author: By JOSEPH H. SILBERT, J.:

text:
    SMYTH, Plaintiff, v. CLEVELAND TRUST COMPANY et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 677105.
    Decided September 30, 1959.

      Ewing & Hecker, Cleveland, for plaintiff.
    Arter, Hadden, Wykoff & VanDuzer, Cleveland, for defendant trustee
   OPINION

By JOSEPH H. SILBERT, J.:

The plaintiff in this ease, Ida May Smyth, is the surviving spouse of Walter B. Smyth, who died testate, a resident of Rocky River, Ohio, on October 1st, 1954. On October 14, 1955, Mrs. Smyth filed the petition in this action asking for a declaratory judgment, a share in an i^ev^^Ipi trust her husband had created on September 22, 1949, between himself and The Cleveland Trust Company and other equitable relief. Her claim is that she is entitled to a distributive share of the assets held in the trust by virtue of the statutes of descent and distribution of the State of Ohio because of the rights her husband reserved in said trust. These rights reserved include the right to revoke in whole or in part, the right to modify the trust, the right to demand and receive all of the property in the trust at any time during the life of the donor, and the prohibition against the trustee from dealing with the assets in the trust either by purchase or by sale without the written approval by the donor during his lifetime.

Mrs. Smyth’s contention is that the decedent retained such dominion and control over the corpus of the trust so as to make the trust ineffective as to her and to defeat her rights under §2107.39 R. C., the Statute permitting election of a surviving spouse.

The plaintiff also sets out in her petition some of the provisions of the Last Will and Testament of her husband. She states in her petition that he devised and bequeathed to her his wearing apparel, jewelry, household goods and effects and other purely personal chattels, together with a homestead located at 1434 Lewis Drive, Lakewood. Ohio, leaving the remainder (if any) to his son, Clark P. Smyth. She then states that at the time of his death the decedent was not possessed of the homestead at 1434 Lewis Drive, Lakewood, Ohio, but that he had sold the said homestead and thereafter purchased a home at 1890 Wynwood Drive, Rocky River, Ohio, and had transferred it to The Cleveland Trust Company as a part of the trust fund.

Further, she alleges that the inventory and appraisement of the estate show the entire assets of the decedent to amount to only $2,385.00. The Cleveland. Trust Company, as trustee, is alleged to be holding securities and property having a reasonable market value as of October 1st, 1955, of approximately $197,562.89 and it is required to pay any federal and state inheritance taxes from the principal of the trust estate.

The defendants in the case are The Cleveland Trust Company, Mrs. Smyth as Executrix of her husband’s Last Will and Testament, Clark P. Smyth and Gladys C. Smyth, the son and daughter-in-law, Clark P. Smyth, Jr., John B. Smyth and Andrew J. Smyth, the children of Clark P. Smyth and Gladys C. Smyth, who are minors under the age of 14, and the unborn and unascertained issue of Clark p. Smyth.

The Court appointed a guardian ad litem for the three minor children and he has filed the answer which is required by law. There has also been an answer filed by the trustee for the suit for the interests of the unborn and unascertained issues of Clark P. Smyth.

Ida May Smyth, as Executrix of the Last Wiill and Testament of Walter B. Smyth, Clark P. Smyth and Gladys C. Smyth all waived the issuance of summons and entered their appearance. The Executrix did not file an answer, but Clark P. Smyth and Gladys C. Smyth filed an answer which admitted the fact that Ida May Smyth disavowed the will of Walter B. Smyth and has elected to take under the laws of descent and distribution. They further admit that the plaintiff is entitled to a distributive share of the assets of the trust .estate as established by Walter B. Smyth. We, therefore, see that the son, the party who would presently be entitled to the residuary estate, acknowledges and admits that his mother is entitled to her distributive share of the trust estate and he joins in the prayer of his mother asking that the Court grant her said share.

The answer of the Cleveland Trust Company admits the trust and that it contains the provisions set out above and that they now hold certain property pursuant to the terms of the trust. The trustee admits that Walter B. Smyth sold the property known as 1434 Lewis Drive, Lakewood, Ohio, and that he purchased and conveyed to them the property known as 1890 Wynwood Drive, Rocky River, Ohio, but says that the conveyance of this property to the trust was made with the consent and approval of plaintiff. Further, the trustee admits that the plaintiff filed her election not to take under the will of Walter B. Smyth. The trustee then denies the allegation concerning the extent, the debts and the taxes upon the estate of Walter B. Smyth, but admits that the trust agreement contains the provision with respect to the payment of estate, inheritance, succession or other similar taxes from the principal of the trust. The trustee denys the allegations concerning the value of the property held in trust and denys that the plaintiff is entitled to a distributive share of any of the assets held in the trust by reason of an election not to take under the wil, and further, specifically denies that the trust is in any way colorable or illusory.

The Cleveland Trust Company as trustee filed a cross-petition stating that a difference has arisen among the parties concerning the trust and the rights of ownership of the property held in trust. Further, the trustee alleges that the trust is a valid trust and that the property in the trust constitutes no part of the estate of Walter B. Smyth. Said trustee then prays the Court to determine and declare (1) that the trust is a valid and subsisting trust, (2) that no part of the assets of the trust constitutes a part of the estate of Walter B. Smyth, (3) that Ida May Smyth has no interest in the trust except those given to her by the terms of the trust.

The trustee prays further that in the event the Court shall determine that Ida May Smyth is entitled to have delivered to her any portion of the assets of said trust that the Court determine and declare (1) the extent to which she is entitled to have any of said property distributed to her, (2) whether the distribution should be made to her individually or as executrix, (3) whether she will have any interest in the remainder of any property held in trust or be entitled to any further payments or disbursements of said trust or whether as to her said trust shall be deemed terminated, (4) to what extent any portion which may be held distributable to her shall be subject to reduction by reason of payments or disbursements hereinbefore made to her pursuant to said trust.

The trustee then asks the Court to allow its expenses and counsel fees incurred herein and that they be paid out of the corpus of said trust.

The case was then brought to issue by the filing of replies to the answer of The Cleveland Trust Company and an answer to the cross-petition of The Cleveland Trust Company. The parties then entered into seventeen (17) stipulations which are identified as plaintiff’s Exhibit One.

Evidence was heard by the Court on October 8th, 1958, and thereafter briefs were filed by the attorneys for Mrs. Smyth and for The Cleveland Trust Company.

At the trial plaintiff testified that her husband had told her of the establishment of the trust and that he wanted to avoid bother for her after his death. Further, she did not know the contents of the trust, that her husband did not discuss his business or estate with her during their fifty years of marriage. Ida May Smyth then testified that she did not know in whose name the Wynwood property was placed, that her husband never told her in whose name title would be taken, but plaintiff’s Exhibit Five is a receipt dated February 2, 1954, directed to The Cleveland Trust Company which states “have title to property at 1890 Wynwood Dr., Rocky River in name of the Clev. Tr. Co. Trustee Walter B. Smyth trust” and is signed by Ida May Smyth. Therefore, the Court finds Ida May Smyth did have knowledge of the fact that the new home was not in her husband’s name prior to his death.

The Court concludes that even though Ida May Smyth knew of the trust and participated in the transfer of real property and authorized title to be taken in the name of The Cleveland Trust Company as trustee she had no control over the settlement of her husband’s estate or of his personal business transactions during his lifetime and any objections she may have had would have been to no avail and the Court does not consider this an issue in this case. (See §3103.04 R. C., and the first syllabus in Bolles v. The Toledo Trust Co., 144 Oh St 195, 58 N. E. (2d), 381, and Dillingham v. Dillingham, 28 O. C. A., 49, 30 C. D., 6.)

The issue to be determined in this case is whether Ida May Smyth, as the wife of the donor of the trust is entitled to any share of the assets of said trust by reason of her election under §2107.39 R. C. The Court is of the opinion that this issue has been determined by the Supreme Court of Ohio in the cases of Bolles v. The Toledo Trust Co., supra, and Harris v. Harris, 147 Oh St 437, 72 N. E. (2d), 378, and where the settlor has reserved to himself the income during his life with the right to amend or revoke that he has not parted with dominion and control over the trust property and that his widow may elect to take under the statute of descent and distribution and may assert her right to a distributive share of the property held in the trust after his death.

A thorough study of the briefs of both parties and of the general law involved discloses that in the states of Vermont, Florida, Kentucky, Massachusetts, Arkansas, Michigan and Maryland the courts have held' that in cases of this type the widow has no right in a trust created by her husband during his lifetime unless the trust is shown definitely to be in fraud of her rights. The view in those states is primarily known and supported as being the “Massachusetts theory.” One of the cases wherein this theory is most strongly advocated is that of Kerwin v. Donaghy, supra. In that case the facts are much the same as they are in the instant case except that the trust was more severe as to the wife and the testimony was clear that it was Mr. Kerwin’s intention to disinherit his wife. While in the instant case the testimony is merely that Mr. Smyth wanted to avoid bother for his wife after his death. The Massachusetts court found that there was no possibility that the trust agreements were intended merely as shams and that the evident purpose at the time was to disinherit the wife and that the sole question before them was whether this was possible. The Supreme Court of Massachusetts held that these trusts were not a device and were not illusory, but rather that the trust was an agreement which fixed the rights of the parties. The Court went on to hold that a man could give away all of his property and thereby deprive his widow of its benefits upon his death, the theory being that if the trust is to be held valid and effective it must be effective as to all persons and that a wife should have no greater rights than any other individual or group unless actual fraud is shown.

Even though the Massachusetts view has been accepted by many states and has been incorporated into the Restatement of Trusts-Section 64(1) Tentative Draft of Restatement of Trusts — it has not been accepted by all courts. In Virginia, New York, Pennsylvania. New Hamp ■ shire. Illinois and Ohio the courts have held that a widow does have a right in such a trust created by her husband during his lifetime even where actual fraud is not shown. The above states have permitted the widow a distributive share of these trusts for a variety of reasons. The New York view is found in the case of Newman v. Dore, et al, supra. There the Court held “the test of the validity of a transfer of a decedent before death as respects rights of the surviving spouse is not the decedent’s intention, but whether the transfer was real or illusory.” In the Newman case, supra, the husband transferred to certain trustees substantially all of his real and personal property. By will he left his wife a one-third life income in all of his estate, but if the trust agreements in actuality effectively divested the husband of the title to the property then he left no estate and his wife took nothing. The New York court reviewed cases from various jurisdictions wherein this type of trust has been upheld after the husband reserved income for life, the power of revocation, and a considerable measure of control. The Court held that these cases had not recognized the fact that in many instances the husband was retaining full control of the property though in form he had parted with it and in conclusion held “judged by the substance, not by the form, the testator’s conveyance is illusory, intended only as a mask for the effective retention by the settlor of the property which in form he had conveyed.”

In the Newman case, supra, the New York court did not attempt to formulate any general test as to how far a settlor must divest himself of his interest in the trust property to render the conveyance more than illusory. The Court seems to have felt that the retention of income or a power of. revocation or both, might, even without retention of a power of control, be sufficient to show that the transfer was not intended to divest the settlor of his property. The next case to arise in New York on this question was MacGregor v. Fox et al, 280 App. Div., 435, 114 N. Y. S. (2d), 286. In that case the wife conveyed certain realty in trust and retained the income to herself for life and upon her death directed the income to be paid to her nephew until he reached 21, at which time the principal was to be paid to the nephew. Further, the wife expressly reserved the right to alter, amend or annul the trust agreement. Here again, the New York courts held the trust was illusory and void and did not divest the expectant right of a surviving husband. The court found that the donor’s express reservation of the right to alter or annul the trust and the power given to the trustee to pay over and expend part of the principal of the trust for the benefit of the donor indicated that she intended the agreement to be testamentary in character, effective only upon her death and made plain her intention to take away from her spouse his contingent expectant estate.

The Illinois courts have followed the New York view and in the case of Smith v. Northern Trust Company et al, supra, have held that the validity of a transfer by a decedent before death, as respects the rights of the surviving spouse, is whether such transfer was real or illusory.

Another view is found in the case of In re Pengellys Estate, supra. There the Pennsylvania court held that where the settlor of an inter vivos trust in addition to reserving a beneficial life estate and the power to revoke or modify in whole or in part, reserves the power to control the trustees as to the details of the administration of the trust, that this makes the trustee merely an agent of the settlor and that the scheme becomes testamentary as to the dispositions intended to take effect upon death.

The Ohio view, as set out in the Bolles and Harris cases, supra, is that the reservation of the income during the life of the settlor plus the reservation of the right to amend or revoke causes the settlor not to part with dominion or control over the trust property and this failure to part with dominion and control permits the wife to assert her right under the statutes of descent and distribution to a distributive share of the trust res.

This is not a new concept of the law as applied. As early as 1891 the New Hampshire Supreme Court applied similar language in similar circumstances. In the case of Walker v. Walker, supra, the husband gave certain property to a trustee and the facts show that his attempt was to dispose of nearly all his personal property m such a manner that he could have enjoyment and control of it for life. The court held that the widow could not be deprived of such a portion of his estate when the purpose was to defeat her rights. The court said that where the husband reserves no rights to himself then the conveyance may be proper, but where the transfer is a mere device or connivance by which the nusband, not parting with absolute dominion over the property during his life, seeks at his death to deprive his widow of her distributive share she is entitled to have the trust set aside to that extent. The Court found that at that time there was no conflict of authority in the rule applicable to such conveyances and that the widow would be entitled to her distributive share out of the trust res.

In the instant case the stipulations show that the bulk of the estate of Walter B. Smyth is to be found in the inter vivos trust. There is no showing of any fraud and it is clear that the intention of the decedent was to provide for his wife in such a manner that she would have no control over the sum which she was to receive. There is a considerable difference between a nominal amount annually as against a substantial amount immediately, and in particular in the instant case Mrs. Smyth receives only a life estate under the trust agreement and under her right to elect she is entitled to a fee simple estate in the property. Under the trust agreement the trustee is to determine Ida May Smyth’s needs and she has no say. In the light of these factual matters and under the applicable Ohio law. the Court need not determine whether Mrs. Smyth was adequately provided for or whether there was fraud. Rather, under the Ohio law, the Court must determine whether or not Mr. Smyth as the settlor of the trust estate parted with dominion over the property or retained such powers under the trust agreement as causes him as settlor not to part absolutely with the dominion of such property. By an examination of the trust agreement in the instant case the Court finds that Mr. Smyth did not part with dominion over such property since he retained the power of revocation, the power to modify, the right to demand and receive all of the property in the trust at any time during his life, and whenever practicable the trustee was to secure his written approval as to all purchases of securities which it might propose to make.

Ohio has not followed the Massachusetts view and this Court feels for good reason. Under §2107.39 R. C., the surviving spouse is entitled to a distributive share of the net estate of the decedent. When the decedent has entered into an inter vivos trust agreement which provides a right of revocation then by §1335.01 R. C., he has entered into a valid trust, but by his failure to absolutely part with dominion and control over the property the code gives to his creditors the right to invade said trust. (See §1335.01 R. C.) Certainly a spouse’s rights should be superior to those of a creditor and as stated by the Ohio Supreme Court at page 215 in the Bolles case, supra, “We are of the opinion that a wife’s right to elect to take under the law places her in a higher position than a mere creditor in respect of the personal property in an unrevoked revocable trust,” The Court, therefore, finds that Ida May Smyth is entitled to her distributive share of the assets held by the defendant, The Cleveland Trust Company, as trustee, by virtue of the statutes of descent and distribution. The Court further finds that the trust is a valid and sub-' sisting trust, save and except for that portion which Ida May Smyth is entitled to as her distributive share, but even though Ida May Smyth is entitled to a portion of the trust assets no part of the assets of the trust constitutes a part of the estate of Walter B. Smyth. (See §1335.01 R. C., and Syllabus 2 of the Bolles case, supra.)

The Court further finds:

(1) That Ida May Smyth is entitled to her distributive share and the trustee must pay to her one-half of the principal in the trust res. (See §2107.39 R. C.) It is assumed that the parties can arrive at an agreement as to which assets each shall be entitled to without the Court having to order an appraisal and division. The equal portions to which each is entitled should be determined after giving consideration to the value of the assets at the death of Walter B. Smyth and their value now. In addition, no division should be made which could later require the additional expense of a partition suit.

(2) That Ida May Smyth as an individual having asserted her right to such distributive share in the trust is entitled to distribution as an individual. (See Syllabus 3 and 10 in the Bolles case, supra, and also see the Syllabus of the Harris case, supra, which states “. . . His widow may elect to take under the statutes of descent and distribution and may assert her right to a distributive share of such property after his death.”) (Emphasis added.)

(3) That Ida May Smyth has no interest in any of the remainder of the property held in trust and is entitled to no further payments or disbursements from said trust and as to her said trust shall be deemed terminated. (See Blocher et al, v. Trick et al, 8 Oh Ap 222, 28 O. C. A., 46, 30 C. D., 98.)

(4) Any portion of the trust assets which have been held distributable to Ida May Smyth shall be subject to a reduction by reason of payments or disbursements hereinbefore made to her pursuant to said trust on the following bases:

(a) Any disbursements of principal shall be set off against her distributive share.

(b) Any disbursements of income shall be divided in half and as she was entitled to the income from one-half of the assets of the trust by reason of her election she shall now be entitled to retain that income, but as she is not entitled to the income from the other one-half of the trust assets that income shall be either returned to the trust or subracted from the distributable assets to be paid to her.

The Court further finds that the trustee is entitled to its expenses and counsel fees incurred herein and that they shall be paid out of the corpus of the trust which remains after the widow has first received her distributive share. The Court will grant an immediate hearing to determine the amount and reasonableness of same. Court costs shall also be paid from the remainder of the corpus of said trust.

The Court orders a Journal Entry drawn in conformity with the above. O. S. J.

      . See Dunnett v. Shields, 97 Vt., 419, 123 A., 626; Williams v. Collier, 120 Fla., 248, 158 So., 815; DeLeuil v. DeLeuil, 255 Ky., 406, 74 S. W. (2d), 474: Kerwin v. Donaghy, 317 Mass., 599, 59 N. E. (2d), 299: United Bldg. & Loan Assn., v. Barrett et al. 64 F. Supp., 460; Rose v. Rose. 300 Mich., 73, 1 N. W. (2d), 458; Brown v. Fidelity Trust Co., 126 Md., 175, 94 A., 523.

      . See Norris et al, v. Barbour et al, 188 Va., 723, 51 S. E. (2d), 334: Newman v. Dore et al, 275 N. Y., 371, 9 N. E. (2d), 966; Walker v. Walker, 66 N. H., 390, 31 A., 14; Smith v. Northern Trust Co. et al, 322 Ill. App., 168, 54 N. E. (2d), 75; In re Pengelly’s Estate, 374 Pa., 358, 97 A. (2d), 844; Harris v. Harris, supra.


source: Caselaw Access Project

author: By DON J. YOUNG, Jr., Probate Judge.

license: Public Domain

text:
    BOUGHTON, Estate of, In re.
    Probate Court, Huron County.
    No. 19849.
    Decided August 10, 1959.
    Joseph Dush, Willard, for the executors.
    Derby & Derby, Norwalk, for the legatees under the will.
   OPINION

By DON J. YOUNG, Jr., Probate Judge.

The question presented in this estate is whether the executors may sell personal property, which was specifically bequeathed to various legatees in order to pay debts of the estate, before they have sold the real estate which passes under a residuary clause in the will.

The will in question, in the third item thereof, makes an elaborate listing of carefully described items of personal property which are bequeathed to various individuals. A codicil to the will adds certain other items of personal property to the list in item III.

The fourth item of the will gives all the residue and remainder of the estate to one Guy C. Boughton, who changed his name to George Barclay.

The sixth item names two executors, and authorizes them in standard general terms to settle claims and demands and to sell both real and personal property.

The executors contend that they must sell the personal property which has been specifically devised, before proceeding to sell the real property. They contend that the appointing clause, item six, gives them power to do this, and cite as authority Ginder v. Ginder & Smith, 72 Abs 277. Since this case is not in point upon the facts, and the quoted reasoning of the court is based upon the law applicable to intestate estates, it is not persuasive in the present case.

The legatees cite the cases of Y. M. C. A. v. Davis et al, 106 Oh St 366, and Re Estate of Millott, 162 Oh St 113. While it is contended by the executor that these cases are not in point upon the facts which is true, nevertheless the expressions of the Supreme Court in these two cases are more applicable to the facts of the present case than are the expressions of the lower court in Ginder case.

It is quite apparent from the four corners of the will and codicil that the testatrix was primarily concerned with the disposition of her personal effects. The executors are preposing to defeat her wishes utterly in order to protect the residuary legatee. As the Supreme Court says in the Y. M. C. A. v. Davis case,

“It would be a strange legal paradox, indeed, to hold residuary devises, legacies or bounties prior to those that are express and specific.”

The dearth of cases upon the exact point is a clear indication that the law and logic of this situation are too clear to have given many persons in the past the idea that they could do what the executors here are seeking to do.

The contention that the formal grant of powers in the sixth item of the will gives the executors the power to defeat the clear intention of the testatrix, is without merit. These powers are intended to facilitate the administration of the estate, not to allow the executors to substitute their judgment for the expressed will of the testatrix.

This Court denies that the executors have the power to sell the personal property which has been specifically bequeathed until they have exhausted all the other assets of the estate.


author: By BRYANT, PJ.

text:
    DAILEY, Plaintiff-Appellee, v. DAILEY, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    Nos. 6006, 6007.
    Decided April 14, 1959.
    Butler, Addison, Smith & Carmack, Richard C. Addison, of Counsel, Gale R. King, Columbus, for plaintiff-appellee.
    Earl W. Charls, Ginocchio & Ginocchio, Cincinnati, for defendant-appellant
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT, PJ.

This matter comes on for consideration upon the appeal on questions of law in cases Numbers 6006 and 6007 in which Sylvia D. Dailey is plaintiff-appellee and Leonard Clarence Dailey is defendant-appellant.

At the time of the oral argument on this case there was pending the motion of plaintiff-appellee to require the defendant-appellant to furnish additional bond. It was stated in open court by counsel that the additional bond had been given and that a suitable entry would be prepared to dispose of all questions raised by said motion and therefore no further attention will be given to this motion.

The two cases which are now on appeal to this court had their Deginning in the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations on December 2, 1950 when Sylvia D. Dailey filed a petition for divorce from Leonard Clarence Dailey. To this petition, Leonard Clarence Dailey filed an answer consisting of two defenses, the first admitting certain jurisdictional and other uncontroverted matters but specifically denying the several alleged grounds for divorce and containing a general denial of other allegations, while the second defense alleged that Sylvia D. Dailey was guilty of misconduct and not entitled to a divorce. Thereafter the parties entered into a separation agreement consisting of three legal size pages and containing in detail the terms on which the various rights of the parties were settled. Both the husband and wife signed this agreement along with four witnesses and separate acknowledgments were made by each of the parties. Thereafter on October 25, 1951, a decree of divorce was entered on the records of the court below. It granted the divorce to Sylvia D. Dailey and found that Leonard Clarence Dailey was guilty of gross neglect of duty. At the conclusion of the divorce entry there appears the following language:

“The court further finds that the parties hereto have entered into a separation agreement, settling their alimony and property rights, which separation agreement, upon examination by the court appears to be fair and equitable.
“It is therefore ordered, adjudged and decreed by the court that said separation agreement, a copy of which is attached hereto, be, and is hereby made a part of this decree as fully as if rewritten herein.”

The separation agreement indicates it was entered into October 24, 1951. Many of its provisions were to be fully executed at or shortly after the time the agreement was signed. The following are extracts from the agreement and are set forth to illustrate how the questions now before this court had their inception:

“WHEREAS, unfortunate differences have arisen between said husband and wife, rendering it impossible for them to hereafter live together, and said parties have agreed upon an immediate separation, and
“WHEREAS, these parties, by this agreement, desire to settle all questions of property rights, maintenance, support, alimony, dower and other interests.
“NOW, THEREFORE, IN CONSIDERATION of the promises and agreements hereinafter set forth and things to be done between the parties pursuant thereto, it is agreed as follows:
“2. The husband agrees to pay to the wife, as alimony, the sum of Twenty-five Thousand ($25,000.00) dollars within five (5) days from the signing of this agreement and in addition thereto, to pay to the wife the sum of Twenty Thousand ($20,000.00) dollars, not later than February 1, 1952, and in addition thereto, to pay to the wife the sum of Ten Thousand ($10,000.00) dollars each succeeding month of January for the next eleven (11) consecutive years.
“It is further agreed by the husband that in the event of his death prior to the payments of all monies referred to herein, the unpaid amounts remaining shall be a charge against his estate.
“7. In consideration of the performance of the provisions of this agreement, each party releases the other from all obligations past or present, or for further care, support and maintenance; and agrees not to contract upon the credit of the other, any obligation; nor to institute any actions or claims for alimony, support, expense money, or otherwise, one against the other, except as herein stated.
“8'. This agreement shall be a full and complete settlement of all the property rights between the parties, each of whom does by the provisions hereof, release, satisfy and discharge all claims and demands against the other party, including all rights of dower, inheritance, descent, distribution, allowance for year’s support, exemption from administration, all rights as surviving spouse, heir, legatee, and next of kin in the estate of the other, and in all property which each now owns or may hereafter acquire, except as provided herein.
“10. This agreement shall be submitted to any court in which an action may be pending between the parties for divorce and if found by the court to be fair and equitable and approved by said court, shall be incorporated in the final decree of said court as the order of said court.” (Emphasis added.)

As herein above noted the divorce entry states that the court examined the separation agreement and found it to be fair and equitable and incorporated it in its entirety in the divorce decree.

The precise questions now before the court had their inception on December 30, 1957, when counsel for Leonard Clarence Dailey filed a motion to modify the divorce decree dated October 25, 1951 by “terminating those provisions which require defendant to pay plaintiff the sum of $10,000 each succeeding January for the next eleven 111) consecutive years following February 1, 1952, insofar as said provisions relate to the. months of January beginning in 1958, and ending in January 1963, inclusive, for the reason that said plaintiff married one Leslie E. Cox at Richmond, Ind. on November 29. 1957, and that said Leslie E. Cox is well able to support and maintain properly the said plaintiff.” in the language which followed, the said motion asked, in the alternative, that if the court did not terminate such- payments entirely that the court modify the amounts required to be paid by the husband under the agreement relating to the $10,000 payments “by reducing the amount required to be paid.”

The court was asked to rule upon the alternative motion only in the event it overruled the motion to terminate the payments completely.

A hearing was had and the testimony of Leslie E. Cox was taken. Cox testified that he was married to Sylvia D. Dailey on November 29. 1957, and stated that his net income in 1957 was $4,950 plus about $200 interest on a savings account, that he owned war savings bonds amounting to $1,850 and a house and lot located on the north side of Columbus and also a 1956 Buick Special. Thereafter the court referral officer recommended that the motion be overruled and this recommendation was approved by the lower court on February 15, 1958.

Subsequently a motion for separate finding of fact and conclusions of law was filed and while it was pending, Sylvia D. Dailey on March 19, 1958, through her counsel, filed a motion asking that Leonard Clarence Dailey be held in contempt. She stated that her former husband had disobeyed the court order of October 25, 1951, requiring him to oav $10,000 during the month of January each year from 1952 through 1963 by failing to make the January 1958 payment. In an affidavit in support of this motion Sylvia D. Dailey said that the payment due January 31, 1958, had not been made and that her former husband “refuses tq make said payment although requested so to do.” She asked that her former husband be required to show cause why he shouid not be punished for contempt.

Subsequent thereto the separate findings asked for were furnished and the lower court by Fogle, J., decided that the referee was correct in overruling the motion to terminate or reduce the alimony payments and the defendant was found in contempt and ordered to make immediate payment of the sum due. Other procedural steps were taken which need not be detailed here.

On August 5, 1958, two separate notices of appeal were filed. The one. which now bears No. 6006 in this court, was directed to the final order of the court below, dated July 18, 1958, “in which the said Court overruled appellant’s exceptions to the separate findings of fact and conclusions of law which were made and filed herein on the 21st day of April, 1958, and further overruled appellant’s motion to vacate and set aside the aforesaid separate findings of fact and conclusions of law and for a new trial, and further overruled appellant’s motion to modify the divorce decree herein of October 25, 1951 * *

The other notice of appeal which has been numbered 6007 in this court, also relates to a final order entered in the court below July 18. 1958, “in which the said Court ruled that the marriage of plaintiff herein to Leslie E. Cox on November 29, 1957, did not terminate the alimony provisions in the decree for divorce entered herein on October 25, 1951, or entitle appellant herein to an order reducing said alimony payments, and in which said Court found appellant herein to be in contempt for failure to pay the January 1958, alimony installment provided for in said decree for divorce, and in which said Court ordered appellant herein to purge himself of said contempt by immediate payment of any sum due under the provisions of said divorce decree.”

By agreement of the parties, the two appeals were consolidated for the purpose of filing assignments of error, briefs and for oral argument.

While the appellant in his consolidated brief and assignment of errors has made five separate assignments of errors, there is one question which appears to overshadow all the others in this case and that is whether the second marriage of Sylvia D. Dailey abrogated the provisions of the separation agreement with her first husband requiring him to make annual payments of $10,000 as alimony. It is noted that the proceeding to terminate the alimony payments, or in the alternative to reduce them, was begun by the filing of a motion. We further note that the court below disagreed with the findings of the referral officer that this was a proper way to raise the issue. In the opinion of Fogle, J„ it is stated, “The Court cannot agree with the referee’s apparent decision that a motion long after term is a proper manner in which to present this issue.” In support of this holding the lower court cited Fullerton v. Fullerton. 14 Abs 472. However, the point appears not to have been pressed and no decision on this is apparently needed at this time.

Appellant places considerable reliance on the third branch of the syllabus in the case of Olney v. Watts, 43 Oh St 499, which reads as follows:

“3. Where alimony had been granted, in installments, to a divorced wife, and she is afterward re-married to a man financially able to, and who does, in fact, support her, these facts would prima facie be a good cause for modifying the former decree so as to reduce the amount to be paid for her support to a nominal sum, or such a sum as,, in the changed condition of the defendant, the court might deem just and reasonable.”

It should be borne in mind in determining what the Olney case, supra, holds that the decision was upon a general demurrer to the petition and that the petition contained no direct averment that the alimony was the result of an agreement of the parties. Inasmuch as the court found no direct averment that the alimony was the result of an agreement of the parties it assumed that it was the result of an order of the court and hence could be modified by the court. It was clearly pointed out that if it had been averred that the alimony was fixed by agreement of the parties, it was binding and could not be changed and the demurrer was properly sustained. In the opinion of Atherton, J., at page 507, in the Olney case, supra, it is stated:

“The question presented by this record is: Did the petition set forth a cause of action good as against a general demurrer?
“If the decree, as to the amount of alimony to be paid the defendant, was the result of an agreement of the parties, and simply confirmed by the court, and that appeared by the direct averments of the petition, we would not say that the court erred in sustaining the demurrer. But this nowhere appears by direct averment. If the exhibit could be looked to, as part of the petition, perhaps it does appear, but the exhibit is no part of the pleading and does not help it out. We are therefore compelled to lay out of view, what counsel on both sides seem to concede in argument, that we should consider on this demurrer; that is what appears in the exhibit attached to the petition, but not made a part of it. Crawford v. Satterfield, 27 Oh St 421.”

It follows therefore that the law decided in the Olney case, supra, is not applicable to the facts in the case now before this court. Counsel for Sylvia D. Dailey and the court below rely heavily upon the case of Newman v. Newman, 161 Oh St 247, decided by the Supreme Court of Ohio, March 31, 1954, the syllabus of which reads as follows:

“An alimony decree based on an agreement between the parties is not subject to modification by a court after term in the absence of mistake, misrepresentation or fraud and in the absence of a reservation of jurisdiction with reference thereto. (Law v. Law, 64 Oh St 369, approved and followed.)”

It will be noted that the Newman case, supra, had been decided in the Court of Appeals of Cuyahoga County, Ohio, and was certified to the Supreme Court of Ohio for determination upon a finding that it was in conflict with the judgment upon the same question announced by the Court of Appeals for Franklin County, Ohio, in the case of Kintner v. Kintner, 78 Oh Ap 324. In the opinion in the Newman case, supra, also written by Weygandt, C. J., of the Supreme Court of Ohio, reference is made to a number of earlier decisions. In this opinion the distinction in the Olney case, that which applies only where there was no separation agreement, is pointed out. The decision in the Newman case, supra, relied upon and followed an earlier decision in the case of Law v. Law, 64 Oh St 369, in which the syllabus reads as follows:

“A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to modification upon a petition filed by the former husband after the term at which the original decree was made.”

Chief Justice Weygandt concluded the opinion in the Newman case, supra, at page 250 with this statement:

“Clearly the trial court was correct in holding that the decision in the Law case, supra, is dispositive of the instant controversy, and this court finds no cogent reason for departing from the settled principle there stated. The parties voluntarily entered into a valid contract without mistake, misrepresentation or fraud. At their instance the agreement was submitted to the court and was duly approved. It properly was incorporated into the decree, and plain justice would seem to require that it be considered as binding both parties thereto.”

In 18 O. Jur. (2d), page 80, Divorce and Separation, Section 143, Judgment Based on Agreement, there appears the following statement:

“It is a general rule, supported by many Ohio cases in slightly varying but essentially similar statements, that a judgment or decree for alimony based on agreement of the parties is not subject to later modification. As many of the cases phrase the principle, such a decree is not subject to modification ‘after term’ or ‘at a subsequent term of court,’ in the absence of fraud, misrepresentation, or mistake, and in the absence of a reservation of jurisdiction with reference thereto. However, a decree entered pursuant to agreement, providing for the payment of a specified amount periodically ‘until the further order of the court,’ reserves to the court the power of modification.”

Of course, there is no claim here of fraud or misrepresentation and the motion is based entirely upon the fact of the second marriage of Sylvia D. Dailey. As pointed out in the decision of the court below it would have been a simple matter for the husband to have protected himself against this situation by simply including a provision in the contract that in the event of the death or remarriage of the plaintiff, the payments were to cease.

In view of the decisions of the Supreme Court of Ohio above referred to, this court is bound to hoid that a separation agreement lawfully entered into and approved by the court becomes binding upon the parties and is not subject to later modification and we so hold in this case.

In view of this holding the first three assignments of error must be overuled. Factually there is a vast difference between an annual earning capacity of $5,000 in the case of the second husband and one of many Dimes that amount in the case of the first husband, upon the basis of which the first assignment of error is not well taken.

The second assignment of error relating principally to the earnings of the second husband in the several years immediately prior to his marriage to the plaintiff herein likewise is not well taken. The trial court’s ruling in our opinion was correct in excluding this evidence.

As to the third assignment of error that the trial court erred in overruling defendant’s exceptions to the separate findings of fact and conclusions of law and overruling defendant’s motion to vacate and other related rulings, also must be overruled. In our opinion the trial court’s rulings were correct.

The fourth assignment of error that the trial court erred in ruling that the second marriage of the plaintiff did not terminate the duty to make the alimony payments provided for in the separation agreement has been already fully discussed by us. Inasmuch as we conclude that the lower court’s rulings were in accordance with the determinations by the Supreme Court of Ohio, this assignment of error must be overruled.

The fifth and final assignment of error that the judgment of the court below was against the manifest weight of the evidence and contrary to law likewise is not well taken and in our opinion must be overruled.

Concluding that no error has intervened and that the several assignments of error are not well taken, it is ordered that the judgment of the court below both as to the motion to terminate or reduce the alimony payments and also the finding that the defendant was in contempt, should be and hereby are affirmed and the cause remanded to the court below.

DUFFY and WISEMAN, JJ, concur.


text:
    DAILEY, Plaintiff-Appellee, v. DAILEY, Defendant-Appellant.
    Nos. 6006, 6007.
    Decided August 11, 1959.
   OPINION

By BRYANT, PJ.

The sole question before this court at this time arises upon motions for reconsideration of the decision of this court handed down on April 14, 1959. On that date this court affirmed the action of the Franklin County Common Pleas Court, Division of Domestic Relations, where the motion of Leonard Clarence Dailey, appellant, to discontinue alimony payments was overruled and the action of his former wife, Sylvia D. Dailey, appellee, seeking to hold him in contempt, was sustained and Mr. Dailey was found to be in contempt.

The payments in question were made pursuant to the terms of a separation agreement entered into by the parties in October, 1951, and incorporated in the divorce decree granting the divorce to Mrs. Dailey filed October 25, 1951.

The sole basis for the motions for reconsideration is that the holding of this court is-in conflict with the very recent decision of the Ohio Supreme Court in the case of Hunt v. Hunt, 169 Oh St 276, decision announced June 3, 1959.

The Hunt case, supra, decided that upon remarriage of the former wife, the right to permanent alimony in fixed monthly installments based upon an agreement between the parties, could be terminated where the agreement does not constitute a property settlement or is not related to support of children.

The first branch of the syllabus in the Hunt case, supra, is as follows:

“Where, in a divorce action, permanent alimony is ordered paid by the husband to the wife in a fixed amount per month, payable monthly hereafter,’ based upon an agreement between the parties which does not constitute a property settlement and is not related to support of children, and where the alimony order contains no provision for termination of such payments or reservation of jurisdiction by the court, the subsequent marriage of such wife to another man capable of supporting her constitutes an election on her part to be supported by her new husband and an abandonment of the provision for permanent alimony from her divorced husband.” (Emphasis added.)

The decision in the Hunt case, supra, is clearly distinguishable from the case now before us. In the Hunt case, supra, there was no property settlement and could not be any because, as the court found, the husband had no property. In this case (Dailey v. Dailey), there was a large amount of property and the separation agreement determined many property rights, such as (a) giving the residence property to the wife, (b) cutting off the husband’s interest in an automobile and (c) providing against possible liability of the wife under joint income tax returns. The Dailey separation agreement clearly constituted a property settlement, taking it outside the rule of the Hunt case, supra.

Another distinction between the pending case and the Hunt '■ase, supra, is that in the latter case the agreement as to alimony payments was indefinite, continuing perhaps for life, while in the Dailey agreement, the so-called alimony payments are thirteen in number and are more nearly like a property settlement in installment payments. There is a provision for payment from the estate of the husband should he die before all the payments are fully paid.

Because of these differences, the holding in the Hnnt case, supra, has no application and the motions of defendant-appellant will be overruled.

DUFFY, J, concurs.

MILLER, J, not participating.


author: By BACON, J.

text:
    JOHNSON, Plaintiff, v. JOHNSON, Defendant.
    Common Pleas Court, Meigs County.
    No. 12857.
    Decided June 29, 1959.
    O’Brien & O’Brien, Pomeroy, for plaintiff.
    Crow, Crow & Porter, Pomeroy, for defendant.
   OPINION

By BACON, J.

This court overruled defendant’s motion to quash service of summons by publication and defendant’s motion to dismiss the petition because of the nonresidence of the plaintiff. Defendant moves for reconsideration.

Defendant is a soldier. He enlisted at the age of 19 years when his domicile was that of his parents at Esdale, West Virginia. Since then his parents removed to Charleston, West Virginia. There is no evidence that defendant will ever have further connection with Esdale.

Defendant’s overseas tour of duty was terminated by a change of station to Walter Reed Hospital, Washington, D. C. Whereupon defendant left at the Military Post Office a forwarding address of his mother’s residence in Charleston, West Virginia.

Defendant’s residence or domicile must be ascertained from the facts and defendant’s intention. Defendant’s own acts are the best evidence of his intention. A military post is not now defendant’s domicile, nor is Esdale, West Virginia, his domicile. Defendant intended his mother’s residence as his own. It is unlikely a summons mailed to him at Esdale would ever reach him. Defendant himself provided the residence where a summons mailed to him would reach him.

Disregarding whether the question is properly raised by answer or by motion, defendant’s argument that plaintiff, being a minor, cannot acquire residence or domicile other than that of her husband is not tenable. This would deprive plaintiff of the benefit of §3105.04 R. C.

When a wife files a petition for divorce or for alimony, the residence of her husband does not preclude her from the provisions of §§3105.01 to 3105.21, inclusive. It. C.

In this case the plaintiff married the defendant when she was 13 years of age. It offends common sense that for eight years she would be unable to establish for herself a domicile other than that of her husband in the event of his misconduct. Ohio laws permit females to marry, with their parent’s consent, when they attain the age of 16 years. Ohio divorce statutes do not contemplate that one will be discriminated against solely by reason of one’s minority.

The court’s ruling is affirmed and the motion for reconsideration is overruled.


author: Per CURIAM.

text:
    FULTON, Plaintiff-Appellant, v. FULTON et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6073.
    Decided June 16, 1959.
    Shoemaker, George & Passmore, H. Keith Passmore, of Counsel, Columbus, for plaintiff-appellant.
    Kenneth E. Thomas, Columbus, for defendants-appellees.
   OPINION

Per CURIAM.

This action for the petition of real estate was begun by the plaintiff on June 30, 1958. A motion was filed by the defendant to the petition to make it more definite and certain in the particulars as set forth in the motion. The court sustained the motion to make definite and certain in all of its branches and granted to plaintiff leave to file an amended petition within rule.

The amended petition was filed, and the defendant filed a motion to strike the amended petition from the file for failure to comply with the former order of the court to make the petition definite and certain in the particulars set out in the motion. The motion to strike the petition was sustained by the court by entry filed October 30, 1958; and in the entry the plaintiff was given leave to file an amended petition within rule.

On November 25, 1958, the court considered an oral motion to dismiss and filed the following entry:

“This day this cause came on to be heard on the oral motion pf the defendants to dismiss said cause of the plaintiff, and it appearing that the plaintiff has not filed an amended petition within rule pursuant to a former order of this court, it is hereby ordered that the cause herein De dismissed with prejudice against the plaintiff, and that the plaintiff pay the costs herein taxed at $______”

On December 11, 1958, the plaintiff filed his notice of appeal on questions of law from the order rendered by the Court of Common Pleas dismissing his petition with prejudice and at his cost on the 25th day of November, 1958.

The briefs of the parties have to do with the sufficiencies of the petition and the amended petition. However, the appeal is from the dismissal, and §2323.05 E. C., provides, in part, as follows:

“An action may be dismissed without prejudice to a future action:
* a * * *
“(E) By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action; * *

It does not appear that the plaintiff-appellant can question the correctness of the court’s orders in ruling on the motion to make definite and certain and the motion to strike the petition in this proceeding as a timely appeal was not taken from those rulings, and the court was well within its rights in dismissing the action for failure to comply with the “order concerning the proceedings.” However, it is to be noted that the action was dismissed with prejudice, and the law only gives a court the right to dismiss the action without prejudice to another action.

For that reason the cause will be remanded for further proceedings in accordance with the law.

BRYANT, PJ, DUFFY, J, concur.

MILLER, J, not participating.


author: By NICOLA, PJ, THOMAS and McMAHON, JJ.

text:
    STATE, Plaintiff, v. MILAM, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 69004.
    Decided October 26, 1959.
   OPINION

By NICOLA, PJ, THOMAS and McMAHON, JJ.

In the first count of the indictment it is charged that on or about the 9th day of December, 1957, in Cuyahoga County, the defendant, Dallas Edward Milam, with James Wilson Davis and Robert Lee Lyons, unlawfully, purposely, and while in the perpetration of a robbery killed Edward G. Lentz; and in the second count he is charged with having, on or about the same day in December, and with the same persons unlawfully, purposely and willfully killed Edward G. Lentz, a duly appointed, qualified, and acting policeman of the city of Cleveland, Cuyahoga County, while said Edward G. Lentz was in discharge of his duties as a policeman.

This is the second time that the defendant has been tried on this charge, our Court of Appeals having reversed the former conviction of the defendant and having remanded the case for a new trial. State v. Milam, 108 Oh Ap 254; 9 O. O. 2d, 252. Accordingly, this court has tried this case de novo, and bases its findings on the evidence presented during this trial. However this court deems itself bound to follow the law laid down by our appellate court. Nor are we unmindful that the decision of the Court of Appeals was appealed to the Supreme Court of Ohio and that the said court refused to admit said cause for review.

This court is convinced that a robbery was committed. But whether or not there was a conspiracy to rob, and whether or not the defendant later became a part and parcel of such conspiracy are questions which need not be answered in view of our conclusion regarding another phase of this case. For the same reason it is not necessary to decide whether the defendant was put under any duress by any acts of James Wilson Davis or Robert Lee Lyons.

Our Court of Appeals has ruled that:

“The question whether the robbery was still continuing or had ended when the homicide occurred was for the trier of the facts to determine in the light of the happenings subsequent to the stopping of the escape automobile by Lieutenant Lentz.”

In passing on this question this court must also bear in mind the further language found in the majority opinion as follows:

“One conclusion may very well be that an intervening event intruded in the continuity of the robbery and terminated it and that an entirely new episode was inaugurated involving Davis and Lyons but not Milam. Arrest of the three men would be such an intervening event.”

Therefore this court must consider and weigh the evidence to determine the question posed by the Court of Appeals.

Before reciting the facts material to a determination of the question presented by the Court of Appeals, it is important to review certain preceding events.

About 3:30 A. M. on the morning of December 9, 1957, the defendant Milam was asleep in his apartment which he shared with his brother. They were aroused by James Wilson Davis and Robert Lee Lyons. Davis induced Milam to accompany him and Lyons to the home of Buchanan in order to recover money previously lost in card games played at the Buchanan home. Davis informed Milam that the cards were marked. He insisted therefore that by exposing Buchanan he would return their losses. Milam refused to go with them until he was assured by Davis that there would be no trouble or violence.

Thereafter, Milam drove the three of them in his Cadillac to the home of Buchanan. Admitted to the residence by Buchanan, they were joined by Buchanan’s wife and all proceeded to the basement. After a few minutes conversation Davis drew a revolver, pointed it at Buchanan and declared, “This is it” — “It’s a stickup.” The possession of this revolver was unknown to both Milam and Lyons.

At first Davis demanded only the money that Milam and Lyons had lost. However, this was followed by a tying up of both Buchanans in the basement; and Lyons, under orders from Davis obtained a bag containing both currency and coin. Two wrist watches and a man’s ring were taken from the persons of the Buchanans by Davis and Lyons. Lyons, Milam and Davis proceeded upstairs, leaving the Buchanans tied up in the basement. In a second floor bedroom no further money was found but two revolvers were found under a mattress. Lyons, who already had secured a revolver from the dining room buffet, kept one of these additional revolvers. Milam, offered a .38 calibre revolver, declined to take it but did accept a smaller revolver .32 calibre in size. At the request of Lyons, Milam carried the money bag and also a partially filled bottle of Vodka, taken from the basement bar under orders of Davis.

Probably while they were still in the upstairs, Buchanan freed himself and got out through a basement window. He succeeded in hailing a police car, manned by Lt. Lentz of the Cleveland Police Department. In the meantime, Davis, Milam and Lyons departed from the Buchanan home and entered the Cadillac automobile parked in front of the Buchanan home on Quimby Avenue.

Prom now on the facts, all of which are material to our conclusions, will be considered in detail.

When Milam reached the left or driver’s side of his automobile, he opened the door and threw the money bag and the .32 calibre revolver on the floor towards the passenger side of the car, with the statement, “You told me there wasn’t going to be any trouble, and you have robbed these people. I don’t want anything to do with it.” The .32 calibre revolver and two hundred and sixty five dollars in currency were later found by the police under the front seat on the passenger side, approximately where Milam said he throw the bag and’ the revolver.

With Milam driving, Davis in the middle and Lyons on the passenger side of the front seat, they proceeded to drive east on Quimby. Upon hearing a police siren, after going about 200 yards, Milam commenced to stop, Davis, however, saying, “Don’t Stop.” Milam replied, “No, I’m going to stop,” whereupon the Cadillac was brought to a stop.

The police car stopped a short distance behind the Cadillac, and Lt. Lentz got out, leaving Buchanan in the police vehicle. Walking to the driver’s side of the Cadillac, Lentz dressed in full police uniform, asked, “What’s going on here, somebody told me you robbed him.” After a few words passed the officer removed the keys from the Cadillac, saying, “Stay in the car, you are under arrest.” Lt. Lentz returned to the police car where he radioed for assistance.

Davis, Lyons and Milam remained in their seats until the officer returned. The officer took the bag of money from within the car, inquiring what it was, and began to count it. At this point Buchanan ran up to'the car, saying “Yes, those are the fellows that robbed me.” Then Lyons made two or three attempts to get out of the car on the passenger side, each time Lt. Lentz ordering him to stay in the car.

Finally Lyons did leave the car and started toward the rear of the car. As he did this, Davis moved toward the passenger side, telling Milam, “Let’s run.” On Milam’s refusal, Davis said, “We have to man, we have to.” Davis then got out of the car and ran east on Quimby.

As Lt. Lentz was standing within two feet of the open door on the driver’s side, and while Milam was still seated behind the wheel, and Lyons was coming around the rear of the Cadillac, Lt. Lentz ordered Lyons to get back in the car two or three times.

Lyons, who by that time had reached the vicinity of Buchanan and the officer, fired twice, and Lt. Lentz groaned and fell to the ground, dying instantly from a bullet wound.

Asked about his state of mind when Lt. Lentz ordered the three men to stay in the car and told them they were under arrest, Milam answered, “Well, I thought I was under arrest or knew I was under arrest. The officer told me to say in the car, I’m under arrest and that’s what I thought I was.”

Thereafter Buchanan ran west toward his residence, encountering a second police car. The two officers got out of this car and ran east. Milam, still seated behind the wheel of the Cadillac, yelled to one of the officers, “Over here, Officer, someone has been hurt.” Milam surrendered to the officer who approached the driver’s side, who described his condition as excited, disheveled, and with tears in his eyes.

A full and fair consideration of the foregoing facts convinces this court that Lt. Lentz clearly evinced the purpose of taking the three men into the custody of the law, that he acted under real authority, that he made a constructive seizure or detention of their persons, and certainly insofar as defendant Milam was concerned he considered and understood that he was under arrest, and that he acquiesced and submitted thereto.

Hence the four essential elements of an arrest as defined in the majority opinion of our Court of Appeals are met, with respect to Milam.

It is also clear from the facts that Davis and Lyons having been similarly ordered under arrest, had the same opportunity as Milam to acquiesce and submit to the arrest, being fully aware that Milam had acquiesced and submitted to the arrest, but chose to act otherwise.

Accordingly, to paraphrase the language of the majority opinion of the Court of Appeals, this court unanimously finds that Milam’s arrest was an event which intervened to break the continuity of the robbery and terminated it, as far as Milam was concerned. The homicide which occurred subsequent to Milam’s arrest was an “entirely new episode” which was “inaugurated involving Davis and Lyons but not Milam.”

This court has read the authorities on which each side places greatest reliance. But in the final analysis the authority which this Court concludes it must follow is the majority opinion of our own Court of Appeals.

So finding, the Court has no alternative but to find the defendant, Dallas Edward Milam, not guilty as to each count of this indictment.


author: By HUNSICKER, J.

text:
    V & H EQUIPMENT RENTAL CORPORATION, Plaintiff-Appellant, v. GARFIELD HEIGHTS (City) et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24760.
    Decided October 14, 1959.
    Austin T. Klein, for plaintiff-appellant.
    William J, Tosco, Dir. of Law, Loyal V. Buescher, for defendantsappellees,

      (DOYLE, PJ, HUNSICKER, J, of the Ninth District, GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

The appellant, V & H Equipment Rental Corp., herein called “corporation,” filed an action in the Court of Common Pleas of Cuyahoga County, Ohio, against the city of Garfield Heights, herein called “city.” This action, entitled “Petition for restraining order, mandatory injunction and relief,” was dismissed by the trial court on the motion of the city, made at the conclusion of the opening statement on behalf of the corporation. The journal entry of dismissal, in its pertinent part, says:

“Defendants’ motion for judgment on the pleadings and opening statements of counsel is granted. Judgment rendered in favor of defendants and against plaintiff for costs.”

The petition herein, among many things, alleged that the corporation leased certain lands for the disposal of commercial refuse by the sanitary landfill method, which lands were used for many years prior to the lease for the disposal of waste and refuse; and hence this business was conducted as a nonconforming use under the zoning ordinance.

The corporation said that, on June 16, 1958. emergency legislation was enacted by the city, requiring a permit for the disposal of rubbish and waste material upon any lands within the city: and it alleged that, although it was not subject to such permit, it did make application under that legislation to conduct the business of disposal of waste material by the sanitary landfill method.

This permit was denied the corporation, and thereafter the agent of the corporation was arrested when he attempted to conduct the business of disposal of commercial waste material by the sanitary landfill method on these lands.

The corporation further alleged that the legislation providing for a permit to conduct the business of refuse disposal was unlawful, because the ordinance set no standards, was an unlawful delegation of legislative authority, and provided no method to appeal the action of the administrative officers.

The corporation said that the refusal to issue a permit was unlawful, unreasonable, capricious, and a confiscation of corporate property, and a denial of due process of law. The corporation also said that, since it had exhausted all of the remedies available to it, the Court should enjoin the criminal prosecution of its agent, and also enjoin the city from legislating as to sanitary landfill operations, and declare the ordinance requiring a permit to conduct the business of disposing of refuse and waste material by the sanitary landfill method invalid. In the alternative, the corporation asked that the city authorities be ordered to permit the corporation to operate such business.

The city said that an application was made by the corporation to conduct its business under an ordinance numbered 40-1942, and, before such application was acted upon, a new ordinance, No. 104-1958, to govern the disposal of rubbish and waste material, was enacted as an emergency measure. This ordinance required that a written application for a permit to conduct such a business must be filed with the Building Commissioner of the city. Such application would then be forwarded to the Zoning Board of Appeals for a public hearing. An application for a permit was filed by the corporation under the terms of this ordinance. This permit was not granted. No proceeding to appeal the administrative order of the Board of Zoning Appeals was instituted by the corporation after receipt of the notice of the denial of the permit.

From an examination of the opening statements, the petition, as amended by interlineation, and the answer, which was also amended by interlineation, the problem that we have is: Where a city has enacted legislation requiring a permit for the operation of the business of disposing of waste and refuse material within the city limits, and such application has been denied by the administrative body authorized to grant the permit, may the constitutionality of such ordinance be attacked before proceeding with the appeal provisions of §2506.01 et seq, R. C. — to wit, the procedure for appeals from orders of administrative officers and agencies?

If the trial court lacked jurisdiction to proceed to hear the case, the judgment must be affirmed, notwithstanding many allegations other than the invalidity of the ordinance are set out in the petition.

We do not think it can seriously be maintained that the city has no right to regulate the disposal of refuse and waste material. Ordinances pertaining to the health of the inhabitants, along with sanitary regulations concerning the disposal of waste materials, come within the police powers of government. State, ex rel. Moock, v. City of Cincinnati et al, 120 Oh St 500.

This court, the Eighth District, in the case of Neubauer v. City of Cleveland et al., 145 N. E. 2d 315, 316, specifically said that the disposal of waste material bears a relationship to public health, although the court did approve the sanitary landfill method of disposal of waste and rubbish.

There is a provision in the §715.61 R. C., which gives to municipalities the authority to regulate and license many occupations and businesses, including scavengers. The word “scavenger” is defined by Webster’s New International Dictionary, Second Ed., as “2.a. A person or thing that collects or disposes of filth, waste products, etc.; specif., a street cleaner, garbage collector, etc.”

We believe that, as this term is used in the statute, it includes those who gather waste products such as rubbish and trash.

Sec. 717.01 (C) R. C., grants power to a municipal corporation to provide the means to dispose of refuse. See also, §715.43 and §3707.43 R. C.

Since the city does have the power to regulate the business the corporation seeks to conduct, may an attack be made directly on that ordinance at this time?

The rule in Ohio, with respect to the problem herein, has been effectively determined by the Supreme Court of Ohio. In the case of State, ex rel. Lieux, v. Village of Westlake et al., 154 Oh St 412, that court said:

“1. Constitutional questions will not be decided until the necessity for their decision arises.”

In the case of Eggers et al, v. Morr et al, County Commrs., 162 Oh St 521, the court said:

“1. Where an administrative agency has jurisdiction to make an order in a matter pending before it, and a right of appeal from such order to the Court of Common Pleas is provided by law to any person adversely affected thereby, such person is not authorized to bring an independent action in equity to enjoin the carrying out of such order, where the grounds relied upon in seeking the injunction are such as could be fully litigated in the appeal authorized by law.
“2. Mere inconvenience in complying with the necessary steps in taking such an appeal does not constitute an excuse for resorting to an independent action for an injunction in lieu of taking the appeal.”

Ordinance No. 104-1958, the city law against which the principal complaint is made, is set out in full in the answer filed by the city. This ordinance is not as clear, in its statements concerning who shall grant the permit as might be desired, if any permit is given, yet we believe it sufficient to show that the Zoning Board of Appeals is the agency designated by council to determine the conditions for the issuance of a permit, and whether a permit should or should not be granted.

It is the conclusion of this court that this action in equity cannot be maintained, since there is an adequate remedy of appeal from the refusal of the Zoning Board of Appeals to authorize the granting of a permit.

The right to test the constitutionality of this ordinance, if it is deemed necessary to do so, may be instituted after all remedies by way of appeal under §2506.01 et seq, R. C., have been exhausted.

The situation in this case is not similar to the situation found in State, ex rel. Killeen Realty Co. et al, v. City of East Cleveland et al, 169 Oh St 375. In that case the question of zoning of property was involved, which, in effect, constituted the taking of property without due process; whereas here, although such an allegation is made in the petition, there is a lawful right to regulate the very type of business the corporation seeks to conduct on the premises. Whether the facts justify a refusal of the permit can be tested by the appeal provided for under the law.

The judgment of the trial court must be affirmed.

Judgment affirmed.

DOYLE, PJ, GRIFFITH, J, concur.


text:
    STATE, ex rel. ROSS, Plaintiff, v. GUION, Comm. of Building and Housing, etc., Defendant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24795.
    Decided October 26, 1959.
    Burke, Haber & Berick, for plaintiff.
    Ralph S. Locher, Dir. of Law, Joseph H. Crowley, Chief Counsel, Irving L. Silbert, Asst. Dir. of Law, for defendant.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, GRIFFITH, J, of the Seventh District, sitting by assignment in the Eighth District.)
   OPINION

By HUNSICKER, J.

This is an action in mandamus filed in this court.

Helen G Ross, who is the owner of certain property at the sou+heast corner of Drexmore Road and East 128th Street in the city of Cleveland, Ohio, made application to the commissioner of buildings Mr. Guión (herein called building commissioner), for a permit to erect on her land a one-story building to house a medical doctor, a dentist, and their respective office assistants.

The application complied in all respects with the legal requirements for a' professional building of the type and kind permitted in a local retail business district.

The land owned by Mrs Ross was changed, bv action of the council of the city of Cleveland, from a two-family residence zone to a local retail business zone, although all other property on that side of the street remains zoned for two-family residences. The land across the street from Mrs. Ross is zoned for local retail business, and is used principally for parking purposes for a store and an office building, which businesses face Shaker Boulevard, a street running parallel with Drexmore Road. This street (Shaker Boulevard) is a main highway in this vicinity, and one upon which the Shaker Heights Rapid ■ Transit runs. The land in question in this action is about two blocks from Shaker Square. On the southwest corner of Drexmore Road and East 128th Street is the power plant which supplies heat to the business places of Shaker Square and vicinity. This power plant is a nonconforming use, it having been in operation many years prior to the enactment of the original zoning ordinance.

After Mrs. Ross duly submitted her application for a building permit, the building commissioner refused to grant the permit. Mrs. Ross thereafter appealed to the Board of Zoning Appeals, which board reversed the decision of the building commissioner, and ordered him to issue the permit. Mrs. Ross then requested the permit and it was again refused by the building commissioner. The reason assigned by this commissioner for withholding the permit was that the ordinance which rezoned the Ross lands was invalid, as being spot zoning.

Our problem is first to consider the right of a municipal administrative officer, whose duty is to perform a ministerial act under an ordinance passed by the legislative body of the municipality, to refuse to perform that act for the sole reason that he believes the legislative body has in this matter enacted an invalid ordinance.

In 30 A. L. R. 378, and 129 A. L. R. 941, the subject “Unconstitutionality of statute as defense to mandamus proceeding” is annotated. The general rule, adhered to by the majority of state courts of last resort, is stated in the annotation, at 30 A. L. R. 379, to be that “a public officer whose duties are of a ministerial character cannot question the constitutionality of a statute as a defense to a mandamus proceeding to compel him to perform some official duty, where in the performance of such duty his personal interests or rights will not be affected, and he will not incur any personal liability, or violate his oath of office.”

We believe the same rule to be effective when a municipal officer raises such question as to an ordinance duly enacted by the legislative body of a municipality.

The Ohio cases have not directly passed upon this issue. However, in the case of State, ex rel. State Bridge Commission of Ohio, v. Griffith, etc., 136 Oh St 334, that court did say, in an action in mandamus to compel the secretary of state to attest a bridge bond issue, under a state statute that required these bonds to be attested by the secretary of state, that he was not entitled to set up the defense of the unconstitutionality of the statute, since he had no personal interest in the controversy. The court, in that case, did pass on the issue so raised on the basis that the matter was of general public interest.

Early Ohio cases, wherein the question herein discussed was considered, indicate to us that Ohio has heretofore followed the general rule as set out above.

In the case of C., W. & Z. Railroad Co. v. Commissioners of Clinton County, 1 Oh St 77, Ranney, Jr., speaking for the court, said, at pages 82 and 83:

“But while the right and duty of interference in a proper case, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority. It is never to be forgotten, that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case. And this results from the very nature of the question, involved in the inquiry. “The legislature is, of necessity, in the first instance, to be the judge of its own constitutional powers. Its members act under an oath to support the constitution, and in every way, under responsibilities as great as judicial officers. Their manifest duty is, never to exercise a power of doubtful constitutionality. Doubt, in their case, as in that of the courts, should be conclusive against all affirmative action. This being their duty, we are bound, in all cases, to presume they have regarded it; and that they are clearly convinced of their power to pass a law before they put it in the statute book. If a court, in such case, were to annul the law, while entertaining doubts upon the subject, it would present the absurdity of one department of the government overturning, in doubt, what another had established, in settled conviction; and to make the dubious constructions of the judiciary, outweigh the fixed conclusions of the General Assembly.”

The court in that case, notwithstanding the objection by the commissioners, who viewed the law there under consideration as of doubtful validity, ordered a writ of mandamus to issue. To this same effect are Citizens’ Bank of Steubenville v. Wright, Aud., 6 Oh St 318; and Trustees of Cass Township, v. Dillon, Treas., 16 Oh St 38. In each of these latter cases, however, the court did pass upon the constitutionality of the legislation on the basis of the great public interest involved. See also: State, ex rel. Michaels, v. Morse et al, etc., 165 Oh St 599, as to the presumption of constitutionality of a law, which arises when such law is called into question before a judicial tribunal.

Some recent cases in other jurisdictions discuss the question we have here, and all of them follow the general rule announced in the annotations found in A. L. R., supra. In assessors of Haverhill v. New England Telephone & Telegraph Co. (Mass.), 124 N. E. 2d 917, decided March 7, 1955, the court there said, at pages 920 and 921:

“ ‘It is a general principle that no one can question in the courts the constitutionality of a statute already enacted except one whose rights are impaired thereby.’ * * * In general an administrative officer cannot refuse to proceed in accordance with statutes because he believes them to be unconstitutional. * * * He must leave that issue to be raised by the persons who are adversely affected.”

And see:

11 Am. Jur., Constitutional Law, Sec. 117, and authorities there cited.

16 C. J. S„ Constitutional Law, Sec. 82 b, and authorities there cited.

In applying, then, to this case the general rule set out in the authorities heretofore cited, we must find that the building commissioner is not personally liable when he issues a building permit; he does not pay out public funds for which he may be liable if unlawfully expended; and, so far as the evidence shows, he has no greater legal interest in the issue herein than that of any other citizen.

The majority rule, which prohibits an administrative officer from raising the issue of unconstitutionality of the law which requires him to act, carries with it an exception permitting the defense of unconstitutionality if the act required to be done under that law is a matter of general public interest. This phrase, “general public interest,” is not susceptible of accurate definition.

Very few courts have attempted to define “general public interest.” It is a practical matter as to whether, under a given set of circumstances, a certain legislative act comes within the meanings ascribed to the phrase. One court said that:

“Legislation for the protection of those who have sustained injuries while engaged in industry is a matter affecting the general public interest.”

Akins case, 302 Mass. 562, 20 N. E. 2d 453, at page 457.

Thus, support of the poor has long been recognized as a public purpose. Kelly v. City of Pittsburgh, 104 U. S. 78, at page 81, 26 L. Ed. 658, at page 660. Relief of the unemployed would come within the purview of general public interest. Taxes levied to provide funds for the maintenance of law enforcement officers are for a general public purpose, and hence of general public interest. Southern Ry. Co. v. Mecklenburg. 231 N. C. 148. 56 S. E. 2d 438.

In the case of State, ex rel. Glenn, etc., v. Crockett, etc., 88 Okl. 124, 206 P. 816-817, the court cited with approval the following definition of public interest used in the case of State, ex rel. Freeling, v. Lyons, 63 Okl. 285. 165 P. 419, at page 420:

“We understand ‘public interest’ to mean more than a mere curiosity: it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interests of the particular localities, which may be affected by the matters in question.”

As we view the problem before us, we do not deem the legislation which changed the land of Mrs. Ross from a two-family residence zone to a local retail business zone to be of general public interest.

With this view of the case now before us, it is not necessary to proceed further in our discussion, nor to raise the question of spot zoning, which was injected into the case as the reason for the belief that this legislation is invalid.

The judgment of this court is that the writ of mandamus must be allowed to compel the commissioner of buildings, defendant herein, to issue the permit applied for by Mrs. Ross.

Writ allowed as prayed for.

DOYLE, PJ, GRIFFITH, J, concur.


author: By DUFFY, J.

text:
    STATE, ex rel. HATFIELD, Relator, v. INDUSTRIAL COMMISSION et, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6147.
    Decided June 30, 1959.
    Keith McNamara, Richard N. Larrimer, Columbus, for relator.
    Mark McElroy, Atty. Geni., William G. Carpenter, Asst. Atty. Geni., for Industrial Commission and Bureau of Workmen’s Compensation, Mary Spivey Durham, Asst. Atty. Geni., Columbus, for The Columbus Regional Board of Review.
    Bricker, Evatt, Barton, Eckler & Niehoff, Richard C. Pickett, of Counsel, Columbus, for Westinghouse Electric Corporation.
   OPINION

By DUFFY, J.

An action in mandamus was filed on behalf of a claimant of Workmen’s Compensation and the employer, the Administrator of the Bureau of Workmen’s Compensation, The Industrial Commission of Ohio and The Columbus Regional Board of Review were named as respondents. The relief sought was the payment of compensation during the pendency of the employer’s appeal from a decision of The Columbus Regional Board of Review allowing her claim. The Columbus Regional Board of Review has filed a motion asking that they be dismissed as a party in the mandamus action, alleging that they have no authority or responsibility with regard to the payment of compensation at this time. It is the claim of The Columbus Regional Board of Review that only The Industrial Commission and/or the Administrator of the Bureau of Workmen’s Compensation could be affected by a favorable hearing of the claimant-relator’s petition and, therefore, they are not a proper party to the action.

The claimant or relator cites the provisions of §4123.516 to §4123.519 R. C., to show that it is the descision of The Columbus Regional Board of Review from which the employer appealed, and since The Regional Board did not complete its order, staging concisely the award made. it must be retained as a party in this action. While §4123.516 R. C., states,

“The decision of a regional board of review shall be the decision of the commission * * * unless the commission upon application of the administrator, the claimant or the employer, made within twenty days after the date of receipt of the decision of the regional board of review allows an appeal to the commission, * * *”

the relator is claiming that the order of The Regional Board (and, therefore, of the Commission) was not complete, and that they have an interest in the controversy adverse to the plaintiff. (See §2307.19 R. C.)

At this time it is impossible to tell whether The Columbus Regional Board of Review is a necessary party, but it would appear that they are a proper party to the action and the motion is therefore denied.

BRYANT, PJ, concurs.

MILLER, J, not participating.