author: By SKEEL, J:

text:
    BRACKEN, Admr., Appellant, v. WAGNER, Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23726.
    Decided May 9, 1956.

      William C. Bracken, for appellant.
    Ernest G. Beres, for appellee.
   OPINION

By SKEEL, J:

This appeal comes to this Court from a final order of the Probate Court of Cuyahoga County, removing Marie D. Bracken as administratrix of the estate of Charles M. Egler, deceased. Marie D. Bracken was a niece of the decedent.

The record shows that at the time of his death Charles M. Egler was eighty-one years of age. He died intestate, leaving as next of kin six nephews and nieces who were brothers and sisters in relation to each other. William c. Bracken is the attorney of record for the administratrix and is her husband. Aside from being a lawyer, Mr. Bracken has, for many years past, dealt extensively in real estate in the general vicinity of Bay Village and is a licensed real estate broker.

The record shows that Charles M. Egler, at the time of his death, had bank deposits of more than eighteen thousand dollars and stocks listed on the New York Stock Exchange valued on the market at about one thousand dollars. He owned his home on Ralph Avenue in Bay Village, free and clear of encumbrances, it being appraised by the original appraisers appointed by the Probate Court as of the value of $17,000. There was also a three and one-half acre tract of land in the name of the deceased appraised by said appraisers at sixteen thousand dollars. The testimony in the record is that this property is now worth about 824,000. The record shows that there were no debts or obligations claimed against the estate, except as shown by Bracken. Exhibit No. 3, consisting of funeral expenses, doctors and hospital bills, appraisers fees, the cost of the bond of the administratrix and the like, totaling $1012.24, which, when deducted from the total liquid assets, left a balance of money and stock in the sum of $18,272.15.

In 1937, title to the three and one-half acre tract shown in the inventory was taken in the name of Charles M. Egler, it being the claim of William C. Bracken that he, at that time, by agreement with Egler, negotiated the transaction, was to contribute to the consideration at a later date, and was to have a one-half interest therein, it being agreed that the property was not to be sold without his consent.

On February 16, 1955, Charles M. Egler entered into a contract to sell the three and one-half acre tract to David E. Rattray and his wife for the sum of $16,000, Egler at that time receiving a check in the sum of two hundred dollars as a down payment. Upon learning of this attempted sale between Egler and Rattray, William C. Bracken brought two actions in the Common Pleas Court of Cuyahoga County, one against David E. Rattray, later amended to include his wife as a defendant, seeking to set aside the sale’s agreement between Egler and Rattray for the purchase of the three and one-half acre tract by Rattray, alleging that Rattray had full knowldge of Bracken’s interest in the property, the other suit being against Charles M. Egler, seeking a declaration that title to the three and one-half acre tract be held in trust by Egler for the plaintiff as to his interest therein and seeking to enjoin a sale of the property.

Charles M. Egler died August 31, 1955 and Marie D. Bracken was appointed administratrix of his estate on September 26, 1955; bond was then filed and letters issued on that date, the application showing the next of kin to be:

Irene M. Roe, Niece, residing at 14623 Shaw Avenue, East Cleveland; Marie D. Bracken, JSjiece. residing at 29924 West Lake Road, Bay Village; Paul C. Wagner, Nephew, residing at 2055 Lakeview Road, Rocky River; Phillip W. Wagner, Nephew, residing at 104 Riverview Road, East Lake; Evelyn J. Hartley, Niece, residing at 3320 Oakway Drive, Toledo, Ohio; Margaret C. Wagner, Niece, residing at 1980 East 53th Street, Cleveland.

All of the residents of Cuyahoga County consented to the appointment of the administratrix except Margaret C. Wagner. Appraisers were appointed, one being Ernest G. Beres, the attorney now of record for the heir who filed this motion seeking the removal of the administratrix. Ernest G. Beres, after being sworn as an appraiser and participating in the appraisal, certifying that the values set forth in the appraisal were correct to the best of his knowledge, and after he had verified it with his signature, he blotted or scratched lines over his name on the appraisal when it had been left with him in its completed form for the purpose of having Margaret C. Wagner sign a waiver of notice and a consent to its approval. The appraisal set forth the bank deposits, stocks and real property and the appraised value as above set forth, and after describing the three and one-half acre parcel, the following notation was set forth as to the three and one-half acre tract:

“This property was attempted to be sold to one, David E. Rattray and Edith M. Rattray on the 16th day of February, 1955, for the sum of 516,000. This sale was attempted to be escrowed at the Land Title Abstract and Trust Co., but this escrow was never completed, William C. Bracken brought an action in Common Pleas Court, being Case No. 668937, against Charles Egler to establish a trust and another action against David E. Rattray, being Case No. 668890 for cancellation of the agreement and deed attempted to be made by Charles Egler.”

These cases are still pending without change as originally filed.

The motion seeking to remove Marie D. Bracken, as administratrix, was filed October 26, 1955, by Margaret C. Wagner, a sister, by her attorney, Ernest G. Beres, the grounds for such removal being alleged as “conflicting and adverse interests in this litigation in that her husband, who is the attorney representing this estate in Probate Court, is at the same time the plaintiff and plaintiff’s attorney in two law suits against this estate in the Court of Common Pleas.” On page 43 of the bill of exceptions, Margaret C. Wagner was asked if she requested her lawyer to file this motion, to which she answered, “No, I didn’t.”

This motion came on for hearing on November 17, 1955, and on November 28, 1955, an order granting the motion removing Marie D. Bracken as Admininstratrix of said estate was entered, ordering her to file a final account in ten days.

It is the claim of the appellant that the court, in ordering the removal of Marie D. Bracken as Administratrix, committed error prejudicial to her rights, said order being contrary to law and against the evidence.

The evidence discloses that Marie D. Bracken was appointed at the request of all the brothers and sisters except Margaret C. Wagner. Mrs. Bracken testified that she knew of the cases filed by her husband, one against the claimed purchaser of the three and one-half acre tract to prevent the sale on the grounds alleged in the petition, and the other case against Charles M. Egler, seeking a judicial declaration of her husband’s claim of a one-half interest in such property. Both cases were pending at the time of her uncle’s death. She said her husband had prepared the papers in the estate for her but had given no other advice about the estate and that no advice had been necessary.

Margaret C. Wagner put in evidence “Complainant’s Exhibit A” which was an offer on the part of William C. Bracken to pay the heirs of Egler (not the estate) $16,000 for the three and one-half acre tract which offer was made after the inventory and appraisal had been signed by the appraisers, the offer being for the same price agreed upon in the contract between Rattray and Egler and also the same amount for which the property had been appraised.

The “Court” introduced the appraisal as its exhibit (Exhibits A-l to A-4 inclusive), in the case (it is so marked in the record), which with the other evidence shows that there was not the slightest probability that the real estate of the deceased would ever become a necessary asset in the estate or subject to any actions whatsoever by the administratrix, except to cause its appraisal, to be considered in determining the inheritance tax, and to record the transfer of the real estate to the next of kin, as required by law. After paying all debts, there was still over eighteen thousand dollars in stock and cash on hand, and from the face of the record, the total inheritance tax would not exceed one thousand dollars.

There was introduced into evidence an agreement signed by all the heirs, including Margaret C. Wagner, whereby the heirs agreed to sell the homestead of the decedent to John Yurcik and his wife for $18,000. This agreement in no way was subject to any action on the part of the administratrix of the estate. This property was valued by the appraisers at $17,000.

Dr. Paul Wagner, one of the heirs and brother of both Margaret C Wagner and Mrs. Bracken, testified that Mrs. Bracken was the choice of the brothers and sisters, except Margaret C. Wagner; that the three and one-half acre parcel was worth more than $16,000, probably nearer twenty-four ór twenty-five thousand dollars, and that he knew about Mr. Bracken’s claim to a one-half interest in this tract and that an action was pending against his uncle before they agreed that Mrs. Bracken should serve as administratrix. The court then asked the following questions, after the lawyers had concluded their examination of the witness:

“Did you understand that Mr. Bracken was personally asserting the right to the ownership of the property or part of it?
“Dr. Wagner: Yes I knew that. We knew that and we felt that he had some right in the property. All the heirs knew except Margaret. 1 never talked to Margaret. She won’t talk to us.” It is clear from the foregoing facts that the property involved in the two lawsuits cannot in any way become a part of the property to be administered in the estate of Charles M. Egler, deceased. There are only four or perhaps five sections of the Probate Code imposing duties upon an administrator with respect to real estate owned by a decedent at the time of his death where a sale is not needed to pay debts or taxes (first, an inventory and appraisal must include all the property, including real estate, §2115.02 and §2115.17 Ft. C., second, the payment of inheritance tax as provided in Chapter 5731 and particularly by §5731.17 R. C., third, to provide the necessary certificate of transfer to be filed of record to show the succession of such real estate to the next of kin, §2113.81 R. C., fourth, to seek authority to carry out a contract for the sale of land entered into but not completed during the life of the deceased, subject to the limitations of §2113.48 R. C., fifth, to cancel such a contract with the consent of ihe other party as provided by §2113.49 R. C.), where the administrator is a proper party and where the real estate of the decedent may require his attention.

There are other sections of the Probate Code, such as Chapter 2123 Ft. C., providing for the “determination of heirship” and Chapter 2127 R. C., dealing with sale of lands in which §2127.02 R. C., provides:

“As soon as an executor or administrator ascertains that the personal property in his hands is insufficient to pay all the debts of the deceased, together with the allowance to the widow and children for twelve months, and the costs of administering the estate, he shall commence a civil action in the probate court or the court of common pleas for authority to sell the decedent’s real estate.”

The undisputed facts in this case, however, show without question of doubt that these sections can have no application to this estate. Here the real estate passes directly to the heirs at law. The administration of the personal property can be completed without involving the real estate in any way. The administratrix owes no duty to defend claims against the title to real estate passing to the next of kin by the intestate laws where such property is not needed to close the estate. Such fiduciary is not a proper party in such an action. She is not required by law to enter litigation where the heirs are in dispute concerning their rights against the claim of a third person to an interest in the real property of the decedent where a judicial conclusion of the dispute is not necessary to, and does not involve assets of the estate subject by law to administration. Unless a statute requires it, there is no justification for making the fiduciary of the estate a party in an action dealing with property not subject to administrative procedure.

In 11 R. C. L., under the title “Executors and Administrators,” paragraph 327, at page 284, it is said:

“Ordinarily the defense of the title to realty is for the heirs and not the administrator.”

and in 9 R. C. L„ under the title “Descent and Distribution,” paragraph 113. page 113 in part provides:

“The heirs may sue to recover descended realty before distribution. They may maintain ejectment, especially where there are no debts and hence no necessity for administration. And it has been held that the heirs may sue to compel a trustee of real property to account and to set aside sales of the trust property made by the trustee to himself, at least where there has been no administration. Generally no action with reference to the realty can be brought by the administrator. He cannot maintain ejectment, or any possessory or real action, in law or equity, for the recovery or maintenance of possession or title, except when the known and acknowledged property of the decedent is insufficient for the payment of debts, or where he is duly authorized by an order of the probate court having jurisdiction in the premises, or where the statute expressly or impliedly authorized him to sue. Nor can he sue for an injury to the freehold, such, for example, as an injury resulting from obstructing the flow of water, or for a trespass committed after the ancestor’s death. He cannot maintain an action for slander of title, or to quiet title, or to remove a cloud or encumbrance thereon, nor sue to compel a reconveyance of land pursuant to a contract with the intestate.”

In the case McMahan et al, v. Davis et al, 19 C. C. 242, 10 O. C. D. 467, the action was to foreclose a mortgage lien without asking for judgment on the note. The third paragraph of the syllabus provides:

“3. In proceedings to foreclose a mortgage after the death of the mortgagor, when no money judgment is demanded, the administrator of a deceased mortgagor is not a necessary party.” and on page 246, the court says:
“Second: Is there a defect of parties in not making the administrator of the deceased mortgagor a party? There is no money judgment sought, only an accounting in equity. In such case the administrator is not a necessary party. The plaintiff is not seeking a judgment against the administrator, or against the estate, but the proceeding is one to enforce the lien upon the property created by the deceased mortgagor in his life time. In such actions, if no judgment against the estate is demanded, the executor or administrator is not a necessary party. Bliss Code Pleading, Section 102: Story Eq. Pleading, Section 196. ‘The only necessary parties defendants are the mortgagor, or his heirs, devisees, grantees, or assignee, for these are the only persons interested in the equity that is to be foreclosed.’ Phillips on Code Pleading, Section 508. The general rule is that the personal representatives are necessary parties only when a personal judgment for a deficiency is sought against the estate. Whittaker’s New Anno. Ohio Civil Code (1896) page 44, note under §5006 R. S.”

This principle of law is founded on the fact that by statute, unless otherwise directed, only those who have an interest or whose interests are involved in the subject of the action are necessary parties.

In the case of Overturf, Admr. v. Dugan et al, 29 Oh St 230, the Supreme Court of Ohio clearly states that the interests of an intestate in real property passed directly, upon his death, to his heirs. In paragraph one of the syllabus the court said:

“1. The lands of an intestate descend at once to his heir, and the legal title vests in him, subject to the right of the administrator to sell the same for the payment of the debts of the intestate, in the manner prescribed by law.”

In the case of Haussman v. Burnham, reported in 21 American State Reports 74 (59 Conn. 117, 1890), in dealing with this question, the court said, beginning at page 82:

“As the complaint is framed, however, and as the record now stands, we think there are serious difficulties in the way of advising the superior court to render a judgment for the plaintiff. We do not see how, since the decease of Mr. Haussman, we can properly advise that the deed from Mrs. Haussman to the attorney be reformed so as to join Mr. Haussman as a grantor with his wife, and permit and direct him to execute the same; nor that the alleged cloud be removed from the plaintiff’s title by a decree commanding the defendants to convey to Mr. Haussman siich title or interest in the property as they may have.
“The heirs at law of Mr. Haussman are now the only parties properly entitled to relief. They have not since his death been made parties to the action, and are not regularly before the court or legally asking for relief. It is true that the death of Mr. Haussman has been suggested on the record, and that his administrator has entered to prosecute the action. We do not see how he is entitled in his representative character to relief, or to a judgment for the benefit of the heirs. If it was an action at law to recover the possession of the estate under General Statutes, 81012 GC, there might be no difficulty; but the statute is in express terms limited to an action of disseisin, and we do not feel justified in extending it by analogy, though the object sought to be obtained in this case is similar to that provided for in the statute.”

We come now to a consideration of the reasons stated by the court as the basis for removing Marie D. Bracken as administratrix in this estate. The primary reason seems to have been because she did not disclose her husband’s activities and claims with respect to the three and one-half acre parcel of vacant real estate prior to her appointment, and that as administratrix, she would be a necessary party adverse to her husband’s claims. It was clear that the estate would be completely administered without in any way involving title to any of the real estate of the decedent and for that reason, she would not be either a proper or necessary party in the pending litigation. It is equally true that at the time the motion was heard, the administratrix had proceeded to a point where her remaining duties could be concluded and the estate closed without the necessity of legal advice except as to routine matters. There were, therefore, no grounds which would justify her removal at the time the entry was made.

The obligation of the applicant for letters of administration of an estate to disclose to the court at the time of the making of the application the activities of her husband with the decedent, involving some of the property recorded in the name of the decedent, must depend on whether there is, in fact, a controversy in which the estate could be involved, and, if so, whether the circumstances would mitigate against an honest and impartial administration of the estate. It does not appear that there was the slightest attempt to withhold information which would affect the choice of the majority of the heirs who, with full knowledge of the facts, requested the appointment of one who, under the statute, was, if qualified, entitled to preferential consideration.

The court in its opinion refers to three activities of William C. Bracken as imputing to his wife as her attorney alleged conflicts of interest. The two lawsuits will be first considered. Having concluded that the administratrix would not be a necessary or proper party to this litigation on the authorities cited, can it be said that the prosecuting of these cases by Marie D. Bracken’s husband could affect her qualifications to administer the assets of this estate? In the first place, the suit to set aside the agreement of the decedent to sell the property to the Rattrays, if the evidence is to be followed, such action, if successful, would be a benefit to the heirs because the agreed price in the contract with the Rattrays was $16,000 while one witness testified the property (which evidence was not challenged), was worth about $24,000. The other lawsuit, wherein Mr. Bracken seeks to establish his claim to a one-half interest in the three and one-half acre tract, which had been filed prior to the death of the decedent, and to the date of this hearing in the trial court, had never been revived against the heirs and until that is done, must lay dormant on the docket of the Common Pleas Court. No issues are here presented which in any way could involve the duties of an administrator.

The statutes above referred to, dealing with the right of an administratrix to cancel an incomplete contract for the sale of real estate entered into before the death of the decedent, does not permit of an adversary proceeding. The administrator can act only if the other party agrees. Contractual rights are not lost by the death of one of the contracting parties unless the contract is for personal services. Sec. 2113.48 R. C., authorizing the completion of such a contract, is likewise limited to the consent of the other contracting party. Here again, when considering the evidence which is to the effect that the property is much more valuable than that for which the decedent agreed to sell it and, therefore, unless compelled to do so by the purchaser, an administratrix who attempted to invoke the provisions of this section would be doing so against the best interests of the heirs who now have the legal title to the property described in the contract.

The court also finds some justification in the removal of the administratrix because it is said Mr. Bracken helped to sell the former residence of the decedent. Whether or not he negotiated this sale is not disclosed in the record but it would seem to be no concern of the Probate Court where the heirs all agreed, as they had a legal right to do, in selling that which was theirs upon any terms agreeable to them. The estate and the administratrix were not in the slightest concerned with this transaction.

The court admitted into evidence an offer of Mr. Bracken to purchase the three and one-half acre tract from the heirs for $16,000, the same price agreed upon in the contract between the decedent and Rattray, and its value returned by the appraisers. ■ The only possible conclusion that can be drawn from this offer is that it was an offer of settlement in which Mr. Bracken agreed to waive any claims for one-half interest if the heirs would sell him the property for the same consideration. Of course, such an agreement must have been conditioned upon the sale to Rattray being set aside. In all events, Margaret C. Wagner refused to accept the offer so it came to naught. Such offer in no way could possibly involve the administration of the estate.

The court finally deals at length with what developed at the hearing about the conduct of Ernest G. Beres in being sworn as an appraiser, and after making the appraisal with the other two appraisers appointed by the court, and certifying that such appraisal was just, then when the appraisal was left with him in its finished form to have Margaret C. Wagner waive notice and consent to its approval, scratched his name therefrom. That such conduct would have justified the trial judge in taking action against Mr. Beres is clear. He did not do so but somehow finds such conduct as mitigating against either Mr. or Mrs. Bracken and in some fashion supporting the removal of Mrs. Bracken as administratrix. We find no support for this conclusion.

For the foregoing reasons, the order of the Probate Court, removing Marie D. Bracken as administratrix of the estate of Charles M. Egler, is contrary to law and not supported by the evidence and such order is, therefore, reversed and the cause remanded with instructions to vacate such order.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    NATIONAL FRATERNAL ORDER OF DRAFTEES, Appellants, v. BOARD OF LIQUOR CONTROL, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4766.
    Decided February 16, 1953.

      Charles G. Schnur, Akron, for appellants.
    Hon. C. William O’Neill, Atty. Genl., Ralph N. Mahaffey, Asst. Atty. Genl., Columbus, for appellees.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control affirming an order of the Department of Liquor Control refusing to renew a D-5 permit of appellant on its application.

Hereinafter we refer to the Board of Liquor Control as the Board, to the Department of Liquor Control as the Department.

Each of the findings of the Department, affirmed by the Board is the subject of an assignment of error. We discuss them in their order.

That applicant is not the owner or operator of a “night club” as the same is defined in §6064-1 GC, in that the business is not regularly and habitually operated and thab applicant falsely represented, under oath, that the business was so operated.

We do not hold that to operate regularly and habitually requires the operation continuously one night after another but it is clear that, according full credit to the testimony as to the times when and conditions under which the permit business was carried on, it was not regularly and habitually operated. Such operation as appears was irregular, nights apart, and at varying intervals.

That applicant is not a “Club” as defined in §6064-1 GC, in that it is not operated solely for the purposes therein set forth, nor for the membership, nor is there any prepayment of regular dues. That applicant in its renewal application stated that it operates “for benefit of members” only. The record supports this finding. These facts standing alone would not, in probability, justify the refusal of the issuance of the permit. The “Club” defined in §6064-1 GC is not synonymous with “Night Club,” nor is it requisite that applicant be a club to secure a permit to operate a Night Club. The finding in conjunction with others which follow was material as to the right of applicant to a permit.

Applicant is not a bona fide fraternal organization or corporation not for profit. Although the finding that applicant is not a fraternal organization is assigned as a ground of error it is not urged in appellant’s brief and it is conceded, as is obvious, that it is not such an organization. Its title implies that it is a fraternal organization. The basis for the conclusion that appellant is not a corporation “not for profit” is that it does not comply with §8623-97 GC, et seq, in that no records are kept to indicate that members become part of the organization upon joining, financial records are incomplete, there are no minutes of meetings held by the membership, nor are meetings being held. All of these findings wore justified when the Department made its investigation concerning the application for permit. Just when it was changed somewhat by a reconstruction of the records does not appear but such records were mentioned but not made a part of the transcript before the Board on the appeal. It is clear that membership dues were not prepaid.

Whether the status of applicant as a corporation not for profit may be challenged, inasmuch as it is so certified, other than by Quo Warranto, has not been discussed. We believe that the Department had the right to inquire into the matters which it determined as affecting the advisability of issuing the permit.

That applicant is sponsoring Bingo games at another location and using the profits therefrom to meet expenses at the premises for which the permit has been issued, including payment of the mortgage on the real property. This conclusion is supported by the record but standing alone was not sufficient, in our judgment, to support a denial of the permit.

That, in fact and effect, the business at the permit premises is being conducted by one, Carmel G. Hall, in violation of §6064-20 GC. This conclusion is inferable from the record.

Upon the facts developed the Department was justified in holding that the appellant-applicant was but a shadow and not the substance; that the entity organized as a corporation not for profit, if it had at any time carried on the purposes of its organization or had been a club in any sense of the term, had ceased to so function, that, at the most, it had but a few members, in name only, who had not qualified by payment of dues and who were receiving little, if any, benefit from the organization. When, then, the business was carried on almost exclusively by an individual, Carmel G. Hall, whose payment, designated salary, took most of the income, the Department was justified in drawing the inference to support the 5th finding.

An of the findings save No. 4 were in accord with the facts developed and taken together fully supported the action of the Department in refusing to issue a permit to the applicant as requested, and the affirmance of this action by the Board, and by the Court of Common Pleas was without prejudice to appellant.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By HORNBECK, J:

text:
    KONTNER, Plaintiff-Appellant, v. KONTNER, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5333.
    Decided March 7, 1956.

      Smith, Clark & Holzapfel, Columbus, John E. Holzapfel, of Counsel, for plaintiff-appellant.
    John H. Lewis, Columbus, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J:

This is an appeal from a decree of divorce to defendant and an award of alimony to him. The ground upon which the decree was granted was that the plaintiff had a husband living at the time of the marriage to the defendant and the judgment entry recites “that in lieu of alimony” defendant is awarded certain real estate known as 141 Mill Street, Nelsonville, Ohio, and “all furniture and household furnishings in the house and garage in the foregoing real estate” except an electric washer, dryer, three level table, hall desk and chair, and one unfinished chest of drawers.

Three errors are assigned:

(1) In overruling the motion of plaintiff for new trial.

(2) Decree is contrary to law, and

(3) Is against the manifest weight of the evidence.

It is seldom that a divorce case presents so many questions of law as does this one. We cannot discuss all of them.

May, 1953, the plaintiff instituted her action for divorce against the defendant, charging gross neglect of duty and extreme cruelty and praying for alimony, temporary and permanent. On August 3, 1953, defendant answered generally denying the allegations of the petition with the exception of formal averments as to residence of plaintiff and in a cross-petition alleged that a ceremonial marriage was performed for himself and plaintiff on January 29, 1939, at Greenup, Kentucky; that at the time the marriage ceremony was performed, plaintiff had a husband living and that he is still living; that his marriage with plaintiff has never been terminated. He further alleges that on February 13, 1939, plaintiff having failed to make full disclosure of circumstances concerning her prior relationship with her husband, Ross Watkins, induced the defendant to convey to her certain described real estate in the City of Nelsonville, Ohio, and also induced the defendant to cause his brother to convey to plaintiff certain real estate described in petition, the brother holding said real estate in trust for defendant. Defendant specifically avers that the transfers of the real estate to plaintiff were made by him with the mistaken belief that he and the plaintiff were lawfully married and that there was a total failure of consideration for said transfers. He avers that he has made all the payments that have been made on mortgages encumbering the described real estate and improvements thereon. He alleges that he first had conclusive evidence concerning the existing marital relationship between plaintiff and Ross Watkins at the deposition hearing wherein the plaintiff testified under oath on August 1, 1953. Concerning this deposition, it is plain that in one answer plaintiff indicated that she had a choice of divorcing Watkins or leaving him. The implication may be drawn that she recognized that there was no impediment to her marriage to Watkins. The answer in its entirety is uncertain in meaning. However, within a few minutes after this statement, and after very few succeeding questions, the plaintiff reiterated the contention that she had at all times maintained, viz., that she had been advised that because Watkins was married when he married her, no divorce was necessary as a prerequisite to her marriage to the defendant.

Plaintiff, in her answer to the cross-petition, after admitting certain of the formal averments of the cross-petition, generally denied the other allegations. As a first defense, she avers that she and defendant had resumed marital relations on July 9 and July 26, 1953, which defendant and his counsel well knew when the cross-petition was filed.

As a second defense, she alleges that at the time of her marriage to defendant, he had not been divorced from his former wife, Anna Kontner. On this last averment, the record discloses that in the divorce hearing of defendant’s first wife, the trial judge had orally announced a decree of divorce in her favor. The entry journalizing the order did not go on until later. The parties herein were married before the formal decree of defendant’s divorce had been spread upon the record. Thus, the plaintiff had the same cause of action against the defendant for a divorce as he had against her.

When the cause eventually came on for trial, the evidence as developed by the plaintiff disclosed that when quite young (she says fourteen years of age; defendant insists that she was sixteen), because of the breaking up of her home, she was sent by her mother to visit her aunt, known as Mrs. N. B. Stewart, who was then living with her purported husband in West Virginia. This arrangement not being satisfactory, plaintiff’s mother suggested that she go to live with another relative. Plaintiff had started to make the trip to the home of this relative when her uncle, Stewart, requested her to meet him in Bluefield, West Virginia. When they met at Bluefield, Stewart represented to plaintiff that he had not been married to her aunt and that he desired to marry her, whereupon they went to some office where an individual, whom the plaintiff took to be a judge, went through the form of a ceremonial marriage. Immediately thereafter, Stewart changed his name to Watkins. The parties lived together as husband and wife for sixteen years, one child (a daughter), having been born, who was of age at the time of the trial in this action and had lived with her mother at all times since her birth.

After the marriage to Stewart, alias Watkins, the parties moved to Dayton and afterwards to or near Nelsonville, Ohio, where they lived together as husband and wife for a period of ten years. During this residence at Nelsonville, plaintiff traded with defendant at his grocery store, charges were made against her as Mrs. Watkins, he so knew her, delivered groceries to her home, discovered that Watkins was untrue to plaintiff, so notified her, advised her to get a divorce. Defendant became enamored of plaintiff, carried on a courtship of two years and then, in 1939, married her.

Plaintiff testified that when she confronted Watkins with the charge that he had been unfaithful to her and that she proposed to divorce him, he informed her that such procedure was unnecessary because when he married plaintiff, he was then married to her aunt. Plaintiff says that she fully informed the defendant of all of the facts and circumstances respecting her relationship with Watkins. This the defendant denied.

Plaintiff says that defendant consulted a lawyer respecting her status and reported that he advised that she would not be required to secure a divorce from Watkins before she could legally marry the defendant. Defendant insists that he did not consult a lawyer but that plaintiff did so and reported that she had been advised respecting the invalidity of her purported marriage to Watkins.

Without quotation from the witnesses, the evidence is overwhelming in corroboration of the contention of plaintiff that defendant was fully informed as to the marital relationship between Watkins and plaintiff when the defendant married her, and that he and not the plaintiff consulted a lawyer. Mrs. Kelso, the wife of the lawyer, whom it is asserted defendant visited, states that he was a client of her husband. Mrs. Taylor testifies that the defendant told her that he had consulted a lawyer respecting the necessity of divorce. Two of plaintiff’s sisters say that defendant brought plaintiff to their home in the south and said to them that he knew all about plaintiff’s past, that bygones should be bygones; that he wanted to marry plaintiff, give her a home and adopt her daughter; that Watkins had taken advantage of plaintiff when she was a young girl and could not protect herself.

Obviously, something convinced the defendant that there was no impediment to his marriage to plaintiff. Defendant admits that he had agreed to adopt her daughter, and explains his failure to do so only because it took money. Defendant did furnish the daughter with a home and was liberal with her, at times. When she graduated as a Registered Nurse, he gave her an automobile. However, plaintiff paid all the expenses incident to her daughter’s training for a Registered Nurse. Although the trial judge was correct in saying that defendant was under no legal obligation to support the daughter, he was under a moral obligation which would justify whatever support he gave her.

During the trial on the issues drawn, the trial judge was amply justified in finding that a ceremonial marriage had been performed between Watkins and plaintiff and that there has been a long period of holding out by them as husband and wife but no proof of the issuance of a marriage license or certificate of the marriage. The proof supported the finding of a marriage, §3105.12 R. C. The court could not properly, under the evidence, hold that defendant was not at all times cognizant of this relationship including the statement of Watkins that he was a married man when he married plaintiff.

It is urged that the decree and alimony award are contrary to law. We cannot so hold.

The first syllabus of Eggleston v. Eggleston, 156 Oh St 422 provides that:

“Sec. 11979 GC, authorizing the granting of a divorce where ‘either party had a husband or a wife living at the time of the marriage from which the divorce is sought,’ provides an exclusive remedy involving that situation.”

The effect of this adjudication justified the holding that when plaintiff married the defendant, as there had been no annulment of her marriage to Watkins, it was still effective.

After the court had granted a decree to the defendant and required plaintiff to deed real estate which defendant had deeded to her and awarded him practically all of the household goods, the plaintiff moved for a new trial on the ground of newly discovered evidence. In support of this motion, plaintiff produced a certificate of marriage disclosing that when the purported marriage between her and Stewart, alias Watkins, was pronounced, he was then the husband of plaintiff’s aunt. This corroborated the contention which plaintiff had at all times made respecting her knowledge and that of defendant of her marital status with Watkins.

The trial judge refused to grant the motion for a new trial and held that the marriage certificate had no effect whatever to require any change in the decree or in the award of alimony.

We are in agreement that the marriage certificate did not require a different holding as to the right of the defendant to a decree of divorce. However, it was of vital importance as it affected the good faith of the plaintiff in entering into the marriage relation with the defendant, his probable knowledge of that fact and particularly as it related to the credibility of plaintiff. This development first produced on the motion for a new trial should, if considered, have had marked influence on the propriety of the alimony award.

The third assignment of error is that the decree and award of alimony are against the manifest weight of the evidence. Upon the record, independent of the facts developed on the motion for new trial, we cannot disturb the decree of divorce. However, we are satisfied that the alimony award is manifestly against the weight of the evidence and in making it the court abused its discretion.

It should be observed that the defendant in his answer prayed for no alimony but sought to have the deed for certain real estate, including the home of the parties, cancelled because of failure or consideration for the transfers; that the deeds were induced by fraudulent representation of the plaintiff and made with the mistaken belief that the parties were lawfully married. He also charges that he paid for all improvements on the real estate and all of the incumberances upon the real estate.

The deeds recite considerations of $1.00 and other good and valuable considerations which, prima facie negative, at least, the claim that there was no valuable consideration for the transfers.

It does not appear that the defendant made all the payments on the mortgage although it is probable that he paid the greater amount thereof. There was a mortgage on the premises when deeded to the plaintiff in the amount of $3300.00, which throughout the years had been reduced only to about $1900.00. There were loans made on the real estate, probably for the benefit of defendant, other than the amount secured by the mortgage on it when the parties were married.

The defendant does not claim that prior to the institution of the divorce by plaintiff he was denied any use of the home property. His claim that at the time he made the deed, he believed the plaintiff to be married, in form, is probably true because that is the very basis upon which he secured his decree of divorce. Of course, it is probable that he believed that this impediment to his marriage had been removed. Inasmuch as defendant had full knowledge of the marital status of plaintiff, he cannot be heard to say that it in any sense constituted a fraud against him to cause him to make the deed.

Defendant contends, and his counsel argues, that the plaintiff was an adventuress, a young woman who took advantage of him, unduly influenced him and fraudulently induced him to make the deed. It seems clear that the defendant was the pursuer and not the pursued He even made it his concern to investigate the infidelity of Watkins to plaintiff, reported it to her, as a result of which she probably was induced to resolve to divorce Watkins. But there is no logical inference to be drawn from the record that the defendant was wrongfully induced to deed the real estate to plaintiff. He had indicated a purpose to do so some time before he acted. The deeds are from a brother of defendant as Trustee for defendant for certain lots not owned by him at the time of trial, executed February 23, 1939, transferred January 14, 1940, recorded January 27, 1941. The other, for real estate, known as the home property, from defendant probably of same date as the former deed, photostat not clear, transferred and recorded same date as former deed. It is probable that the deeds were not delivered until about the time of the transfer.

The proof is conclusive that the property which was ordered re-deeded to the defendant was transferred to plaintiff as a gift without any undue influence whatever to bring it about.

Considerable time and effort was devoted to the question of con-donation in this case. The answer of the defendant and the testimony supporting it, that after the filing of the petition, viz, on July 9, and July 26,1953, the parties had sexual intercourse and resumed the marital relationship, was properly held to be a condonation of the causes of divorce pleaded by her. The contention of the defendant that he did not know of the true marital status of plaintiff until August 1, 1953, subsequent to the condonation of plaintiff’s cause of action, was urged as a complete defense to any claim of condonation against him.

If condonation has application to deny the defendant the right to a decree of divorce, it is clearly established. His claim that he first learned of the real marriage of plaintiff and Watkins on August 1, 1953 is untenable, and incredible.

We do not believe that condonation, as such, precludes a decree of divorce upon the grounds asserted by the defendant. There is, indeed, a very nice question whether the trial judge should have granted him any relief upon application of the clean hands doctrine which many times is invoked by courts to deny a decree.

It must be kept in mind that the issue as to the gross neglect of duty of defendant was not tried because of the dismissal of her petition. Thus, the extent of the failure of defendant to support the plaintiff was not in issue as to the right of a decree to the defendant or a decree to the plaintiff. It only was of value as it related to the general situation.

Defendant at great length put into the record itemized expenditures which throughout the years he had made for household expenses. This did not disprove the claim of plaintiff and her daughter that they may have provided much of the necessities such as food and clothing. Of all the items of expenditure which defendant produced no one of them was for expenditure for food or clothing, and it was testified and not denied that plaintiff paid half the rent for the living quarters of the parties in Columbus.

But, if it be assumed that the defendant provided all of the support and maintenance of the plaintiff, if the marriage is valid until voided by divorce, as the Eggleston case holds, it was no more than he was obligated to do by virtue of his status as her husband.

The plaintiff was not required under the law to seek employment and produce means to assist in her support, but it is developed that at all times since the marriage she has assisted him and since 1942 has worked, and since 1947 continuously, considerable of the time holding two jobs. She and her husband worked at the same place and she has been promoted three times, so at the time of trial she was earning more than he. It is also fair to say that at the time of trial plaintiff was probably in better health, although under the care of a physician, and had more financial resources than the defendant, but that she was blame-worthy for any of these advantages or secured them by any fraud on defendant does not appear. Her industry and efficiency is to be commended. The blindness of defendant in one eye, which was assigned as one reason for the alimony award, was a condition that was present when he married the plaintiff and it does not appear that he is incapacitated from regular employment.

In one of the findings of fact, it is held that the plaintiff had incurred heavy expenses by way of charge accounts; that she had made purchases of jewelry and diamonds far beyond her financial ability. It must be observed that this finding does not hold that the charges were made against the account of defendant, and the only jewelry or diamonds that appear to have been purchased by plaintiff was a wedding band for herself and a watch and a small diamond ring for her daughter that were given to her when she graduated as a Registered Nurse. The watch was to be paid for by the defendant, but the plaintiff eventually had to liquidate this debt.

One of the findings of fact weaves into the subject matter some evidence which had been developed to the effect that the plaintiff had spent considerable time in the home of her immediate superior and this is employed for the conclusion that she was not performing her marital obligations toward her husband. All of the time that plaintiff spent in the home of her employer would not seriously impair her ability to perform such household and marital duties as she would normally have time to do when she was free from her regular employment. In view of the attitude and testimony of the defendant, it is probable that this finding carries a veiled imputation, not justified on the proof, of some improper conduct on the part of the plaintiff and her employer.

From the very inception of this law suit, the defendant had carried on a course of conduct that is very unusual and most reprehensible. He sent clippings to plaintiff from newspapers depicting a suicide by some woman under distressing circumstances and appended therewith his statement that plaintiff and daughter might suffer a like fate. He wrote threatening letters to plaintiff’s employer charging improper conduct on her part. He wrote at least one other person in similar vein. Several times he had to be cited for contempt for disregard of the court’s orders.

Upon the whole record, which is voluminous, consisting of six hundred pages of testimony, two or three depositions, thirty or thirty-five exhibits, and numerous contempt citations and interlocutory hearings and orders, we find no substantial support, upon equitable principles, for an award of alimony to the defendant of the real estate which he deeded to plaintiff after their marriage.

In so holding, we are assuming for the purposes of this appeal, that the court had the right upon proper evidence to award alimony to the defendant as an incident to his divorce; ordinarily, it is so. Borst v. Borst, 14 Abs 525, Downing v. Downing, 18 Oh Ap 223. But the court must exercise a sound discretion in making the award, Baker v. Baker, 40 Oh Ap 170.

Alimony in its primary significance is an allowance for support for the wife, which obligation the husband owes the wife. If it be extended to an allowance for the husband, it should appear that he is in need of the award for support. The term “alimony” has been so loosely employed in our statutes and by our courts as to require elucidation. The cause of action upon which defendant sought his decree is not a ground for alimony, under §3105.17 R. C., and there is indeed a serious question if the following section, §3105.18 R. C., authorizes an award for alimony when no one of the grounds theretofore designated in §3105.17 R. C. appears. We do not, however, hold that the trial judge did not have the right to award some alimony to the defendant.

The court did not and could not properly find that there was any support for the charge in the cross-petition of defendant that the plaintiff had secured deeds to the property described by fraud.

We therefore hold that the third error assigned is well made, and that the award of alimony as made was erroneous and prejudicial to the plaintiff.

The conduct of the plaintiff respecting the situation that developed by reason of her marriage to Stewart, alias Watkins, her years of living with him as his wife, the ultimate statement to her by him, upon which she concluded that he was married to her aunt when he married her, and the subsequent advice that she did not need a divorce as a prerequisite to her marriage to the defendant, all disclose good faith and lack of meretricious conduct on her part. Indeed, the purported advice of the lawyer that the marriage to Watkins was invalid was not unusual.

Plaintiff’s conduct in leaving Watkins, when she learned of his prior marriage, was an act of avoidance of a voidable contract which, prior to the holding in the Eggleston case that divorce was the exclusive remedy to annul the marriage, had been the subject of many suits in equity to annul. The one missing element of good faith of plaintiff was developed by the production of the marriage certificate.

This plaintiff could not have been convicted of bigamy in her marriage to the defendant because intent is a necessary element of that crime. Innocent mistake, good faith, reasonable diligence, and honest belief in her right to enter into the second marriage would have been a complete defense to her had she been so charged, 5 O. Jur. 619. The innocent mistake and good faith of the plaintiff could not be turned against her to deprive her of real estate to which she was clearly entitled.

Although it is probable that oral announcement of a decree of divorce to defendant’s first wife was made on January 28, 1939, one day before he married plaintiff, the formal decree was not filed and journalized until February 1, 1939. The defendant was technically chargeable with the same misconduct when he married plaintiff as that upon which he grounded his cause of action against her. Cox v. Cox, 108 Oh St 473; Industrial Commission v. Musselli, 102 Oh St 10.

We then come to the last error assigned, namely, that the court erred in denying a motion for new trial. As we have heretofore said, the principal effect of the marriage certificate was to establish the good faith of plaintiff in her relation toward the defendant and, particularly, to give standing and credibility to her testimony and to discredit that of the defendant. There is no doubt that the probative effect of the marriage certificate affects materially the substantial rights of the parties.

But it is urged that the plaintiff has not used reasonable diligence to discover and produce the marriage certificate at the trial and that the evidence tendered on the motion is merely cumulative. Clearly, the evidence is not cumulative. It is of a different and higher degree of proof than the oral statement of the plaintiff of what her former husband, Watkins, had told her.

During the trial of the cause, plaintiff testified that she and defendant had made determined efforts to discover the true facts respecting her marriage with Watkins. This testimony was not elaborated, and could have been more detailed and specific. However, it stands uncontradicted and discloses effort to discover the testimony prior to the trial. The court took testimony respecting the extent to which plaintiff had sought to get the information which eventually she produced and, though it is patent that her efforts were more numerous and more determined after her evidence had been discredited than before, we are satisfied that such diligence as was requisite under the circumstances was observed by her prior to her trial.

We hold that the court erred in not granting plaintiff’s motion for a new trial.

The first and third assignments of error are well made.

The cause will be reversed and remanded for a new trial upon the issue of the right of defendant to an award of alimony, and, if so, the amount thereof.

MILLER, PJ, CONN, J, concur.


author: By BACON, J.

text:
    McKENZIE, Deceased, Estate of, In re.
    Probate Court, Meigs County.
    No. 17404.
    Decided October 18, 1956.

      Webster & Fultz, Pomeroy, for Laura E. McKenzie.
   OPINION

By BACON, J.

Applicant, Laura E. McKenzie, as surviving spouse of James W. McKenzie, deceased, filed an application the pertinent averments reciting that said decedent died intestate September 5, 1956, that all debts and claims against said decedent are fully paid, that decedent left applicant his surviving spouse and David W. McKenzie, of full age, his son, his only heirs at law and next of kin entitled to the next estate of inheritance, that no administration of decedent’s estate is being had or contemplated, that he owned a certain 1956 Ford automobile and certain real estate the value of decedent’s real and personal property not being stated. Further, that applicant, as surviving spouse is entitled to property exempt from administration and widow’s year’s allowance, that applicant and the son agreed that the motor vehicle be transferred to the son. The application asks for such order as may be proper, including the transfer of the 1956 Ford to David W. McKenzie. The son joins in the application.

Applicant does not pretend to be proceeding under §2113.03 R. C., and it would appear, therefore, that decedent’s estate exceeds the sum of $1,000.00. The statute mentioned is directed to cases where the court is satisfied that the assets of an estate are $1,000.00 or less in value.

In order to transfer the motor vehicle aforesaid under Ohio’s Certificate of Title Law from James W. McKenzie, deceased, to David W. McKenzie, particularly under §4505.10 R. C., David W. McKenzie must present to the Clerk of the Common Pleas Court of Meigs County (1) the prior certificate of title to the vehicle (2) his affidavit setting forth the facts entitling him to possession (3) together with a copy of the journal entry, court order or instrument upon which claim of possession and ownership is founded.

It is seen that requirement (3) can only be met by proceedings in the probate court.

In essence, what applicant asks is a partial distribution of decedent’s personal estate without the formal administration the law contemplates—leaving for future order or transfer decedent’s other property, personal and real. But no authority for such order, constitutional, statutory or otherwise, exists.

The Ohio Constitution, Section 8, Article IV, provides:

“The probate court shall have jurisdiction in probate and testamentary matters . . . and such other jurisdiction, in any county or counties, as may be provided by law.”

Implementing this jurisdiction, the Ohio General Assembly has provided, §2101.24 R. C.:

“Except as otherwise provided by law, the probate court has jurisdiction ....

(C)to direct and control the conduct and settle the accounts of executors and administrators and order the distribution of estates.

The foregoing appear the only general constitutional and statutory authorities empowering the probate court to act as applicant requests.

Specifically, in the case of real property, the legislature provided that the probate court may issue a certificate of transfer where no administration was had or contemplated. Sec. 2113.61 (D) E. C. No limitation is placed upon the value of the real estate and the attorney general commented, 1936 OAG No. 5193, page 242, that in his opinion a probate judge has permissive power to grant an application for a certificate of transfer under §10509-102 GC its provisions almost identical to §2113.61 (D) E. C., in an estate consisting of real estate, only, exceeding $5,000.00 in value, and where no administration of such estate is had or intended. It will be noted the opinion is confined to “an estate consisting of real estate, only.”

However, the legislature has not seen fit to enact similar provisions for the transfer of titles to motor vehicles, or other personal property, either in the certificate of title law or in the probate code. The reason why such provision is made in the case of real estate and none made in the case of personal property is obvious.

The law of Ohio is that real estate of one dying intestate goes directly to the heirs, and not to the administrator. The heirs possess the legal title full and complete and are the owners of the property in their own right. They are entitled to its possession and control. 17 O. Jur. 2d, Descent & Distribution, Sections 199, 201. In fact, so strong is the heirs right to possession that even where decedent’s lands are required to pay debts, the heirs are entitled to the rents and profits, excluding emblements, until the actual sale of the land by the administrator for the payment of the debts of his intestate. Overturf v. Dugan, 29 Oh St 230.

The law of Ohio is otherwise as to the personalty of a decedent who dies intestate. Such personalty passes not to his heirs at law or next of kin but to his administrator who has legal title. 17 O. Jur. 2d, Descent & Distribution, Section 206. The leading case on this proposition is McBride, Administrator v. Vance, 73 Oh St 258, the syllabi reading:

1. As a general rule administration is a prerequisite to the devolution of the personal estate of a decedent.

2. The personal property of a deceased person does not vest in his heirs but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death ....

In Rogers v. Metropolitan Life Insurance Co., 24 O. N. P. ns 49, affirmed 16 Oh Ap 283, the superior court of Cincinnati said, “Under the iaw of Ohio administration is indispensable before the heirs can lawfully acquire title to the personal property of a decedent.” Abundant authorities agree. Goudy v. Goudy, Wright 410; Luce v. McDonald, Wright 655; Reed v. Jordan, 12 O. C. C. 161; Rousch v. Hundley et al., 2 O. Dec. Rep. 445. The fact is that so strong is Ohio law to the effect that the personal property of a decedent does not vest in his heirs, but is vested in the administrator, reference is made to the case of Davis et al. v. Executors, 25 Oh St 668, syllabus reading:

1. The heirs of an estate cannot, even after settlement by the administrator, and where there are no outstanding debts, maintain an action in their own name to recover possession of assets belonging to the estate.

The issues raised by the instant application have moved the court to examine the Ohio cases involving non-administration of a decedent’s personal property to determine whether some support might be found for granting the application. Study of the cases discloses that the facts upon which they were decided are so utterly removed from the instant proposition, that little support exists.

In the case of Taylor et al. v. Executors, 13 Oh St 288, sole asset of the estates of two sons of a widow, both minors dying unmarried without children, was a small fund then totaling $1,208.27, set up by the will of their grandfather. The widow, their mother, succeeded on a bill in equity in the common pleas court in having the fund paid direct to her without necessity of successive administrations of the minors estates. It will be noted that this case is cited principally for the rule that a beneficiary of a trust may bring a bill in equity to terminate a testamentary trust where circumstances unforeseen by the testator have occurred.

In Catlin et al. v. Huestis, Executor, 5 O. C. D. 23, the testator died in 1887 and the beneficiaries under the will took possession of real and personal assets without an administration. The beneficiaries died in November 1892. A bill of equity was instituted in the common pleas court. The court decided that where the debts against testator’s estate were only $11.00 in unpaid court costs, appointment of an executor to administer testator’s estate was unnecessary to collect and administer a fund of $200.00.

In the case of In Re Estate of Heintz, 34 Abs 539, the surviving husband and sole heir of his wife’s estate, there being no debts, paid her funeral bill and expenses of last illness, and being in possession of his wife’s personal property made various gifts of it. Upon his decease his estate was administered and distribution made to the proper heirs. The prior deceased wife had a niece, whose husband was not permitted by the probate court to meddle by having himself appointed administrator and seeking recovery of the personal estate of the wife.

The risk of settling an estate out of court is certainly accentuated in the case of In Re Estate of Christian, 33 Abs 367, where an administrator was appointed in 1937 although the decedent had died in 1923. A judgment was affirmed by the court of appeals against a son who took the lead in attempting to settle the estate out of court. The appellate court felt constrained to say: “Settlements of estates out of court are not favored, and when so made may be set aside at the instance of creditors or heirs.”

The Ohio General Assembly has enacted a probate code for the orderly administration of decedents’ estates, further providing that where the court is satisfied the assets of an individual estate do not exceed $1,000.00 the court may relieve such estate from full compliance with the code. Here, comment in 18 O. Jur., 52, Executors & Administrators, Sec. 12, on §10509-5 GC, now embodied in §2113.03 R. C., is of interest: “Whether this statute will be held to be exclusive of the cases in which administration will be dispensed with, under the rule that the expression of one thing is the exclusion of another, is a question for the courts.” Without citing authorities, unquestionably this rule, expressio unius est exclusio alterius, obtains in the probate court. And the only plausibe conclusion is that it was intended estates exceeding $1,000.00 must be settled as provided by law, save for the possible exception where decedent died seized of real property, only.

Another analysis of Ohio law on this point is found in Barriele v. Bettman, 199 Fed. 838, the federal court relying upon the rule of McBride v. Vance, and quoting extensively from that case. And the opinion of the Ohio Supreme Court in the McBride case could not be more positive. At 73 Oh St p. 262, the court said:

“In Woerner’s American Law of Administration (2 ed.) sec. 199, it is said that the necessity of administration arises out of the common law doctrine that the personal property of the decedent descends to the executor or administrator and that this doctrine is recognized substantially in all the states except Louisiana; and further: “The direct consequence of this principle of the law is, that without due course of administration the claims of creditors cannot be lawfully satisfied, and neither heirs nor legatees can obtain a legal title to their legacies or distributive shares; and that neither devisees nor heirs can hold the real estate to which they succeed free from the claims of creditors of the deceased, against whom limitation does not, in some states, run after the debtor’s death, until there be lawful administration of his estate. Another consequence is, that the payment of debts to the deceased can be coerced by no one but the lawfully appointed executor or administrator, even in equity, because there is no privity between the debtors and any person other than the legal representative. He stands as the representative of those interested in the devolution of the personalty of the deceased, including creditors of the estate as well as legatees and distributees.”
“The statutes and decisions in this state both accord with the above statement of the law.”

If heirs of a decedent were aware of the risks attendant upon heirs taking mere possession of decedent’s personalty without legal title, it is likely that applications as herein made would be few indeed. And when it is considered that only by probate procedure according to statute can a widow lawfully have set off her exempted estate, her year’s allowance and various elections the law gives her; that the heirs cannot give good marketable title to decedent’s real estate without so proceeding, it is clear that the probate court is acting in the best interests of the widow and heirs by denying applications as herein made.

An entry may be so framed.


author: By GRIFFITH, J. NICHOLS, J.

text:
    PHILLIPS, Plaintiff-Appellee, v. PHILLIPS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5205.
    Decided February 2, 1956.
    Horace S. Kerr, John F. Seidel, Columbus, for plaintiff-appellee.
    W. B. McLeskey, C. W. McLeskey, Columbus, for defendant-appellant.
    (NICHOLS and GRIFFITH, JJ., of the Seventh District, FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

From the filing date of the plaintiff’s petition on August 20, 1953, to the time of the commencement of the trial on May 11, 1954, over a score of entries were made by the Common Pleas Court, various contempt citations issued, hearings had and punishment imposed on each of the parties to this action.

When the trial date arrived, it is apparent that an extremely hostile and bitter feeling between the parties was in full sway. Counsel did little, if anything, to assuage this feeling.

Plaintiff’s amended petition charges the defendant with extreme cruelty and gross neglect of duty and prayed for a divorce. The defendant filed a cross-petition seeking a divorce, alimony, and custody of the children on like grounds.

The case was heard upon the amended petition of the plaintiff and the cross-petition and answer of the defendant. The trial ended on July 13, 1954. On October 4, 1954, the Court entered a decree of divorce to the plaintiff on the grounds alleged and denying the defendant alimony and dismissing her cross-petition.

The Court made brief findings of fact and conclusions of law. There is a mass of testimony covering two thousand pages in support of the charges and recriminations of the parties.

They were married in 1934, and two children are the issue thereof. The plaintiff was a widower having four children in his home, his former wife having died. The defendant had never before been married.

The plaintiff testified that for the first eight years of their married life, the defendant was a wonderful mother and a fine wife. That around 1940, she started to have tantrums and became exceedingly abusive. In the light of this testimony of the plaintiff, any testimony of incidents prior to 1940 should have little weight on the question of the plaintiff’s right to a divorce.

In support of the allegations of the petition and cross-petition, there was an array of character witnesses for the plaintiff and for the defendant which, at least, should be a source of pride to the two children.

The briefs filed for the assistance of this Court are the result of hard and painstaking efforts. The plaintiff’s brief has injected matters outside the record which would better have been omitted. This Court is not interested in the slightest in the personal feelings of counsel toward each other, and such comments as appear in the brief are not helpful in the solution of the serious issues in this case, nor do they contribute toward the efficient administration of justice. The all important question is whether or not each of the parties involved in this case had a fair and impartial trial, and this will be determined from the record before us and that alone.

The plaintiff called twenty-two witnesses, and it is not going to be helpful to review in detail the testimony of the various witnesses, but the evidence tends to support the claim of the plaintiff that the defendant possessed an attitude of opposition to her husband and his efforts leading to arguments, bickering, nagging, criticism, and recriminations. That the defendant quarreled with Murdock and with other neighbors and workers and tradesmen who were working on the construction of the residence at 6800 Dublin Road and on the repairs of the Michigan house. That she was unreasonable in her criticisms, jangling, quarreling and charging him, in the presence of her children, with having syphilis and, out of their presence, of being a sexual pervert.

Apparently the plaintiff put much thought and time and effort on trying to solve the question of the mental condition of his wife and had her placed in a sanitarium for her benefit, but he says now that she was not mentally ill but instead was greedy, selfish, mean, distorted in love and revengeful.

On the other hand the defendant’s witnesses of like or greater number, tend to support the defendant’s charges in her cross-petition and, in substance, related her difficulties in spending weekends at Coshocton Lake and Buckeye Lake, in his excessive use of liquor, his extravagant spending of money on construction of lake, his excessive expenditure of money for presents to his help and associates at the Gas Company, resulting in depriving the defendant of sufficient clothing, household furniture and necessities.

The defendant’s evidence tends to support the fact that the plaintiff circulated throughout the neighborhood that his wife was crazy, mentally ill and, in fact, insane and, as one witness put it, “Crazy as a loon.” That he had put her in a sanitarium without just cause. That there was altogether too much liquor used by the plaintiff, and it sums itself up into the fact that he was abusive to her, was excessive in his use of liquor and extravagant in the use of his money for the development of lakes. What credence the Trial Court gave to this testimony is indicated by the final order.

Each of the children to this union were emphatic in their testimony favorable to the mother. The plaintiff’s placing of the defendant in a sanitarium without any notice to her next of kin, which he admitted, was a very serious offense in the minds of the defendant and the two children. This was the hour of infamy so far as the children are concerned in their attitude toward their father, and it was from that date Tommy quit calling his father “Daddy.”

If the plaintiff in good faith complained to Judge McClelland about his wife’s condition upon the belief that she did have a mental condition and needed psychiatric attention, then the plaintiff is to be commended and not condemned for his course of conduct. The Trial Court apparently believed that he in good faith made such complaint.

There are so many charges and countercharges in the record that it is crystal clear that there has been a complete withdrawal of all mutual respect and consideration of each for the other. This is a lamentable situation. Both parties unfolded and exaggerated conditions which are abhorrent to all. A thirst for revenge appears on both sides. The case was overtried.

The Trial Court at times was blunt and firm in its rulings as to both the plaintiff and the defendant. He continually tried to eliminate endless details and warned counsel of the waste of time and expense and urged them to wind up the testimony stating that the case should have been terminated long ago.

True, the Trial Court made many inquiries of witnesses, especially those called by the defendant, and examined and cross-examined her at length, but he was at all times courteous and respectful, and this the Trial Court, of course, had a right to do in a divorce action. We do not think he abused his discretion in this respect.

Counsel for the defendant complains that the Court was prejudiced against his client and her counsel. The record reveals certain clashes between counsel and the Court commencing at the very outset of the trial when the Court stated to counsel for the defendant, “This witness, you will remember, was produced as a character witness for the plaintiff. (P. 6.) I might as well short-cut you. Does extravagance amount to cruelty? I am not interested in what caused the neglect. The Court will not admit a mass of testimony to show he spent a lot of money.”

Again, the Court severely criticized counsel for defendant for asking Mrs. Murdock, “Well, you are known as the gossip in the community and have been known for twenty years, haven’t you?”

Apparently the theory under which counsel for the defendant was proceeding was at variance with the Court’s view, and counsel for the defendant stated that he was satisfied with his theory. (P. 335.)

It developed to the point that counsel informed the Court that he was proceeding for the purpose of the record and that what doesn’t appeal to a Trial Court might appeal to a reviewing court.

The Court at different times warned counsel that he was wasting his time, and the Court did especially admonish Mrs. Phillips and the son, Tommy, to tell the truth. The record does not reveal the necessity of such warnings. When the Court was examining Mrs. Phillips (P. 1442), he stated, “You have a bad habit of evasion. Just answer me.”

Apparently the Court had been irked or disturbed by remarks of counsel for the defendant which could irritate many a Trial Court, and Mrs. Phillips was evasive in her answers.

On the whole, we believe the Trial Court afforded each party a fair and impartial trial and took a long range view in attempting to solve the difficulties and tangled lives of these two litigants.

The Trial Court spent twenty-one long, hot days listening to all the witnesses and had the opportunity, that this Court has not had, of observing the parties and their witnesses, and it is not the province of a reviewing court to encroach upon the prerogative of the trier of the facts. It is our conclusion the judgment granting a divorce is neither contrary to law nor manifestly against the weight of the evidence.

Sec. 3105.14 R. C., provides:

“On notice to the opposite party of the time and place of the application, the court of common pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit and allowances for the support of minor children of the marriage or by adoption during the pendency of the action for divorce, or alimony alone. When an appeal is taken by either party, the court of appeals, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal, upon like notice.”

The defendant has made application to this Court for expenses in the prosecution of this appeal. The cost of the voluminous transcript of the testimony as well as of the expense of attorneys fees are both necessary expenses. We find and hold that the defendant who already has paid for the transcript and has incurred heavy attorneys fees in defending her rights on appeal in this case is entitled to an allowance of $3000.00 as expenses incident to the prosecution of this appeal.

We hold that the evidence is sufficient to sustain the finding of the Trial Court, and we agree with its decision in the case.

NICHOLS and FESS, JJ, concur.

NICHOLS, J.

I approve the foregoing opinion and decision because I conclude from the record that the parties can never be reconciled and should be divorced. Ordinarily, where each party is guilty of gross misconduct, as the evidence certainly discloses, neither party is entitled to a divorce and the Court will leave them where they placed themselves.


author: By THE COURT.

text:
    CONNER, Plaintiff-Appellee, v. DAVIS et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5293.
    Decided January 25, 1956.
    Mitchell N. Nachman, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for failure to comply with Rule VII. The record reveals that the notice of appeal does not specify the type of appeal being pursued, but merely gives ‘‘Notice of Appeal.” We must give a liberal construction to said notice and treat it as an appeal on questions of law and law and fact. If the latter, there has been no violation of the Rule. We note that the action is one for damages for false arrest. It is therefore not appealable on law and fact. The Court, sua sponte, will dismiss the law and fact appeal, but retain the same for determination on questions of law only. The appellant is granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By HOLTSBERRY, J.

text:
    STATE, Plaintiff, v. MOORE, Defendant.
    Common Pleas Court, Licking County.
    No. 42568.
    Decided April 11, 1956.

      Harold B. Hughes, Asst. City Solicitor, Newark, for plaintiff.
    Walter Dunwoody, James M. Schaller, Jr., Newark, for defendant.
   OPINION

By HOLTSBERRY, J.

The appellant was found guilty by a jury in the Municipal Court of Newark, Ohio, for operating a motor vehicle upon the public highway while under the influence of intoxicating liquor. On December 1, 1955, Municipal Judge H. J. Alexander sentenced the defendant to seven days in the County Jail, a fine of $150.00 and costs, and suspended her right to drive for a period of one year.

Appeal is taken to this Court on questions of law and fact. Sec. 2953.02 R. C., provides for the review of a judgment of the Municipal Court entered in a criminal case by the Court of Common Pleas. Since appeals on questions of law and fact, broadly speaking, are at present limited to chancery cases, the jurisdiction conferred on the Common Pleas Court on such appeal would be to dismiss the appeal on motion or sua sponte by the Court, and, thereupon retain the cause as an appeal on questions of law. (City of Toledo, Appellant v. Lowenberg, Appellee, 99 Oh Ap 165.)

Appellant relies on several grounds of error. She first urges that since there was only one witness who testified as to her intoxication, and ten who testified she was not, that the verdict of the jury was contrary to the weight of the evidence and that there was no corroborating testimony.

In Ohio, a jury may convict upon the uncorroborated testimony of a witness except in the particular crimes of treason, seduction, perjury, and sexual intercourse with a pupil. These crimes where corroboration is necessary are so provided by statute. Since the decision in Allen v. State, 10 Oh St 287, it has been established in Ohio that conviction can be had upon the uncorroborated testimony of even an accomplice, in cases where corroboration is not required by statute, but it has become the settled practice of trial courts to instruct juries to look to the testimony of an accomplice with care, and with such evidence consider all the other evidence of a corroborative nature, if any, and arrive at such conclusion as the entire evidence warrants.

Appellant in this particular claimed error cites the old 1916 Maranda Case, 94 Oh St 384. This case has no application to the instant driving while intoxicated case. It is often cited by attorneys in criminal cases who attempt to stretch its application to numerous situations never intended by the Supreme Court. The Maranda case is concerned with confessions and the corpus delecti of a crime. It could be no authority for reversal of a case in a situation where a traffic officer testifies he observed the manner a defendant was driving an automobile on the highway, the circumstances and condition of the person arrested, and the admissions made with respect to the amount of intoxicating drink consumed.

Even though, as appellant contends, numerous persons testified the accused was not intoxicated, it must be remembered that the weight of all the evidence is a question for the jury to determine, and it is their function whether the evidence convinces them of the guilt of the accused beyond a reasonable doubt. In determining weight to be given testimony the jury should take into consideration the interest, if any, of a witness; appearance, conduct and demeanor while on the stand; their apparent fairness and frankness, or feeling of bias or prejudice; the reasonableness or unreasonableness of their testimony, and all the evidence and circumstances tending to corroborate or contradict the testimony. Unless an appellate court can say that the judgment is clearly and manifestly contrary to the evidence there can be no reversal on the weight of the evidence. (Scaccuto v. State, 118 Oh St 397.)

Appellant’s next assignment is grounded on the claim that the highway patrolman was permitted to use notes to refresh his recollection on direct examination and that defendant’s counsel was refused permission to look at and use said notes on cross-examination of the officer. Examination of the record reveals that the highway patrolman at the beginning of his testimony for the State asked if it would be all right for him to refresh his memory with his notes. The court- made no answer to this. The City Prosecutor remarked, as shown by the record, to the witness that he could use the notes if necessary to refresh his recollection. Numerous pages of testimony of the officer follow. During cross-examination Attorney Dunwoody, representing the defendant, asked the witness for his notes he refreshed his memory from. The witness then addressed the court that he had not used or looked at his notes and further stated that he had intended at the start to use them but he was not given any permission to use them. The court then remarked that the witness hadn’t used any notes in testifying and that since there was an objection to turning over the notes to. defense counsel, he would not order the witness to turn over said notes.

Opposite counsel on demand has the right, for the purpose of cross-examination, to use and inspect papers or memorandum where the witness on the stand uses the same to refresh his memory upon the matters as to which he is testifying, and which do in fact tend to refresh his memory. This right enables the cross-examiner to test the candor and integrity of the witness, and the degree of recollection or bearing the writings and answers tend to have with respect to the testimony. However, where it does not appear that the witness is actually using the papers for the purpose of refreshing his memory and that such do tend to refresh his memory, opposite counsel is not entitled to inspection and use. (State, Appellee, v. Taylor, Appellant, 83 Oh Ap 67.) (Reference is also made for discussion upon the subject of inspection to 28 Ruling Case Law, 596, Section 86; 42 O. Jur., 309, Section 310.) Also see Lovell v. Wentworth, 39 Oh St 641.

In the case of State, Appellee v. Hickman, Appellant, 74 Oh Ap 479, an officer was testifying for the state in a first degree homicide case, and while the jury was looking at photographs the officer was looking through typewritten statements which he had brought from police headquarters. He answered a question that he was looking for the purpose of refreshing his memory. However, later in the testimony he stated that he had not refreshed his memory and had made no statement to the jury from any record he had with him on the witness stand, and that the papers contained no information that would add to the answers of any question he had given. The trial court sustained the objection of counsel for the state and did not permit counsel for defendant to examine the records. The appellate court held that this did not constitute prejudicial error.

Perhaps it could reasonably be inferred that where an officer held notes in his hand and had made some reference to his desire to use them that he had actually used same, but where there is evidence in the record showing that he did not use the notes and further where the grieved attorney does not produce any evidence that he was using them, there could be no inference under the latter situation that he was actually using said notes. There was no actual use by the patrolman in the instant case as shown by the record and therefore this assignment of error is without merit.

Further error is grounded on the claim that the highway patrolman was, over objection, permitted to testify that the accused was under the influence of intoxicating liquors.

The record shows the officer testified as to his experience in intoxication instances and further as to his opportunity to observe and what he did observe with respect to defendant.

When it appears that a law enforcement officer in all probability has had sufficient experience with intoxicated persons to express an opinion, as to whether or not the person was under the influence of intoxicating liquor and there was opportunity to observe such person, it is not error for the court to permit such officer to express his opinion to the jury.

Further, exceptions were taken by defendant to the general charge of the court, and particularly the court’s remarks on reasonable doubt.

The charge was brief, but all essential elements of the crime were stated. Ordinarily, the briefer an instruction is, the better it is, providing all essential elements are covered. Needless long charges make it doubtful whether the salient points can be carried in mind by the jury. A charge should be considered in its entirety.

It is provided in §2945.04 R. C., that in charging a jury in a criminal case the trial court shall state the meaning of presumption of innocence and read the definition of reasonable doubt as therein set forth. It was held in Beck v. State, 129 Oh St 582, that if the charge on reasonable doubt is substantially in accordance with the code section definition, failure to read the definition as set forth in said section is not reversible error.

Where a court reads the definition of reasonable doubt as contained in §2945.04 R. C., or charges on the same substantially in accordance therewith, it is not prejudicial to a defendant to refuse to charge further on the question of reasonable doubt.

No prejudicial error being found in the charge, this claim of error is without merit.

This Court has, even though not specificially assigned or pointed out, searched the record for “other errors apparent,” and finds nothing prejudicial to appellant’s having received a fair trial There is ample credible evidence in the record upon all material elements with respect to the crime charged.

Finding no prejudicial error manifest in the record justifying a reversal, the judgment of the lower court will be affirmed.


text:
    GRIFFITH, Plaintiff-Appellant, v. WESTERN & SOUTHERN LIFE INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4863.
    Decided September 25, 1953.

      Donald S. McNamara, Columbus, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., of Counsel, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Municipal Court in favor of the defendant. Plaintiff was the insured in a policy of defendant in the sum of $500.00. Among other provisions as to additional benefits were the following:

“* * * If the insured shall lose by severance one hand or one foot the Company will, upon receipt of due proof and subject to the provisions hereof, pay one-half of said amount. * * * In all cases these benefits shall be granted only if such loss occurs prior to the assured’s attaining the age of 75 years and solely as the result of disease contracted after or injury sustained after the date of this policy.”

Plaintiff avers payment of the premiums, claims $250.00, being one-half the face amount of the policy and pleads refusal of the company to pay the claim.

The policy was issued on December 26, 1949, and it will be noted that the loss of the leg occurred some thirteen months after the issuance of the policy.

The answer was a general denial by way of a first defense, and a second defense that “the loss of said leg did not occur solely as the result of disease contracted after or injury sustained after the date of said policy, to wit, December 26, 1949.”

Although neither party pleads it and the policy is not attached to the petition or made a part of the bill of exceptions, it is stated and seems to be conceded that it had the following incontestable clause:

“This policy shall be incontestable after it has been in force during the lifetime of the insured for a period of one year from its date of issue, except for nonpayment of premiums.”

The cause was tried to a judge without a jury, who found generally for the defendant with no special findings of fact and law. Appellant states two propositions for consideration and determination on this appeal:

(1) Does a clause forbidding a contest of the policy prevent the insurer from defending a claim on the ground that the claim was not one which was insured against by the policy?

(2) Does the evidence in the record manifestly show that the insured lost his leg solely as the result of disease or injury contracted or sustained after December 26, 1949?

We support the judgment as against the claim of appellant as to the first proposition upon the authority of John Hancock Mutual Life Ins. Co. v. Hicks, 43 Oh Ap 242, an opinion by a member of this Court.

We support the judgment on the second proposition because there is probative and substantial evidence by medical experts to the effect 1 hat the amputation of the leg was not caused solely by reason of disease or injury contracted or sustained after December 26, 1949. Two doctors testified that the causative and determinative factors necessitating the amputation of the leg were diabetes and arterioschlerosis from both of which plaintiff suffered prior to the issuance of the policy.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By McCRYSTAL, J.

text:
    LAMPE, a Minor, Plaintiff, v. LAMPE, Defendant.
    Common Pleas Court, Erie County.
    No. 28969.
    Decided August 12, 1954.
    Ralph Pissano, Huron, for plaintiff.
    Flynn, Py & Kruse, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

The plaintiff, a resident of Erie County, filed an annulment action against the defendant, a resident of the State of Michigan. Proper service was had on the defendant, who in turn, filed an answer and cross-petition for divorce. Plaintiff demurred to the cross-petition, on the ground that this Court had no jurisdiction of the divorce case as filed.

The filing of the demurrer presents the following issues, before the Court—

“In an action for annulment of marriage properly brought in Ohio, where the plaintiff has been a resident for over one year prior to the filing of the petition, may the nonresident defendant cross-petition for divorce without establishing her residence in the County and State.”

Counsel for both parties and the Court have been unable to find any direct precedent, for the question, either in Ohio or elsewhere.

It would appear therefore, that the issue involved contains two other questions that must first be answered.

The first question presented is:—

Can a resident defendant cross-petition for divorce in an annulment action in Ohio? Authorities on this question are found wanting in Ohio. Outside of Ohio, only three cases have been found deciding this question. In each of these cases it has been held proper in a suit for annulment of a marriage for the defendant to file a cross-petition for divorce.

Wadsworth v. Wadsworth, 81 Cal. 182, 22 Pac. 648.

Sodini v. Sodini, 94 Minn. 301, 102 N. W. 861.

Simpson v. Simpson, 162 Va. 621, 175 S. E. n 320.

See also, 17 Am. Jur. 316; 9 R. C. L. 424.

In Duncan v. Duncan 88 Oh Ap 243, the Court of Appeals for Lorain County, made the following statement—

“An action for the annulment of a ceremonial marriage may be asserted by way of cross-petition to an action for divorce.”

While it appears from the briefs of counsel in the Duncan case, this question was not raised as an issue, and while the opinion of the Court does not enlarge upon the statement, the statement itself is significant in that the Court found nothing inconsistent with an annulment action being joined with a cross-petition for divorce.

The same procedure was permitted in Short v. Short, 61 Abs 49, but again, it appears from the opinion that the issue was not raised.

In the case of Smith v. Smith, 72 Oh Ap 203, the defendant filed a cross-petition for divorce. This procedure is the same as the instant case, except that in the Smith case the defendant was a resident of Ohio, but from the opinion of the Court of Appeals, it would appear that there was no objection made to the joining of the two actions in the same suit.

It would appear that an action for annulment and an action for divorce and alimony can be joined by way of cross-petition in Ohio, and that a Court taking jurisdiction of one of the two actions, has jurisdiction over the other, when presented by way of cross-petition, assuming of course that the defendant who cross-petitions is a resident of. the State of Ohio.

The second question that enters into this demurrer is whether a nonresident defendant may file a cross-petition for divorce in Ohio, when he has been sued for divorce or alimony by the plaintiff. On this precise question there is ample law in Ohio, holding that a nonresident may cross-petition for divorce in a divorce and alimony action.

Ferguson v. Ferguson, O. N. P. (N. S.) 679; Barggill v. Barggill, 19 O. N. P. 120.

See also 89 A. L. R. 1203.

This brings us to the precise question of the demurrer, as to whether or not a nonresident may cross-petition for divorce in an annulment action.

It would appear to the Court, that since a nonresident defendant can come into this State and cross-petition for a divorce, in a divorce action, that there is no logical reason why that same nonresident defendant cannot cross-petition for divorce in an annulment action properly brought in Ohio. Any reason prohibiting such procedure, would be highly technical indeed, and would be contrary to the accepted principles that whenever possible a Court will retain jurisdiction as to the subject matter of an action until it is fully adjudicated, and that the Courts will, whenever possible, prevent parties from being forced to file multiple law suits to obtain their relief.

This Court is of the opinion that it has jurisdiction to entertain the cross-petition for divorce filed in the instant case, and hence the demurrer of the plaintiff is overruled.