author: By PORTER, J.

text:
    MONROE, Plaintiff, v. LECKEY et, Defendants.
    Common Pleas Court, Miami County.
    No. 35062.
    Decided April 16, 1956.

      Shipman & Shipman, Troy, for plaintiff.
    Faust & Harrelson, Troy, for defendant.
   OPINION

By PORTER, J.

This is an action for ejectment, which hinges on the construction pf the will of one William Dilbone.

The facts are set forth in an Agreed Statement filed October 22, 1953, pertinent parts of which are as follows:

On August 28, 1904, one William Dilbone died testate owning in fee simple the real estate in the petition described, to wit:

Situate in the County of Miami, State of Ohio, and in the Township of Springcreek.

Being One hundred and Seventeen (117) acres in the Northeast Quarter of Section one (1), Town One (1), Range Twelve (12), M. R. S.

Also Six (6) acres in the Southwest corner of the Southeast Quarter of Section Two (2), Town One (1), Range Twelve (12), M. R. S.

Said William Dilbone died in Miami County, Ohio, and his estate was administered in the Probate Court of this County. At the time of his death he was survived by his widow, Mary Dilbone, and Elmer W. Dilbone, son, and Effie Dilbone, daughter, and one grandson, G. R. Leckey, who was the only child of Mary Elizabeth Dilbone Leckey, who predeceased said William Dilbone.

The will of William Dilbone was admitted to Probate Court of this county, and a true copy of said will is as follows:

“LAST WILL AND TESTAMENT OF WILLIAM DILBONE

Probated September 12, 1904 No. 12290

Probate Court Miami County

In the name of the benevolent Father of all I William Dilbone being of lawful age and of Sound mind and memory do make and publish this my last will and testament

Item first l desire that all my just debts and funeral expences be fully paid and as Soon as practibel after my death a Suitable monument be placed at my grave to cost not more than five hundred Dollars

Item 2d I give and bequeath to my Son E W Dilbone thirty acres off the home farm where I now reside including the House and Barn and forty acres off the Wiley farm opisite the home farm =

Item 3d I give and bequeath to my wife Mary E Dilbone in lieu of dower all the balance of land, untill my daughter Effie M arrives to the age of twenty one years also all my household good -

Item 4 When my daughter Effie M arrive at the age of twenty one years I give and bequeathe to her the Seventy acres known as the Croy farm

Item 5 After the death of my wife Mary E Dilbone I desire that the balance of land being about one hundred and twenty one acres be Divided between my Son and daughter or the heirs of their bodeys Share and Share alike according to value Bilding not to be included in valuation Should either of them die without children their Intrest to revet back to one living or the heirs of their Bodies So that the land Shall remain in the family Should either of them leave husband or wife. They to have the right of Dower until death or remarrige then to return to the family

Item 6 In the final division of the land between my Son and daughter I desire that my Daughters Share Shall comence on the East Side of the Linsey land and extent far enough to give her an equal share as above Stated Should my Son and Daughter not be able to make the division themselvs then the division to be made by appraisers chosen as follows each one to choose one appraiser they to choose the third

Item 7 I give and bequeath to my grand Son Glenn Leckey Eight hundred dollars to be paid out of my money or credits when he arrives at the age of twenty one years the balance of money or credits after pay above Stated bequeath I give to my wife”

Effie Dilbone, the daughter of William Dilbone, died on or about April 28, 1911, when a little past the age of twenty-one years, unmarried, leaving no issue.

Mary E. Dilbone, wife of William Dilbone, died on or about March 18, 1922, unmarried, and with no further issue.

On April 13, 1922, an affidavit was filed of record by Elmer W. Dilbone, stating therein that he is the son of William Dilbone, the testator. That his sister, Effie M. Dilbone, died intestate, unmarried, and without issue; and that Mary E. Dilbone, his mother, wife of William Dilbone, died March 18, 1922; and further in the affidavit, Elmer W. Dilbone states that the title to the 121 acres, more or less (the land in question in this suit), is now vested in him in fee simple. Said affidavit was recorded in Volume 176, Page 430, of the Deed Records of Miami County, Ohio.

Elmer Dilbone, son of William Dilbone, died on or about April 26, 1950; leaving Ardella C. Dilbone, as his widow, but without issue.

The only child of William Dilbone, who died leaving heirs, was Mary Elizabeth Leckey, who left one son, Glen. Glen died in 1945, leaving as his widow the defendant, Mollie Leckey, and as the heirs of his body a daughter, the plaintiff in this action, Ida Monroe, and the defendants, Ray C. Leckey, Stella Grim, and Mary Ellen Anthony, her brothers and sister.

Elmer Dilbone, son of William Dilbone, together with his wife, Ardella C. Dilbone, conveyed the within described premises by general warranty deed a life estate to Elmer W. Dilbone and Ardella C. Dilbone, and the remainder interest to Clayton Conover and Ardella L. Conover, dated August 26, 1931, recorded in Volume 204, Page 405, of the Deed Records of Miami County, Ohio.

Said Elmer Dilbone, Ardella C. Dilbone, Clayton Conover, and Ardella L. Conover, executed a mortgage on said premises, and on the 25th day of July, 1933, an action was brought in the Common Pleas Court, being Cause No. 26838, foreclosing said mortgage, and on the ¡1st day of October, 1933, Charles' Green, Sheriff of Miami County, Ohio, conveyed by Sheriff’s Deed the title to said premises to one B. W. Conover, recorded in Volme 211, Page 337, of the Deed Records of Miami County, Ohio.

Thereafter, B. W. Conover and Christabell Conover, husband and wife, conveyed within described real estate to Christabell Conover for life and the remainder to Ardella C. Dilbone and Elmer Dilbone, dated November 3, 1933, and recorded in Volume 211, Page 373, of the Deed Records of Miami County, Ohio.

Thereafter, Benjamin W. Conover died, and on February 9, 1934, Christabell Conover, widow of Benjamin W. Conover, conveyed by Quit Claim Deed her life estate to Ardella C. Dilbone and Elmer W. Dilbone, remainderman, thereby vesting the entire title in fee simple in Ardella C. Dilbone and Elmer W. Dilbone, husband and wife, said deed being recorded in Volume 213, Page 68, of the Deed Records of Miami County, Ohio.

Thereafter, Elmer W. Dilbone and Ardella C. Dilbone, husband and wife, conveyed the fee simple title to said real estate to Clyde Ward and Emma Ward, dated January 3, 1948, and recorded in Volume 267, Page 450, of the Deed Records of Miami County, Ohio.

Thereafter, Clyde Ward and Emma Ward on April 27, 1950, executed and delivered to defendant, The Third Savings and Loan Company, a promissory note in the principal sum of Ten Thousand Dollars ($10,000.00) with interest at five per cent (5%) and also properly executed and delivered to said defendant a mortgage covering the said premises as security for the payment of said note according to the tenor thereof. Said mortgage is recorded in Book 236, Page 19, of the records of Mortgages of Miami County, Ohio

Thereafter, on March 27, 1951, Clyde Ward and Emma Ward, husband and wife, conveyed an undivided one-half interest to Charles D Ward and Ramona Ward, recorded in Volume 292, Page 240, of the Deed Records of Miami County, Ohio.

At page 12 counsel agree that the questions to be determined by the Court are:

1. Did the will of William Dilbone create an entailed estate as to said real estate (121 acres), devised under Item 5 of his will?

2. If so, in whom does the title to said real estate vest upon the death of Elmer Dilbone, testator’s last surviving child, who died without issue?

(a) Does such real estate pass as intestate property, i. e. to the heirs at law of William Dilbone, Ida Monroe, plaintiff, and to her defendant brothers and sisters,

or

(b) Did title vest in fee simple in Elmer Dilbone on the death of his sister, Effie, who died without issue?

When Item 5 of the Will is examined in the light of the authorities fiereinafter discussed, it will be seen that the questions to be decided by the Court are not that simple.

Where a will devises realty to one “or the heirs of her body” the use of the disjunctive shows the gift was to be to one or the other and not and the other. “Or” must be taken in its ordinary meaning unless the intent of the testator gathered from the entire will requires a different meaning. See Pearson v. Olsen, 310 Ill. 252, 141 N. E. 736.

The Court concludes that the use of the “or” clause does not in and of itself create an entailed estate, and there is nothing in the will to require that inference. It remains to be decided whether or not a gift over in the event of the death of the first taker without children creates an estate tail by implication, either as such or because of the wording of this particular will. If an estate tail is not created by implication, it is next necessary to determine what estate is created, or whether it went intestate. If it is a gift in fee, with an executory devise upon the death of the first taker without children, does the survivor not only take the fee in one half as a result of the gift over, but in the other half because of the failure of the gift over upon the death of the executory devisee prior to that of the first taker? A discussion of these questions follows, beginning with a discussion of the general law on creation of estates tail by implication upon death of the first taker without issue.

A gift to A in general terms, not showing what estate is intended, followed by a gift over on indefinite failure of issue passes an estate-tail. Page on Wills, Section 1095, n. 10; citing Arnold v. Wells, 100 Pla. 1470, 131 So. 400; Hertz v. Abrahams, 110 Ga. 707, 50 L. R. A. 361, 36 S. E. 409; McCarthy v. Walsh, 123 Me. 157, 122 Atl. 406; Jones v. Gulf Refining Co., 295 Pa. 92, 144 Atl. 895; Crawford v. Woodrow, 314 Pa. 497, 171 Atl. 894; Anderson v. Lucas, 140 Tenn. 336, 204 S. W. 989.

A gift over on definite failure of issues does not show that a fee tail was devised. Page, Section 1095, n. 11; Gibbs v. Turner, 140 Kan. 63, 34 P. (2d) 564; Symmes v. Moulton, 120 Mass 343; McClintic v. McClintic, 259 Pa. 112, 102 Atl. 416.

Ohio has definitely repudiated the common law presumption without the aid of the statute, and holds that definite failure of issue is to be presumed. Simes, Law of Future Interests, Section 339, n. 26, citing among other cases Parish’s Heirs v. Ferris, 6 Oh St 563 (1856); Niles v. Gray, 12 Oh St 320; Anderson v. United Realty Co., 79 Oh St 23 at 49, 86 N. E. 644, 51 L. R. A. (N. S.) 477 (1908) (dictum); Briggs v. Hopkins, 103 Oh St 321, 132 N. E. 843 (1921).

“Definite” failure of issue means failure of issue at the death of a particular person. Indefinite failure of issue means failure of issue however that may occur, either by the death of the named person without issue, or by the death of the last survivor of his issue. Simes, Sec. 335.

Even in courts recognizing the presumption in favor of such indefinite failure of issue, the weight of authority is to the effect that if the gift over is to a person “then living” or “surviving” the presumption is rebutted and the “definite” construction prevails. Simes, Ibid, Sec. 340.

In addition to the Ohio cases cited in Simes, see Miller v. Miller, 10 O. N. P. (N. S.) 630, aff’d. 80 Oh St 563.

If the language used by Mr. Dilbone provided for a limitation over on failure of issue instead of children, it would be a stronger case for the plaintiff than it is for saying that it may be implied from this that the testator intended to create a fee tail estate. Therefore, a fortiori, where there is a devise in fee to A, with a limitation over in the event A dies without children, an estate tail is not created by implication, unless there is something else in the will which compels the inference. There is nothing else in the will in question that compels that inference.

The Court finds that on the facts before it the son and daughter each took a fee simple title — a base fee simple title, with an executory devise in the event either died without children. Or, as stated in Anderson v. Realty, supra, at page 49, the estate of the prior devisee is one in fee simple, subject to an executory devise in the event of his dying without issue at his death.

When the daughter died without children the limitation over took effect and as to her half interest the son took a fee simple absolute. Upon the death of the daughter the limitation over of - the half devised to the son failed because of the death of the executory devisee. Upon.such failure the first taker’s estate took effect as a fee simple absolute,Thompson on Real Property, Perm. Ed., Sec. 2268. Here it is stated:

“. . . if the grant or devise to the first taker is in fee and the limitation over fails for any cause, the first taker’s estate takes effect as a fee simple absolute.” (Emphasis supplied.)

In this case the estate of the son, the first taker of one-half was a fee simple and the limitation over failed, the “cause” being that .the daughter to whom there was a gift over in the event of the son’s death without children predeceased the son. Hence, the first taker’s estate took effect as a fee simple absolute. In order to fully understand why this happened consider for a moment the nature of the estate created. It was a fee simple title in the first taker, subject to an executory devise in the event of his dying without children. In effect it must be inferred as meaning dying without children before his sister did.

The limitation over failed because the daughter died before the son, leaving no children or heirs of her body. Hence, the first taker’s estate took effect as a fee simple absolute.

It will be found helpful to closely examine the cases in note 30, page 815, of Vol. 4, Thompson on Real Property. These are:

Doe v. Watson, 17 Dec. U. S. Sup. Ct. 581; Outland et al v. Bowen et al, 115 Ind. 150, 17 N. E. 281; Sullivan v. Garesche, 229 Mo. 496, 129 S W. 949; Cleveland v. Havene, 13 N. J. Eq. 101. 78 Am. Dec. 90; Den v. Gibbons, 22 N. J. L. 117, 51 Am. Dec. 253; Van Horn v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771; Anderson v. United Realty, 79 Oh St 23, 86 N. E. 644, 51 L. R. A. (N. S.) 477.

However, it is planned to discuss only the Ohio and Missouri cases in this opinion.

In the Ohio case the executory devise failed because the first taker died leaving issue. In the Sullivan case the resemblance to the facts in this case is closer. It involved a will in which there was a devise to two daugters in fee, subject to being cut down to a life estate in the event of their death without ever having married. The words of qualification were:

“In the event of the death of my said daughters, Kate and Julia, before marriage, the said property shall be divided equally among my surviving children.” (Emphasis supplied.)

There were no surviving children. They all died before the two daughters.

In that situation the Court noted the devise may be contingent not only on the event that is to determine the fee, but also on the being of the person to take when the event occurs.

There, as in this case, it could be observed that the will showed an intention on the part of the testatrix to dispose of her whole estate. What the Court said about the will before it could be appropriately said about the Dilbone will:

“On the death of the testatrix that fee vested in these two daughters, subject to be determined at their death, if they should not have married; but if that event should occur the will did not leave the fee. to revert to the heirs of the testatrix, but provided how it should go, that is, to ‘my surviving children’ who, in that event would take as purchasers, not as heirs.
“But the will does not expressly provide for one possible event, that is the death of all her other children before that of the two daughters named, and afterwards their death without having been married. But there was no necessity for providing for that event, because then one of the contingencies on which the fee was to be determined would not have occurred; that is, there would be no one to whom the executory devise could apply to take the fee.” (Emphasis supplied.)

This case is helpful for another reason and that is the statement in the opinion that one of the distinctions between remainders and executory devises is that a remainder follows a particular estate, while an executory devise follows the fee. 2 Washburn, Real Property, Sec. 1757. “After a particular estate something remains, after a fee nothing. . ■. . If there be no executory devise to take effect on the happening of the condition on which the fee was to determine, or no one to take it, the fee is not cut down, but remains unless there is something else in the will to show the intention of the testator was that the fee should be determined absolutely on the happening of the condition, without reference to the devise over.” (Here again the emphasis is supplied.)

The Court does not find anything in the Dilbone will to show that the testator’s intention was that the fee should be determined absolutely. Dilbone’s explanation that he provided as he did, so that the land would be kept in the family, is consistent with this holding. It is more reasonable to think that he gave that explanation to show why he wanted the farm to go to either the son or the daughter than to show an intent that in the event both died without children he wanted the farm to go to his heirs.

This is also true even though in the Dilbone will, in Item 5. the word “revet” is used, presumably meaning “revert.” The fact remains that in the first sentence in Item 5 the testator gave to his son and daughter, subject to the life estate of their mother, the 121 acre tract to be divided between them, share and share alike, according to value, the buildings not to be included in the valuation. In that sentence he gave a fee simple title — everything that he had, so what follows is by way of a limitation over — “should either of them die without children their interest to revet back to one living or the heirs of their bodies so that the land shall remain in the family . . .”

This Court feels that even though the word “revet,” which suggests the existence of a reversion or a remainder, is used, that the intent of the testator evident from the four corners of the will is that the son and daughter take a fee simple title subject to an executory devise if either died without children.

•So much for the rules necessary to note to determine whether or not the use of the “or heirs of the body” creates an estate tail or whether one is created by implication when a will provides for a gift over upon death of the first taker without issue, executory devises, and the effect on the estate of the -first taker of the failure of the executory devise for any cause.

There is a qualification that must be made to all of these rules, and that is that they govern unless a contrary intent is manifested by an examination of the entire will. In all cases of will construction the pole star is the intention of the testator and such must be gathered from the four corners of the will. In determining what that intention is there is no substitute for close analysis of the terms of the will. We must pass to such analysis, but before doing so it is well to note certain other rules which are called into play.

First it is necessary to note that “the law favors the vesting of estates, and in case a will contains apt words to dispose of the testator’s entire estate, that construction will be given it.” Stokes v. Weston, 142 N Y 433.

The next is that even though the intention of the testator governs if he uses words which clearly create one estate, though he designed another, his intention must yield to the rules of law. Hertz v. Abrahams, Ga., 36 S. E. 409, Syl. 1.

The next is that there is a presumption against partial intestacy. Page on Wills, Lifetime Ed., Vol. 2, Sec. 9226:

“Under ordinary circumstances, a man makes a will to dispose of his entire estate or, at least, of his estate as it exists at the time he makes his will. If, therefore a will is susceptible of two constructions, by one of which the testator disposes of the whole of his estate, and by the other he disposes of a part of his estate only, and dies intestate as to the remainder, the courts will prefer the construction by which the whole of testator’s estate is disposed of, if this construction is reasonable and consistent with the general scope and provisions of the will.”

Ibid, citing, among others. Collier v. Collier, 3 Oh St 369; Davis v. Corwine, 25 Oh St 668.

“A construction which results in partial intestacy will not be used unless such intention appears clearly. It is said that the courts will prefer any reasonable construction, or any construction which does not do violence to testator’s language, to a construction which results in partial intestacy.

“The presumption against intestacy is especially strong where testator has attempted to insert a general residuary clause.” Ibid.

(There is no residuary clause in the Dilbone will.)

The reason that this is cited is because it seems to this Court to hold the key to the approach which must be made in the analysis of Item 5 of the Dilbone will, inasmuch as it indicates that the estate of the son in the half of the 121 acres, which he got directly from his father —it indicates that the estate of the first taker is to be construed as a fee, subject to an executory devise, in the event of death without children, unless a contrary intention and purpose of the testator is clearly manifested.

The problem then becomes one of determining from the four corners of the will whether such a contrary intention and purpose is clearly manifested.

A review of the cases digested in Words & Phrases under “children” and under “issue” leads to the conclusion that as a general rule the use of the word “children” excludes descendants beyond those of the first degree. The word in its natural sense embraces only the immediate descendants of the testator, and does not include descendants of a more remote degree. Vol. 7, Words & Phrases, Pages 118, 119.

The word “children” will, however, be held to include issue “whenever reason so demands.” Ibid, P. 119. I think it does demand it in this case, though the presumption is otherwise. To hold otherwise would have made possible a result that could not have been intended by the testator, namely, the property might have been taken away from the issue of the first decedent and given to the issue of the survivor. Suppose Effie had died leaving no children but grandchildren. The will specifically said that if they died without children there was a gift over to the survivor. If “children” did not mean “issue” the executory devise would have taken effect.

Suppose that Elmer had died previously, leaving no children, but grandchildren or “issue.” The will provided that the gift over on the death of one without children was to the survivor “or the heirs of their bodies.” So there would be a good gift over to the issue or heirs of the body of Elmer. Elmer might have had children at his death, and as a result the executory devise over as to the half which he took would have failed. Then if the children died leaving children, and Effie died without children, but with grandchildren, there would have been an executory devise to the grandchildren of Elmer, unless the word “children” includes “issue.” It has been concluded that it does.

Now we pass to the examination of Item 5, to see if it requires a construction which would favor the plaintiff. Let us begin by noting the wording — “should either of them die without children their interest to revet back to one living or the heirs of their body so that the land shall remain in the family.”

In the light of the presumption against intestacy, I would say that the inference is warranted that the testator did not intend one-half to go one way and one-half to go another way. That would have been the result if the estate of the son was not enlarged to a fee simple absolute in the half that he took, upon the failure of the executory devise upon the death of the executory devisee. The result required by reason seems to this Court to be the same one required by the application of the rules, namely, that it may be inferred that the testator’s intention was that the survivor get it all, and only to that extent did he intend to keep the property “in the family.” More about that later.

How is this inference affected by what follows, namely, “should either of them die leaving husband or wife. They to have the right of dower until death or remarriage then to return to the family.” It seems reasonable to infer that the intention of Mr. Dilbone was that only the wife or husband of the one who died first should have dower until his or her death or remarriage. If he had meant otherwise the language is such as to void for uncertainty because “then to return to the family” would be incapable of ascertainment. That is, it would have been impossible to ascertain who the “family” was.

This conclusion is reinforced by the inference that is drawn from the clause which appears later in the will, to the effect that there shall be a “final” distribution between the son and daughter.

Among the clauses in Item 5 which have to be examined to see how they reflect the intent of the testator, is the second “or heirs of their bodies” in line 7 of Item 5. While ineffective to create an entailed, estate, it may be argued that it shows that the testator thought at least that the son or the daughter would have children and therefore, that he did not contemplate and provide for the contingency that both son and daughter would die without children.

However, he used language which under the rules requires a different result and, for the sake of consistency in real property rules, those rules must prevail.

The phrase “so that the land shall remain in the family” has already received some attention but deserves more. It is in line 8-9 of Item 5, and clearly is an explanation of what immediately precedes it, namely, the gift over to the survivor of the son or daughter. In other words, it is the testator’s explanation of why he is making this gift over and not an indication of an intent to entail the property.

Next, how about the phrase “should either of them leave husband or wife”? (Emphasis supplied.) It seems to this Court that it is clearly part of the sentence and part of the explanation in line 8-9.

Next — “they to have the right of dower, etc. . . . then to return to the family.” This follows in lines 9-10-11 and means what it says — that the spouse of either was to have dower, but “to return to the family” means that the survivor’s children would take subject to the dower of the surviving spouse until the latter’s death or remarriage. It doesn’t show that the testator contemplated and provided for the contingency that both might die “without children.”

Next, how about the phrase — “in the final division of land between my son and daughter.” This appears in lines 1 and 2 of Item 6, and the word final doesn’t necessarily show an intent that they take fee simple title. In other words, this phrase doesn’t require a different result than the application of the rules has required. It is consistent with the holding of the Court. It militates against infering an intention on the part of the testator to entail the property.

The conclusion of the Court is that there is nothing in Item 5 to show that the testator failed to devise any part of his estate, or that he intended to create an estate different from that required by the application of the foregoing rules. Hence, the Court finds for the defendants and an entry accordingly should be drawn dismissing the petition at the plaintiff’s cost.

If the parties desire to do so this opinion may have the status of findings of fact and conclusions of law to facilitate an appeal.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    MONROE, Plaintiff-Appellant, v. LECKEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Miami County.
    No. 539.
    Decided December 15, 1956.
    Shipman & Shipman, Troy, for plaintiff-appellant.
    Faust & Harrelson, Troy, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal from a judgment of the Common Pleas Court dismissing plaintiff’s petition.

The action was in ejectment, plaintiff asserting that she had the legal estate and was entitled to the possession of the real estate described in the petition and that the defendants unlawfully withheld its possession from her.

Before issue was drawn upon pleadings the court determined by entry that it would be to the best interest of the parties to define the legal rights of the plaintiff and defendants in the real estate and, inasmuch as it was agreeable to the parties that the question be presented on statement of fact, it was ordered that a stipulation of facts be prepared and submitted. This was done. Thereafter defendants answered, by general denial.

Plaintiff, in the prosecution of her claim, propounded three questions for determination of the trial judge:

“1. Did the will of William Dilbone create an entailed estate as to said real estate (121 acres), devised under Item 5 of his will?
“2. If so, in whom does the title to said real estate vest upon the death of Elmer Dilbone, testator’s last surviving child, who died without issue?
“(a) Does such real estate pass as intestate property, i. e., to the heirs at law of William Dilbone, Ida Monroe, plaintiff, and to her defendant brothers and sisters?
“(b) Did title vest in fee simple in Elmer Dilbone on the death of his sister, Effie, who died without issue?”

To resolve the questions propounded, the court was required to construe the will of William Dilbone, deceased, and particularly Item 5 thereof, in the light of the agreed statement of facts.

The court held that the will of William Dilbone did not create an entailed estate under Item 5 thereof. That the title to the land described vested in fee simple in Elmer Dilbone upon the death of his sister. Effie; that there is nothing in Item 5 or any other part of the will of William Dilbone, deceased, which shows that the testator failed to devise any part of his estate or that he intended to create an estate different from that required by the application and rules stated in the court’s opinion that the phrase “or the heirs of his body” does not create an estate tail, nor is an estate tail created by implication, but a “gift over in the event of the death of the first taker without children.”

“The survivor not only takes the fee in one-half as the result of the gift over, but also in the other half, because of the failure of the gift over upon the death of the executory devisee prior to that of the first taker.”

We are favored with the opinion of the trial judge and find it to be comprehensive and detailed, discussing and resolving every question raised by the pleadings and propounded by counsel for the parties.

..... It; would serve no good purpose to restate the somewhat involved facts and to discuss the principles of law, the application of which is in controversy, inasmuch as we are in agreement that the judgment is correct.

We are satisfied that the trial judge reached a sound conclusion in holding that the plaintiff had no title to the land described in the petition.

The judgment will be affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By PHILLIPS, PJ.

text:
    PUBLIC LOAN CORPORATION OF WARREN, Plaintiff-Appellant, v. JACOBS, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3817.
    Decided November 18, 1955.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    Donald J. DelBene, Warren, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff, a small loan Ohio finance corporation, obtained judgment for $950.00 in the Municipal Court of Youngstown against defendants, James B. Russell and his wife, Helen Russell, as makers and Prank Jacobs as a co-maker on a cognovit note for $950.00 dated August 4, 1953.

Plaintiff filed its judgment in the Lien Docket of Trumbull County, and on two occasions attached the wages of defendant Jacobs.

Defendant Jacobs filed a motion to vacate this cognovit judgment and also an answer. Plaintiff then filed a motion directed against the motion to vacate the judgment and a demurrer directed against the answer of Frank Jacobs.

After overruling plaintiff’s demurrer to the answer of defendant Jacobs that court rendered judgment “upon the verdict and/or decision of the court in favor of defendants Frank Jacobs and Helen Russell and for plaintiff against defendant James Russell.”

Plaintiff appealed to this court on questions of law from that judgment.

By assignments of error plaintiff claims:—

“1. That the judgment of the court in rendering judgment for defendant Frank Jacobs is contrary to law.
“2. That the judgment of the court in rendering judgment for the defendant Frank Jacobs is against the decided and manifest weight of the evidence.
“3. That the judgment of the court in rendering judgment for the defendant Frank Jacobs is not sustained by any evidence.
“4. For any other errors committed by the court which occurred during the trial of the case and as shown in the record and excepted to by the plaintiff.”

By answer defendant Jacobs admitted the execution without consideration of the cognovit note as co-maker at the request of defendant, James B. Russell, principal maker; and states that the judgment obtained against him was by fraud and is therefore void. Defendant Jacobs further alleges in his answer:—

“* * * That sometime prior to said judgment rendered in the Municipal Court of Youngstown, said defendant, at the request of the said plaintiff, Public Loan Corporation, and one James Russell, did execute a cognovit note as guarantor for said James Russell, on condition that and provided that said James Russell also obtained his wife’s, Helen Russell, signature on said cognovit note, as co-maker and guarantor; that said plaintiff corporation had consented to said agreement, and that said plaintiff corporation, after having obtained the signature of said defendant and said James Russell, gave said James Russell the cognovit note, which was executed by said defendant and James Russell, so that he, James Russell may take the note with him to obtain his wife’s signature thereon, contrary to §1321.12 and §1321.01 to 1321.19, inclusive, R. C., and that said James Russell returned said note with a signature purporting to be that of his wife, Helen Russell, and that the said defendant is now advised by said plaintiff corporation and Helen Russell that the purported signature of Helen Russell was not and is not her signature, and that signature is a forgery. * *

The evidence discloses that after execution and delivery of the note defendant James Russell defaulted and absconded, at which latter time plaintiff contacted defendant Jacobs, who in turn contacted defendant, Helen Russell, who advised him that she had not signed the note; that defendant Jacobs advised plaintiff’s manager what defendant, Helen Russell, had told him who stated that defendant Russell would have to prove that she had not signed the note.

There is uncontradicted evidence that contrary to the provisions of §1321.12 R. C., after defendants Russell and Jacobs signed the note plaintiff’s manager gave the note, chattel mortgage, and all other papers needing the signature of defendant, Helen Russell, to defendant, James Russell for the purpose of securing the signature of defendant, Helen Russell; and that Helen Russell testified that she had not signed the note.

Defendant, Helen Russell, testified as follows:—
“Q. Did you or did you not sign any paper with the Public Loan Corporation in Warren relative to a loan by your husband on your signature?
“A. No sir.
“Q. I am handing you what is known as Plaintiff’s Exhibit No. 1 Mrs. Russell and I ask you to look at that and tell me and the court whether or not your signature is on that paper? Is that your signature?
“A. That is my name but I didn’t not write it.
“Q. What is the name that is on there?
“A. Helen Russell.
“Q. It is not your signature?
“A. No, that is my name but I did not write it.
“Court: He means did you write it?
“A. No sir.
“Q. Will you be kind enough to write your name as you ordinarily write it?
“A. Yes sir.
“Q. Do you have a daughter?
“A. Yes.
“Q. How old is she?
“A. Fifteen now.
“Q. Do you know whether that signature of Helen Russell on plaintiff’s exhibit No. 1 was written by your daughter or not?
“A. It looks like her hand writing.
“Q. Did you ever tell the Public Loan Corporation that you had not signed that paper plaintiff’s Exhibit No. 1?
“A. Yes.
“Q. When did you tell the Public Loan Corporation you had not signed it?
“A. if I am not mistaken it was in March. •
“Q. Of what year?
“A. 1955.
“Q. Showing you the chattel mortgage purporting to be the mortgage on your furniture at the time Mr. Russell made the loan — now you say you don’t know a thing about that loan?
“A. No.
“Q. Is this your signature?
“A. It looks like his handwriting.
“Q. Is this your signature?
“A. No.”

Plaintiff states that the question presented is “under the defense, as he sets forth, is the plaintiff entitled to recover against Frank Jacobs, who is a co-maker of the note.”

Plaintiff argues that:—

“The court below prejudicially erred in rendering judgment for the defendant Frank Jacobs under the testimony disclosed in the record. There is no question but that the defendant Frank Jacobs signed the note at the instance and request of James B. Russell as a co-maker and his liability is the same as the maker of the note. From his own testimony he did not know whether Helen Russell actually signed the note or if she did, whether it was a forgery as far as he was concerned. Public Loan Corporation did not know anything about it. They insisted that James B. Russell have a co-maker on the note before the loan was made. Frank Jacobs signed as a co-maker so that the defense set forth by Frank Jacobs in his answer is demurrable for the reason and on the grounds that the facts, statements and allegations contained in defendant’s answer and as disclosed by the record do not constitute a defense as to the rights of the plaintiff.”

Plaintiff supports that claim by citation of §§1301.26 and 1301.31 R. C.; and the cases of City Trust v. Schwartz. 68 Oh Ap 80, and Richards v. Market Exchange Bank Company, 81 Oh St 348.

“One who signs a promissory note on the face thereof, and, who in that way becomes a surety for the principal maker, is, by force of §3178a R. S., primarily liable for the payment of such note.” Richards v. Market Exchange Bank Company, 81 Oh St 348.

Further plaintiff contends:—

“* * * that the defendant Frank Jacobs is liable on this note and it makes little or no difference as to who actually got the proceeds of the loan. Frank Jacobs’ rights, if any, are between the maker the defendant James B. Russell, but he has no defense as to the plaintiff’s rights.
“* * * We cannot see how a husband or daughter can forge a wife’s signature, as under the husband and wife statute, either one can act as principal or agent for the other. Secondly, forgery must be proved by clear, convincing and conclusive proof, which the defendant failed to do. However, it makes little or no difference even if they had proven by that degree of proof, that is necessary to prove in a ease of this nature, the plaintiff is in this case entitled to recover for the reason that the defendant Frank Jacobs is a co-maker. Third: Public Loan Corporation of Warren never knew anything about the signature being forged. They were no party to it.
“Mr. Jacobs extended the courtesy and accommodated Mr. James B. Russell at his instance and request. Public Loan Corporation of Warren would not have made this loan unless James B. Russell secured a comaker and he did secure Frank Jacobs, who knew what he was signing and for what purpose. Mrs. Russell never said anything to Public Loan Corporation of Warren that her signature was forged until Mr. Jacobs was attached and a judgment was taken.”

Defendant Jacobs bottoms his defense here, as he did in the trial court, on the claim that he signed the cognovit note contingent upon defendant, Helen Russell, signing it after he signed it; and that had he known that the signature of defendant Helen Russell was a forgery he would not have signed such note as a co-maker; and “that the conditions in the contract are not complied with, and therefore Frank Jacobs should be absolved from any and all liability.”

The financial statement upon which the loan was made was dated July 21, 1952, and the note and mortgage are dated August 4, 1953.

While there is no evidence to support the conclusion that that note was a renewal of one or more prior loans made by plaintiff to defendant, James Russell, which conclusion we do not reach, yet the fact that the loan numbers on plaintiff’s exhibits are not the same throws light on the contention of defendant Jacobs that he was defrauded.

The testimony of defendant, Helen Russell, that she did not sign the note, and of defendant Jacobs that he signed it contingent upon defendant, Helen Russell, signing it after he did, and that he never knew her signature was a forgery is uncontradicted

Plaintiff furnished defendant Russell the means of and opportunity to perpetrate a forgery when it could more easily have had defendant, Helen Russell, sign such note at its office. Under the provisions of §1321.12 R. C., plaintiff’s office was the only place it was licensed to transact business of the nature involved in this appeal.

“The principle that, where one of two innocent persons must suffer by the fraud of a third person, he who first trusted such third person and placed in his hands the means which enabled him to commit the wrong must bear the loss is applicable.” 38 O. Jur... Page 505, Section 109.

This principle is applicable to the facts under consideration in the instant case.

The trial judge did not .err to plaintiff’s prejudice in overruling plaintiff’s demurrer to the answer of defendant Jacobs, and we find no merit in plaintiff’s argument that “a husband or daughter can not forge a wife’s signature, as under the husband and wife statute either one can act as principle or agent for the other.”

In this case parol evidence is admissible to prove conditions precedent.

The judgment of the municipal court of Youngstown is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


author: By BARTLETT, J.

text:
    STONE, Plaintiff, v. WOODS, Admr., etc. et, Defendants.
    Common Pleas Court, Franklin County.
    No. 196902.
    Decided March 1, 1957.

      McClelland & McClelland, Columbus, for plaintiff.
    Levinson & Feitlinger, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. THE DEMURRER TO THE FIRST CAUSE OF ACTION IN THE PETITION IS SUSTAINED, AND THE DEFENDANTS LEVINSON AND FEITLINGER ARE DISMISSED AS SUCH PARTIES.

2. THE COURT, SUA SPONTE, ORDERS THE ACTION ABOVE NAMED SHALL BE CONSOLIDATED WITH, AND SHALL PROCEED HEREAFTER UNDER THE TITLE OF THE ACTION, DESIGNATED AS CASE NO. 196,378, DOCKETS OF THIS COURT.

This is an action to have certain money and bonds in the alleged possession of the defendant administrator, declared to be the property of the plaintiff and ordered returned to him as the owner thereof. The petition recites that currency amounting to $41,510.00 was buried by the plaintiff for safekeeping in the back yard of his brother-in-law Earl Woods and with the knowledge of said Woods; that thereafter said Woods removed said currency from its burial place, delivered the currency to himself as administrator of the estate of his deceased wife, Fanny Stone Woods, sister of the plaintiff, listed said currency in his inventory as assets of said estate, “deposited said money in a checking account in the Northern Savings Bank, Columbus, Ohio, in his own name as administrator of the Estate of Fanny Stone Woods;” and the petition avers that “all of said acts of Earl Woods were fraudulent and were done for the purpose of defrauding this plaintiff, * * *.”

Plaintiff further avers that thereafter said defendant administrator filed an application for the allowance of attorney fees for services rendered him as said administrator, that the Probate Judge ordered that attorney fees in the amount of $5000.00 be allowed, “out of the assets of said estate”; and that said sum was paid, “from said administrator’s account in Northern Savings Bank,” to the defendant Levinson and Feitlinger as attorneys for said administrator.

The prayer of the petition requests that the defendant administrator and the defendants Levinson and Feitlinger be ordered to restore said $5000.00 to the said fund.

The defendants Levinson and Feitlinger have demurred to the first cause of action in the petition for the following reasons:

1. The petition does not state facts which show a cause of action.

2. This court has not jurisdiction.

3. The plaintiff cannot collaterally attack the judgment or orders of the Probate Court of this county.

This Court is constrained to the opinion that the petition does not disclose the $5000.00 attorney fee was necessarily paid from money claimed by the plaintiff. In fact, the order of the Probate Court was that such fees be allowed, “out of the assets of said estate.” The petition states the money in question was deposited in “a checking account in the Northern Savings Bank,” and “listed ’ * as assets of the Estate of Fanny Stone Woods.” The petition lends support to the inference that there were other assets in the estate but makes no disclosure as to their nature or amount.

Then, too, the petition claims that the possession of said money by Earl Woods was unlawful and fraudulent, and yet this Court is requested to order certain money returned to said fund in his possession.

The plaintiff is a stranger to the administration proceeding in the Probate Court. The petition does not disclose that the plaintiff has filed any exception to the allowance of such attorney fees in the court that ordered the fees paid. No fraud or collusion is charged against the attorneys.

“1. Probate court could open up and reconsider accounts of executor previously adjudicated in partial account (§10835 GC).

“2. Statute permitting appeal from judgment of probate court in settling accounts of executor or trustee is remedial and must be liberally construed (§11208 GC).

“3. Surety of trustee could appeal from finding of probate court that error had been made in previous account approved by court (§11206 GC).

“5. It could not be presumed that fraud was perpetrated against surety in probate court in opening up trustee’s final account.

“6. Judgments are binding upon parties and those in privity with them.

“7. Absent fraud or collusion, surety in action against it on bond held bound by decision of probate court in settlement of trustee’s final account.” The United States Fidelity & Guaranty Co. of Baltimore v. Wood, Admr., 35 Oh Ap 224. Motion to certify overruled March 26, 1930

On p. 231 of the Woods case, Sherick, J„ says

“It is well settled that judgments are binding upon parties and those in privity with them; and the final settlement of an executor’s or trustee’s accounts, and the determination by the probate court of the amount due, in the absence of fraud and collusion, conclude a surety in an action against it upon the bond; and this is right in reason and in law. By its bond the company contracted that Kingman would faithfully keep his trust, and that upon a breach thereof it would make restitution, and there being no fraud or collusion proved in this action the company is bound by the finding of the probate court, which equals the solemnity of a judgment, and this the plaintiff in error cannot collaterally attack even though it was not a party to the settlement or had no notice of it. The principle is supported by the holdings in Braiden v. Mercer, 44 Oh St 339, 7 N. E., 155; Slagle v. Entrekin, 44 Oh St 637, 10 N. E., 675, and Garver v. Tisinger, 46 Oh St 56, 18 N. E., 491, and is well stated in Stearns on Suretyship (3d Ed.), Section 221.”
•=• :!: * 4- *
“1. Where the administrator of an estate, is required by the probate court to file an account of the expenses of his administration, preparatory to his stating a final account, and does so, which expense account includes an amount due his attorney for services rendered in the settlement of the estate, and for necessary expenses paid by him in discharge of his duties as such attorney, and said account, on hearing by that court, is approved and allowed, and the administrator is ordered by the court to pay to said attorney the sum so found due him out of the assets of the estate in his hands for distribution, a failure to comply with such order is a breach of the administration bond for which the surety thereon is liable. Thomas, Admx., v. Moore, 52 Oh St 200, distinguished.” Smith v. Rhodes and Wilt. 68 Oh St 500.
“3. The amount of such fees may be included as an item in the settlement-account of the executor or administrator; or an application upon due and legal notice to all parties in interest may be made to the probate court to allow the claim and fix the amount thereof.
“4. Any person affected by order of the court with reference to any such item or application may, by the provisions of §11206 GC, appeal therefrom to the court of common pleas.” Trumpler, Admr. de bonis non, etc., et al. v. Royer et al., 95 Oh St 194.

The demurrer is, therefore, sustained to the first cause of action of the petition, since it does not state facts which show a cause of action against the defendants Levinson and Feitlinger; and for the further reason that this Court does not have jurisdiction to determine the claim asserted against the aforesaid defendants. The Probate Court, under the Constitution and by statute, has plenary jurisdiction in the settlement of estates, particularly in the settlement of the accounts of executors and administrators; and any person affected by any order, decision, or judgment of that court in the settling of such accounts, under §2101.42 R. C., has the right of appeal to the Court of Appeals. In any event, any remedy that the plaintiff may be entitled to, must be asserted against the defendant administrator of said estate. The defendants Levinson and Feitlinger are, therefore, dismissed as parties.

The fact that a judgment is not subject to collateral attack does not afford the basis for a demurrer to the petition, and consequently the third reason assigned for such demurrer herein is overruled.

In case No. 196,378, dockets of this court, the plaintiff asserts the same rights against Earl Woods individually that are claimed against him as administrator in the instant case. No useful purpose will be served by continuing these cases as separate actions. They should be consolidated.

Courts of general jurisdiction have inherent power, independtnt of the statute, to order consolidation of pending actions, and have exercised this power with considerable freedom in the interests of the parties and of the public. It may be done by the Court on its own motion. 1 Am. Jur. Actions, Sec. 92, p. 476. Such consolidation is always regarded with favor and never denied when it is clear that the issues are identical, and that where the answer to one outstanding question is determinative of both actions, the duty of the Court to consolidate the action is clear, if not mandatory. Such consolidation is not limited to identity of parties, the purpose of such consolidation being convenience of trial, avoiding multiplicity of actions, and the savings of costs. Taylor v. Standard Brick Co., et al., 66 Oh St 360; 1 O. Jur. (2d) Actions, Sec. 78, p. 362.

The instant case is ordered consolidated with and should proceed under Case No. 196,378, dockets of this court. Entry accordingly, including the ruling on the demurrer, with exceptions by respective counsel.


author: By HORNBECK, J.:

text:
    HAHN, Plaintiff-Appellee, v. HAHN, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 216.
    Decided October 23, 1956.
    J. Harvey Crow, Urbana, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal from an order of the Common Pleas Court dismissing a motion of defendant sua sponte. The motion concluded with a prayer for an order granting to defendant the exclusive care, custody and control in the defendant of Judith Anne, Charles Edward and Robert James, children of the parties to the action.

From the transcript of the docket and journal entries we learn that this motion was filed on January 23, 1956. On January 28, 1956, an entry was filed postponing, for reasons stated, the hearing of the foregoing motion until May 31, 1956 for which time it was assigned. On April 6, 1956, the following entry was filed:

“The Court being officially advised that the defendant, Oliver Hahn, has failed and neglected to pay $25.00 of the $75.00 due by 5 February 1956 and none of the $75.00 due by 5 March and 5 April 1956 for the support of his five minor children, who are in the custody of the Department of Public Welfare, Madison County, Ohio; said defendant is hereby ordered to show cause why his motion for change of custody respecting 3 of his 5 said minor children should not be dismissed. Said showing to be made in person on or before 20 April 1956.
“It is further ordered that the visitation rights of said defendant be and hereby are suspended, until such time as he shall comply in full with the support payment order heretofore made and in force.”
(S) Gerald A. Baynes
JUDGE”
At the bottom of this entry is this notation:
cc: (2) Dept, of Welfare, Mad. Co.
Oliver Hahn
Harvey Crow, Defendant’s Att.,
P. O. Box 123, Urbana, Ohio.
On May 14, 1956, the following journal entry was filed:
“The within defendant having failed to show cause why his motion for change of custody of 3 of his 5 minor children should not be dismissed, as required by Entry dated 6 April 1956, said motion of the defendant is hereby dismissed, without prejudice and at defendant’s costs.
“It is further ordered that the visitation of said defendant, heretofore ordered suspended, shall be reinstated when said defendant shall again pay the $75.00 per month according to the former order of the Court, or until such time as the suspension shall otherwise be modified or vacated.
Enter: 3 May 1956
(S) Gerald A. Baynes
JUDGE
CC: (2) Dept, of Welfare, Mad. Co.
Oliver Hahn
Harvey Crow, Defendant’s Atty.
P. O. Box 123, Urbana, Ohio”

There is a presumption of validity of the action taken by the trial judge which may be overcome only when it is so inconsistent with the facts and inferences to be drawn from the record as to constitute prejudicial error. We cannot find that this order was invalid and therefore prejudicial to the defendant.

Although counsel for the appellant asserts in his brief that neither he nor defendant had notice of the action of the court, the official files disclose that copies of the notices were mailed both to defendant and to his attorney to show cause why the motion for change of custody of the minor children should not be dismissed. The Court may have believed that one or both of the notices had been received.

At the time of the notice to the defendant to show cause why his motion and change of custody should not be dismissed, he was in contempt oí court, so found and declared in the entries heretofore quoted, it also appears in the record that he had been almost continuously in default of payment under the orders of the trial judge as to payment of support money for his children.

In this situation, we would not hold that the trial judge abused his discretion in refusing to entertain the motion filed by the defendant while he was in contempt or until such time as he had purged himself of that contempt.

The trial judge had on motion of defendant awarded custody of certain of his children to him and had reduced the amount of support money which he was required to pay. Flagrant disregard by the defendant of the order of the court was the basis of the action taken dismissing his motion. We are of opinion that a court is within its discretionary right in denying the processes of the law to a party in a case who refuses to observe the orders of the Court in that case.

It will be noted that the dismissal of the motion was without prejudice.

Motion for change of custody may ordinarily at any time be filed by a party to the action upon a change of conditions and the defendant, either by securing further modification of the support order, or by compliance with the court’s present order could reinstate himself with the trial court and have full and fair consideration of any motion which he might present.

We find no abuse of discretion by the Court in the action taken on defendant’s motion for change of custody and no error to the prejudice of defendant. The order appealed from will not be disturbed.

MILLER, PJ, WISEMAN, J, concur.


author: By FAUST, J.

text:
    STOLTZ, Estate of, In re.
    Probate Court, Miami County.
    No. 38964.
    Decided May 2, 1957.

      Shipman & Shipman, Troy, for complainant.
    Baird Broomhall, Troy, for Dora A. Hance.
   OPINION

By FAUST, J.

This cause came on to be heard upon the complaint filed by Franklin L. Shipman, Executor of the Estate of Lucy M. Stoltz, deceased, wherein he alleges that he has good cause to suspect and does verily believe that Dora A. Hance has concealed and conveyed away monies belonging to said estate of the deceased, in fraud of the rights of the said Franklin L. Shipman, as Executor, and others interested in said estate. Complainant alleges further that Lucy M. Stoltz owned a running stock account in The Peoples Building and Savings Association of Troy, Ohio, in the total amount of $16,552.15, said account numbered 35525.

That this account had belonged to said decedent for many years and was her own property.

That on June 15, 1956, said Lucy M. Stoltz placed her mother’s name thereon as a joint owner without consideration. That on July 29, 1956, shortly before the death of said decedent, said Dora A. Hance, mother of said decedent, withdrew from said account the sum of $12,-000.00 and on August 3, 1956, six days before the death of said decedent, said Dora A. Hance withdrew the balance of said account in the amount of $4,552.15.

Complainant alleges further that he believes that said withdrawals were made in contemplation of death and without authority of said decedent, and that said monies belong to said estate of said decedent and should be returned to said estate.

That the Court issue a writ of citation against Dora A. Hance requiring her to appear before the Court forthwith, then and there to be examined under oath, touching the matters set forth in said complaint.

A copy of the Contract and marked complainant’s exhibit No. 1 is as follows:

The Peoples Building and Savings Association of Troy, Ohio

* * * * * *

JOINT AND SURVIVOR CONTRACT The undersigned, joint owners of RUNNING STOCK — PAID UP STOCK

No. 35525 in THE PEOPLES BUILDING & SAVINGS ASSOCIATION of Troy, Ohio, hereby agree that the money, or any part thereof, deposited to our credit on said stock shall at all times be payable to the order of any one or more of the undersigned joint owners or depositors, and further agree that said deposit shall continue to be so payable, notwithstanding the death or incapacity of any one or more of us, and we hereby authorize said Association to permit withdrawals in accordance with this agreement.

For the purpose of carrying this into effect, each of the signers hereby transfers to the other or others, a present equal undivided interest in this account, and all additions thereto, for our respective lives.

We further agree that no recovery shall be had against said Association by any of the undersigned for any sums of money paid out to any of us and charged on or against said stock account.

Dated this 15 day of June, 1956.

Executed in the

Presence of

Lucy Stoltz

Casstown, O. R. R.

Dora A. Hance

The Court upon reviewing the evidence, pleadings and briefs of counsel finds that all facts pertaining to the joint and survivorship savings account and withdrawals by the said Dora A. Hance are true and admitted as such.

At the conclusion of the testimony offered by complainant and again at the conclusion of the testimony of Dora A. Hance, her attorney moved that the complaint be dismissed; the Court deferred ruling on the motions and which will be given consideration at this time.

The complainant has brought before the Court a very interesting question pertaining to §10506-67 et seq, GC, §2109.50 R. C., wherein he seeks the aid of the statute in order to recover for the estate certain assets which he believes have been concealed and conveyed away from him as a fiduciary and which rightfully are assets of the estate of Lucy M. Stoltz, deceased.

Judge Matthias in his decision In Re Estate of Leiby v. Cosgrove, 157 Oh St 380, makes the following statement:

This court has construed the above statutory provisions and determined the scope of the inquiry which may be pursued thereunder. The earliest of those cases is Goodrich, Admr., v. Anderson, 136 Oh St 509, 26 N. E. (2d), 1016, paragraph one of the syllabus of which is as follows:

“The purpose of §§10506-67 to 10506-77, inclusive, GC, relating to proceedings to discover concealed or embezzled assets of an estate, is not to furnish a substitute for a civil action to recover judgment for money owing to an administrator or executor, but rather to provide a speedy and effective method for discovering assets belonging to the estate and to secure possession of them for the purpose of administration.”

In the case of In re Estate of Black, 145 Oh St 405, 62 N. E. (2d), 90, this Court held as follows in the syllabus:

“1. Secs. 10506-67 and 10506-73 GC, provide a summary means, inquisitorial in nature, to recover specific property or the proceeds or value thereof belonging to a trust estate, title to which was in a decedent at his death or in a ward when his guardian was appointed; or to recover property, belonging to a trust estate, concealed, taken or disposed of after the appointment of the fiduciary.
“2. A complaint filed under §19506-61 GC, involves a charge of wrongful or criminal' conduct on the part of the person accused.”
“5. Resort may not be had to §10506-67 et seq, GC, to collect a debt, obtain an accounting or adjudicate rights under a contract.” (Emphasis supplied.)
“The General Assembly, by its appropriate use of language in these sections, has limited the use of this summary proceeding to actions to recover specific property or the value thereof belonging to a trust estate, title to which was in a decedent at his death, or to the recovery of property belonging to a trust estate concealed, taken or disposed of after the appointment of a fiduciary.”

The evidence reveals that Dora A. Hance who entered into the contract with Lucy M. Stoltz with incident of joint and survivorship terms relative to a savings account in The Peoples Building and Loan Association, Troy, Ohio, a short time after the death of her daughter, Lucy M. Stoltz, consulted her attorney and informed him of the contract and withdrawals; that her attorney thereafter advised Mr. Franklin L. Ship-man, executor of the estate of Lucy M. Stoltz, concerning the savings account and the withdrawals.

The evidence further shows that the person charged, at all times, after the death of Lucy M. Stoltz, openly and notoriously admitted the withdrawals prior to the death under claim of right of contract and that she still has the withdrawn monies from the building and loan account intact, in her own name, less the expenditures for Lucy M. Stoltz.

Complainant, although acknowledging the contract with joint and survivorship incident, alleges that the contract was entered into solely for the purpose of paying the debts of the daughter, Lucy M. Stoltz, and it was not the intention of the decedent that her mother, Dora A. Hance, should have the remaining money as her own after her death, but to be distributed in the estate as last will and testament of decedent directed.

The Court, although taking cognizance of the fact that the probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute, nevertheless must take notice that In re Estate of Black, 145 Oh St 405 and In re Estate of Leiby, 157 Oh St 374, “that resort may not be had to §10506-61 et seq, GC, to collect a debt, obtain an accounting or adjudicate rights under a contract.”

The Court in considering §10506-67 et seq, GC, §2109.50 R. C., in view of the majority opinion in the above cited cases, finds that it is without jurisdiction to adjudicate rights under the contract.

From review of all the testimony the court cannot presently find evidence in the case before us to justify the finding that Dora A, Hance concealed and conveyed away monies belonging to the estate of Lucy M. Stoltz, deceased.

Motion to dismiss complaint will be sustained. An entry may be prepared by counsel accordingly saving exceptions thereto.


author: By STEVENS, PJ.

text:
    TUTTLE, Plaintiff-Appellee, v. MEYER DAIRY PRODUCTS CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23898.
    Decided November 29, 1956.
    Edward S. Raeosky, for plaintiff-appellee.
    J. Paul Thompson, Alto W. Brown, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By STEVENS, PJ.

The plaintiff in the Municipal Court of Cleveland was the purchaser of a carton of cottage cheese from the defendant company.

After having eaten about three-fourths of the cottage cheese contained in the carton, and while still eating of said cheese, plaintiff encountered a piece of glass by biting thereupon. She immediately expelled said glass from her mouth without being cut or scratched thereby, and, without swallowing any thereof, forthwith developed nausea and suffered nervousness and mental anguish for four days thereafter.

She filed suit for damages because of the alleged negligence of the defendant.

The answer of defendant, after admitting its corporate status, and the delivery to plaintiff of a carton of cottage cheese, denied generally the allegations of the petition.

The cause was tried to a jury, which returned a verdict for plaintiff for $1,500. A judgment upon the verdict was thereafter entered. Motion for a new trial was duly filed and overruled.

This appeal on questions of law presents, as the principal assignment of error, this claim:

“1. That the verdict of the jury upon which the trial court rendered judgment is both contrary to law and the undisputed evidence, as well as contrary to the law of this case.”

It is asserted by appellant that the undisputed evidence in this case shows conclusively that plaintiff did not sustain a contemporaneous physical injury, and that she suffered only fright, apprehension and mental anguish. Concededly, no evidence of wilful or malicious acts is here presented; the only basis for a right of recovery is the claimed negligence of the defendant.

In the case of Miller v. B. & O. Southwestern Rd. Co., 78 Oh St 309. the syllabus states:

“3. No liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of, are neither willful nor malicious.”

The above case was followed and approved in Davis v. Cleveland Ry. Co., 135 Oh St 401.

In the cross-examination of plaintiff, in the instant case, the following appears:

“Q. Well, you don’t claim that you swallowed any glass, do you?
“A. No, I don’t claim that I did, but I didn’t know. It was the worrying and shock of not knowing whether you swallowed it or not.”
As against the foregoing authorities relied upon by appellant, the appellee cites and relies upon the case of Wolfe v. Great A. & P. Tea Co., 143 Oh St 643, the syllabus of which states:
“1. A jury question is presented as to whether physical injury resulted to plaintiff where the evidence disclosed that immediately after eating a portion of a can of peaches worms were discovered in the remainder thereof and plaintiff thereupon became ill and vomited and continued ill for several days.”

The facts in that case, as disclosed by the opinion, were that a mother purchased two cans of peaches from defendant. When the purchaser’s daughter opened one of the cans, and mother and daughter had each 'eaten one serving, upon each taking a second serving from the same can, the mother discovered a worm in a portion of the peach which she was about to eat, and called this fact to her daughter’s attention, who thereupon found a worm in the syrup in her own dish. Both immediately became nauseated and began to vomit, which condition continued for several days.

The presence of worms in a can of preserved fruit might justify the jury in finding that the worms contaminated the entire contents of the can, and that eating from any portion of the contents of the can would subject the user to such consequences as the ingestion of such corrupted food might entail. Whether or not those consequences involved physical injury would undoubtedly constitute a question of fact to be resolved by a jury.

In the case under consideration, the presence of a small piece of glass in the cottage cheese would not, ipso facto, contaminate the entire contents of the carton, and, if the glass were removed in its entirety, the contents of the carton would be then perfectly edible.

It is our opinion that the Wolfe case, supra, is completely distinguishable from the Miller v. B. & O. Rd. Co. case, and is in no wise controlling in this case.

It is further our opinion that the record in the case under consideration discloses no contemporaneous physical injury which can serve as a predicate to recovery for the ensuing fright, apprehension and mental anguish which plaintiff claims she suffered.

The judgment will be reversed because contrary to law, and manifestly against the weight of the evidence.

As to the other errors assigned, we find none to have been prejudicial.

This court will, as a matter of law, enter the final judgment for the defendant which the trial court should have entered.

Reversed and final judgment for appellant.

HUNSICKER and DOYLE, JJ, concur.


author: Per CURIAM.

text:
    LEWIS, Plaintiff-Appellant, v. KNIGHT, Admrx., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3816.
    Decided November 18, 1955.

      George H. Bowman, Jr., Salem, for plaintiff-appellant.
    Stephens & Stephens, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Plaintiff was injured on July 26, 1953, in a collision between an automobile in which she was riding and an automobile driven by defendant’s decedent, Wilbur Thomas Knight, who died on April 14, 1954.

Frances Sarah Jane Knight was appointed administratrix of the estate of Wilbur Thomas Knight, Deceased, on April 29, 1954.

On July 24, 1954, plaintiff filed with the administratrix a proof of claim for $5,000.00 for personal injury, property damage, expense and loss of time.

On authority of §2117.11 R. C., paragraph 2, the defendant administratrix rejected plaintiff’s claim on July 29, 1954, within four months of the date of her appointment as administratrix.

Within two months from the rejection of such claim, on September 10, 1954, plaintiff sued defendant administratrix in the court of common pleas for $55,000.00 in case numbered 144630 on the docket of that court. On December 21, 1954, the trial judge sustained defendant’s motion to strike the claim for $50,000.00 from plaintiff’s petition.

On October 29, 1954, plaintiff filed her proof of claim for $50,000.00 for loss of earning capacity with defendant administratrix. This proof of claim was rejected by the administratrix on November 4, 1954, on authority of §2117.11, Paragraph 2, R. C.

On December 31, 1954, plaintiff sued defendant administratrix in the court of common pleas in case number 145414 on the docket of that court for $50,000.00.

In accordance with leave of the trial judge plaintiff filed an amended petition in case number 144630 on January 22, 1955, reducing the prayer of her petition to $5,000.00, and case number 144630 was continued until final determination of case number 145414.

On March 4, 1955, defendant filed a motion to strike the petitions in both cases from the files. On March 11, 1955, a judge of the court of common pleas overruled those motions.

On March 25, 1955, defendant filed a demurrer in case number 145414. The trial judge on May 16, 1955, sustained defendant’s demurrer in case number 145414 on authority of Pierce v. Johnson, 136 Oh St 95, 16 O. O. 34 (decided December 6, 1939). On plaintiff’s refusal to plead further the trial judge dismissed plaintiff’s action in case number 145414 on July 19, 1955, and entered final judgment dismissing plaintiff’s petition.

On August 5, 1955, plaintiff appealed to this court on questions of law from the judgment entered in case number 145414, which is the only case with which we are concerned in this appeal.

The sole ground of error assigned by plaintiff is that “the court of common pleas erred in sustaining the demurrer of defendant to the petition of plaintiff in case number 145414,” or as plaintiff phrases it by brief:—

“The question presented is whether plaintiff’s claim for $50,000.00 in case No. 145414 is subject to the 4 month limitation on presentation of claims contained in §2117.06 R. C., or qualifies for the exemption for later filing contained in §2117.37 R. C., as a contingent claim.”

In the opening paragraph of the opinion written in the case of Pierce v. Johnson, supra, the court said:—

“The sole question presented by the demurrer is whether §10509-133 GC, fixing the period of limitation for the commencement of actions on claims disallowed by an executor or administrator, applies to unliquidated claims for damages arising out of tort.”

Plaintiff claims that the demurrer to plaintiff’s petition in case number 145414 was sustained in error; that the case we review is clearly distinguished from the case of Pierce v. Johnson, supra.

Plaintiff finds no fault with the holding in Pierce v. Johnson when it is applied to an unliquidated claim that could be and was filed within the four month period following the administratrix’s appointment, but claims an injustice appears when it is applied to tort claims that do not come into existence prior to the expiration of said four month period.

By brief “plaintiff approves of the purpose of the probate statutes, heretofore listed and to which reference is made herein, designed to close estates of decedents with dispatch, but does not agree that their procedural advantage outweigh the substantive right of redressing legitimate injury arising out of tort.”

Plaintiff’s contention is that her claim is a contingent claim, and that “if such claim is subject to the provisions of §2117.06 R. C. for presentation purposes then the application of such statute to such claims is unconstitutional by denying equal protection and due process of law to those injured claimants whose claims are not in existence at the expiration of such four month period, and that such application is against public policy,” and that in accordance with the provisions of §2117.06 R. C. “claims which are contingent need not be presented except as provided in §§2117.37 to 2117.42, inclusive, R. C.,” to which sections of the Revised Code counsel is referred.

Defendant contends that:—

“The question presented by this appeal for the determination by this Honorable Court is whether the plaintiff-appellant had presented her claim, one arising out of tort, to defendant-appellee as administratrix of the estate of Wilbur Thomas Knight within the time limits as set by the Ohio Revised Code sections regulating the probation of decedents’ estates. This question, of necessity, must be divided into two parts:
“1. Was plaintiff-appellant a creditor within the meaning of §2117.06 JR. C.; or
“2. Was plaintiff-appellant’s claim a contingent claim and not subject to the requirements of §2117.06 R. C., but governed by §2117.37 R. C.?”

As applicable §2117.06 R. C. provides:—

“All creditors having claims against an estate shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the' appointment of the executor or administrator. * *

Further defendant contends that plaintiff, was a creditor within the provisions of §2117.06 R. C., even though, as alleged, her claim arose out of tort, and that it was her mandatory duty to present her claim to the administratrix within four months after her appointment as administratrix of decedent’s estate.

In our opinion §2117.06 R. C. governs in the case under consideration. Plaintiff’s claim was not a contingent one governed by §2117.37 R. C., and her failure to present it to the administrator within the statutory four month period, or instituting suit thereon within two months from the date of receipt of actual notice of disallowance of such claim by the administrator, forever barred her claim.

“A person having an unliquidated claim for damages arising out of tort is a creditor within the meaning of §10509-112 GC, requiring presentation of claims by creditors to the executor or administrator within a specified time.
“An unliquidated claim for damages arising out of tort does not fall within the exception contained in §10509-112 GC, pertaining to contingent claims; and suit thereon must be instituted within two months from the date of receipt of actual notice of disallowance of such claim by the executor or administrator, or be forever barred under the provisions of §10509-133 GC.” Pierce v. Johnson, supra.

In the body of the opinion written in Pierce v. Johnson, supra, the court said:—

“In 21 American Jurisprudence, 582, Section 356, it is stated: ‘According to the ordinary acceptance of the term, a contingent claim is one where the liability depends upon some future event which may or may not happen, and which, therefore, makes it wholly uncertain whether there ever will be a liability.’ See also 11 Ruling Case Law, 205, Section 229.
“A liability on an unliquidated claim for damages arising out of a tort does not depend for its creation upon the occurrence of some uncertain event in the future. On the contrary, such claim is, as of necessity it must be, based on the theory that the event, the tort, giving rise to liability, has already occurred, and that a cause of action has already accrued and is in existence. A claim thus grounded cannot be said to be contingent.”

Plaintiff alleged inter alia that:—

“As a result of the negligent, careless and unlawful acts of said decedent, as aforesaid, plaintiff says that she was thrown violently from said car to said pavement landing on the left side of her head and left shoulder, suffering therefrom among other injuries, a strained, sprained or dislocated shoulder. As a result of this shoulder injury she realized prior to September, 1954, that she was suffering from a subdeltoid bursitis and displaced presternum, but after August of 1954 she became aware of a progressively painful zone in her upper neck where the upper cervical vertebrae were sprained, and the neck muscles and ligaments pulled at their juncture with the base of the skull, which, when aggravated by the previously known injuries to her shoulder movement, has produced a more severely painful and progressively disabled condition than she could have foreseen with reasonable certainty prior thereto, that prior to her said injuries she was a strong, healthy, ablebodied woman capable of earning a good living in the practice of nursing, being a registered nurse, and earning from $70.00 to $84.00 per week, but due to said progressive disability she is much more substantially handicapped in her practice due to her inability to support or carry normal nursing loads with her left arm with the result that her services are much less in demand than those of able bodied nurses, and that she will consequently suffer from loss of earning capacity in the amount of $50,000.00, claim for which sum was presented to said defendant before the expiration of two months after the cause of action accrued, i. e. the discovery of the progressively disabled shoulder movement, and action commenced thereon within two months of the rejection of said claim, as authorized by §2117.37 R. C., said rejection becoming effective by said defendant’s failure to allow said claim within five days after demand for such allowance as provided for in §2117.11 R. C.”

This was not an allegation sufficient to constitute a cause of action against defendant. She did not allege that she presented her claim to defendant before the expiration of two months after the cause of action accrued but “i. e. the discovery of the progressively disabled shoulder movement.”

“A petition seeking judgment on a claim against the estate of a deceased person which fails to allege compliance with §10509-112 GC ("now §2117.06 R. C.), or the presentation of a claim pursuant to authorization by the Probate Court under the provisions of §10509-134 GC (now §2117.07 R. C.), does not state facts sufficient to constitute a cause of action.” Beacon Mutual Indemnity Co. v. Stalder, Jr., Admr., 95 Oh Ap 441.

Also see National Ben Franklin Fire Ins. Co., et al, v. Woolcott, 86 Oh Ap 462, and Beach, Recr. v. Mizner, Exr., 131 Oh St 481.

Now with reference to the claims of plaintiff of the harshness of §2117.06 R. C., and splitting of causes of action, it is remembered that with reference to the first of such claims it is said in Pierce v. Johnson, supra, as stated elsewhere herein, that an unliquidated claim for damages arising out of tort does not fall within the exception contained in §10509-112 GC (§2117.06 R. C.)

Plaintiff states by brief that she presented her claim to defendant on October 29, 1954, six months and not within four months of the date defendant was appointed administratrix of decedent’s estate.

With reference to the claim of splitting causes of action, we believe that by filing two separate actions for personal injuries arising out of the same collision that plaintiff is attempting to do indirectly what the trial judge instructed her not to do directly.

Plaintiff’s claim for loss of earning capacity was not a contingent claim, and accordingly should have been presented to the administratrix of decedent’s estate within four months of her appointment as such personal representative. Plaintiff’s petition did not state a cause of action against defendant, and accordingly defendant’s demurrer thereto was well taken, and was rightly sustained by the trial judge.

The judgment of the court of common pleas is affirmed.'

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.


author: By THE COURT.

text:
    PEPPERED GE FARM, INC. et, Plaintiffs-rAppellant, v. FOUST, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5025.
    Decided September 19, 1956.
    Adams, Tyler & McCann, Robert C. Tyler, of Counsel, Columbus, for plaintiffs-appellants.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The appeal in this case is on questions of law and fact. The appellant, Pepperidge Farm, Inc., now seeks an order permitting it to file a supplemental petition and tenders the same.

Since the trial in this Court is de novo we have the power to exercise control over the pleadings. McCormick v. McCormick, 124 Oh St 440.

The motion will be sustained and the supplemental petition is ordered filed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.