will ask you what his condition was mentally at that time? A. When you attracted his attention he would answer you apparently clearly, but then he would either go to sleep or talk on some subject not in connection, not answer your question. He would talk of something that had no direct connection with the affairs that were going on.
“Q. I will ask you, were there any symptoms to your mind indicated his mental condition on the tenth day of January? A. As I said before you could not retain his attention. He would answer your question apparently mechanically, and then would wander off to something else or on some other subject or just lay without saying anything.”

This testimony was much shaken in the cross-examination when the witness’s attention was directed to his deposition taken nearly a year before, in which he testified that the patient recognized and conversed in an intelligent manner with those about him, and described his sensations at the time he was stricken, and that in his opinion Mr. Taphorn on the ninth and tenth day of January understood both the amount of his property and who his children and grandchildren were. Yet upon examination concerning his deposition he stated facts and drew conclusions in harmony with his testimony in chief. There are, however, so many contradictions throughout his testimony that it would be very unsafe to base any judgment upon it. Of one fact he testifies clearly and that is, having heard in another part of the house that Mr. Taphorn was about to transfer some property, he suggested to him that he protect the old lady, his wife; but even this seems to have made no impression on the mind of Mr. Taphorn, as he gave no instructions to Mr. Hauck, the attorney, to make provision for his wife; but it was done by the latter of his own motion, although approved by Mr. Taphorn before signing the deeds.

Dr. B. F. Beebe examined the patient the day before .he testified, and about a year after the hemorrhage, and while he says that he found the mental condition much better than he expected, an unusual mental condition so far as a man of his age is concerned, yet his testimony throws very little light on the question of the grantor’s mental condition at the time the deeds were executed and delivered.

It is undisputed that about six years prior to the execution of the deeds Mr. Taphorn executed a will in which he devised all his property to his sons, John and Theodore, and which was then still in force — that the sons, believing that the will might be more easily set aside, importuned the father to execute deeds instead, which he steadfastly refused to do up to the time of his illness. He himself testifies that he has no recollection of Mr. Ilauck bringing four deeds to him to be signed or of hearing them read, although he remembers being requested to and that he did sign something.

On the other hand the evidence shows that on the seventh or eighth of January he instructed his housekeeper, Mrs. Buenning, to go to Hamilton and ascertain whether a note for $5,000 on which he was endorser, and which had been protested, had been since paid; that about the same time he instructed his sons .to buy some pigs, but strangely enough, after the purchase was made, he requested the sons to bring the live pigs in a crate into his bedroom that he might see them; that he directed his housekeeper to deliver to his son the keys to certain drawers in his desk for the purpose of procuring certain deeds and other papers; and that he recognized his friends and members of the family and conversed with them on different subjects, but more particularly concerning his physical condition.

Each and all of these facts indicate that he was conscious and rational to that degree necessary to perform such acts, although not necessarily that he comprehended the scope and effect of the deeds at the time they were executed. The circumstances surrounding, the execution of the deeds, including the anxiety of the sons to have title by deeds rather than devise; the declaration of one of the sons to the attorney, “whatever you do make it stick”; the effort to secure a particular witness from a distance of a half a mile, when there were present in the house persons competent to act; the extreme effort required by the .grantor to sign his name although he had, as one witness testified, a firm grip in his right hand, and his' crying at intervals ■during the performance, cause us to doubt his mental capacity and the fairness of the influence exerted by the sons; .but a mere difference of opinion upon the weight of the evidence will not justify „the reversal of a decree, and as the doubt entertained is not of that convincing nature required, we are constrained to affirm the judgment, and do it with less reluctance because the deeds accomplish substantially the same thing that the grantor had, six years prior, attempted to do by a written will, and had repeatedly reaffirmed when there was no question of his mental capacity or of undue influence.

Judgment affirmed.

Swing and Smith, JJ., concur.