author: By CASE, J.

text:
    BROWN, Estate of, In re.
    Probate Court, Fayette County.
    No. 6021.
    Decided February 15, 1954.

      Winston W. Hill, Washington C. H., for exceptor.
    Reed M. Winegardner, Otis B. Core, Washington C. H., for administrator.
   OPINION

By CASE, J.

On November 13, 1953, Harry Warfield, as administrator of the estate of Howard L. Brown, deceased, filed his first and final account purporting to be in compliance with the provisions of §2109.30 R. C. (former §10506-34 GC) and, on December 19, 1953, Goldie Brown, surviving spouse of said decedent, filed certain itemized exceptions thereto; and notice thereof was duly served upon all interested parties.

On December 31, 1953, said exceptor filed an affidavit of disqualification against Judge Rell G. Allen, the duly elected qualified and acting judge of the Probate Court of Fayette County, Ohio; and, on January 5, 1954, a journal entry, approved by attorneys of record, was duly made and entered certifying hearing, on said exceptions to the aforesaid account, to the judge of the common pleas court of said county as acting judge in said proceeding in accordance with the provisions of §2101.37 R. C.

On February 4th, 5th and 8th, 1954, said matter came on to be heard and was heard béfore said common pleas judge as acting judge of said probate court; and, at the beginning of said hearing on February 4, 1954, an agreed entry was duly submitted and made withdrawing the aforesaid affidavit of disqualification against Judge Rell G. Allen for the purpose of giving full force and effect to the aforesaid entry of January 5, 1954.

DISCUSSION OF EXCEPTIONS, TESTIMONY AND EXHIBITS

The First Item of said exceptions reads as follows:

“1. The first and final account does not show the complete list of purchases by the Kasle Steel Company of Middletown, Ohio.”

According to the administrator’s account, as filed with the Probate Court of Fayette County, the purchases from said estate by the Kasle Steel Company were listed in seventeen separate items which totaled $3,981.07.

According to the Administrator’s Exhibit "E,” admitted into evidence by agreement of the parties, Kasle Steel Company made ninety (90) separate purchases and payments therefor after the death of said decedent in the total amount of $9,952.58.

Said Administrator’s Exhibit “E” shows that seventeen of said purchases were paid for by checks amounting to $3,981.07, and that seventy-three of said purchases were paid for by cash amount to $5,971.51.

It therefore appears that said seventy-three transactions are not included in the itemized statement of receipts during the accounting period as required by the provisions of §2109.30 R. C. (formerly §10506-34 GC); and that Item 1 of said exceptions is well made and should be sustained.

The Second Item of said exceptions reads as follows:

“2. The first and final account does not show a complete list of the purchases made by the Cohen Brothers.”

According to said administrator’s account, as filed with the Probate Court of Payette County, the purchases from said estate b.y Cohen Brothers, Inc., Middletown, Ohio, were listed in twenty (20) separate items which totaled $14,356.89.

According to the Administrator’s Exhibit “4,” admitted into evidence by agreement of the parties, Cohen Brothers, Inc., made twenty (20) separate purchases and payments therefor after the death of said decedent in the total amount of $14,356.89.

No evidence was introduced of record in this proceeding to indicate or show that there were any other transactions with Cohen Brothers, Inc., during the accounting period.

It therefore appears that said twenty (20) transactions were all of the sales to and purchases" made by Cohen Brothers, Inc., and that same were included in the itemized statement of receipts during the accounting period, as required by the provisions of §2109.30 R. C. (formerly §10506-34 GC); and that Item 2 of said exceptions is not well made and should be overruled.

The Third Item of said exceptions reads as follows:

“3. The first and final account does not list any purchases of metal made by Henry Prydman of Dayton, Ohio.”

According to the Administrator’s account, as filed with the Probate Court of Payette County, no purchases were listed thereon indicating sales made to or monies received from Henry Prydman of Dayton, Ohio.

According to Administrator’s Exhibit “5,” admitted into evidence by agreement of the parties, Henry Prydman made five (5) separate purchases and payments therefor after the death of said decedent in the total amount of $772.30.

It therefore appears that said five transactions are not in-eluded in the itemized statement oí receipts during the accounting period as required by the provisions of §2109.80 R. C. (formerly §10506-34 GC); and that Item 3 of said exceptions is well made and should be sustained.

The Fourth Item of said exceptions reads as follows:

“4. Prior to the appointment of the administrator, the widow received a letter from Reed M. Winegardner, with whom she had never done business before, a true copy of said letter being as follows:
“ ‘Mrs. Howard L. Brown
914 East Market St.
Washington C. H., Ohio
“ ‘Dear Mrs. Brown:
T was greatly shocked to learn of the death of your husband, Howard L. Brown, as of Wednesday evening, January 14, 1953. ‘Howard had been consulting with me on numerous matters' during the past few weeks and only about a week ago had talked to me about the making of his will. I am not sure whether he was ever able to get one made or not, but he told me that he would be up and see me in a few days as he needed one.
T greatly regret his passing, because I thought Howard was a very fine person, and I enjoyed working with him. With deepest regret and sympathy, I am
“Very truly years,
7s/ Reed M. Winegardner’
“and in pursuance to said letter, the exceptor and her daughter, Helen Warfield, and son-in-law Harry Warfield, the administrator, went to the office of Reed M. Winegardner, the ex-ceptor having it in mind that she would be the administrator of the estate. A discussion was had because of the defective hearing of the exceptor, her daughter and her son-in-law stated that instead of having an outsider to act as administrator that Harry Warfield would take the job and would not charge an administrator’s fee. Upon the basis of the foregoing offer and acceptance by the exceptor, Harry Warfield was appointed administrator of the estate of Howard L. Brown with the distinct understanding that he was to charge no fee whatsoever for his services.’ ”

During the hearing thereon, said Exceptor attempted to introduce evidence to show that said Administrator had orally agreed to forego administrator’s fees and commissions as alleged in said item of exceptions and therefore, under the theory of equitable estoppel, was not entitled to claim any fees and commissions as provided under §2113.35 R. C. (formerly §10509-192 GC).

Objection was duly made to the admission of such evidence and the Court sustained said objection, and in making said ruling stated in substance as follows:—

While it is well within the realm of possibility that evidence might be adduced to support and sustain said Exceptor’s representation that such agreement was made and entered into by and between all of said parties, the effect of such an agreement cannot be binding upon the Court unless it appears that such a contract is authorized by the statutory or case law of this state.

The Supreme Court of Ohio in Union Savings Bank & Trust Co. v. W. U. Telegraph Co., 79 Oh St 89, said at page 99:

“The Probate Court is a court of record and its jurisdiction in matters testamentary and in the appointment of administrators and guardians has been broadly given by the Constitution of this state. Article IV, Sections 7 and 8. The jurisdiction is plenary and it may well be doubted' whether the legislature, if it chose to do so, could in any respect limit it.”

If, by the representations and allegations contained in Item 4 of her exceptions herein, the Exceptor is seeking to invoke the principle of equitable estoppel upon the theory that the within proceeding is a chancery case, the Court of Appeals for Fayette County has clearly determined that probate matters have lost their chancery character in Ohio. In the case of In re Trust of Marshall, 78 Oh Ap 45, at pages 45 and 46, the Court of Appeals for Franklin County (which is also the court of appeals for Fayette County) stated in part as follows:

“This appeal on questions of law and fact can stand as such only if the motion for a dismissal of the trustee is a chancery case within the meaning of that term as used in Section 6, Article IV of the Constitution of Ohio. It may be conceded that under the common law the administering of trusts and the appointment of guardians were chancery cases. However, in the case of In re Estate of Gurnea, 111 Oh St 715, 146 N. E. 308, the court held that probate matters have lost their chancery character in Ohio, and that such proceedings are not now chancery cases as that term is used in the Constitution. That decision was followed in Squire, Supt. of Banks, v. Bates, 132 Oh St 161, 5 N. E. (2d), 690; In re Guardianship of Moyer, 68 Ohio Ap 319, 40 N. E. (2d), 695; and In re Estate of Bates, 142 Oh St 622, 53 N. E. (2d), 787. In the last cited case, the court said:
“ ‘The question before the Probate Court in this case related to exceptions to the inventory and appraisement filed by an executor. It is not a chancery case. If there had previously been any basis for controversy relative thereto, it was definitely determined by the decision of this court in the case of Squire, Supt. of Banks, v. Bates, 132 Oh St, 161, 5 N. E. (2d), 690, where it is held in the first proposition of the syllabus as follows:
‘ “ ‘The settlement of the account of a testamentary trustee in the Probate Court is not a chancery case and hence not appealable as such from the Probate Court to the Court of Appeals.’ ” ’

It is to be noted that the opening provisions of §2113.35 R. C. (formerly §10509-192 GC), clearly impose a mandatory duty upon the Probate Court with respect to considering and allowing commissions to executors and administrators, for the language therein used states in part as follows:

“Executors and administrators shall be allowed commissions * * *” etc.

and that the denial of such commissions are to be based solely upon specific conditions and exceptions pertaining to any compensation provided by the terms of a will, or upon a finding by the Court that an administrator or executor has in any respect not faithfully discharged his duties as such.

Again, it is to be noted that the Court of Appeals for Franklin County (which is also the Court of Appeals of Fayette County) has, as recently as February 16, 1946, held that unfaithfulness by a fiduciary of a decedent’s estate in the discharge of his duties is the sole basis on which a court can reduce or refuse to allow his compensation fixed by §10509-192 GC. (In re Estate of Marshall; Von Schmide v. Marshall, 78 Oh Ap 457.)

Neither does it appear that the Probate Court was informed, at the time the within administrator was appointed, of any such agreement whereby Harry Warfield was to forego such administrator’s commission provided by law, nor that, if so informed of said agreement, the Probate Court could have incorporated such agreement as one of the conditions to be imposed upon and met by such administrator in performing such services on behalf of decedent’s estate. Indeed, in the light of the first headnote in the case of In re Estate of Marshall: Von Schmidt v. Marshall, 78 Oh Ap 457, which reads as follows:

“1. Unfaithfulness by an executor of a decedent’s estate in the discharge of his duties is the sole basis on which a court can reduce or refuse to allow his compensation fixed by §10509-192 GC.”

it would appear that there is no other basis on which a Probate Court can reduce or refuse to allow such compensation.

As hereinbefore stated, that determination was made by the Court of Appeals for Fayette County and must be followed by this Court since it has not been modified or reversed and is therefore controlling in the matter now pending before this Court.

Therefore, since this Court is, for the purposes of this proceeding, the Acting Probate Court of Fayette County as provided by law, it appears to be without jurisdiction to grant any equitable relief arising out of equitable estoppel based upon proof of any such contract or agreement to forego such compensation; and it is equally clear that the Court of Appeals for this county has declared and established that the only basis for authorizing a reduction or denial of such compensation is that specified by statute.

Therefore, it appears that Item 4 of said exceptions should be overruled.

The Fifth Item of said exceptions (as amended at the hearing) reads as follows:

“5. By agreement of counsel for the exceptor and the attorney for the administrator, Harry Warfield, the administrator, was permitted to draw as wages the sum of $75.00 per week for a period of 60 days only; that at the expiration of the 60 days without consulting exceptor or her counsel or without being granted a court order the administrator paid himself the sum of $75.00 per week for a period of 11 additional weeks, in the sum of $825.00, which is an illegal payment.”

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator disbursed and paid to himself for shop supervision and labor 18 separate payments consisting of 9 payments of $75.00 each and 9 payments of $69.18 each and amounting to a total of $1,297.62 as wages for his services as shop supervisor and laborer during the accounting period.

According to Exceptor’s Exhibit “C,” which reads as follows:

“February 25, 1953
“Mr. Reed M. Winegardner
Attorney at Law
Washington C. H„ Ohio
“Re: Howard Brown Estate
“Dear Reed:
“Since Harry Warfield is devoting full time disposing of the personal assets of Howard Brown, I, as attorney for Mrs. Brown, authorize him to draw the sum of $75.00 per week for a period of 60 days. At the end of this time we can review the disposition of the assets and determine our future course of action.
“Very truly yours,
“HILL and HILL
“By:
s/ “WWHILL
“Winston W. Hill”

all parties had agreed that said Harry Warfield should receive $75.00 per week for such services for a period of at least 60 days. Said Exhibit “C” was admitted into evidence by agreement of the parties; and the administrator’s account shows that such payments began on March 2, 1953.

It is noted that said Item 5 of the exceptions is directed to lack of express authority for such payments after the expiration of the aforesaid 60 day period.

From all of the evidence adduced, it appears that Harry Warfield was a new and additional employee whose employment the interested parties obviously determined would be advantageous to the estate to continue decedent’s business for a limited period in order to obtain the greatest amount in liquidating the business.

Counsel for said Administrator contends that the provisions of §2113.30 R. C. (former §10509-9 GC), are not applicable to such employment and other related expenses incurred in liquidating said decedent’s estate. Said §2113.30 R. C., reads as follows:

“Except as otherwise directed by the decedent in his last will and testament, an executor or administrator may, without personal liability for losses incurred, continue the decedent’s business during one month next following the date of the appointment of such executor or administrator, unless the probate court directs otherwise, and for such further time as the court may authorize on hearing and after notice to the surviving spouse and distributees. In either case no debts incurred or contracts entered into shall involve the estate beyond the assets used in such business immediately prior to the death of the decedent without the approval of the court first obtained. During the time the business is continued, the executor administrator shall file monthly reports in the court, setting forth the receipts and expenses of the business for the preceding month and such other pertinent information as the court may require. The executor or administrator may not bind the estate without court approval beyond the period during which the business is continued.”

It is also interesting to note that the language of §10509-9 GC, which was in full force and effect at the time when said Administrator incurred all of the expenses claimed by him in liquidating said business, appears to be even more emphatic in the last sentence thereof which reads as follows:

“* * * The executor or administrator shall not have authority to bind the estate without court approval beyond the period during which the business is continued.”

Counsel for’ said Administrator contends that there is a definite distinction between “liquidating decedent’s business” and “continuing decedent’s business for a limited period in order to obtain the greatest amount in liquidating the business.”

The facts of record in this proceeding fail to disclose any distinction which would exempt said Administrator from the necessity of complying with the express provisions of §10509-9 GC, after one month next following the date of his appointment on January 20, 1953. It is clear that decedent’s business was that of buying and selling junk; that the selling of junk was necessary and required to liquidate the decedent’s business; that several thousand dollars were paid out as expenses claimed to have been incurred for labor, materials, supplies, payroll deductions, insurance premiums, licenses and other items; all of which the Administrator claims were necessary and incident to the liquidating operations, and which were continuous from January 20, 1953 to and including June 27, 1953.

It therefore appears that, to the extent that said business was so continued beyond one month next following the date of said Administrator’s appointment, said Administrator continued the business of said decedent without authorization by the Probate Court of Fayette County and in the absence of any application, notice, hearing or order of the court as required by the' express provisions of §10509-9 GC.

The Administrator sought to introduce testimony by the Judge of the Probate Court to show that oral conferences had baeen had with said judge at which certain authority or consent was obtained to so continue said business. The Exceptor objected to such testimony and said objections were sustained upon the ground that the Probate Court is a court of record and as such must speak through documents and orders of record; that the docket of said court fails to disclose any record of such application, notice, hearing and order as required by §10509-9 GC; and that no such oral conferences or letter agreements between the parties could modify or abrogate the express provisions of the statute.

Therefore, since it is undisputed that all of said eighteen (18) payments were made to Harry Warfield at times which were more than one month next following the date of his appointment as such administrator, and that such employment was deemed necessary to carry on decedent’s business in order to liquidate same, it must be concluded that all of said payments were made without authority as required by §10509-9 GC; and that in so far as Item 5 of said exceptions is directed to the Administrator’s failure to obtain authority to make such payments, the fifth exception is well made and should be sustained.

The Sixth Item of said exceptions reads as follows:

“6. The amounts shown in the final account, being marked ‘Harry Leeth, cash’ do not give a true accounting of the cash received by Harry Leeth in the operation of said business. The said Harry Leeth in addition to drawing the weekly salary as set out in the account did take for himself the sum of $25.00 per week from cash receipts from the time of the administration until July 1st, 1953, all without court order and the same being illegal payments.”

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator disbursed and paid to Harry Leeth for labor twenty-four (24) separate payments in the total sum of $1,332.71.

According to Exceptor’s Exhibit “A,” forty-eight (48) separate payments were made to the said Harry Leeth for labor of which twenty-four (24) appeared to be made by checks in the total sum of $1,332.71 and twenty-four (24) appeared to be made by cash in the total sum of $579.25 for total payments during the accounting period amounting to $1,911.96.

It therefore appears that said twenty-four (24Hcash payments to Harry Leeth are not included in the itemized statement of expenditures during the accounting period as required by the provisions of §2109.30 R. C. (formerly §10506-34 GC); and that Item 6 of said exceptions is well made and should be sustained.

The Seventh Item of said exceptions reads as follows:

“7. The said administrator had no authority to grant vacation periods with pay to any of the persons employed by him in selling the junk belonging to the estate.”

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator disbursed and made payments to certain persons as follows:

“6/27 — James Lemmings — shop labor (vacation period) — 54.36
“6/27 — Harold Jones —Shop labor (vacation pd.) —54.66 “6/27 — Harry Leeth —shop labor (vac. period) —74.45”

Testimony was adduced at the hearing to show that, at the beginning of the accounting period, representations were made to these employees to the effect that they would receive such vacation pay at the conclusion of liquidating said business as an inducement for said persons to remain so employed during the liquidation.

The docket and records of the Probate Court fail to disclose that any such authority was applied for or authorized by said court.

It therefore appears that said expenditures, in the total sum of $183.47 were not authorized; and that Item 7 of said exceptions is well made and should be sustained.

The Eighth Item of said exceptions reads as follows:

“8. In spite of the. fact that the administrator contracted with the exceptor to handle the estate without fee, he drew from the estate as administrator’s fee the sum of $1,063.33, the correct fee as set by statute of this court being $507.00, all of which he contracted not to receive, and instead not only drawing for himself the sum of $507.00, but an additional sum of $556.33.”

As hereinbefore set forth in its discussion of Item 4 of said exceptions, this Court is without jurisdiction to apply the principle of equitable estoppel with respect to the alleged contract whereby the Administrator may have agreed to serve without receiving the fees prescribed by statute; and the Court must therefore direct its attention to the fees claimed and drawn by said Administrator as shown in his account filed herein.

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator drew and disbursed to himself, as and for such administrator’s fees, the amounts itemized on his account as follows:

“8/20 — Harry Warfield — advance on Adminstrators
estate fee —400.00
“11/3 — Harry Warfield — Bal. Administrators fee —663.33”

and the total sum drawn as such fees amounted to $1,063.33.

Sec. 2113.35 R. C. (formerly §10509-192 GC), specifically prescribes the method of computing-said Administrator’s commissions as follows;

“Executors and administrators shall be allowed commissions upon the amount of all the personal estate, including the income therefrom, received and accounted for by them and upon the proceeds of real estate sold under authority contained in a will, which must be received in full compensation for all their ordinary services, as follows:
“(A) For the first one thousand dollars at the rate of six per cent;
“(B) All above one thousand and not exceeding five thous- and dollars at the rate of four per cent;
“(C) All above five thousand dollars at the rate of two per cent.
“The basis of valuation for the allowance of such commissions on property sold shall be the gross proceeds of sale, and for property distributed in kind the valuation thereof as fixed by the inventory and appraisement.
“Should the probate court find, after hearing, that an executor or administrator has in any respect not faithfully discharged his duties as such executor or administrator, the court may deny such executor or administrator any compensation whatsoever or may allow such executor or administrator such reduced compensation as the court thinks proper.”

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator stated and itemized thereon $31,367.25 as the amount of all the personal estate received by him.

According to the aforesaid statutory provisions, he would have been entitled to receive in full compensation for ordinary services the following amounts:

6% of $1,000.00 _____•_______________________ $ 60.00

4% of $5,000.00 ______________________________ 160.00

2% of $26,367.25 _____________________________ 527.35

which amounted to a total of $747.35. Upon subtracting said $747.35 from the $1,063.33, which his account shows he paid to himself as administrator’s fees, we find' that said commissions so paid to the Administrator exceeded by $315.98 the amount authorized by law.

The docket and records of the Probate Court fail to disclose that such excess was applied for and/or authorized by said court at the time said payments were made.

Therefore, it appears that, to the extent of such excess payment, Item 8 of said exceptions is well made and should be sustained.

The Ninth Item o.f said exceptions reads as follows:

“9. The attorney for the administrator was entitled to a fee based upon court rule of $1388.33, but instead he received the sum of $2243.33, being in excess of the authorized fee in the amount of $855.00, the same received without legal authority.”

According to said administrator’s account, as filed with the Probate Court of Fayette County, said Administrator disbursed and paid to said attorney, during the accounting period, the following amounts:

“3/20 — Reed M. Winegardner — on estate
attorney fees — 750.00
“11/3 — Reed M. Winegardner — Bal. Est.
Attorney Fees —1493.33”

which amounted to a total of $2,243.33.

According to Exceptor’s Exhibit “G,” a schedule of minimum fees adopted by the Fayette County Bar Association on July 1, 1950, which was admitted into evidence by agreement of the parties, the minimum fee to which said attorney would have been entitled thereunder could be computed as follows:

Personal property:

6% on first $5,000.00 _______________________$300.00

4% on next $5,000.00 _________________________ 200.00

2% on balance of $21,367.25 -------------------- 427.35

Real Estate Transferred,

Appraised at $15,800.00:

2% on first $10,000.00 _________________________ 200.00

1% on remaining $5,800.00 ____________________ 58.00

which would amount to a total minimum fee of $1,185.35.

During the hearing, said attorney testified that the charges to said estate for his services were based upon a maximum amount of initial fees in the sum of $1,243.35 to which he added a flat fee for expenses and services in the sum of $1,000.00.

At the hearing, said Administrator also testified to the effect that he was satisfied with the attorney fees so charged.

Sec. 2113.36 R. C. (formerly §10509-193 G. C.), provides as follows:

“Allowances, in addition to those provided by §2113.35 R. C. for an executor or administrator, which the probate court considers just and reasonable shall be made for actual and necessary expenses and for extraordinary services not required of an executor or administrator in the common course of his duty. When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration. The court may at any time during administration fix the amount of such fees and, on application of the executor or administrator or the attorney, shall fix the amount thereof. When provision is made by the will of the deceased for compensation to an executor, the amount provided shall be a full satisfaction for his services, in lieu of such commission or his share thereof, unless by an instrument filed in the court within four months after his appointment he renounces all claim to the compensation given by the will.”

The docket and records of the Probate Court fail to disclose that such attorney fees were applied for and/or authorized by said court at the time said payments were made.

In the case of Trumpler, Admr. v. Royer, 95 Oh St 194, the Supreme Court of Ohio held:

“i. By the provisions of Section 8, Article IV, Constitution, and §10492 GC, plenary jurisdiction is conferred on the probate court to grant and revoke letters testamentary and of administration, to direct and control the conduct, and settle the accounts of executors and administrators, and order distribution of estates.
“2. The allowance of fees for services rendered by attorneys employed by an executor or administrator in the settlement of the estate in his hands is a matter to be determined by the probate court, and until so determined such fees do not constitute a valid claim against the estate.
“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.”
and, in the case of In Re Estate of Wellmeir, 26 Abs 386 (1938, Probate Court of Montgomery County) it was held:
“1. A claim for counsel fees is a personal claim against the administrator and not against the estate.
“2. The personal liability of the administrator for counsel fees can be removed only to the extent that the administrator shifts the responsibility to the estate by voluntarily requesting that he be allowed to take credit in his account and that he be reimbursed under the order of the Probate Court for reasonable compensation.
“3. Under §10509-193 GC it is incumbent upon the administrator to present the matter of counsel fees to the Probate Court and to request that he be given ‘further allowance’ to reimburse ‘reasonable attorney fees paid by’ him; the court may still make the allowance in advance of payment and in anticipation of the filing of an account.”

At the hearing on said exceptions, certain testimony was adduced on behalf of said Administrator to the effect that a large number of conferences were had with said attorney during the accounting period concerning problems involving the estate; that said services also involved negotiation and settlement of personal property tax claims against said estate which were compromised for $112.88; that, during the accounting period, said attorney devoted an estimated 300 hours of service to said problems of administering the estate; and that certain opinion evidence by other attorneys was given to support the reasonableness of the attorney fees so paid.

While the fixing of attorney fees is not an exact science, however, the schedule of minimum fees, as adopted by the Payette County Bar Association, although not conclusive, may be considered conclusive of the reasonableness of the minimum amount attorney fees allowable in the instant proceeding; and it is noted that the initial fees so testified to by said attorney, in the sum of $1,243.35, closely approaches the total which would result from computations made upon that basis; and that, by the adoption of said schedule, the attorneys of this county presumed to fix a reasonable minimum for the computation of such fees. Therefore, it is the additional flat fee of $1,000.00, covering vague additional expenses and services of said attorney, which is difficult to reconcile with the facts of record. It also appears that the estimated 300 hours of attorney services consumed are not supported by the evidence adduced; for, computed on the basis of a ten hour day, it would represent that the equivalent of thirty (30) full days of service had been devoted exclusively to the problems of administering said estate, and convincing evidence of such service does not appear in the record.

Therefore, upon consideration of all of the evidence adduced in support of the attorney’s services so rendered to said Administrator, it would appear that the fee so paid was excessive and unreasonable; and that Item 9 of said exceptions is well made and should be sustained.

The Tenth Item of said exceptions reads as follows:

“10. The item of scrap sale to Helen Warfield in the amount of $2770.00 is not correct.”

During the hearing on said exceptions, on February 5, 1954, the attorney for the Administrator admitted in open court and on the record that the amount of $2770.00 was not correct and represented that the correct amount was $2,850.00; and further represented that the distributive difference between said amounts was subject to adjustment between the heirs and was equalized by a certain excess share of rentals collected and received by Mrs. Goldie Brown.

Therefore, it appears that said Item 10 of said exceptions is well taken and should be sustained.

In the light of all of the evidence adduced and for the reasons hereinabove stated, the Court finds that exceptions 1, 3, 5, 6, 7, 8, 9 and 10 should be sustained; and that exceptions 2 and 4 should be overruled; and that the respective exceptions of said administrator and said exceptor should be saved and noted on behalf of each party to the aforesaid findings.

From all of the evidence adduced of record in this proceeding, it appears that the Administrator’s Account, herein filed on November 13, 1953, should have included an itemized statement of all receipts.

RECEIPTS

January 20, 1953 to June 29, 1953 -----------$39,142.39

From all of the evidence adduced of record in this proceeding, it appears that the Administrator’s Account, herein filed on November 13, 1953, should have included an itemized statement of all expenditures.

EXPENDITURES

TOTAL CREDITS (Excluding Admr’s & Atty’s Fees) $29,453.92

Although there appear to be very substantial differences in the total amounts, between the Receipts and Expenditures as itemized on the Administrators First and Final Account, herein submitted on November 13, 1953, and the Receipts and Expenditures hereinabove set forth and itemized from the evidence by the Court, it is possible that certain of these differences may be reconciled and eliminated upon further investigation and resubmission of an amended and supplemental final account by said Administrator.

From all of the evidence adduced, however, it clearly appears that the administrator has not faithfully discharged his duties in the following respects:

1. Said Administrator failed to obtain an order of the Court, as required by law, to continue decedent’s business beyond one month after the date of his appointment;

2. Said Administrator failed to obtain an order of the Court authorizing compensation to himself as an employee while continuing decedent’s business for which he has already received $1,342.62 as net wages and car expense money;

3. Said Administrator failed to file an account within nine months after his appointment as required by §2109.30 R. C. (formerly §10506-34 GC);

4. Said Administrator failed to include in the aforesaid First and Final Account an itemized statement of all receipts during the accounting period; and

5. Said Administrator failed to include in the aforesaid First and Final Account an itemized statement of all expenditures made during the accounting period;

and the Court so finds.

In the light of all the evidence and findings specifically set forth above, the Court further finds that the amounts, of said Administrator’s commissions, if any, and the fees to which his attorney may be reasonably entitled, should be held in abeyance pending submission of an amended and supplemental final account by said Administrator.

The Court further finds that such amended and supplemental final account should be submitted herein by on or before March 20, 1954; and that Counsel for Exceptor may prepare an entry accordingly which will include therein appropriate notation of exceptions on the part of said Administrator and said Exceptor to the aforesaid findings, decision and such entry, and thereupon submit same to Counsel for Administrator and to this Court for approval.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    GARNER, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Second District, Franklin County-
    No. 4648.
    Decided October 24, 1951.
    Garmone & Trivison, Cleveland, for appellant-appellee.
    C. William O’Neill, Atty. Genl., Leander P. Zwick, Jr., Richard L. Canter, Asst. Attys. Genl., Columbus, for appellee-appellant.
    (NICPIOLS, J., of the Seventh District, sitting by designation.)
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court reversing an order of the Board of Liquor Control revoking the D-5 permit of Delia Garner for the reason of alleged false statements made in her application. The charges allege that in her application for a permit, the appellant before the Board and the appellee herein, represented that she was the sole owner of the business and that no other person was directly or indirectly interested in the same; that one Frank Randazzo, who had been previously convicted of a felony, did have a direct or indirect interest in the same. The Common Pleas Court reversed the ruling of the Board for the reason that in the hearing before it incompetent and prejudicial evidence was admitted and for the further reason that there was insufficient competent evidence to support the ruling of the Board.

We have examined the entire record and are in accord with the Court’s ruling. The judgment will be affirmed.

HORNBECK, PJ, MILLER, J, NICHOLS, J, concur.


author: By HARTER, J.

text:
    MURDOCK, Plaintiff, v. LAUDERBAUGH et, Defendants.
    Common Pleas Court, Franklin County.
    No. 185674.
    Decided January 12, 1953.
    Thomas W. Maxson, Columbus, for plaintiff.
    Ralph J. Bartlett, Pros. Atty., Columbus, for defendants.
   OPINION

By HARTER, J.

By this action, the plaintiff seeks a declaratory judgment which would have the legal effect of reversing a decision by the Franklin County Commissioners on a question of law. Counsel for plaintiff and for defendants (the prosecuting attorney being defendants’ counsel in this action) agree that the sole question here is whether a “private corporation” should be counted in determining the existence of a majority of “inhabitants residing on territory adjacent to a municipality” in petitioning for the annexation of such territory to the municipality pursuant to the provisions of §3548 GC (§709.02 R. C.).

The County Commissioners here, acting upon a “count” made by the Franklin County Engineer, ruled that “there was not a majority of the resident freeholders represented on said petition” for annexation of certain territory in Franklin Township to the city of Grandview Heights. They arrived at this conclusion only by including “private corporations” (as contrasted with “individuals”) as having their “residence” in the territory. If the “private corporations” are to be excluded from the “count,” the petition for annexation must, in law, be considered sufficient on this point and the commissioners must proceed with the proposed annexation.

Sec. 3548 GC, is as follows:

“The inhabitants residing on territory adjacent to a municipality may, at their own option, cause such territory to be annexed thereto, in the manner hereinafter provided. Application shall be by petition, addressed to the commissioners of the county in which the territory is located, signed by a majority of the adult freeholders residing on such territory, and shall contain the name of a person authorized to act as the agent of the petitioners in securing such annexation, and a full description of the territory and be accompanied by an accurate map or plat thereof.” (Emphasis added.)

It is the contention of the plaintiff in this action that the right to join in such petitioning is limited to adult freeholders and that a corporation, not being a “person” nor an “adult,” cannot qualify as a petitioner.

The defendants contend that a corporation is a person; that a corporation, being domiciled in its state of incorporation, thus “resides” in and is an “inhabitant” of such state; that such a corporation, therefore, should be considered an “inhabitant residing” on territory adjacent to a municipality within the meaning of §3548 GC; and that the word “adult” in the statute was only meant to protect a minor’s interest in land and not to prevent a private corporation from signing a petition.

As we construe this statute (§3548 GC), its provisions are mandatory in requiring that, to qualify as a petitioner thereunder, “ownership” and “residence” must exist in an “adult” person.

This conclusion is demanded, as we see it, by the firmly established rule of construction of statutes to the effect that “all statutory provisions should be so construed, if possible, as to give full force and effect to each and all of them, and not to abrogate, defeat or nullify one by the interpretation of another, where that can be done by a reasonable construction of both.” See 37 O. Jurisprudence — Statutes, Section 341.

To express this rule of statutory construction in a slightly different form, where two interpretations of a given statute are possible and equally fair, that construction should be adopted which gives full force and effect to all words and phrases of the statute, and the court should reject the other construction which might ignore, or give no effect to, a word or phrase in the statute.

The word in §3548 GC, which points up the applicability of these rules of statutory construction is “adult.” That word cannot, in the very nature of the situation, apply to a corporation. A corporation is inanimate — a paper being. To adopt the contention advanced by the defendants would be to ignore the word “adult” — to give it no effect. To adopt plaintiff’s contention as to' the proper construction of the statute is to give full force and effect to all the words and phrases of the statute — including the word “adult.”

In arriving at this conclusion, we expressly approve the reasoning contained in two Attorney General opinions and reject the reasoning of a third Attorney General opinion. The two opinions of which we approve are Opinion No. 1399, Opinions of the Attorney General for 1946, Page 795 and Opinion No. 795, Opinions of the Attorney General for 1951, page 547. We reject Opinion No. 1784, Opinions of the Attorney General for 1950.

We are fully mindful of the result, inherent in this construction of the annexation statutes, of increasing taxes and assessments against corporate property owners within the territory to be annexed without affording such corporate property owners any rights as “petitioners” or in any “counting of majority,” under the statute. In this connection, we direct attention to the rule of law which is summarized in 37 American Jurisprudence at page 648 in this language: “* * * nor is it any ground for objection that the right to vote upon the acceptance of thé act is limited to the taxpaying electors of the territory which is sought to annex, or still less, that it is left to those possessing the suffrage at general elections, so that owners of taxable property in the annexed district having no right to vote, such as non-residents and corporations, have no voice in the matter.” (Emphasis added.)

It is, of course, axiomatic that the Ohio Legislature has the power within certain constitutional limits to specify the steps which must be taken in the incorporation of municipalities and in the annexation of territory to them. From an equitable standpoint, it should be obvious that all property owners (whether individuals or corporations) should have a voice in the annexation of their property into a municipality. Such an argument should appeal to the legislature. However, we are dealing with the statutes as they are, not as they probably should be. The power to change the fundamental law in this held rests with the legislature, not with the courts.

Entertaining these views, we feel compelled to hold in favor of plaintiff’s position and against the defendants. In so doing, we want it understood that our holding is limited to the question of law here raised; we agree with the statement made in the last paragraph of the Prosecuting Attorney’s brief on behalf of the defendants to the effect that “the decision of the court should be limited to an interpretation of the statute, the question as to the number of good and valid signatures on the petition not having been fully and properly presented to the court.”

The defendants may, of course, have their exceptions to this ruling.


author: By McCRYSTAL, J.

text:
    STATE v. SCOTT.
    Common Pleas Court, Erie County.
    No. 27565.
    Decided February 18, 1952.
    John W. Lehrer, City Solicitor, Sandusky, for the State.
    Lett & Lett, Ashland, for defendant.
   OPINION

By McCRYSTAL, J.

This case is before the Court on an appeal of questions of law from the Municipal Court of the City of Sandusky. The record discloses that on or about the 16th day of July, 1950, the defendant appellant was arrested in Berlin Township. Eric Comity, Ohio, on the charge of operating a motor vehicle while under the influence of alcohol, in violation of §6296-30 (c) GC. On the 19th of July, 1950, the defendant was brought to trial in the Municipal Court of Sandusky, and at that time entered an objection to the jurisdiction of the Court on the ground that the arrest and violation occurred in Berlin Township ouside of the territorial limits of the Municipal Court of Sandusky. The objection was overruled by the Judge of the Municipal Court; the case proceeded to trial, and the defendant appellant was found guilty and fined $300 and costs and his driver’s license was suspended.

The sole question argued in briefs and orally by counsel was whether or not the Municipal Court of Sandusky had jurisdiction to try the defendant for a misdemeanor which occurred in Berlin Township of Brie County, Ohio. The briefs of counsel would be very helpful if the misdemeanor would not have been a violation of the section of the Motor Vehicle Act of Ohio. The Court feels that since the misdemeanor in question was a violation of the Motor Vehicle Act, §6296-16 GC, it clearly grants the Municipal Court of Sandusky jurisdiction over this case.

The following language appears in said section—

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

The Municipal Court of Sandusky, being a Court of record, it would, therefore have County wide jurisdiction for violations of the Motor Vehicle Act of which §6296-30 (c) GC is a part thereof.

The judgment of the Municipal Court must, therefore, be affirmed and the cause remanded to said Court for further proceedings according to law, with the costs taxed to the defendant.

Counsel for the plaintiff will prepare an entry and submit the same to counsel for defendant appellant, saving exceptions and then submit the same to the Court for approval.


author: By THE COURT:

text:
    MARSHALL, Guardianship, In re.
    Ohio Appeals, Second District, Shelby County.
    No. 158.
    Decided March 23, 1951.
    Cummins & Boller, Sidney, for applicant-appellant.
    Frank H. Marshall, Sidney, for guardian.
   OPINION

By THE COURT:

This is an appeal upon questions of law from the judgment of the Probate Court of Shelby County.

An application was filed to remove the guardian of Logan W. Marshall, an incompetent, under §10506-53 GC, on the ground that “the interest of the trust demands it.” The application for removal was denied.

It is claimed that the guardian and his attorney expect to be compensated for their services and that it would be for the best interest of the estate to appoint the wife of the incompetent as guardian and the brother of the incompetent as counsel for the guardian, both of whom stated to the court that they would serve . without compensation. That the wife and brother will serve without compensation is a matter which can be urged with much persuasion. While a broad discretion is given to the Probate Court in a proceeding to remove a fiduciary under §10506-53 GC (In Re Trust of Marshall, 78 Oh Ap 1, 65 N. E. [2d] 523 we cannot overlook the fact that the principal reason for the appointment of a guardian is to conserve the estate, and the court should exercise its discretion to achieve this purpose.

No charge of misconduct or bad faith has been or can be made against the present guardian or his counsel. At the time of the appointment the court very properly exercised its discretion in making the appointment. This appointment has served its purpose. Now a change of circumstances has occurred which the court must consider in determining whether the best interest of the estate requires a change of guardians.

After giving consideration to all the factors which bear upon the question as to whether “the interest of the trust demands it,” we are convinced that upon the whole record, it will be for the best interest of the estate of the ward that his wife act as guardian and that his brother act as counsel for the guardian.

In our opinion the trial court failed to exercise a proper discretion and the judgment is contrary to the manifest weight of the evidence.

Judgment reversed and cause remanded.

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


author: By HARVEY, J.

text:
    MOTOR CARGO, INC., Plaintiff, v. BOARD OF TOWNSHIP TRUSTEES et, Defendants.
    Common Pleas Court, Summit County.
    No. 189271.
    Decided September 9, 1953.

      Brouse, McDowell, May, Bierce & Wortman, Akron, for plaintiff.
    James Olds, Akron, for defendant Stoller.
    Alan G. Rorick, Cleveland, for defendant Shaffer.
    Gilbert Hartz, Asst. Pros. Akron, for all public officials, defendants.
   OPINION

By HARVEY, J.

Plaintiff in this case has filed a petition asking for a declaratory judgment, and the matter is presented to the court upon a stipulated agreed statement of facts.

Plaintiff claims that it is a public utility within the purview of §3180-46 GC (§519.21 R. C.), and as such is exempt from the regulations and restrictions of the zoning act adopted for Richfield Township, and that such exemption is questioned and contested by the defendants herein, and plaintiff is asking for the court to construe the statute in question.

In approaching this question it seems necessary, first, to determine whether or not the plaintiff Motor Cargo, Inc. is actually a public utility.

Under the provisions of §§614-1, 614-2 and 614-2a GC (§§4901.-01, 4903.01, 4905.03, 4907.01, 4909.01, 4921.01, 4923.01, 4925.01, 4905.02 R. C.) the plaintiff is a public utility. That is, it is a public utility for the purpose of regulation by the Public Utilities Commission under some of the statutes in Ohio. This company is a public utility for the purpose of sales tax, but is not a public utility for the purpose of the gross income tax levied against public utilities.

It seems quite evident that the meaning of public utility as used in this statute cannot be determined from its use in other statutes for the reason that it is limited in each instance.

Motor cargo carriers for hire who are private carriers are also regulated by the Public Utilities Commission. The fact that they are regulated does not make them a public utility. Apart from the statutes which define the public utilities which are within the purview of such statutes, it is difficult to construct a definition of a public utility which would fit every conceivable case; but there are considerations that are of aid in determining whether a specific organization or business is a public utility. Moreover, the elements that would constitute a public utility have been defined by our Supreme Court in Southern Ohio Power v. Public Utilities Commission, 110 Oh St 246. The court therein says, “To constitute a public utility, the devotion to public use must be of such character that the product and service is available to the public generally and indiscriminately, or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state.”

Whether the plaintiff is or is not a public utility depends not upon its powers as a corporation, but rather upon its acts. It cannot be determined from the charter purposes alone. Service Corporation v. P. U. C., 127 Oh St, page 47 (52). A lack of power of eminent domain is a mere inconclusive circumstance. Many persons and firms engaged in the public service do not have it. A concern like, for example, in the water, light, electric or gas service may or may not possess the power of eminent domain, and yet clearly be in the public service (public utility concerns nevertheless).

The determination of whether a concern is a public utility is a mixed question of law and fact, and bearing in mind the test and the meaning of public utility exclusive of the statutes which are of little assistance this court is of the opinion that the plaintiff in this case is operating as a public utility, is operating by authority of law upon public highways as a common carrier in interstate commerce, devoting its equipment solely for the purpose of carrying freight and as such is operating in the same manner that a railroad operates.

As its name indicates, the term “public utility” implies a public use and service to the public, and indeed the principal determinative characteristic of a public utility is that of service to, or readiness to serve an indefinite public (or portion of the public as such), which has a legal right to demand and receive its services or commodities.

The term precludes the idea of service which is private in its nature and is not to be obtained by the public. 43 Am. Jur., page 571.

But the defendants claim that even though the plaintiff is a public utility it is not a public utility that was contemplated or intended to be covered by the terms of the statute in question; that the Legislature did not intend to include or mean to include a public utility of plaintiff’s character and type, and it is further contended- that the Legislature intended to in-elude only those public utilities that had the power of eminent domain.

It is the contention of the defendants that we must consider the purpose behind zoning, which is for public health and welfare, and further the type of zoning and the type of area contemplated in a suburban rural area, and so when the Legislature used the words “public utility” they were thinking about those utilities that would be a necessary part of such suburban areas. The Legislature was thinking of the kind of a utility that now and in the prospective growth of the future would have a necessary relationship with the community in respect to the particular legislation at hand, to-wit: zoning, and that contemplated only such utilities as would furnish the facilities needed by a suburban rural area. Such reasoning is appealing in this casé.

The defendants would have the court construe this statute by adding after the phrase “any public utility” the language “having the power of eminent domain.” This addition to the legislation, of course, is based upon the doctrine that the court is only interpreting the act in such a manner as to express the supposed intent of the Legislature.

There is, however, another rule of construction of statutes which seems more obvious and more applicable to the situation, and that is the criterion or test to be followed in the determination of Legislative intent that was laid down by the Supreme Court in the case of Shugars v. Williams, 50 Oh St, 297, and such test is simply that the court must look to the statute itself to determine legislative intent, and if'such intent is clearly expressed therein the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged. The significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment they will in the interpretation of the act be given their common, ordinary and accepted meaning in the connection in which they are used. Wachendorf v. Shaver, 149 Oh St, 231, 36 O. O. 554.

Indeed, it is the duty of courts to give the statute the interpretation its language calls for where this can reasonably be done, and the general rule is that no intent may be imputed to the Legislature in the enactment of a law other than such as is supported by the language of the law itself. The courts may not speculate apart from the word as to the probable intent of the Legislature. It may be presumed that the Legislature knew the meaning of the words or the phrase “any public utility,” and to have used that phrase in this particular statute advisedly, and that nothing may be read into a statute which is not within the manifest intention of the Legislature as gathered from the act itself.

Nothing in the history of this legislation of probative value has been offered which would be of any assistance to the court in determining the legislative intent other than the plain meaning of the language itself. The language pertinent to the construction herein is “the use of the land by any public utility.” “Any” is a word of flexible meaning, and must be interpreted in the light of the context. In construing statutes the word “any” is equivalent and has the force of “every” or “all.” Roedler v. Bus Lines, 281 Ill. Appeal, 520.

The word “any” has been referred to as an indefinite pronominal adjective used to designate objects in a general way without pointing out any one in particular. It is not used to describe the qualities or character of objects. Citizens Bank v. Parker, 192 U. S. 73.

The phrase is “any public utility.” The word “any” excludes selection or distinction. It declares the exemption in the statute as a whole without limitation, and there are many cogent reasons why the question should be asked, “Should there be an exemption?” What purpose was there to serve by making a distinction between kinds of utilities?.

The statute is a general law in the state of Ohio.

To cover rural zoning at any place in this state, they must have known that there would be many different situations to be met in the rural areas of this state, some areas that were rapidly becoming commercialized, other areas that would remain rural for years to come.

In the last analysis, however, the language “any public utility” is not a palpable inadvertence. It may be an oversight in the sense that the question lacked deliberate consideration at the time the legislation was passed, but correction lies with the original authors and not with the court.

It is, therefore, the declaration of this court in construing this statute that the plaintiff in question is a public utility within the meaning of §3180-46 GC (§519.21 R. C.), and as such it is exempt from the zoning regulations of Richfield Township, and that the plaintiff is entitled to the relief prayed for.


author: By SLAYBAUGH, J.

text:
    MORGAN v. REESE et.
    Common Pleas Court, Putnam County.
    No. 17334.
    Decided November 4, 1953.
    Meredith & Meredith, Lima, for plaintiff.
    Unverferth & Unverferth, Ottawa, for defendants.
   OPINION

By SLAYBAUGH, J.

A jury was waived in this case.

The plaintiff, Nettie Morgan claims in her petition filed August 11, 1952 that in 1949 the parties hereto were the owners of the following described real estate situated in Sugar Creek Township, Putnam County, Ohio:

“Parcel No. 1.. The Southeast Quarter (14) of the Southwest Quarter (%) of Section Twenty-six (26) Township One (1) South, Range Six (6) East, containing Forty (40) acres more or less.
“Parcel No. 2. The Southwest Quarter (14) of the Southwest Quarter (14) of Section Twenty-six (26), Township One (1) South, Range Six (6) East, containing Forty (40) acres, more or less but all subject to legal highways.”

The exact interest and the estate of the plaintiff was in dispute and questioned by some of the defendants, by prospective purchasers and by prospective loaning agencies. All of these parties desired to sell the real estate above described and desired to distribute the proceeds provided a sale could be arranged and completed without legal proceedings. All of the defendants agreed with plaintiff that if she would join in a contract to sell said real estate and join in the execution of a Warranty Deed warranting the title to the premises and warranting that same were free of incumbrances except taxes and assessments due and payable in June, 1950 and thereafter that she would receive One-Fifth (1/5) of the proceeds of sale after the payment of the expenses in connection therewith.

All the parties hereto agreed to sell the premises above described to Dwight E. Downing and Edna G. Downing for the sum of Twenty-eight Thousand Dollars ($28,000). Plaintiff relied upon the representations of the defendants that she would receive One-fifth (1/5) of the purchase price after the expenses of sale were deducted and so believing that she would receive same signed the contract of sale and on December 23, 1949 she joined with the defendants in a Warranty Deed to the purchasers. In said Warranty Deed this plaintiff warranted the title to the premises so conveyed and warranted that same was free and clear of incumbrances except taxes due and payable in June, 1950 and those falling due thereafter. Plaintiff fully carried out the promises on her part to be performed and the purchasers paid the full purchase price to the defendants on December 23, 1949. Said defendants have wholly failed to give plaintiff her One-fifth (1/5) share as agreed although all the other defendants have been paid in full. Said defendants have since the time of said sale segregated plaintiff’s share in a Bank or Loan Company and have been collecting interest thereon. Plaintiff has demanded the One-fifth (M5) of the proceeds promised her but the defendants refuse and neglect to pay same.

Wherefore plaintiff prays judgment against the defendants in the sum of Fifty-six Hundred Dollars ($5,600) with interest thereon since December 23, 1949 and for all other and further relief to which she may be entitled either in law or in equity.

On December 18, 1952, the defendants, Jennie Reese, Elizabeth Dackin, Mary Jones, Margaret Elliott, Esther Ann Griffith, Robert C. Griffith, John Griffith, Martha Pollex, Morgan Griffith, and May Chapman, filed their answer and cross petition, and in their answer and cross petition they allege as follows:

“Now come the defendants, Jennie Reese, Elizabeth Dackin, Mary Jones, Margaret Elliott, Esther Ann Griffith, Robert C. Griffith, John Griffith, Martha Pollex, Morgan Griffith, May Chapman and admit that in 1948 they were the owners of the lands described in the petition and specifically allege that the plaintiff Nettie Morgan, had no interest whatsoever in said land.' Defendants further admit that the land described in the petition was sold; that a proper deed for said land was made and delivered to the purchasers thereof; further answering, defendants deny all and singular the allegations contained in the petition not herein specifically admitted to be true.
“For their cross petition they claim that Edward Morgan was a brother of Thomas Morgan, the testator herein referred to, and that the plaintiff is the widow of said Edward Morgan and his sole and only heir-at-law. That Edward Morgan died on the 24th day of February, 1945.
“Defendants say that Thomas Morgan made and executed his last Will and Testament, a copy of which is hereto attached, marked Exhibit ‘A’; that in Item 11 of said Last Will and Testament testator stated T devise and bequeath all of my said real estate including buildings thereon to those persons who at the date of her death (meaning Miss Nettie Reese, the life tenant), are my legal heirs under the laws of the State of Ohio to be divided among them per stirpes.’
“That the said Nettie Reese, life tenant, in the Will of Thomas Morgan, Deceased, died on the 18th day of September, 1949.
“That the said Thomas Morgan died testate on October 16, 1943, and that his Last Will and Testament was duly admitted to Probate and recorded by the Probate Court of Putnam County, Ohio on November 8, 1943 in Will Volume T Page 379 of the Record of Wills of Putnam County, Ohio.
“Defendants say that it was assumed at the time of the probating of the Will and for some time thereafter that the said Nettie Morgan had an interest in the land described in the petition. That after receiving proper legal advice and after a more careful study of the Will, the defendants came to the conclusion that the said Nettie Morgan, plaintiff herein, had no interest whatsoever in said land. That when it was discovered that the said Nettie Morgan, the plaintiff, had no interest in said land, that the inheritance tax which had been paid for her towit: the sum of Eighty Five Dollars and Twenty-One Cents ($85.21) was returned to her by a check dated December 27, 1949.
“Wherefore, defendants pray that the Will of the said Thomas Morgan be construed to show that the said Nettie Morgan had no interest whatsoever in said land or in the money derived from the sale thereof and that she be forever barred from asserting any right or claim against the defendants on the proceeds of said farm, that the petition of the plaintiff be dismissed and for such other and further relief as they may be entitled to.”
“Last Will and Testament of Thomas Morgan
"I, Thomas Morgan, of Sugar Creek Township, Putnam County, Ohio, being of full age and sound and disposing memory, do hereby make, publish and declare this to be my Last Will and Testament, revoking all wills heretofore made.
“Item 1. In appreciation of the many years of faithful service rendered by my sister-in-law, Miss Nettie Reese, I give and bequeath to her, upon my death, all of my personal property, remaining after the payment of all my just debts and expenses, to be hers absolutely and unconditionally.
“Item II. I give, devise and bequeath to my sister-in-law, the said Miss Nettie Reese, all of the real estate, including buildings thereon, which I may own at the time of my decease, to be hers and to enjoy the income therefrom during her lifetime and upon her death I give, devise and bequeath all of my said real estate, including buildings thereon, to those persons who at the date of her death are my legal heirs under the laws of the State of Ohio, to be divided among them per stirpes. In the event my said legal heirs are unable to agree as to the division of my said real estate upon the death of my sister-in-law, the said Miss Nettie Reese, I direct that the person who is then my legal representative shall sell the said real estate at public sale and shall divide the proceeds therefrom among my said heirs, per stirpes.
“Item III. I make, nominate and appoint my sister-in-law, Miss Nettie Reese, to be the executrix of this my Last Will and Testament and upon her death I nominate my twin brother, Edward Morgan, to be Executor to succeed her, giving and granting unto them such power and authority as shall be provided by the laws of the State of Ohio at the time she or he shall qualify as my legal representative.
“In Witness Whereof, I have hereunto set my hand at my home in Sugar Creek Township, Putnam County, Ohio this 18 day of June, 1942.
“Thomas Morgan
“Signed by the said Thomas Morgan and by him acknowledged to be his Last Will and Testament before us and in our presence and by us subscribed as attesting witnesses in his presence and at his request and in the presence of each other this 18 day of June, 1942.
“Ralph Anderson residing at Columbus Grove, Ohio
“Minnie Anderson residing at Columbus Grove, Ohio.
“Exhibit ‘A‘”

The evidence and stipulations of counsel show the following facts: that Thomas Morgan under date of June 18, 1942 executed his Last Will and Testament, which is agreed between counsel, that a true copy thereof is attached to the cross-petition; Thomas Morgan was unmarried; never had a wife or children, and that he died October 16, 1943 leaving no widow or children surviving him.

It was further stipulated between counsel that on June 18, 1942, the date Thomas Morgan made his will his next of kin were, Edward Morgan, a twin brother; Jennie Reese, a sister; Elizabeth Dackin, a sister; Mary Jones, a sister; and, the seven children of Ann Griffith deceased, a sister. The seven children’s names being as follows, Margaret Elliott, Esther Ann Griffith, Robert C. Griffith, John Griffith, Martha Pollex, Morgan Griffith and May Chapman.

The evidence shows and it is stipulated as true by counsel in this case that Thomas Morgan died on October 16, 1943 leaving the following persons his next of kin: Edward Morgan, a brother, Jennie Reese, a sister, Elizabeth Dackin, a sister. Mary Jones, a sister, and the seven children of Ann Griffith, deceased, hereinabove mentioned.

The evidence shows and it is stipulated by counsel that Edward Morgan and Nettie Reese qualified as Executors of the estate of Thomas Morgan, and that his estate was duly settled. The evidence shows that Edward Morgan the husband of the plaintiff in this case died February 24, 1945 leaving plaintiff as his sole heir at law.

It is further stipulated and the evidence shows that the life tenant, Nettie Reese died September Í8, 1949; the evidence shows and it was stipulated by counsel that at the date of the death of Nettie Reese, the life tenant named in the Will of Thomas Morgan deceased, the following named persons were the brothers and sisters, and nephews and nieces of Thomas Morgan deceased, namely: Jennie Reese, a sister, Elizabeth Dackin, a sister, Mary Jones, a sister, Margaret Elliott, a niece, Esther Ann Griffith, a niece; Robert C. Griffith, a nephew, John Griffith, a nephew, Martha Pollex, a niece; Morgan Griffith, a nephew, and May Chapman, a niece.

A construction of the Last Will and Testament of Thomas Morgan depends in the court’s opinion on the construction of the following language contained in item 2 of said Will. Said item 2 has the following language, towit: “I give, devise and bequeath to my sister-in-law, the said Miss Nettie Reese, all of the real estate, including buildings thereon, which I may own at the time of my decease, to be hers and to enjoy the income therefrom during her lifetime, and upon her death I give, devise and bequeath all of said real estate, including buildings thereon, to those persons who at the date of her death are my legal heirs under the laws of the State of Ohio, to be divided among them per stirpes. In the event my said legal heirs are unable to agree as to the division of my said real estate, upon the death of my sister-in-law, the said Miss Nettie Reese, I direct that the person who is then my legal representative shall sell the said real estate at public sale and shall divide the proceeds therefrom among my said heirs, per stirpes.”

Item 1 of said will provides as follows:

“In appreciation of the many years of faithful service rendered by my sister-in-law, Miss Nettie Reese, I give and bequeath to her, upon my death, all of my personal property, remaining after the payment of all my just debts and expenses, to be hers absolutely and unconditionally.”

And the court after due consideration finds the intent of the testator to be, that the fee simple title to the real estate of which Thomas Morgan died seized, the description of which is set forth in the petition in this case descended at the death of Nettie Reese, towit on September 18, 1949, under the terms of the Last Will and Testament of Thomas Morgan as follows:

“Jennie Reese one-fourth;
Elizabeth Dackin, one-fourth;
Mary Jones, one-fourth;
Margaret Elliott, one-twenty eighth;
Esther Ann Griffith, one twenty eighth;
Robert C. Griffith, one twenty-eighth;
John Griffith, one-twenty-eighth;
Martha Pollex, one twenty-eighth;
Morgan Griffith, one-twenty-eighth;
May Chapman, one-twenty eighth.”

The court finds that if said real estate had descended in fee simple, subject to a life estate to Nettie Reese, to the heirs of Thomas Morgan, then the husband of plaintiff, Edward Morgan being alive would have inherited an undivided one-fifth interest in said real estate subject to possession at the death of Nettie Reese, and due to the fact that the said Edward, husband of the plaintiff died February 24, 1945, the plaintiff would have inherited from her husband the undivided one-fifth interest in this real estate, but as the court, has held in this case, due to the fact that the fee simple title to said real estate did not descend at the death of Thomas Morgan, but did descend at the death of Nettie Reese subsequent to the death of Edward Morgan, then the court holds, that the plaintiff under the last will and testament .of Thomas Morgan deceased was not entitled to any interest at all in said real estate; that in fact she was not a legal heir of Thomas Morgan, the law being that a wife can inherit directly from her husband of the property, the husband died seized in fee simple of, or has the right to the possession of, and in that respect the husband is an ancestor of the wife, and the court holds a brother (Thomas Morgan) of the husband of the plaintiff, Edward Morgan is not the ancestor of the wife, the plaintiff herein, within the meaning of the statute. See Penn v. Cox, 16 Ohio 30.

The court now coming to the question that arises on the issue set forth in the petition of the plaintiff, and denied by the answer of the defendant, finds, that there was no valid contract between the plaintiff and the defendants, in which it was agreed between the parties that the plaintiff would -be entitled to have the one-fifth of the proceeds of the sale of the real estate to Mr. Downing for the sum of $28,000; there was nothing between the parties, except as was understood by all parties that they in ignorance of the law, and ignorant regarding descent and distribution of estates, assumed that because she was the widow of the brother Edward Morgan that she then became entitled to Edward Morgan’s interest in the estate left by Thomas Morgan, his twin brother, and they all worked under that assumption without any agreement whatever between the plaintiff and the defendants. All transactions between Mr. Downing and the plaintiff and defendants had nothing to do with, nor could it affect the terms of the last will and testament of Thomas Morgan, deceased; no agreement verbal or otherwise between the parties could affect the terms of the last will and testament of Thomas Morgan. Only one way could the plaintiff be entitled to one-fifth interest in this real estate, and that would be where each and all of the defendants in this case would make and deliver to Nettie Morgan a deed for the undivided one-fifth interest in said real estate.

The court holds that there was no contract between the plaintiff and defendants with reference to a one-fifth interest in said real estate.

The court has failed to cite decisions deliberately, in this opinion because the law is so plain that it does not require any citations, all of which could be ascertained by a cursory examination of the books.

It is therefore concluded as a matter of law that the plaintiff, Nettie Morgan has no right, title or interest in any portion of the real estate involved in this case, nor to any portion of the proceeds derived from the sale of the premises; and

It Is Ordered, that the petition of the plaintiff be dismissed, and due to the fact that there are two issues involved in this case, one set forth in the petition on contract, and the other set forth in the cross-petition asking construction of the will, the court feels it equitable that the costs should be divided one-half to be paid by the plaintiff, and one-half paid by defendants, and judgment is rendered against each of them for their share of the costs. Execution is awarded.

Exceptions reserved to both parties.

A Journal Entry may be prepared in accordance with this decision.