author:
Skeel, J.
      Hurd, P. J.,

text:
    In re Estate of Bowles: Morgan et al., Appellants, v. Heirs of Bowles, Appellees.
    (No. 22564
    Decided August 24, 1953.)

      Messrs. Pickrel, Schaeffer £ Ebeling, Mr. William A. Finn, Messrs. Sayre, Vail & Steele and Messrs. Diehm £ Farber, for appellees.

      Messrs. Baker, Hostetler £ Patterson, Mr. I. G. Thompson and Messrs. Amerman, McHenry, Jones £ Morgan, for appellants.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment or final order of the Probate Court of Cuyahoga County, refusing to admit to probate the alleged lost last will and testament and the original codicil of Susan Harkness Bowles. The application signed by Charles A. Morgan sets forth in part that Susan Harkness Bowles, a resident of Cuyahoga County, died November 17, 1951. At the time of her death, she was a ward of the Probate Court, this applicant having been appointed guardian of her person and estate on September 15, 1950, it being found by the court that she was then an incompetent person. It is alleged further that on November 9,1946, the deceased then being of sound mind and memory executed and published her last will and testament in the manner provided by law; that on August 17, 1948, the deceased executed a codicil to her last will and testament in which she, except for one change made by the codicil, ratified and confirmed all the provisions of her will executed November 9, 1946; and that before her death said will, without her knowledge and without any desire or intent on her part to revoke the same, was lost and cannot now be found. A conformed copy of such will and also a copy of the codicil is attached to the application.

It is alleged further that there is no surviving spouse and that the applicant is an interested person, being a legatee under the will. The application then sets forth the names of persons known +o the applicant who might be entitled to some interest in the estate, if the deceased died intestate. Thirteen names are set forth, all designated as being cousins of the deceased, it being alleged further that there may be others of which the applicant has no knowledge. The applicant then requested that the provisions of the conformed copy and the codicil be entered for probate as the last will and testament of the deceased.

There are three principal beneficiaries under the will and codicil: Western Reserve University which is to receive under the will the greatest share of the estate, that is the income from the residuum held in trust to establish or support a professorship in the name of John Reynolds Harkness, uncle of the deceased (in whose family Miss Bowles was raised), in the College of Arts and Sciences of the university; Mr. Charles A. Morgan (applicant herein) a bequest of $100,000, and Miss Rose Tulley, housekeeper and companion, $100 for each year of service while in deceased’s employ, and by the terms of the codicil an annuity of $400 per month during her life. There were six other annuities provided for, totalling $1,050 per month, as well as a bequest of an amount equal to $100 per year for each year of service to the other employees of the testator.

Miss Bowles, during the greater part of her adult life, was the trusted companion of Mrs. Laura Price Briggs, a woman of great wealth. Upon the death of Mrs. Briggs, Miss Bowles became the executrix and trustee under her benefactor’s will and was the recipient of a generous share in the estate. In fact, the greater part of Miss Bowles’ estate came from Mrs. Briggs, that is a legacy of $100,000 and the income of the residuary estate amounting to approximately $150,000 per year and such income as was derived for her services as executrix and trustee.

Miss Bowles became acquainted with Charles A. Morgan in 1923 in connection with the administration of the Ira A. Price estate (brother of Mrs. Briggs), Mr. Morgan then being an officer in the trust department of the Union Trust Company. After the Union Trust Company closed, Mr. Morgan became a trust officer and assistant vice president of the National City Bank of Cleveland, where he continued his business relations with Miss Bowles in connection with his work for Mrs. Briggs, and, upon the death of Mrs. Briggs in 1941, gave assistance to Miss Bowles in carrying out her duties as executrix and trustee of the Briggs estate. Miss Rose Tulley was employed as housekeeper and personal companion for Miss Bowles in February, 1944, and continued (except for about three months at the beginning of 1945) in that capacity until Miss Bowles’ death in November 1951.

Mr. T. Gr. Thompson, a lawyer at the Cuyahoga County Bar, represented Miss Bowles in her personal matters and as executrix and trustee of the Briggs estate from 1940 until her death in 1951. In 1946 he was employed to draw her will. Much care was expended in developing a plan for thus disposing of her property. After two or three drafts of a proposed will were gone over with great care, the final draft was then prepared and explained to her and was then executed in Mr. Morgan’s office at the National City Bank.

The will, after being executed as provided by law, was delivered to Miss Bowles. She received also a conformed copy in an envelope on which Mr. Morgan wrote “Miss Susan H. Bowles, 13515 Shaker Boulevard.” Miss Bowles was instructed that it would be best .to put the will in her safe-deposit box in the Union Bank of Commerce.

In August 1948, Miss Bowles engaged Mr. Thompson to draft a codicil to her will, providing for an annuity to Rose Tulley of $400 per month. Miss Tulley had then been in her services for over four years. The codicil ratified and affirmed all the other provisions of her last will and testament as executed November 6, 1946.

During May 1950, Miss Bowles became seriously ill. Her physical and mental condition thereafter is said to have deteriorated gradually so that upon an application being filed to put her under guardianship, the court found her to be an incompetent person and appointed Charles A. Morgan guardian of her estate and person in September, 1950.

Upon appointment as guardian, Mr. Morgan, together with Miss Tulley, made a search for the will but could not find it. However, the codicil was found among some of her papers in her apartment at 13515 Shaker Boulevard. When Mr. Morgan got access to the safe-deposit box there were no papers of value therein, but he discovered the envelope which was given to Miss Bowles by Mr. Morgan and Mr. Thompson the day the will was executed. In the envelope was found the conformed copy of the will as she received it on November 9, 1946, and Miss Bowles had written on the envelope above her name (as written by Mr. Morgan) the words, “Last Will,” which were underscored by two lines and below her name were the words in her handwriting, “Last Will Nov. 9th, 1946.” Upon the death of Miss Bowles, a further search was made for the will, but it could not then and has not since been found.

Upon trial of the application to probate the last will and testament of Susan Harkness Bowles, dated November 9, 1946, as a lost will, it being claimed by the proponents of the will that it was lost during the lifetime of the deceased without her knowledge, the court found that the provisions of said will had been satisfactorily established and that it had been executed as provided by law. The only other justiciable question to be decided on such application was whether the deceased before her death had knowledge that the will had been lost, the statute providing that such last will if lost during the lifetime of the deceased, shall be probated “if * * * lack of knowledge of such loss * * * can be proved by clear and convincing testimony * * The court in refusing probate and overruling the application of Western Reserve University to intervene said in part:

“It is presumed that the will which was lost was destroyed by the testator with intention of revoking it and that testimony can be overcome, that presumption can be overcome only by the lest hind of evidence. The court didn’t feel that that was presented and I am prepared now to refuse your application to intervene for the reasons that I have indicated.” (Emphasis added.)

The trial of this proceeding began on February 14, 1952. The opponents of the will moved for an exclusion of a witness. Miss Tulley (one of the persons interested in having the will probated) was in the courtroom and when Mr. Morgan, Jr., was asked if he expected to use her as a witness and when he answered that he would, over his objection, she was excluded by the court until called to testify.

On the 8th day of April 1952, after the applicant had submitted his case and briefs were filed both by the applicant and the opponents, Western Reserve University filed a motion seeking the right to intervene and produce additional evidence. After argument, the motion to intervene was overruled and the court entered its order refusing to admit said last will to probate.

Motions for new trial were filed April 18, 1952, by Western Reserve University, Rose Tulley, Charles A. Morgan and Geraldine Hart Brooks and her sister, Dorothy E. Hart (both residents of Warren, Ohio, who had not been served with notice of the proceeding as provided by law) and who were daughters of Helen Reynolds Hart, one of the relatives who was to receive an annuity under the will and in case of her death then her above mentioned daughters were to divide such annuity. Helen Reynolds Hart was a cousin (the record casts doubt as to whether she was a first or second cousin) of Susan Harkness Bowles. Affidavits were filed with these motions, setting forth additional evidence which would be produced to support the contentions of the proponents of the will. Without further hearing, these motions were overruled.

The appellants herein claim the following errors:

1. In refusing to admit to probate the last will and testament of Susan Harkness Bowles.

2. In refusing to admit to probate the original codicil together with a copy of the lost will, incorporated by reference in the codicil.

3. In refusing to admit the original codicil to probate.

4. In excluding Rose Tulley from the hearing on February 14, 1952, although she was an interested person in the proceeding.

5. In overruling the several motions for new trial.

6. In the rejection of evidence offered on behalf ot the proponents of the last will and original codicil.

7. That the judgment is against the manifest weight of the evidence.

From the foregoing recital of the facts it is made to appear that there is but one issue of fact to be decided, that is the testator’s lack of knowledge that her will was lost, and that the principal legal question is with regard to quantum of proof required to establish such question of fact so as to permit and require the probate judge to admit the alleged “lost” will (that is lost during the lifetime of the testator) to probate. There is no dispute presented with regard to the provisions of the will or that it was properly executed. Many of the cases cited by the opponents, appellees herein, are concerned with establishing the contents of an alleged lost or destroyed will, and whether such will was properly executed. They are concerned also with the question of whether the loss occurred before or after the death of the testator.

The case of Cole v. McClure, 88 Ohio St., 1, 102 N. E., 264, was a will contest case beginning in the Common Pleas Court. The deceased left a surviving spouse (there were no children) who under the claimed will (which was admitted to probate by the Probate Court) was to receive a life estate in her husband’s property (all land acquired by purchase), and upon her death such property was to pass to the brothers and sisters of the deceased. The only question decided by the court had to do with the degree of proof required to establish the contents of the will and whether such will was still in existence after the testator was declared insane. On these two questions the court said:

2. “To establish a lost or destroyed will the evidence of its execution and its contents must be clear, strong, positive, free from bias, and convincing beyond a reasonable doubt.”

3. “Where a will has been lost or destroyed before the death of the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became ‘incapable by reason of insanity to make a will.’ ” (Emphasis added.)

The case of Behrens v. Behrens, 47 Ohio St., 323, 25 N. E., 209, 21 Am. St. Rep., 820, was also a will contest case. Here again the existence of the alleged lost will after the death of the testator was the question involved. The court stated the issues tried as follows on page 328:

“After his decease, it was discovered that his will had been lost or destroyed, and the question arose, whether the will was lost or destroyed prior or subsequent to the death of the testator, and if before his death, whether or not it was destroyed by the testator himself, with the intention of revoking the same. On the application of George Behrens, the Probate Court found that the will was not revoked by the testator, but that it had been lost or destroyed subsequent to his death, and thereupon established its contents to be as in the alleged copy produced in court, and admitted the same to probate.”

The court held, as disclosed by the syllabus:

“1. Where the Probate Court has found and established the contents of a lost, spoliated or destroyed will, in a future proceeding to contest the validity of such will, the order of probate will be prima facie evidence of the due attestation, execution, validity, and contents of the will, and the burden of proof will be on the contestants to 'invalidate such will.

‘ ‘ 2. When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.

“3. To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.” (Emphasis added.)

These cases, and others upon the same subject, do not deal with the question here presented. The statute, as amended in 1932, provides the only way that a will, shown to have been lost during the lifetime of the testator, can, upon satisfactory proof of its contents and that it was properly executed, be probated. Here the court is not concerned with the presumption of revocation. It should be observed that if the deceased did not know of the loss of her will, there conld be no presumption of revocation. What the statute provides is that the proponent of a will lost during the lifetime of the testator must show the testator’s lack of knowledge of such loss, by clear and convincing evidence. The degree of proof is therefore fixed by the statute and not the case law dealing with a different subject. McWilliams v. Central Trust Co., 51 Ohio App., 246, at page 248, 200 N. E., 532.

The lack of knowledge of the loss of a will is, of necessity, a negative fact. The means of proving lack of knowledge must involve the acts and words of the testator and all the surrounding circumstances. It is not,to the detriment of the proponent’s case that all or a great part of his evidence is in character circumstantial. The plan of the will in remembering the persons who or charities which would be the natural objects of the testator’s bounty, the care with which the will was drawn, the remarks of the testator thereafter that show a continuation of the state of mind of the testator at the time the will was drawn or small changes made in the general plan of the will by codicils, all are relevant in support of the testator’s lack of knowledge of the loss of the will.

The Probate Court erroneously rejected evidence offered to establish the state of mind of the testator and her regard for those she had remembered in her will. The court also refused to hear evidence tendered by Western Reserve University as shown by the affidavits .attached to its motion to intervene, as was equally true of the motions for new trial of Dorothy Hart and G-eraldine Hart Brooks. This is an ex parte proceeding. The witnesses must of necessity be those called by the proponents of the will. It is just as serious a mistake to take away the right of a person to distribute his property after death by will, which right is provided by law, as it is to attempt to fix the terms of a will differently from those intended by a decedent.

In considering the rejection of competent evidence it is necessary to allude to one of the appellee’s theories (not supported by any evidence) argued as a reason why the will cannot now be found and why the court should invoke the presumption that the testator destroyed it with intent to revoke its provisions. It is argued that after mature reflection, the testator must have concluded that her relatives should be considered as entitled to her estate as against strangers. This contention makes the proffered testimony absolutely relevant. The appellees are not of the immediate family of the deceased. Their relationship is at best in the fourth degree and if we are to take the evidence of the attitude of the deceased to the opponents and the opponents ’ attitude toward the deceased at face value, they and the deceased were not compatible, while the evidence which was admitted as to testator’s relationship (both business and social) with the persons remembered in the will, tended to establish very close friendly relationships. The evidence excluded therefore was directly competent on a vital question to be established in this ex parte proceeding.

As indicated above, the statutory rule is that the lack of knowledge on the part of the testator during her life that her will had been lost, where the claim of the proponents is that such is the fact, is that the proponents must establish such lack of knowledge “by clear and convincing testimony.” The court, at the conclusion of the hearing on the motion to intervene and in refusing to admit the will and codicil to probate, said as above quoted, that the proponents must establish the testator’s lack of knowledge that the will had been lost, by “the best evidence.” By this, the court unquestionably meant, as contended for by the appellees, that the proponent’s case must be established beyond a reasonable doubt. This is a greater degree-of proof than is provided for by statute, and in so holding the court committed prejudicial error against the claims of the proponents.

In the case of Goodale v. Murray (1940), 227 Iowa, 843, 126 A. L. R., 1121, 289 N. W., 450, the seventeenth headnote in the Northwestern Reporter is as follows:

“Although one who seeks to establish lost will should be required to produce evidence that is clear, convincing, and satisfactory, yet burden put upon him should not be prohibitive, and it is not necessary that presumption of revocation be overcome by evidence that is free from doubt.”

For the foregoing reasons, we must sustain claims of error Nos. 4, 5, and 6, that is in overruling the several motions for new trial and in rejecting competent evidence.

One other question must be considered with respect to the motions for new trial of Dorothy Hart and Geraldine Hart Brooks. The record discloses that they were not served with notice of the hearing.

Section 10504-36, General Code, provides:

“When application is made to the Probate Court to admit to probate a will duly executed, and lost, spoliated or destroyed, the party seeking to prove it shall give a written notice to the surviving spouse and to the next of kin of the testator, if any, known to be resident of the state, and to all persons whose interest it may be to resist the probate, known to reside in the county where the testator resided at the time of his death, not less than five days before the day on which such proof is to be made, or give notice, by publication in a newspaper printed in the county, not less than thirty days before the day set for hearing such proof.”

Except for the last part of the section providing for either notice or service by publication as to those who are residents of the county and might be interested in .resisting the probate of the will, it reads exactly like Section 10504-17, General Code, which provides for notice of probate in will cases generally. Prior to the amendment of the Probate Code in 1932, Section 10504-17, General Code, was known as Section 10507, General Code, and, before amended, read:

“No will shall be admitted to probate without notice to the widow or husband and next of kin of the testator, if any, resident in the state in such manner and for such time as the Probate Court directs or approves.”

In the case of Scholl v. Scholl, 123 Ohio St., 1, 173 N. E., 305, the court, in considering Section 10507, General Code, said:

“1. The requirement of Section 10507, General Code, that upon an application for the probate of a will notice shall be given to the widow or husband and next of kin of the testator resident of the state, is mandatory and jurisdictional.

“2. An order of probate of a will without notice to persons entitled to notice under the provisions of Section 10507, General Code, and without waiver by such persons, is void and is subject to direct attack by those who neither received notice nor waived service of notice.

“3. Mere knowledge of the death of the decedent and subsequent information of the order of probate will not estop such next of kin from attacking the order of probate, where it is not shown that the proponeents of the will were misled by silence or delay, or that they were prejudiced thereby.”

See, also, Young v. Guella, 67 Ohio App., 11, 35 N. E. (2d), 997, where the court said:

“1. An order of the Probate Court admitting a will to probate, made without the service of notice upon the next of kin resident in this state, as required by Section 10504-17, General Code, and without waiver thereof, is void.

“2. The fact that a person aggrieved by such order could obtain relief in the Probate Court by virtue of statutory provisions, does not preclude such person from recourse to a court of general equity jurisdiction by original action, to have sucb order declared to be void.

“3. The grant of a limited equity jurisdiction to the Probate Court, under the provisions of Sections 10501-53 and 10501-17, General Code, does not oust the Court of Common Pleas from its original equity jurisdiction to declare void the judgments and orders of the Probate Court for lack of jurisdiction.”

We hold that the amendment of the statute by adding the words, ‘ ‘ known to be, ’ ’ before the words, ‘ ‘ resident of the state,” did not relieve the court from requiring notice to the next of kin of the testator who were then residents of the state of Ohio. Whether the Hart sisters were, in fact, next of kin, was a question of fact which, when presented to the court on the motions for new trial, should have been determined or a new trial granted so that such question could have been thus judicially determined. If they were next of kin and not served with notice, the court would have been without jurisdiction. In any event, they were interested parties and should have been brought into the case as was equally true of Western Reserve University. .

The circumstance that the judgment of the court refusing to probate the alleged lost last will and testament of Susan Harkness Bowles upon the application of Charles A. Morgan would not preclude other interested parties who were not made parties to such proceeding and were without notice from themselves and on their behalf presenting the same will for probate.

In the case of Feuchter v. Keyl, 48 Ohio St., 357, 27 N. E., 860, the court said in paragraph two of the syllabus :

“2. Where admission of a will to probate has been refused by the Probate Court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the Court of Common Pleas from the order of refusal, are not concluded thereby, and may repropound the will notwithstanding the former order of refusal has not been vacated.”

The statute giving the right to appeal to the Common Pleas Court has been repealed, but the rule of the case still stands and, therefore, it would serve both the ends of justice and prevent a multiplicity of lawsuits to let all interested parties into the original action.

At the beginning of the trial, Rose Tulley, who was an interested party, as was self-evident both by the will and the codicil then before the court, was excluded from the courtroom by order of the court. She was not then represented by counsel. To thus exclude an interested party constituted error for which the judgment entered must be reversed.

Claim of error No. 2 has to do with the refusal of the court to probate the conformed copy of the will, and the original codicil, on the theory that the codicil brought into its provisions by reference the provisions of the original will. . A reading of the codicil does not support this contention. "What the codicil provides for is an annuity for Rose Tulley as an item not contained in but to be in addition to the provisions of the will as executed November 9, 1946, the annuity to be paid out of the income from a trust fund created by the will. The operation of the only donative provision of the codicil is solely and totally dependent upon the effectiveness of the will. There is clearly no intent on the nart of the testator to create a new will as of the date of the codicil. She believed her will was then in existence. The appellees agree that this is so. There could be no purpose, therefore, to create a new will by drawing into the codicil by reference the conformed copy of the will found in her safe deposit box. The executing of the codicil is almost irrefutable evidence that on the date of its execution, the testator believed the original will to be in existence and if it had been lost the testator did not know it. To attempt to show that the execution of the codicil created a new will by reaffirming the old would be inconsistent. This claim of error must be overruled.

The facts as above set forth disclose that while the will could not be found upon search either at the time of the appointment of the guardian on September 15, 1950, or after the death of the testator on November 17, 1951, the codicil executed as provided by law was found among the papers of the deceased shortly after the guardian was appointed. It is therefore claimed that since the will which was in existence when the codicil was executed and such codicil republished the will in its entirety if the will was destroyed thereafter with intent to revoke it without a destruction of the codicil, the provisions of Section 10504-47, General Code, which do not permit a partial revocation of a will would be applicable. It is upon this basis that it is contended that the destruction of a will without the destruction of the codicil would not constitute a revocation of the will.

Appellants rely on the case of Coghlin v. Coghlin, 79 Ohio St., 71, 85 N. E., 1058. There the testator tore out one page of the original will which was recovered by a son and pasted together by the testator’s wife, and replaced in the will. The testator then took the will to his lawyer with the restored page and talked to him about executors and their compensation. One of the items on the torn page dealt with the appointment of the executor, with which subject he was not fully satisfied. A codicil changing this item of the will was drawn but not signed. The court held:

“1. In the contest of the validity of a will which has been admitted to probate, the ground of contest being that the testator in his life time had destroyed the will with the intention of revoking it, the allegation that the will was revoked is not sustained by evidence showing that the testator removed from the instrument and tore one of its several pages leaving the will otherwise intact and evincing an intention to preserve it.

“2. In such case, for the purpose of showing the intent with which the page had been removed, it is competent to show that after it has been restored the testator regarded the instrument as his will. (Behrens v. Behrens, 47 Ohio St., 323, approved and followed.) ”

On page 76 the court says:

“We recognize fully that there can be no partial revocation. And if a portion only of a will be erased or canceled with intent to revoke that part only but not with intent to revoke the whole will, the act will be ineffective and if the canceled part can be restored or is legible the' will should be admitted, including the canceled portion, as a valid part of the will. ‘The ultimate question therefore is — Did Dennis Coghlin intend to revoke only that part of the will which he tore up and threw in the wastebasket? Or did he intend to revoke the will as a whole? But in considering the pertinency of Mr. Waite’s testimony it becomes necessary to consider the relation of the part torn out to the balance of the will.’ ”

The facts of the Coghlin case are to be distinguished from the facts of the case now being considered, in that in the Coghlin case only one page of the will was disturbed, which fact was immediately known, it being clear from the evidence that there was no intention on the part of the testator to revoke his will in its entirety. All he wanted to do was to take out one provision. In the case before us, the original will in its entirety is missing. All that can now be found is a codicil, the provisions of which cannot be carried out without the help of the provisions of the will creating the trust from which the annuity provided for is to be paid. If it could be said, which claim the appellants deny in the basic part of this appeal, that the testatrix did dispose of the will with intent to revoke it, such act would also be conclusive as to the codicil which is completely dependent upon the will for its effectiveness. We must conclude, therefore, that this claim of error is not well taken.

The majority of the court also finds that, upon a full and complete consideration of all the evidence, a finding that the proponents of the will have not shown the testatrix’s lack of knowledge that her will had been lost during her lifetime by clear and convincing proof is erroneous and prejudicial to their rights and the claim of error that the judgment of the court refusing to probate the will is against the manifest weight of the evidence is sustained.

The last claim of error is that even though the trial court correctly held that the original will should not be probated for failure of the proponents to establish the testatrix’s lack of knowledge of the loss of her will by clear and convincing proof, yet the court should have probated the properly executed codicil as a partial testamentary disposition of the deceased’s property. Here again, we must conclude that the codicil is so dependent on the will that it cannot be probated separate and apart from the will for the reasons above set forth.

For the reasons above set forth, the order of the Probate Court refusing to probate the alleged lost last will and testament and original codicil of Susan Harkness Bowles is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Kovachy, d., concurs.

Hurd, P. J.,

concurring in part and dissenting in part. I dissent from the opinion and judgment of the majority of the court in their reversal of the judgment of Probate Court on the asserted ground that said judgment is contrary to the manifest weight of the evidence.

Since a majority of the court may reverse on the weight of the evidence in a case tried to the court without the intervention of a jury, thus requiring a new trial of the issues of fact, I see no advantage in a detailed discussion of the evidence at this time. However, as I am not in accord with the majority with respect to the principles of law applicable to this issue, I deem it appropriate to express briefly my views referring only to so much of the evidence as may be necessary to point up the issue of law involved.

I cannot concur in the view expressed in the majority opinion that we are not here concerned with the presumption of revocation, and that the 1932 amendments of Sections 10504-35 and 10504-38, General Code, had the effect of changing the rule of law with respect to the presumption of destruction of the will by the testatrix animo revocandi as applied to the facts and circumstances of the present case.

The statute law of Ohio relating to the probate of lost, destroyed or spoliated wills is contained in Sections 10504-35 to 10504-40, inclusive, General Code, all as amended effective January 1, 1932.

Sections 10504-35 and 10504-38, General Code, which are particularly pertinent to the issues in the present case read as follows:

“Section 10504-35. The Probate Court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before +-he death of such testator if testator’s lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate.” (Emphasis added.)

“Section 10504-38. If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony taken in the case to be recorded in such court.”

These sections are similar to former Sections 10543 and 10546, General Code. • The new portion which is identical in each section reads, “or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony.” These quoted words of the sections as amended are tantamount to saying that clear and convincing evidence is required to show that the testator did not lose or destroy the will with the intention of revoking it, but the legal presumption that he did so is not thereby destroyed, but remains until overcome by proof to the contrary. It may be argued that the prevailing presumption and the applicable statutes place k great burden upon the proponents of lost, destroyed, or spoliated wills, but in this connection it is well to observe that prior to the amendments of 1932 there was no provision at all in Ohio, statutory or otherwise, for the probate of a will that had been lost, destroyed or spoliated during the life of the testator.

Considering the evidence pertinent to this issue, it is undisputed that, following the execution of her will by the testatrix on November 9, 1946, it was taken by her into her sole custody and control and so remained for some period of time, the length thereof being uncertain. But at her death on November 17, 1951, the will could not be found. In fact, so far as the record before us discloses, it was never again seen by any person other than the testatrix. The evidence further shows that a guardian was appointed for the testatrix on or about September 15, 1950, and continued to act in that capacity until her death. But neither the guardian nor any other person has been able to discover the original duly executed will although an unsigned copy thereof has been found.

It is well settled in Ohio that when a will once known to exist and to be in the custody of the testator cannot be found after his decease, a legal presumption arises that it was destroyed by the testator with the intention of revoking it. See the second paragraph of the syllabus of Behrens v. Behrens, 47 Ohio St., 323, 25 N. E., 209, 21 Am. St. Rep., 820. See, also, Cole v. McClure, 88 Ohio St., 1, 102 N. E., 264 and the recent case of In re Estate of Tyler, 159 Ohio St., 492, 112 N. E. (2d), 668. See, also, 41 Ohio Jurisprudence, 425, 426, Wills, Section 256 and Ohio cases there cited.

This presumption of law is not only well settled in Ohio, but is in accord with the overwhelming weight of authority in other jurisdictions. See 57 American Jurisprudence, 377, 378, Wills, Section 549, and supporting authorities there listed too numerous to cite here at length.

In the case of In re Estate of Tyler, supra, decided May 27, 1953, our Supreme Court once again had occasion to construe the sections of the General Code relating to the probate of lost, spoliated or destroyed wills. It should be emphasized, I think, that the Tyler case was decided some 21 years after the 1932 amendments to the code sections here cited and quoted. Nevertheless, the Supreme Court in that case reaffirmed the doctrine of presumptive revocation enunciated in Behrens v. Behrens and Cole v. McClure, supra. (See pages 497, 498 and 502 of In re Estate of Tyler.) In the Tyler case, Judge Stewart, in an opinion speaking for a unanimous court, quoted verbatim Sections 10504-35, 10504-36, 10504-37 and 10504-38, General Code, all as amended effective January 1, 1932, after which, as shown at pages 497 and 498, he quoted the entire syllabus of Cole v. McClure, supra.

For the purposes of this discussion, I quote only paragraph three of the syllabus of the Cole case, which reads as follows:

“3.' Where a will has been lost or destroyed before the death of the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became ‘incapable by reason of insanity to make a will.’ ” (Emphasis added.)

Judge Stewart then declared at page 498 as follows:

“The same rule applies with reference to a will which has not been lost or destroyed but has been mutilated, even though it is proved, as it was in this case, that decedent properly executed it.”

The opinion also quotes with approval from 57 American Jurisprudence, 378, Section 550. I quote only a part thereof as follows:

“It would be inconsistent to hold that a total absence of the instrument sought to be probated raises a presumption that the testator destroyed it with intent to revoke it, and to refuse to hold that the production of a mutilated instrument, shown to have been in the possession of the testator, cannot raise a presumption that the mutilation was done by the testator with intent to revoke the will.” (Emphasis added.)

Erom these authoritative decisions, I conclude that, since the original will was in the sole custody and control of the testatrix from the time of its execution and could not be found at her death, there is a legal presumption that she destroyed it with the intention of revoking it. This presumption of revocation is, of course, not conclusive, but may be overcome by circumstantial or other proof to the contrary. Behrens v. Behrens, supra. See, also, Hutson v. Hartley, 72 Ohio St., 262, 74 N. E., 197. Therefore, under the issues of this case, the burden is cast upon the proponents to produce evidence sufficient to overcome the presumption of destruction by the testatrix animo revocandi and to show by clear and convincing testimony that the original will was lost or destroyed before her death without her knowledge.

I need not here discuss the jurisdictional limitations imposed by law on the Courts of Appeals of Ohio in reversing judgments of trial courts upon the weight of the evidence. Suffice it to state that a judgment of the trial court must be manifestly against the weight of the evidence to justify a reversal on that ground. This is particularly true where the law requires a higher quality and quantity of evidence than is sufficient in ordinary cases to support a judgment by the preponderance of evidence. See Cole v. McClure, supra, paragraph one of the syllabus, approving Ford v. Osborne, 45 Ohio St., 1, 12 N. E., 526.

Considering the prevailing presumption and the applicable statutes and the evidence now before us for review, I cannot find that the judgment of the Probate Court should be reversed on the ground that it is contrary to the manifest weight of the evidence, and, for this reason, must register my dissent.

I concur in the judgment of reversal in respect to the following assignments of error:

“IV. The Probate Court erred in excluding Rose Tulley from the hearing of February 14, 1952, on the application to probate the will and codicil. Being an interested party and a proponent, she was entitled to be present as a matter of right.

“V. The Probate Court erred in denying the motion of the appellant, Western Reserve University, to intervene and present additional evidence. In view of the interest of the appellant as a principal beneficiary and the fact that the application was made prior to the entry of the court’s decision, the motion should have been granted and the appellant allowed to present additional evidence as a proponent of the will.”

VIII. It appears from the evidence that the appellants, Geraldine Hart Brooks and Dorothy E. Hart, sisters, are cousins of decedent, who were not served with notice or summons as were thirteen other cousins as shown on the face of the record. The issue of whether they were next of kin should have been determined by the court.

VI, VII, and IX. In consideration of all of the foregoing, the motions of the several appellants for a new trial should have been granted for the reasons generally and more fully set forth in the majority opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In re Estate of Case: Butler, Appellant, v. Case, Admr., et al., Appellees.
    (No. 4888
    Decided March 25, 1953.)

      Mr. Thomas W. Connor, for appellant.

      Mr. John C. Fontana and Mr. A. Glenn McClelland, for appellees.
   Per Curiam.

This is an appeal from an order of the Probate Court overruling exceptions of the exceptor, appellant herein, to certain items in the inventory of the appellee-administrator. The administrator, in schedule “A” of the inventory, listed two Cadillac automobiles, one a 1949 two-door convertible coupe, and the other a 1941 four-door touring sedan.

The exceptions are based upon the claim of appellant that she was the owner of these automobiles by reason of certificates of title to both wherein she was the transferee. Upon the original hearing of the exceptions, when it developed that the certificates of title to the automobiles were in the name of the appellant, the court refused to consider any further testimony and ordered the inventory amended, striking the two cars therefrom, and instructed the administrator to turn the cars and keys over to the appellant. The court based its ruling on. Section 6290-4, General Code. The administrator then filed a motion for new trial which was sustained and the court, by agreement of counsel, considered certain testimony which had been offered but rejected on the first hearing and a stipulation of the parties and overruled the exceptions of appellant.

We have the opinion of the trial judge and find that he discarded the possibility of a gift causa mortis to the exceptor, as to which he was clearly correct, or a gift inter vivos and held that there was a resulting trust in favor of the decedent in the two automobiles.

The facts developed are that the administrator’s decedent had for many years before the purchase of the automobiles here involved, and even before the enactment of Section 6290-4, General Code, bought automobiles which he had not carried in his own name but in the name of one Harold Brown who, during a period from 1931 until 1947 or 1948, had sold decedent a 1937 Ford, a 1939 Nash, a 1941 Buick, and a 1947 Chrysler. Presumably this testimony was offered to show a pattern whereby decedent maintained title in the name of another to automobiles which he owned. It is of little or no assistance as to the title of the Cadillacs here under consideration. In Brown’s own words, the reason for this procedure was that, “He [Case] did not have the money to pay for the car and he just left the car in my name and he paid it out as he went along. It was mine as long as he didn’t pay me.” It is evident that the arrangement was set up to assure Brown payment for the automobiles which he had sold to decedent.

We now come to the question presented by this appeal, namely, the correctness of the judgment that the equitable title to the two Cadillacs was at the time of the death of decedent in his name.

On April 12,1951, a certificate of title to a 1941 four-door touring sedan was made to Barbara R. Butler by the Columbus Motor Car Company. On July 18, 1949. a certificate of title was issued to Barbara R. Butler for a 1949 Cadillac two-door convertible coupe from the Columbus Motor Car Company. Upon these certificates, licenses were issued in the name of the certificate holder. Upon the second certificate there is a notation of a lien in the form of a chattel mortgage securing the sum of $2,100, payable to the Market Exchange Bank Company. The record discloses that this loan was made to pay a part of the purchase price of the Cadillac convertible and that the note was signed jointly by decedent and Mrs. Butler. The certificates of title were at all times until his death in the possession of the decedent, and the cars were used exclusively by him with the exception of a few weeks as to each car during which time Mrs. Butler used them by decedent’s permission. It does not appear that there was any understanding between the decedent and appellant that she should hold the automobiles in trust for her father or that she should transfer them to him upon request. There is no evidence of mistake in the issuance of the certificates, and there is no suggestion of fraudulent conduct on the part of the appellant.

It was testified to by both Mrs. Butler and her husband that at about the time of the purchase of the last Cadillac, decedent said to Mrs. Butler, his daughter, that the cars were in her name, so that when and if he died she would get them free and clear of any taxes. Her husband said that Case stated, “Well, no matter whatever happens, Barbara, at least you will always have the cars. ’ ’

In the situation thus developed, was the order of the court supported upon any proper application of the controlling law?

Section 6290-4, General Code, reads:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim or interest in or to said motor vehicle until he shall have had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer’s certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidence by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

This is a drastic statute, but it is plain and all-inclusive in meaning. It rules out almost every conceivable claim except fraud, which might be asserted against the holder of the certificate. It holds the title shall not be acquired until the certificate of title shall be issued to the motor vehicle and that no court in any case at law or in equity shall recognize the title or interest of any person in or to any motor vehicle sold, disposed of or mortgaged unless such title is evidenced by a certificate of title duly issued in accordance with the provisions of this chapter.

The rights of decedent’s administrator can rise no higher than could the rights of the decedent had he lived. Under the statute, as construed by the courts, we find no support for the claim that had decedent undertaken to assert title to the automobiles against his daughter he would have been successful. He was presumed to know the law and the provisions of Section 6290-4, General Code. Of course, there was no necessity for actual delivery of the automobile to constitute a gift. The filing of the certificates of title and the issuance of licenses thereunder would be a sufficient symbolic delivery. But the burden here is not upon the holder of the certificate to show that she held title to the cars by gift. The burden is upon the administrator to prove that such certificate holder has no title to the cars, and that title is in the administrator.

While the trial judge was not bound to accept the testimony of appellant and her husband, it is consist-tent with the theory that, in taking- title to the cars in his daughter’s name, decedent acted with a purpose, namely, to avoid any possibility of payment of taxes at his death and to assure that if he died she would own these cars. This attitude is consistent only with the theory that she at all times owned them. Then,'too, although she paid nothing on the cars, she was jointly obligated with her father to pay the purchase money loan from the bank on the Cadillac convertible.

Our Supreme Court in the last two cases in which Section 6290-4, General Code, was under consideration announced in no uncertain language that:

“Under the plain and unambiguous language of Section 6290-4, General Code, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title * * * duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.” Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342.

To like effect see Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665.

As we have said, there is no showing that the purchaser of the automobiles did not intend to transfer title to his daughter. In this situation it is held that Section 6290-4, General Code, must be given full effect in favor of the holder of the certificate of title duly issued. Beyer v. Miller, 90 Ohio App., 66, 103 N. E. (2d), 588; Standard Materials, Inc., v. Massachusetts Fire Ins. Co., 42 Ohio Opinions, 447, 94 N. E. (2d), 809; Davis v. Clelland, 45 Ohio Opinions, 89, 92 N. E. (2d), 827.

The case of Hiple, Admr., v. Skolmutch, 88 Ohio App., 529, 100 N. E. (2d), 642, applied the essentials of a valid delivery of a gift inter vivos, namely, complete parting with possession, dominion and control of the corpus of the gift with the present vesting of the donee with possession, dominion and control thereof. But there, the plaintiff seeking to establish the gift did not have the certificate of title to the car which he claimed and did not have the benefit of the terms of the statute.

We cannot hold, in the face of the statute, that title may not pass to the transferee when the certificates are made in her name, licenses issued in her name, insurance on the cars issued in her name and collection of loss under such policy by her.

The case of Douglas v. Hubbard, 91 Ohio App., 200, 107 N. E. (2d), 884, holds that Section 6290-4, General Code, does not preclude the establishment of a valid purchase money resulting trust, in which a motor vehicle constitutes the trust res. The second paragraph of the syllabus is significant:

“When A. pays the purchase money for a motor vehicle and the certificate of title is issued to B., who is legally a stranger to A. and who makes no express promise, a typical instance of a resulting trust is presented, and such legal relationship may be established in respect to a motor vehicle, the same as it may be established in respect to any other kind of property.” (Emphasis ours.)

Conceding that the resulting trust theory may be applied in the face of the statute and that equity will recognize no title except that in the certificate holder, the cited case does not support the finding of a resulting trust here. In that case, the transferee was a stranger to the transferor. Here the transferee was the daughter of the transferor.

In Roberts v. Remy, 56 Ohio St., 249, 46 N. E., 1066, the rule is recognized that where the owner of personal property transfers it without consideration, presumably he intends to make a gift and not to create a trust. In this situation there would be no place for the resulting trust theory and, also, a conveyance to a child by a parent is presumed to be a gift.

In 40 Ohio Jurisprudence, 279, Section 100, it is said:

“It is a rule of almost equal universality of application that the presumption which gives rise to a resulting trust, as discussed in the last section, does not obtain where the payor of the purchase price takes title to the property in the name of a near relative. On the contrary, in this fact situation another presumption is entertained, viz., that of gift or advancement. Thus, in the following situations there is a presumption of a gift, and not of a resulting trust * * * where a father or mother takes title in the name of a child * *

See, also, Paddock v. Adams, 56 Ohio St., 242, 246, 46 N. E., 1068.

It has been held that possession of the property by the payor does not rebut the presumption of a gift. See Vancant v. Davies, 6 Ohio St., 52, where the possession was retained by the father. Indulging the presumption that the title to these automobiles taken by the father in the name of his daughter was intended to be a gift is not overcome by the evidence in this case. If the resulting trust theory has application, the appellee has not made the requisite proof to establish a resulting trust in favor of his decedent.

We hold against the appellant as to assignments of error Nos. 1 and 2 relating to the admission of evidence, and find assignments Nos. 3, 4 and 5 well made. The court erred in entering the judgment, as it was contrary to law and against the manifest weight of the evidence, and in sustaining the motion for new trial and overruling the exceptions to the inventory.

The judgment is reversed and the cause remanded with instructions to sustain the exceptions of appellant to the inventory, to strike therefrom the two Cadillac cars, and to instruct the administrator to turn the cars and keys over to the appellant.

Judgment accordingly.

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


author: Hornbeck, J.

text:
    The State of Ohio, Appellee, v. Ferguson, Appellant.
    (No. 4967
    Decided February 3, 1954.)

      Mr. Chalmers P. Wylie, city attorney, Mr. Malcolm M. Prine and Mr. Bush P. Mitchell, for appellee.

      Mr. Isadore L. Margulis, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a conviction of defendant, appellant herein, who was charged in the Municipal Court of Columbus with unlawfully driving a motor vehicle in Jackson Township, on U. S. Route 62, while under the influence of alcohol.

A jury was impaneled from electors of the city of Columbus only.

Counsel for defendant, by appropriate action, questioned the jurisdiction of the trial court over the person of the defendant and the subject matter of the charge. lie also challenged the array of jurors upon the ground that they were not constitutionally chosen as provided *by Section 10, Article I of the Ohio Constitution. These rulings of the trial judge are particularly assigned as error as is the verdict of the jury and the sentence and judgment of the trial court. The charge against the defendant is the violation of subdivision (c) of Section 6296-30, General Code, a part of the Driver’s License Law.

It is the contention of the defendant that the jurisdiction of the Municipal Court of Columbus is defined by Sections 1581, 1588, 1598, General Code, and by reference, by Section 13422-2, General Code, and that Section 6296-16, General Code, a part of the Driver’s License Law enacted in 1936 is no longer effective, having been repealed by the Municipal Court Act carrying the above cited sections and enacted in 1951.

Sections 1582 and 1583, General Code, merely define the general jurisdiction of the Municipal Courts included in the act, among which is the Columbus Municipal Court, as being within the territorial limits of municipalities.

Section 1598, General Code, provides that:

“The court shall have jurisdiction of the violation of any ordinance of any municipality within its territory and of any misdemeanor committed within the limits of its territory. * * * The court shall have jurisdiction to hear felony cases committed within its territory and to discharge, recognize, or commit the accused. The court shall also have jurisdiction within the limits of the county or counties in which its territory is situated of those crimes and offenses which are now or may hereafter be within the county wide jurisdiction of justices of the peace.”

The jurisdiction of a justice of the peace in criminal cases is defined by Section 13422-2, General Code, and no provision thereof would include jurisdiction of the offense here alleged.

Section 6296-16, General Code, provides, among other things:

“For the purpose of enforcing the provisions of this act, any court of record now having criminal jurisdiction shall have county-wide jurisdiction within the county in which it is located to hear and finally determine cases arising under the provisions of this act. ’ ’

It is the contention of the defendant that that portion of Section 6296-16, General Code, which we have just recited is no longer effective, having been repealed by the Municipal Court Act of 1951. The effective Municipal Court Act was enacted in 1951; the Driver’s License Law, in 1936.

If effect be given to the language of Section 6296-16, General Code, then, clearly, the Municipal Court of Columbus had jurisdiction to hear and determine the charge against the defendant. There was no specific reference to Section 6296-16, General Code, when the new Municipal Court Act was enacted in 1951, and if the former section is to be given no application, it must be upon the determination that it has been repealed by implication. Such a holding should not be made unless the latter legislation clearly requires it. It must be assumed that the Legislature had knowledge of that portion of Section 6296-16, General Code, conferring jurisdiction when it enacted the new Municipal Court Act, and that had it intended to nullify the specific terms of the former section, it would have expressly repealed it. Defendant stresses the word, “now,” used in Section 6296-16, General Code.

Counsel for appellee point out properly that the Municipal Court Act is general legislation and that Section 6296-16, General Code, is special legislation and in that situation, the presumption is that the special legislation is intended to remain in force as an exception to the general act. 37 Ohio Jurisprudence, 408, Section 149. Many Ohio cases so hold. State, ex rel. Fosdick, v. Mayor, Recorder and Trustees of Village of Perrysburg, 14 Ohio St., 473; Germania Ins. Co. v. Sherlock, 25 Ohio St., 33; State v. Newton, 26 Ohio St., 200; Commissioners v. Board of Public Works, 39 Ohio St., 628; Tighe, a Minor, v. Diamond, 82 Ohio App., 487, 82 N. E. (2d), 99, affirmed 149 Ohio St., 520, 80 N. E. (2d), 122; Lillie, Exr., v. Bates, 3 C. C., 94, 2 C. D., 54. Appellee cites also the recent re-codification of Section 6296-16, General Code, now Section 4507.15, Revised Code, where the word, “now,” is omitted, and it is urged it has no special significance and that the act is as effective to accomplish its purpose without the word, “now,” as with it.

By the terms of Section 6296-16, General Code, conferring special criminal jurisdiction upon Municipal Courts, there are but two requisites to that jurisdiction (1) that it be a court of record, and (2) that it have criminal jurisdiction. Both of these conditions at all times have obtained in the Municipal Court of Columbus.

Defendant cites State v. McCoy, 94 Ohio App., 165, 114 N. E. (2d), 624. The court there had under consideration the jurisdiction of a Municipal Court to hear and determine a violation of the Uniform Traffic Code, and gave no consideration and expressed no opinion as to the jurisdiction of that court under the Driver’s License Law. That adjudication does not touch our question.

Defendant urges that he was not accorded his constitutional rights under Section 10, Article 1 of the Ohio Constitution, in that the jurors in the array were not drawn from the whole county of Franklin, but-from the city of Columbus only. We have disposed of this question adversely to the contention of the defendant in State v. Henning, 83 Ohio App., 445, 448, 78 N. E. (2d), 588.

The verdict and judgment are not contrary to law. We find no error assigned well made. The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Miller, J., concur.


author: Doyle, P. J.

text:
    Tiberi, Appellant, v. The Fisher Bros. Co., Appellee.
    (No. 1286
    -Decided November 11, 1953.)

      Mr. Henry P. Webber, for appellant.

      Messrs. Stevens & Severs, for appellee.
   Doyle, P. J.

This is an action in tort by one who was in a retail food store to make a purchase, to recover compensation for injuries sustained by slipping and falling on the floor of the store. Her testimony was that she went to the store to buy two pounds of peas, and, as she walked over the floor, in the process of making a purchase, she slipped on a piece of lettuce and some “black stuff” (the “black stuff” is not further identified): she noticed nothing on the floor before she fell, but when she “got up” she saw the material by her heel “stuck on the floor”: she was the only customer at the time, and the business was attended by a manager and a clerk, both of whom were present.

There is no evidence of negligence on the part of the defendant. It is well established in this state that, in order to impose liability for injury to an invitee because of a dangerous condition of the premises resulting from a foreign substance on the floor, the condition must have been known to the owner or occupant, or have existed for such a time that it was the duty of the owner or occupant to know of it. There is no evidence in this case as to how the material got onto the floor, nor is there any evidence as to how Jong it had been there. There is no evidence that the employees knew of its existence. For aught that appears, the plaintiff herself could have carried it into the store from outside.

The case is governed by the law as applied to the facts in Kroger Grocery & Baking Co. v. McCune, 46 Ohio App., 291, 188 N. E., 568. Other Ohio cases pronouncing the same principles are: Sweet v. Big Bear Stores Co., 158 Ohio St., 256, 108 N. E. (2d), 737 (customer slipping on spinach- on floor); Boles v. Montgomery Ward & Co., 153 Ohio St., 381, 92 N. E. (2d), 9 (slipping on wet and slippery floor occasioned by water and slush tracked in from outside by patrons.); Johnson v. Wagner Provision Co., 141 Ohio St., 584, 49 N. E. (2d), 925 (slipping caused by jar of mayonnaise dropped on floor by another customer); Hardgrove v. Isaly Dairy Co., 139 Ohio St., 641, 41 N. E. (2d), 862 (slipping caused by water dripped on floor from bottle carried by another customer): J. C. Penny Co., Inc., v. Robison, 128 Ohio St., 626, 193 N. E., 401, 100 A. L. R., 705 (customer slipped and fell on oiled floor): S. S. Kresge Co. v. Fader, 116 Ohio St., 718, 158 N. E., 174, 58 A. L. R., 132 (floor made damp and slippery’by customers carrying in water and moisture on umbrellas, clothing and feet).

The rule “res ipsa loquitur” cannot be applied to the facts of this ease. It is a rule of evidence and cannot be “expanded into a rule of liability.” Sherlock v. Strouse-Hirshberg Co., 132 Ohio St., 35, 4 N. E. (2d), 912. It is as reasonable to infer that another customer or the injured lady herself caused the lettuce to be deposited on the floor as to infer that the defendant company, through its servants, or employees, caused it to be there deposited.

The action of the trial court in directing a verdict for the defendant and entering its judgment thereon was proper in every respect, and the judgment will be affirmed.

Judgment affirmed.

Stevens, J., and Hunsioker, J., concur.


text:
    The Hoffman Candy & Ice Cream Co., Appellant, v. The Department of Liquor Control of The State of Ohio, Appellee.

      (No. 5013
    Decided February 3, 1954.)

      Mr. Isadore Topper, Mr. B. Brooke Alloway and Mr. E. A. Blazer, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Robert Leach and Mr. Ralph N. Mahaffey, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a demurrer to plaintiff’s petition, and, the plaintiff electing not to plead further, dismissing the action.

Defendant demurred on two grounds, namely, first, that the petition does not state facts which show a cause of action; and second, that the court had no jurisdiction of the subject of the action. The demurrer was sustained on both grounds.

The question presented is whether the Department of Liquor Control can be sued for damages for the breach of a contract by which the plaintiff, appellant herein, was to act as the agent of the department in the sale of spirituous liquor by the bottle at retail and which contract was made and entered into by the department with the plaintiff as authorized by Section 6064-11, General Code, as it read in 1948, and pursuant to the power conferred upon the Department of Liquor Control by Section 6064-8, General Code, to engage in the sale and distribution of spirituous liquor in Ohio.

The trial court held that the action could not be maintained unless the statute so authorized; that subdivision (9) of Section 6064-8, General Code, which authorizes the department to'be sued “only in connection with the execution of leases of real estate and such purchases and contracts necessary for the operation of the state liquor stores that are made under the provisions of this act” did not expressly authorize a suit for damages to be brought against the department due to the express provision in Section 6064-30, General Code, that, “Neither the department, nor the members of the board, nor the director shall be personally liable in any action at law for damages”; that Section 6064-30, General Code, and subdivision (9) of Section 6064-8, General Code, are in pan materia; and that Section 6064-30, General Code, is an express limitation on the right to sue authorized by subdivision (9) of Section 6064-8, General Code.

We are in accord with Judge Gessaman, who wrote a comprehensive opinion in which he thoroughly discussed the questions raised. We arrive at the same legal conclusions and adopt his opinion as our own.

Judgment affirmed.

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


author: Siceel, J.

text:
    Gibson, Appellee, v. Summers Construction Co., Appellant.
    (No. 23066
    Decided May 19, 1954.)

      Mr. Ralph V. Greene, for appellee.

      Mr. Paul Mancino, for appellant.
   Siceel, J.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Municipal Court of Euclid, Ohio. The action seeks to recover of the defendant $300.29 with interest, claimed to be due for installing plumbing in a house located in Willowick Village, Lake County, Ohio. The plaintiff lives in Willoughby, Ohio; the'defendant, Summers Construction Company, through its statutory agent, Anthony J. Kaylauckas, was served at 382 Russell Court, Cleveland, Ohio.

The Euclid Municipal Court was created by Section 1901.01, Revised Code, wherein it is provided:

“There is hereby established a municipal court in each of the following municipal corporations * * followed by the names of 63 municipal corporations, including the municipal corporation of Euclid, Cuyahoga County, Ohio.

In the briefs it is stated that mail service was had on defendant in Cleveland. The record is completely silent on the question. The defendant, in all events, filed a motion to quash service on the ground that the court had no jurisdiction over the person of defendant and for the further reason that the defendant was not served within the territorial limits of the court. The court overruled the motion to quash service and authorized the defendant to plead further.

Thereafter, defendant filed a motion to make plaintiff’s petition definite and certain, which was granted in part, and, after plaintiff filed an amended petition, the defendant again raised by answer the question of the jurisdiction of the court over the person of the defendant.

Upon trial, the court found for the plaintiff on the question of jurisdiction over the person of the defendant, on the authority of Section 1901.19, Revised Code, and also for the plaintiff on his claim against the defendant and entered judgment against the defendant in the sum of $300.29 with interest from the due date.

The only question raised in this court is the jurisdictional question. It is the claim of the defendant that in an action for money only, based on contract, the jurisdiction of the Euclid Municipal Court is limited to the territorial limits of the municipal corporation of Euclid. It is the claim of the plaintiff and it was the holding of the court that in such action the jurisdiction of the Euclid Municipal Court is county-wide.

The claim of the plaintiff that the defendant entered its appearance by filing a motion to make definite and certain, after its motion to quash had been overruled, is not well taken. Having been compelled to come within the jurisdiction by the court’s ruling on the motion to quash and having saved the question by its answer, the record does not disclose under these circumstances that defendant voluntarily submitted to the jurisdiction of the court, and upon the record that question is now before this court.

Section 1901.02, Revised Code, in part provides:

“The municipai courts, established by Section 1901.01 of the Revised Code, have jurisdiction within the corporate limits of their respective municipal corporations and are courts of record. Each of such courts shall be styled ‘.....Municipal Court, ’ inserting the name of the municipal corporation. The municipal courts also have jurisdiction as follows:

“The Alliance Municipal Court has jurisdiction within Lexington, Marlboro, Paris, and Washington Townships in Stark County.

i i * * * 5 >

That part of Section 1901.02 omitted continues with a list of 38 municipal courts in addition to Alliance Municipal Court, granting to each jurisdiction in certain townships, and in some instances county-wide jurisdiction, in like manner as above set forth for the Alliance Municipai Court. Of the municipal courts established by Section 1901.01, Revised Code, six are located in municipal corporations in Cuyahoga County. They are Cleveland, Euclid, South Euclid, Parma, Lakewood, and G-arfield Heights Municipal Courts. No one of these courts is in the list of municipal courts in Section 1901.02, Revised Code, wherein territorial jurisdiction outside the municipal corporation is provided for. Under the provisions of this section the Euclid Municipal Court is granted jurisdiction only within the territorial limits of the municipal corporation of Euclid.

Section 1901.18, Revised Code, is styled and provides :

“Jurisdiction of subject matter.

“Subject to Section 1901.17 of the Revised Code, a municipal court has original jurisdiction within its territory:

“(A) In any civil action, of whatever nature or remedy, wherein justices of the peace have jurisdiction ;

“(B) In any action or proceeding at law for the recovery of money or personal property of which the Court of Common Pleas has jurisdiction;

“(C) In any action at law based on contract, to determine, preserve, and enforce all rights, legal and equitable, involved therein, to decree an accounting, reformation, or cancellation of the contract, and to hear and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties thereto;

“(D) In any action or proceeding for the sale of personal property under chattel mortgage, lien, encumbrance, or other charge, for the foreclosure and marshalling of liens thereon and the rendering of personal judgment therein;

“ (E) In any action or proceeding to enforce the collection of its own judgments, or the judgments rendered by any court within the territory to' which such municipal court has succeeded, and to subject the interest of a.judgment debtor in personal property to satisfy judgments enforceable by the municipal court;

“(F) In any action or proceeding in the nature of interpleader ;

“(G) In any action of replevin;

“(H) In any action of forcible entry and detainer;

■“(I) The Municipal Court of Cleveland shall also have jurisdiction within its territory * # * [then follow some special provisions for the Cleveland Municipal Court not important to this case]. ’ ’

Section 1901.21, Revised Code, under the style, ‘ ‘ Criminal and civil procedure, ’ ’ in part provides:

“In any civil case or proceeding if no special provision is made in Sections 1901.01 to 1901.38, inclusive, of the Revised Code, the practice and procedure shall be the same as in Courts of Common Pleas. If no practice or procedure is provided for in the Courts of Common Pleas, then the practice or procedure of justice of the peace courts shall apply.”

Section 1901.22, Revised Code, dealing with the manner in which civil actions shall be commenced and matters of procedure in such cases, in part provides:

“(D) Whenever any property is seized or sought to be recovered in any action in a municipal court, the same shall be at once appraised. The value of such property may be ascertained by the oath of two disinterested freeholders who are residents of the territory of the court.”

Section 1901.23, Revised Code, provides in part:

“Writs and process in a municipal court shall be served, returned, a,nd publication made in the manner provided for service, return, and publication of summons, writs and process in the Court of Common Pleas.

“In any civil action or proceeding at law in which the subject matter of the action or proceeding is located, within the territory, or a defendant resides or is served with summons within said territory, the court may issue summons, orders of interpleader, all other writs, and mesne and final process, including executions necessary or proper for the complete adjudication of the issues and determination of the action, to the bailiff for service in the county or counties in which the eourt is situated and to the sheriff of any other county against one or more of the remaining defendants.”

Here it is to be noted that the power of the court to issue summons outside its territory is limited before trial to cases in which property, which is the subject of the action, is within the territory and in cases where a defendant resides or is served within the territory.

Section 1901.24, Revised Code, dealing with “demand for jury trial; number required to concur in verdict,” in part provides:

‘ ‘ * * * In any civil action where a jury is demanded, it shall be composed of six qualified electors * * *.”

Section 1901.25, Revised Code, styled “Selection and empaneling of a jury,” provides:

“A municipal court may provide by rule how jurors shall be chosen, and may provide that jurors to be used in said court may be chosen and summoned by the jury commissioners of the county as provided in Sections 2313.01 to 2313.26, inclusive, of the Revised Code. Selection shall be made from residents within the territory and those appearing to reside outside the territory shall be returned to the jury wheel. Jurors shall be impaneled in the same manner, shall have the same qualifications, shall be challenged for the same causes, and shall receive the same fees as jurors in the Court of Common Pleas. The fees of jurors in any criminal case involving the violation of state law shall be paid out of the county treasury, and in cases involving a violation of a municipal ordinance shall be paid out of the treasury of the municipal corporation. ’ ’

Prom the foregoing sections and the whole chapter, wherein it is provided that a judge of a municipal court shall be a qualified elector and resident of the territory of the court (Section 1901.06, Revised Code) and elected by the electors of the territory, and that the number of judges shall depend on the population of the territory of the court, it is evident that in creating municipal courts they were established to administer justice within the territorial limits set out in the statute by which each court was created.

It is, however, claimed by the plaintiff that Section 1901.19, Revised Code, confers upon the Euclid Municipal Court county-wide jurisdiction in all actions for money only. It is claimed that, if a defendant can be served within the county in an action for money only, even though no codefendant is served within its territory, such service confers and establishes the jurisdiction of the court over such person in such an action.

Section 1901.19, Revised Code, is styled “Jurisdictional powers ’ ’ and provides:

“Subject to Section 1901.17 of the Revised Code, a municipal court has jurisdiction within the limits of the county or counties in which its territory is situated:

“ (A) to compel attendance of witnesses in any pending action or proceeding, the same as the Court of Common Pleas;

■ “ (B) To issue executions on its own judgments;

“(C) In any action or proceeding, whether legal or equitable, to enforce the collection of its own judgments ;

“(D) In any civil action or proceeding at law in which the subject matter of the action or proceeding is located within the territory or when the defendant or someone of the defendants resides or is served with summons within the territory;

“(E) In any civil action or proceeding of whatever nature or remedy wherein justices of the peace have jurisdiction coextensive with the county; and in all civil actions for the recovery of money only where the amount claimed by the plaintiff exceeds the exclusive jurisdiction of justices of the peace;

“ (P) To issue and enforce any order of attachment;

“(G) In any action or proceeding in the nature of creditors’ bills, and in aid of execution to subject the interest of a judgment debtor in personal property to the payment of a judgment of the court;

“(H) In any action for injury to person or property caused by the negligent operation of a motor vehicle, as provided by Sections 2703.20 and 4515.01 of the Revised Code; .

“(I) The Municipal Court of Cleveland shall also have jurisdiction in all actions and proceedings in the nature of creditors’ bills, and in aid of execution to subject the interests of a judgment debtor in real or personal property to the payment of a judgment of the municipal court and in sucia'cases the court may proceed to marshal and foreclose all liens thereon irrespective of amount, and all rights, vested or contingent, therein.”

If we construe this section, particularly subdivision (E), with the rest of the Municipal Court Act, as contended for by plaintiff, there would be five separate municipal courts created and maintained by five separate municipal corporations at the taxpayers ’ expense, each of such municipal corporations having power A compel citizens of other municipal corporations within the county, no matter how far distant, to submit to the jurisdiction of such court in a civil action for money only, where the basis of such cause of action took place outside the territorial limits of such court and the defendant was served with process outside such territorial limits.

If a citizen of Warrensville Heights were involved, in an automobile collision in Bay Village, with a citizen living in North Olmsted, under plaintiff’s theory the action could be brought in Euclid, the defendant served in North Olmsted, and, if a jury was demanded, the citizens of Euclid would be the only ones who could qualify for that service and upon whom the burden would fall to set in judgment on the rights of the contending parties. It would result in five separate and distinct courts uncorrelated in their rules, in widely separated parts of the county, with litigants vying with each other in attempting to fix the situs of the trial of their legal controversies to one of such litigant’s advantage or to the other’s unnecessary disadvantage or inconvenience. It certainly must be seriously doubted that the Legislature intended any such grotesque result in passing the Uniform Municipal Court Act.

The Supreme Court of Ohio, in the case of State v. Nickles, 159 Ohio St., 353, 112 N. E. (2d), 531, by judicial interpretation brought two distinct sections of the Criminal Code into harmonious accord. The court said:

“1. In determining the intention of the General Assembly as to the meaning and operation of statutes, a court, if possible, should avoid absurd and grotesque results.

“2. Sections 13445-1 and 13459-4, General Code, are in pari materia, and where, in a criminal case, the trial court overrules a motion for a new trial filed by a convicted accused, the journalization of such overruling must be contemporaneous with or subsequent to the journalization of the judgment of sentence of such accused; any other journalization of the overruling is a nullity. ’ ’

Subdivision (E) of Section 1901.19, Revised Code, which section is headed “Jurisdictional Powers” and which for the most part deals with trial practice and enforcement of judgments, provides that a municipal court has jurisdiction within the limits of the county or counties in which its territory is situated “(E) In any civil action or proceeding of whatever nature or remedy wherein justices of the peace have jurisdiction coextensive with the county; and in all civil actions for the recovery of money only where the amount claimed by the plaintiff exceeds the exclusive jurisdiction of justices of peace. ’ ’

Thé plaintiff’s interpretation of the subdivision puts it in direct conflict with Section 1901.02, Revised Code, wherein the court’s jurisdiction is fixed within the limits of its territory, and Section 1901.18, Revised Code, defining the court’s jurisdiction of subject matter within the territory and in which subdivision (B) provides that its jurisdiction in such territory includes any action or proceeding at law for the recovery of money or personal property of which the Court of Common Pleas has jurisdiction.

Subdivision (E) of Section 1901.19, Revised Code, begins with conferring upon municipal courts the same county-wide jurisdiction of actions or proceedings and remedies as are conferred upon justices of the peace.

The county-wide jurisdiction of a justice of the peace is provided for in Section 1909.02 and Section 1909.06, Revised Code. These sections provide:

“Section 1909.02 Jurisdiction in particular.

“Justices of the peace, within and coextensive with their respective counties, have jurisdiction and authority to:

“ (A) Administer an oath authorized or required by law to be administered ;

“(B) Take acknowledgements of instruments of writing;

“(C) Solemnize marriages;

“(D) Issue subpoenas for witnesses and compel their attendance in causes or matters pending before them, or other cause or matter in which such justices are required to take depositions;

“(E) Try the action of forcible entry and detention .or the detention only of real property, except that in Cuyahoga, Mahoning, and Franklin Counties jurisdiction and authority in such cases is limited to the township for which such justices are elected;

“(F) Proceed against security for costs and bail for the stay of execution on their dockets;

“(G) Issue attachments and proceed against the goods and effects of debtors in certain cases, except that in Cuyahoga, Mahoning, and Franklin Counties the jurisdiction and authority in such cases is coextensive only with the township for which such justice was elected; when sneh justice has jurisdiction of the defendant because such defendant resides in the township for which such justice was elected, or because Section 1909.03 of the Revised Code is applicable, such justice’s jurisdiction in attachment is coextensive with the county;

“(H) Issue execution on judgments rendered by such justices;

■ “ (I) Proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by such justices;

“ (J) Try the right of the claimant to property taken in execution or attachment;

“ (K) Try actions against other justices for refusing or neglecting to pay over moneys collected in their official capacity when the amount claimed does not exceed one hundred dollars. This, division of this section does not deny or impair any remedy provided by law in such case by suit on the official bond of such justice of the peace, or by amercement or otherwise, for such neglect or failure to pay over money so collected.”

“Section 1909.06 Action on bonds or undertakings.

“In actions founded upon a bond or undertaking, in any civil proceeding pending before a justice of the peace, such justice, or his successor in office, has jurisdiction coextensive with his county. When the sum due or demanded on such bond or undertaking exceeds one hundred dollars, the jurisdiction of such justice or successor is concurrent with the Court of Common Pleas of the county of such justice or successor.”

There are, by the foregoing sections, three circumstances under which a justice of the peace has countywide jurisdiction in actions for money only. First, a proceeding against a constable for failure to pay over money collected on execution; second, an action against a justice of the peace for monies which he has neglected to pay.which were collected in his official capacity; and, third, an action founded on a bond or undertaking in any civil proceeding pending before such justice. It was unquestionably the intention of the Legislature to confer upon a municipal court like jurisdiction in such actions for money only, without the monetary limitation of $300 placed upon justices of the peace by Section 1909.04, Revised Code. It attempts to correlate county-wide jurisdiction of municipal courts with justices of the peace. This is the extent of the meaning of this section.

It also must be observed that Section 1901.02, Revised Code, deals directly and specifically in fixing the jurisdiction of each of the courts within its respective territory, whereas Section 1901.19, Revised Code, is general in its application and, therefore, must give way where it comes in direct conflict with such special and specific provisions of the act.

In the case of Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St., 567, 76 N. E. (2d), 382, the fourth paragraph of the syllabus provides:

“4. Where there are in one act specific provisions relating to a particular subject they must govern in respect of a particular subject as against general provisions in other parts of the act, although the latter standing alone would be broad enough to include the subject to which the ip-ore particular provisions relate. (State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio St., 310, approved and followed.”

For the reasons stated, we must conclude that it was the intention of the Legislature by the provisions of subdivision (E) of Section 1901.19, Revised Code, to confer on municipal courts only such county-wide jurisdiction in actions for money only as is conferred by law on justices of the peace, which does not include actions on contracts as pleaded by the plaintiff in this case, and, further, that, so far as Sections 1901.02 and 1901.19, Revised Code, are in direct conflict, the provisions of Section 1901.02, being special and specific, must prevail in defining tbe limits of tbe jurisdiction of the Euclid Municipal Court.

The judgment of the Euclid Municipal Court is reversed and final judgment is entered for the defendant appellant.

Judgment reversed.

Hurd, P. J., and Kovachy, J., concur.