author: By DOYLE, J:

text:
    CLEVELAND TRUST CO., as Trustee, etc., Appellee, v. McQUADE et, Appellees, HOSTETLER, Gdn., Appellant, OSLER, a Minor et, New Party. Defendant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23762.
    Decided April 26, 1957.

      Squire, Sanders & Dempsey, for appellee, The Cleveland Trust Co., as Trustee, etc.
    Von Herzen & Laidig, for appellee, Virginia McQuade.
    Van Aken, Whiting, Arnold & Nash, for appellees, Charles George Newcomb and Madge Pentony Newcomb.
    Arter, Hadden, Wykoff & Van Duzer, for appellees, Shirley New-comb Kelsey, Doris A. Newcomb Prick and Richard C. Weiss, s,s Guardian ad litem of Charles Newcomb Kelsey and Robert S. Frick, Jr.
    Marshman, Hollington & Steadman, for appellee, Richard R. Holling-ton, as Guardian ad litem of Cherie Kelsey, Louise Adele Frick and Susan Katherine Frick, minors, etc.
    Eaker, Plostetler & Patterson, for appellant, and for Jos. C. Hostetler, as Guardian ad litem of New Party Defendant Richard Mills Osier, a minor, etc., and for all others similarly situated.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

The questions presented for decision in this case, on appeal from the Probate Court of Cuyahoga County, were succinctly stated by Judge Kinder, the Trial Judge in that court, as follows:

“This is an action for a declaratory judgment brought by The Cleveland Trust Company in its several capacities as (a) trustee under a trust agreement, dated February 27, 1922, with Anne Baldwin Schultze, and (bj as executor and trustee under the will of Gouverneur Morris, who died on August 14, 1953, his will having been executed on April 2, 1952. The action involves the interpretation and legal effect to be given the Schultze trust agreement, hereinafter called the Trust, and the will of Gouverneur Morris of April 2, 1952, hereinafter called the will, and turns on the question of the effect, if any, of the rule against perpetuities in respect of these documents and the interests sought thereby to be created.”

1. The Schultze trust agreement, to which reference is above made, directed that upon the death of the settlor the corpus of the trust should be treated as composed of two equal shares — one to be held for the benefit of the settlor’s nephew, Gouvernour Morris, and the other for the benefit of her niece, Henrietta Morris Bonsai, with the net income from each share to be paid to the named beneficiaries for life.

On July 11, 1922, several months after its creation, the trust became irrevocable, as a result of the death of the settlor, and the beneficiaries commenced to receive the income.

There was incorporated in the instrument a general power of appointment, exercisable only by will, for Gouvernour Morris over that share of the corpus in the hands of the trustee set apart for him. In the event of his failure to exercise the power, the settlor then directed that the Gouverneur Morris share should be added to the share set aside for the niece, Henrietta Morris Bonsai.

The exact terms are:

“Upon the death of my said nephew, Gouverneur Morris, the share of the trust estate, or the balance thereof remaining, held for his benefit, shall vest in and be distributed to his nominees and appointees by his last will and testament. In the event of his death without exercising such power of testamentary appointment, his said share, or the balance thereof then remaining, shall be added to and become a part of the share of the trust estate held for the benefit of my niece, Henrietta Morris Bonsai, to be held and disposed of as is herein provided for her said share.”

On August 14, 1953, Gouverneur Morris died, in the state of New Mexico. Ey his will, which was admitted to probate in Cuyahoga County, Ohio, he sought to exercise the power given by the trust in awarding interests in the income from the trust property to various individuals, and finally the awarding of the corpus to various persons under and upon diverse and various conditions.

It is claimed, among other things, that the power of appointment was not validly exercised, because the estates appointed might not vest within the limitations of the rule against perpetuities; and that, as a result thereof, the share of the corpus of the trust set over to him for appointment must be now added to the Henrietta Morris Bonsai share.

Attention will be first directed to the legal question of whether the period for the rule against perpetuities started to run in 1922, on the effective date of the Schultze trust, or whether it started in 1953, at the time of the death of Gouverneur Morris, at which time the power was sought to be exercised under the terms of his will.

The rule against perpetuities has been codified in this state as follows:

Sec. 2131.08 R. C. “No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life or lives in being at the creation of the interest. All estates given in tail, by deed or will, in lands or tenements lying within this state, shall be and remain an absolute estate in fee simple to the issue of the first donee in tail. It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common law rule against perpetuities.”

While this statute was enacted in 1932, and applies to both real and personal property, nevertheless this state has recognized the common law rule against perpetuities as applicable to personal property, and such was the rule both at the time of the creation of the power as well as at the time at which the will became effective. The estate under consideration is treated as consisting entirely of personal property.

Sec. 8622 GC, which was in effect at the time of the creation of the power, applied only to realty.

The trial court, in a scholarly opinion in which many authorities are cited and discussed, expressed the thought “that most discriminating treatment from the standpoint of the case law on the subject lies with the conclusion that, in so far as a general testamentary power is concerned, the period provided for by the rule runs from the time of its exercise rather than the date of its creation.”

The court cited the treatises of scholars as well as the case of Miller v. Douglass, 192 Wis. 486, 213 N. W. 320, as authorities sustaining its views. There was also cited Minot v. Paine, 230 Mass. 514, 120 N. E. 167, as an authority holding to the contrary.

No reported Ohio decision has been found in which a determination of this question was essential to the judgment reached. We have, therefore, a legal question of first impression.

We must determine the common law of Ohio in respect to the question before us. Not only the statute (§2131.08 R. C.), requires it, but the case law as well. 9 O. Jur. 2d, Common Law, Sec. 1, et seq., and cases therein cited.

For the common law, we must look to that general system of law which prevails and prevailed in England, and in the United States by adoption, and “ ‘the best evidence’ of what that law is, ‘is to be found in the decisions of courts of justice, contained in books of reports, and in the treatises and digests of learned men.’ ” Board of Commissioners of Hamilton County v. Mighels, 7 Oh St 110, at pp. 120-121, quoting Chancellor Kent.

A review of the many cases in sister states, as well as leading articles by men learned in the profession, shows a diversity of thought. We are of the opinion, however, that the weight of authority supports a view contrary to that of the trial court.

In “The Law of Future Interests,” Simes and Smith, Sec. 1275, the authors speak as follows and cite many authorities in support of their text:

“There has been some controversy over the question whether, in determining the validity of an appointment under a general power to appoint by will, the period should be calculated from the creation of the power or from the time of its exercise. The weight of authority in the United States, and, it is believed, the better reason, is .in favor of the view that a general power to appoint by will should be treated as a special Power in this respect, and that the period should be computed from the time of the creation of the power. It has been argued that, since the donee of a general power to appoint by will may appoint to his own estate or to any person for a consideration, he is in substance the owner to almost the same extent as if he had a general power to appoint by deed as well as by will, and that, being substantially the owner, the rule should only apply from the time the power is exercised. It is believed, however, that from a practical standpoint the position of the donee of a general power to appoint by will is very different from that of the donee of a power to appoint by deed. Wills are not, as a rule, commercial transactions. And the fact that a man has an unrestricted power to appoint property by will does not mean that he is likely to put the property on the market and sell it. * * * The property, during the existence of this power, is, from a practical standpoint, removed from commerce. And it is proper, in determining remoteness, to count the period from the creation and not from the exercise of the power.”

Again, in Gray, The Rule Against Perpetuities (Fourth Ed.), at page 498, may be found the statement that—

“3. The remoteness of an appointment depends on its distance from the creation and not from the exercise of the power.”

The author then explains, in Sec. 514, that—

“If this were not the case, estates for life with powers of appointment by will might be created; the tenants for life might appoint for life, with powers to the appointees to appoint by will; these appointees might, in their turn, appoint in the like manner, and so an indefinite series of life estates could be created.”

See also, Secs. 948, et seq., in Appendix L, ibid.

We have been cited to the following English and Irish cases which bear upon our question: In Re Powell’s Trusts, 18 Wkly. Rep. 228, 39 L. J. Ch. 188; Rous v. Jackson, 29 Ch. D. 521; In Re Flower, 55 L. J. Ch. 200; and Stuart v. Babington, 27 Ir. L. R. 551.

From an analysis of these cases, it appears that the weight of authority is with In Re Powell’s Trusts, and the principle therein stated has been generally followed in this country when the question has been presented. See: Gray, Rule Against Perpetuities (Fourth Ed.), Sec. 526, et seq.

The rule pronounced in the Powell case may be tersely stated to be that appointments under a general power, exercisable by will only, must be referred to the time of the creation of the power. While other cases in Great Britain and Ireland hold to the contrary, the Powell case has been cited extensively, and its principle followed generally by the majority of American courts in the establishment of the common law of this country.

As heretofore stated, various courts of sister states have discussed the question of law under consideration, and, while local statutes were involved in some of the cases, nevertheless in those cases the rule against perpetuities presented legitimate points for consideration.

In considration of the case law in America, we find the courts to be in almost entire agreement with the rule pronounced by the Simes and Smith and Gray treatises mentioned above. Some of the cases are:

Reed v. McIlvain (1910), 113 Md. 140, 77 A. 329; Gambrill v. Gambrill (1914), 122 Md. 563, 89 A. 1094; Equitable Trust Co. v. Snader (1930). 17 Del. Ch. 203, 151 A. 712; Equitable Trust Co. v. McComb (1933), 19 Del. Ch. 387, 168 A. 203; McCreary’s Estate v. Pitts (1946), 354 Pa. 347, 47 A. 2d 235; Lamkin v. Safe Deposit & Trust Co. (1949), 192 Md. 472, 64 A. 2d 704; Marx v. Rice (1949), 3 N. J. Super. 581, 67 A. 2d 918; In re Lovering’s Estate (1953), 373 Pa. 360, 96 A. 2d 104; Genet v. Hunt (1884). 113 N. Y. 158, 21 N. E. 91 (based on statute); Dana v. Murray (1890), 122 N. Y. 604, 26 N. E. 21 (based on statute); Fargo v Squiers (1897), 154 N. Y. 250, 48 N. E. 509 (based on Statute); Minot v. Paine (1918), 230 Mass. 514, 120 N. E. 167; Bundy v. U. S. Trust Co. of N. Y. (1926), 257 Mass. 72, 153 N. E. 337; Low v. Bankers Trust Co. (1936), 270 N. Y. 143, 200 N. E. 674; Northern Trust Co. v. Porter (1938), 368 Ill. 256, 13 N. E. 2d 487; Thorne v. Continental Natl. Bank (1940), 305 Ill. App. 222, 27 N. E. 2d 302; Fiduciary Trust Co. v. Mishou (1947), 321 Mass. 615, 75 N. E. 2d 3; In re Van Hoesen’s Will (1947), 67 N. Y. S. 2d 503; American Trust Co. v. Williamson (1948), 228 N. C. 458, 46 S. E. 2d 104; St. Louis Union Trust Co. v. Bassett (1935), 337 Mo. 604, 85 S. W. 2d 569; DeCharette v. DeCharette (1936), 264 Ky. 525, 94 S. W. 2d 1018; Ligget v. Fidelity & Columbia Trust Co. (1938), 274 Ky. 387, 118 S. W. 2d 720; Legg’s Estate v. Commr. of Internal Revenue (1940), 114 F. 2d 760; Mondell v. Thom (1944), 143 F. 2d 157.

In determining the law of this state, we hold that the period for testing the validity of an exercise of a general testamentary power of appointment, under the common law rule against perpetuities, is measured from the time of the creation of the power and not from its exercise.

2. We now turn to the application of the rule to the estates sought to be created by the will of Gouverneur Morris, measuring the time from the date of the creation of the power.

We find that the grant of the power by the settlor of the trust was valid when created.

Was the exercise of the power by the Morris will valid?

Attention will be first directed to the validity of the disposition of the corpus at the time set by the testator for the termination of the trust.

The will of Gouverneur Morris appointed the share of the Schultze trust held for his benefit by the Cleveland Trust Co., again to The Cleveland Trust Co. as trustee. It, in part, directed:

“The trust hereby created shall terminate when such of the following, to wit: Virginia McQuade, Ralph Newcomb, Charles George New-comb, Madge Pentoney Newcomb, Doris Frick, Robert Frick, Jr., Shirley Kelsey and Charles Newcomb Kelsey, as were in being February 23, 1952, are all deceased, and upon such termination the principal then comprising the trust estate and any accumulated income shall be paid over and delivered as follows:
“One-half thereof to Cherie Kelsey, if living at the time of the termination; otherwise per stirpes and not per capita to the lineal descendants of the said Charles Newcomb Kelsey, who are living at the time of such termination, if any there be; otherwise per stirpes and not per capita to the lineal descendants I may have, who are living at the time of such termination, if any there be; otherwise per stirpes and not per capita to the lineal descendants of my sister, Henrietta Morris Bonsai, who are living at the time of such termination.
“The remaining one-half to Louise Frick and Susan Frick share and share alike or to either of them who is living at the time of the termination, if either be living; otherwise per stirpes and not per capita to the lineal descendants of the said Robert Frick, Jr., who are living at the time of such termination, if any there be; otherwise per stirpes and not per capita to the lineal descendants I may have, who are living at the time of such termination, if any there be; otherwise per stirpes and not per capita to the lineal descendants of my sister Henrietta Morris Bonsai, who are living at the time of such termination.
“Provided that if the said Robert Prick, Jr., shall reach the age of twenty-one (21) years, then he shall have the power to nominate and appoint by will the person or persons who shall be vested with and receive one-half of the trust estate at the time of the said trusts termination; and
“Provided also that if the said Charles Newcomb Kelsey, shall reach the age of twenty-one (21) years, then he shall have the power to nominate and appoint by will the person or persons who shall be vested with and receive the remaining one-half of the trust estate at the time of the said trust termination.”

At the outset, it is observed from the evidence that, of the eight named persons through whose lives the Morris trust should continue, three of them — Robert Prick, Jr., Shirley Kelsey, and Charles Newcomb Kelsey — were not in being in 1922, on the date of the creation of the Schultze living trust, nor at the time of Mrs. Schultze’s death in 1922. It is further observed that the Morris testamentary trust provided for its continuation until all of the eight named persons (including the three not in being in 1922) were deceased, at which time the principal and accumulated income were ordered tq be “paid over and delivered” in the manner shown above.

It is here observed that Shirley Kelsey (born in 1929), and Doris Frick (born in 1919), are the daughters of Charles George Newcomb and Madge Pentony Newcomb (each born prior to the effective date of the Schultze trust); Charles Newcomb Kelsey (born in 1949), and Cherie Kelsey (born in 1951), are children of Shirley Kelsey; Robert Prick, Jr., (born in 1943), Louise Prick (born in 1946), and Susan Prick (born in 1950), are the children of Doris Prick.

It thus appears that neither Cherie Kelsey nor any lineal descendants of Charles Newcomb Kelsey were in being in 1922; nor was Louise Prick or Susan Frick, or any lineal descendants of Robert Prick, Jr., in being in 1922.

It is asserted by counsel that, even though the period of the rule against perpetuities “should be measured from the date of the creation of the power of appointment, which in this case would be * * * (in the year) 1922, all of the life estates appointed under the will of Gouverneur Morris, as well as the remainders over of the corpus to Cherie Kelsey, Louise and Susan Prick, would nevertheless be valid. This is so because these estates are vested interests, and vested interests are not subject to the rule against perpetuities. Gray, Rule against Perpetuities (4th Ed.), Sec. 205.”

It is agreed that a vested interest is not subject to the rule against perpetuities. Whether these estates were bound to vest within the required time is the problem before us.

Before inspecting in detail the Morris will, to determine whether the estates vested, it will be observed that we are confined to the language of the will, encompassed by the surrounding circumstances bearing on the intent of the testator.

Professor W. Barton Leach well states the rule we must follow in the following terms (Perpetuities in a Nutshell, 51 Harvard Law Review, 638, at p. 642):

“A future interest is invalid unless it is absolutely certain that it must vest within the period of perpetuities. Probability of vesting, however great, is not sufficient. Moreover, the certainty of vesting must have existed at the time when the instrument took effect * * *. It is immaterial that the contingencies actually do occur within the permissible period or actually have occurred when the validity of the instrument is first litigated.”

Is the appointment of the corpus void because vesting is deferred for a longer period than lives in being in the year 1922, plus twenty-one years?

Heretofore in this opinion, we have set forth the provision in the will directing the distribution of the corpus of the trust estate upon the death of the last one of eight named persons, three of whom were not in being at the time of the creation of the power in the trust of Mrs. Schultze.

It is obvious that if the estates did not vest at the death of the testator (the time at which the will took effect), then the rule against perpetuities was violated as to these estates, because three of the eight lives which measured the time of vesting were not in being in 1922, when the time limitation on the period for vesting commenced. There is no certainty that these three persons will not live longer than 21 years after lives in being as of 1922, and will not survive the others.

On the contrary, if the estates in the remainder given to the three girls (Cherie Kelsey, Louise Frick and Susan Frick) became vested when the power was exercised, then they vested within lives in being at the time of the creation of the power.

It is again observed that all of these girls were born subsequent to the time of the creation of the power of appointment.

On the question of contingent versus vested interests, it may be stated in general terms that—

“A vested interest is one in which there is a present fixed right, either of present enjoyment or of future enjoyment. Where, under the terms of the gift of a remainder, there is an ascertained person in existence who could take the remainder in possession immediately upon the determination of the particular estate whenever and however it might determine, the remainder is vested. * * *
“Where the right is to present enjoyment, the interest is always vested. * * *
“A contingent interest is one in which there is no present fixed right of either present or future enjoyment; but in which a fixed right will arise in the future under certain specified contingencies. Where, under the terms of the gift of remainder, there is no ascertained person in being who could take if the particular estate were at once to determine, or where the remainderman is ascertained by the terms of the gift but he cannot take upon the determination of the particular estate, nnissa some other or further event occurs before such determination, the remainder is contingent.” (Emphasis ours.)

3 Page on Wills (Lifetime Ed.), Sec. 1257, and cases cited.

It is proper to say that a contingent interest is a future interest, and that a future interest is one which involves a postponement of the possession and enjoyment of property. Prom these legal situations there often arises the question as to whether a beneficiary’s interest is completely lost if he fails to survive until the preceding interests are terminated and the time has come for him to possess and enjoy the property. If this question is determined in the affirmative, in construing the language of the gift, it is then generally said that a contingent interest exists, as distinguished from a vested interest.

The determination of the question of whether the will of Morris creates a contingent or vested remainder is vital in this phase of our case because of the wording of the rule against perpetuities (§2131.08 R. C.): “No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life or lives in being at the creation of the interest. * * (Emphasis ours.)

Does the language in the will ordering that, upon the death of the eight named persons, the trust shall terminate and “the principal then comprising the trust estate and any accumulated income shall be paid over and delivered” to the various named residuary beneficiaries on conditions, create vested or contingent interests?

It is the conclusion of this court that the gifts to Cherie Kelsey, Louise Prick and Susan Frick are contingent interests; they are so limited that the vesting is subject to conditions precedent which render the vesting too remote. The conditional element is incorporated into the description of and into the gift itself. (“One-half thereof to Cherie Kelsey, if living at the time of the termination * * *.”) Gray, The Rule Against Perpetuities (Fourth Ed.), Sec. 108; 1 Tiffany on Real Property (Second Ed.), Sec. 137. See also: Sinton v. Boyd, 19 Oh St 30; Richey, Exr., v. Johnson, 30 Oh St 288; and Hamilton v. Rodgers, 38 Oh St 242. See also:: reference to these cases in Ohio National Bank, Trustee, v. Boone, et al., 139 Oh St 381, 40 N. E. 2d 149.

We are of the opinion that these conditions precedent to ownership are sufficient to make these estates contingent and not vested. Also, there will be found, in the will, language creating powers of appointment by will given to Robert Frick, Jr,, and Charles Newcomb Kelsey, if they reach the age of twenty-one, restraints on alienation, and other language showing only a direction to pay over and deliver the remainders upon the termination of eight specified lives, under various conditions and circumstances.

If the powers of appointment by will given to Robert Frick, Jr., and Charles Newcomb Kelsey, could, under any circumstance, be justified, nevertheless, there could be no certainty of the vesting of the interests within the rule, because the right to exercise the power might not come into being until after the termination of the eight lives stipulated by the testator (three of which were not in being in 1922), coupled with the requirement that they must live to reach the age of twenty-one years. (“* * * if the said * * * [Robert Frick, Jr., or Charles Newcomb Kelsey] shall reach the age of twenty-one years * * This may be called an attempted contingent executory interest or estate.) Certainly, there is no vesting here within the rule against perpetuities.

For the foregoing reasons, we are of the opinion that vested interests were not created.

On this part of our inquiry, we conclude that the gifts are void because they violate the rule against perpetuities.

It will be here noted that the power of appointment given to Gouverneur Morris was a deputation of the donee Morris to act for Mrs. Schultze, the donor, in disposing of her property. Personal property over which one has the power of appointment is not the property of the donee, but of the donor of the power.

Heretofore in this opinion we have determined (1) the date from which the period of the rule against perpetuities commences to run; and (2) the validity of the estates attempted to be created in the corpus of the trust.

3. We now turn to an inspection of the various intermediate estates.

The testator, after designating, under his testamentary power of appointment, The Cleveland Trust Company, as trustee of the property which was his to appoint under the provisions of the Schultze trust of 1922, first provided:

“If I am survived by both Virginia McQuade and Ralph Newcomb, I direct that from the net income derived from the trust estate the trustee pay the sum of fifty dollars ($50) per month to each of them so long as they shall live. If I am survived by but one of said persons (Virginia McQuade and Ralph Newcomb) I direct that from the net income derived from the trust estate, the trustee pay over and deliver the sum of fifty dollars ($50 per calendar month to such survivor so long as such survivor shall live.”

It appears that Virginia McQuade was the secretary of the testator Morris for many years; was born prior to the execution of the Schultze trust; and was alive at the time when the will of Morris became effective. It also appears that Ralph Newcomb is the stepfather of the testator’s second wife, Ruth Wightman; was a person in being when the Schultze trust became effective, and was alive when the testator died. It is of no consequence whether they were alive at the commencement of the running of the rule against perpetuities. It is sufficient that they were alive when the testator Morris died. Their interests vested immediately upon the death of the testator, and consequently were valid by using inter alia the life of the testator as the life “in being.”

We determine that these gifts are valid, after considering the force of the appellant’s claim that they are invalid because “they are subject to the infectious invalidity of the other gifts.”

The will next provides:

“If I am survived by Robert Frick, Jr., or Charles Newcomb Kelsey, my Godsons, I direct that from the net income derived from the trust estate the trustee pay the sum of two hundred dollars ($200.00) each Christmas to each of them until such time as they shall receive, as their own, the entire remaining net income from the said trust estate.”

Neither Robert Frick, Jr., nor Charles Newcomb Kelsey, had been born when the power of appointment became effective, but each did survive the testator. The gift of $200 each Christmas was to continue from the date of the death of the testator until such time as they “shall receive, as their own, the entire remaining net income from the said trust estate.”

If this gift had been given to them for life, and not dependent upon other provisions in the will (to be set out later), the interests would have vested and become payable at the time of the death of the testator. However, the fact that the duration of the gifts is indeterminate does not alter the rule of vesting, and, as a consequence, these interests vested upon the death of the testator and endure for the indefinite period of time stipulated.

Immediately following the above-mentioned Christmas gift, the will speaks:

“I direct that during the continuance of the trust, the remainder of the net income derived from the trust estate (and all of the net income if neither Virginia McQuade, Ralph Newcomb, Robert Frick, Jr., nor Charles Newcomb Kelsey, be living to receive the payments herein-before provided for them) be paid over and deliverd by my trustee in quarterly installments or of tener as follows:
“1. To Charles George Newcomb and Madge Pentoney Newcomb, share and share alike so long as both of them shall live; and to the survivor of them if but one of them be living, so long as such survivor shall live.”

Each of these persons was alive many years before the effective date of the Schultze trust, and both survived the testator. We determine that these interests became vested rights upon the death of the testator, and were unaffected by the various other gifts shown to have been made. This gift should not be stricken simply because it is a part of a series of gifts, some of which may be declared invalid.

We determine that this gift is severable as a matter of law, and vested well within the rule against perpetuities.

The will continues:

“2. When Charles George Newcomb and Madge Pentoney Newcomb are both deceased, then as follows:
“To Shirley Kelsey or her legal representative, one-half thereof, until the said Charles Newcomb Kelsey shall reach the age of twenty-one (21) years or is deceased, whichever comes sooner.
“When the said Charles Newcomb Kelsey shall reach the age of twenty-one (21) years, the one-half of said income from the trust estate, theretofore paid to Shirley Kelsey, his mother, shall be paid to the said Charles Newcomb Kelsey, so long as he shall live.
“Upon the death of Charles Newcomb Kelsey, the one-half of the trust income directed paid to Shirley Kelsey or to the said Charles New-comb Kelsey, should he reach the age of twenty-one (21) years, shall be paid to Shirley Kelsey, until Cherie Kelsey reaches the age of twenty-one years, or is deceased; upon Cherie Kelsey’s reaching the age of twenty-one then to Cherie Kelsey so long as she may live; upon Cherie Kelsey’s death, then per stirpes and not per capita to the lineal descendants of Charles Newcomb Kelsey living at the time of each distribution of income, if any there be; otherwise per stirpes and not per capita to my lineal descendants.”

The will then continued by creating interests in the remaining one-half interest in the income from the corpus here under consideration:

“To Doris Frick or her legal representative, one-half remaining thereof until the said Robert Frick, Jr., shall reach the age of twenty-one (21) years or is deceased, whichever comes sooner.
“When the said Robert Frick, Jr., shall reach the age of twenty-one (21) years, the one-half of the remaining income from the trust estate theretofore paid to Doris Frick, his mother,. shall be paid to the said Robert Frick, Jr., so long as he shall live.
“Upon the death of Robert Frick, Jr., the one-half of the remaining trust income directed paid to Doris Frick or to the said Robert Frick, Jr., should he reach the age of twenty-one (21) years shall be paid to Doris Frick until Louise Frick or Susan Frick reaches the age of twenty-one (21) years or is deceased. Upon Louise Frick’s or Susan Frick’s reaching the age of twenty-one (21) years, then she shall be paid one-half of the remaining one-half of the income from the trust estate. Upon both Louise Frick and Susan Frick reaching the age of twenty-one (21) years, or one is deceased and the survivor is twenty-onee (21) years old, then the remaining one-half, share and share alike to both of them so long as they shall live; and to the survivor of them if but one of them be living, so long as such survivor shall live. When both Louise Frick and Susan Frick are deceased, then per stirpes and not per capita to the lineal descendants of Robert Frick, Jr., living at the time of each distribution of income, if any there be; otherwise per stirpes and not per capita to my lineal descendants.”

The many persons named above who were given interests in the estate, upon the death of Charles George Newcomb and Madge Pentony Newcomb, were not in being when the Schultze trust became effective and the power of appointment given by will to Gouverneur Morris, except only Doris Frick.

In our approach to the question whether these persons have vested interests, we must keep in mind the rule heretofore pronounced, that the period of the rule against perpetuities must be calculated from the date of the creation of the power, and not from the time of its exercise; and that the property appointed is to be regarded as the property of the donor, Mrs. Schultze, and must be treated as passing under the provisions of her trust, manifested by the words employed by Gouverneur Morris, upon whom she had conferred the power to direct the devolution of her property by testamentary act.

We must further keep in mind that a future interest is invalid unless it is certain that it must vest within the period of perpetuities. A probability of vesting is not sufficient, and the certainty of vesting must have existed when the instrument which marks the commencing of the period became effective. In the case before us, this period started upon the effective date of the Schultze trust.

Did these interests vest within the rule? Are the interests contingent interests? Are they subject to conditions precedent or conditions subsequent? Are some, at least, vested interests of limited duration?

Many Ohio cases, as well as cases in other jurisdictions, have defined contingent interests and contingent remainders. Our problem is not to define them in terms of substantive law, but to find rules of construction which may be satisfactory guides in determining what language creates them.

In I American Law of Property, Sec. 4.36, appears the following:

“* * * A contingent remainder is a remainder which is subject to some condition precedent other than the termination of all prior estates, however and whenever that may occur. Thus, A may convey to B for life, and if C survive B and live to attain the age of twenty-one, then to C and his heirs. C has a contingent remainder. -
“Contingent remainders have been classified in various ways. Fearne’s fourfold classification is classic. Having defined contingent remainders, he says:
“ ‘Under this definition we may properly distinguish four sorts of contingent remainders: First, where the remainder depends entirely on a contingent determination of the preceding estate itself. Secondly, where the contingency, on which the remainder is to take effect, is independent of the preceding estate. Thirdly, where the condition, upon which the remainder is limited, is certain in event, but the determination of the particular estate may happen before it. Fourthly, where the person, to whom the remainder is limited, is not yet ascertained, or not yet in being.’ Fearne, Contingent Remainders (10th Ed.) 5.”

It is argued, by those who assert the violation of the rule, that, after the gifts to Charles George Newcomb and Madge Pentony Newcomb (which gifts we have heretofore held valid), Shirley Kelsey is named to take upon their deaths; however, that before she can take, the preceding life interests of Madge Pentony Newcomb and Charles George Newcomb must have terminated before either Charles Newcomb Kelsey and Cherie Kelsey reach the age of twenty-one. They argue that, if the estates of the two Newcombs should terminate after either of these two should become of age, or have died, it is obvious that neither she nor her estate would receive any income.

We do not challenge this assertion of the litigants as to the possibility that Shirley Kelsey may never acquire possession; however, a remainder or an estate is not necessarily contingent by reason of the fact that it is uncertain whether it will ever take effect in possession. By this we mean that, what would otherwise be an estate is not a mere possibility of an estate because it may terminate by its own limitation before another estate is provided to arise.

For instance: A limitation to A for life, with remainder to B for life. B has a vested estate — not a mere possibility of an estate, since there is no condition precedent to the enjoyment of possession other than the termination of A’s estate. B’s remainder is vested, and the fact that, by reason of his death before A’s estate comes to an end, B may never acquire the right of possession, is entirely immaterial. Here we regard the termination of the life of the remainderman as a limitation on the continuance of the remainder, and not as a condition precedent.

In our appraisement of the language of the testator, we are of the opinion that the estate given to Shirley Kelsey is an estate upon special limitation, and it vested within the period. It vested when the testator died, and this is so even though she may never go into possession. (For definition of the term “special limitation,” see Warren v. Brenner, et al., 89 Oh Ap 188, at p. 193.)

The conclusions reached in respect to the interest given “to Shirley Kelsey or her legal representative” is likewise, and for the same reasons, applicable to the interest in the estate given to “Doris Frick or her legal representatives.”

We pass now to the life interest given to Charles Newcomb Kelsey. As stated or inferred above, the possibility that an estate may never take effect in possession is immaterial in .determining whether it is vested or contingent.

It is profitable, we think, in treating this question to have in mind the following language of Gray, The Rule Against Perpetuities (Fourth Ed.), Sec. 108:

“* * * Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to, the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. • * *”

The life interest given to Charles Newcomb Kelsey is given to him when he “shall reach the age of twenty-one.” It may well„be that this interest could never vest in possession because of his death prior to that time; or because of his death prior to the termination of the preceding life interests of Charles George Newcomb and Madge Pentony Newcomb. However, if it vested in interest at the death of the testator, the fact that he may never get it in possession is unimportant.

It appears, we think, that there are here no words of condition which are made a part of the gift itself to Charles Newcomb Kelsey. As stated before, an estate is not a mere possibility of an estate simply because it may terminate before another conflicting estate. Also:

“* * ■* Reaching a specified age is not regarded as an uncertain event which will prevent the vesting of the estate. For example, an estate may be limited to one, ‘if,’ or ‘when,’ or ‘as soon as’ he attains a certain age, with a limitation over, in case he dies under the age specified * * *. Here the words of apparent contingency are held not to create a condition precedent to the right of enjoyment, or to denote the time when the interest shall vest, but merely the time when enjoyment in possession shall commence, or when an estate already vested shall be divested. si: * *>>

33 Am. Jur., Life Estates, Remainders, and Reversions, Sec. 119, and cases cited.

And see: 20 O. Jur. 2d, Estates, Sec. 150, and cases cited.

“4. A devise to one when he arrives at a given age — the intermediate estate being devised to another — vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency, are not necessarily inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing the possession.”

Linton v. Laycock, et al, 33 Oh St 128.

We determine that the gift to Charles Newcomb Kelsey vested at the death of the testator, Morris, and does not violate the rule against perpetuities; and, for the same reasons, we declare valid the gift to Robert Prick, Jr.

We continue now to the gift to Cherie Kelsey upon the termination of the preceding life interest which we have determined to have become vested in Charles Newcomb Kelsey.

If the gift to Cherie Kelsey constitutes a future estate which takes effect immediately upon her reaching the age of twenty-one, and upon the expiration of the preceding estates as specifically limited, then it is a vested interest in her, in that it constitutes a future interest or estate that is subject to no condition precedent except the termination of the preceding estates.

Our analysis of the language employed in the will brings us to the conclusion that the life interest given to her vested at the death of the testator, even though she may never possess or enjoy the estate.

It is our further conclusion that the gift to Louise and Susan Prick vested likewise.

Por various reasons, which became obvious upon further inspection of the textbooks and reported decisions, the gifts to the “lineal descendants of Charles Newcomb Kelsey living at the time of each distribution of income, if any there be; otherwise * * * to my lineal descendants,” are void. Likewise, the gifts to the “lineal descendants of Robert Prick, Jr., living at the time of each distribution of income, if any there be; otherwise * * * to my lineal descendants,” are void.

4. Heretofore in this opinion we have declared certain appointments invalid and some valid. In respect to those declared valid, we find that (1) they were consistent with the powers given in the S'chultze trust; (2) the so-called rule of “restraints on alienation” is not applicable to these gifts; and (3) the rule of “infectious invalidity,” whatever its legal merits may be in other situations, is not applicable here.

In concluding this opinion, we direct the final disposition of the property.

As set forth above, the Schultze trust provides:

“* * * jn event of his (Gouverneur Morris’) death without exercising such power of testamentary appointment, his said share, or the balance thereof then remaining, shall be added to and become a part of the share of the trust estate held for the benefit of my niece, Henrietta Morris Bonsai, to be held and disposed of as is herein provided for her said share.”

From an inspection of the entire Morris will, it is evident that the testator did not blend or commingle his own property with that over which he had the power of appointment. The attempted appointment was confined only to the property of the Schultze trust. Under these circumstances, “the balance thereof remaining” after payment of the valid vested interests and gifts, must be given as directed by the above provision in the Schultze trust. See: Northern Trust Co. v. Porter, 368 Ill. 256, 13 N. E. 2d 487, and cases therein cited.

A decree may be prepared in accordance with this opinion.

HUNSICKER, PJ, STEVENS, J, concur.

      The name “Pentony” was spelled “Pentoney” in the will of Gouverneur Morris, and has been so spelled in other places in this ease, including the caption of the petition for a declaratory judgment. We are informed that “Pentony” is the proper spelling, and such spelling has been and will be so used by the writer in this opinion in connection with the name of “Madge Pentony Newcomb.”


source: Caselaw Access Project

author: By FRANCE, J.

license: Public Domain

text:
    McELFRESH et, Plaintiff, v. MELOY, Defendant.
    Municipal Court, Ravenna.
    No. 3212.
    Decided October 6, 1957.
    Stewart & Simons, Akron, for plaintiff Judgment Creditor.
   OPINION

By FRANCE, J.

On May 9,1957, plaintiffs filed petition for money only, in the amount of $51.63. Summons was issued, returned service on defendant, and on May 28, 1957, judgment was taken against defendant by default.

On June 17, 1957, plaintiffs (judgment creditors) by their attorneys attempted to file affidavit and motion in proceedings in aid of execution, naming Jack and Heinz, Bedford, Ohio, as judgment debtor’s debtor. On the same day the affidavit and motion, together with proferred journal entry directing service on Jack and Heinz were returned to judgment creditors, unñled, by the Clerk for the reason that the filings did not comply with Rule XIV of the Court:

"Wage Attachments — In all cases in which attachment of personal earnings of defendant is asked by way of provisional remedy, the Clerk shall not issue any writ of attachment or notice to garnishee unless it appears from the affidavit filed that the employer (garnishee) has a general or branch office within Portage County.
‘•No process in aid of execution against personal earnings shall issue unless
“1. Judgment debtor’s debtor appears to have a general or branch office within the county in which the court has territorial jurisdiction and
“2. an execution has been returned unsatisfied or an affidavit is filed showing grounds of original attachment and a journal entry authorizing such proceeding is submitted to a Judge of the court for signature.”

It is clear from the proceedings filed that Jack and Heinz, the judgment debtor’s debtor, was to be served outside the limits of Portage County and in Cuyahoga County.

On June 25, 1957, the judgment creditor reproferred all papers with letter brief stating in substance that Rule XIV quoted above contravened §1901.13 (B) R. C. Affidavit and motion were therefore received and filed and the Court finding that it had no jurisdiction to issue the requested process, ordered proceedings on the motion stayed, pending receipt by the Court of writ of procedendo. No such writ either alternative or final has been served upon the Court in the intervening time and attorneys for judgment debtor having requested disposition, the matter is now treated as one for final disposition for this Court.

The judgment creditor claims, in substance, that jurisdiction to issue extra territorial writs of attachment and in aid of execution is implied by the following sections of the Revised Code:

“In any action or proceeding of which a Municipal Court has jurisdiction the Court or any Judge thereof has power . . . (B) to issue any necessary order in any proceedings before and after judgment for attachment of person or property, arrest, aid in execution * * * for which authority is conferred upon the courts of Common Pleas or a Judge thereof, or upon Justices of the Peace.” See. 1901.13 R. c.
“In any civil case or proceeding if no special provision is made in §§1301.01 to 1901.38, inclusive, R. C., the practice and procedure shall be the same as in Courts of Common Pleas.” Sec. 1901.21 R. c.
“In any civil action or proceeding at law in which * * * a defendant resides or is served within said territory, the Court may issue summons * * 1 all other writs, * * * including executions, necessary or proper for the complete adjudication of the issues and determination of the action, * * * to the Sheriff of any other County against one or more of the remaining defendants.” Sec. 1901.23 R. C.
The reasoning of Plaintiff (judgment creditor) is based on Smith v. Pfeiffer, 75 Abs 412, a decision of a Court of first instance, and there is some difficulty in following his reasonsing. The language of §1901.13 R. C., supra, is prefaced by the words “in any action or proceedings of which a Municipal Court has jurisdiction.” Search must therefore be made outside the text of §1901.13 R. C., to determine if the Court otherwise has jurisdiction in the instant proceeding in aid of execution. Sec. 1901.19 R. C. provides:
“A Municipal Court has jurisdiction within the limits of the county or counties in which its territory is situated:
“(G) to issue and enforce an order in aid of execution.”

This would seem a complete answer to judgment creditor’s argument, for if a Municipal Court, being a statutory court is granted jurisdiction within its county to issue and enforce an order then there is an implicit denial of such jurisdiction beyond the same county boundary.

The second cited section, §1901.21 R. C. is not helpful to judgment creditor’s position, since it refers not to jurisdiction, that is the power of the court to act, but to practice and procedure or the mode of exercise of that power. To quote a procedural section as one having any bearing on whether or not jurisdiction exists is not particularly persuasive.

The judgment creditor’s contention is that §1901.23 R. C. gives the Court jurisdiction over an out of county defendant if the principal defendant can be served by the Court in its own county. This may well be admitted but the difficulty is that neither garnishee nor alleged judgment debtor’s debtor are defendants in any sense of the word — Secor v. Witter, 39 Oh St 218. Ohio Loan & Discount Co. v. Sieman, 142 Oh St 384. It is also to be noted that service on remaining defendants is authorized upon those “necessary or proper for the complete adjudication of the issues and determination of the action.” In this case the action so far as it concerns Willard M. Meloy, the defendant, has been completely adjudicated and the issues fully determined and the Journal Entry entering judgment-filed in this Court on the 28th day of May, 1957, has not been questioned in any way. Therefore no service is necessary for the determination of those issues and Willard M. Meloy is not a defendant but a judgment debtor; this action is not a part of the original case, but a proceeding ancillary to it. Therefore the provisions of §1901.23 R. C. have no application.

It would appear furthermore, that any apparent conflict between the provisions of §1901.19 (G) and §1901.13 R. C., must, under the reasoning of Gibson v. Summers Const. Co., 163 Oh St 220, be resolved in favor of §1901.19 R. C., the special statute, as against the provisions of §1901.13 R. C., a general statute. Where power is especially conferred in limited fashion, it is improper to rely on implications of a general statute to enlarge such power. Gibson v. Summers Const. Co. supra.

If however the intention of the legislature to deny extra territorial jurisdiction in aids of execution was in doubt prior to 1957, the recent enactment of amended House Bill 616, has removed all such doubt by amending §2329.02 R. C. to permit collection of judgments of one municipal court by transferring proceedings to another.

Previous to the enactment of this amendment to §2329.02 R. C., the practice among certain municipal courts had been to issue aids of execution to other counties, using resident referee,s therein on a fee basis, to hear the matter. This practice ever since 1955 and the abolishing of fees for Justice of the Peace has remained the solitary remnant of the notorious “justice for a fee” system in Ohio. With the passage of the quoted amendment any argument on the practical need for extra-territorial collection practices in municipal courts has been effectively silenced, just as its legal basis was effectively silenced by enactment of §1901.19 (G) R. C.

Journal entry dismissing aid proceedings for want of jurisdiction will be filed by the Court granting exception to the judgment creditor.


author: By KOVACHY, PJ.

text:
    BUZA, Plaintiff-Appellant, v. KELLEY ISLAND COMPANY, a Corporation in Dissolution, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23836.
    Decided November 21, 1956.

      J. R. Kistner, for plaintiff-appellant.
    Jones, Day, Cockley & Reavis, George H. Rudolph, of Counsel, for defendant-appellee.
   OPINION

By KOVACHY, PJ.

This appeal is on questions of law from a judgment in the Common Pleas Court of Cuyahoga County.

The plaintiff-appellant filed a “Petition for Determination of Fair Cash Value of Shares and for Judgment and Equitable Relief.” He alleged, inter alia, that he was the owner of record of 655 shares of the Kelley Island Company, the defendant herein; that a few days after July 21, 1955, he received a printed instruction entitled “Notice of Special Meeting of Shareholders August 1, 1955” which had been sent to all shareholders of Kelley Island Company together with a plan in writing for dissolving said company and distributing its assets; that he attended the special meeting and voted his shares of stock against all proposals made by the corporation; that subsequently, in accordance with §1701.35 R. C., he demanded in writing the payment to him of the fair cash value of his shares; that the defendant corporation rejected his offer and made a counter proposal in accordance with said section; that he had complied with all necessary conditions of said section; and prayed that the Court determine the fair cash value of his stock as provided in said section.

In the caption the defendant was designated “Kelley Island Company, 1132 Leader Building, Cleveland, Ohio (a Corporation in Dissolution)” and the praecipe to the clerk in part read: “Issue summons to the Sheriff of Cuyahoga County addressed to the above entitled defendant, Kelley Island Company, 1132 Leader Building, Cleveland 14, Ohio.” The return of the Sheriff read as follows: “On the 20th day of October, 1955, I served this writ on the within named. Kelley Island Company, by handing to Evan J. Evans, Secretary, a true and certified copy thereof with all the endorsements thereon. The President or other chief officers of said company not found in my county.”

Subsequent to such service of summons, the defendant-appellee filed a “Motion to Quash Service of Summons and Dismiss Proceedings.” This motion was granted by the trial court which thereupon dismissed the petition and entered judgment for the defendant.

The evidence was presented to the trial court by affidavits.

The essential facts are not in dispute. On July 14, 1954, The Kelley Line and Transport Company was merged into the Greenlands Corporation and the name Kelley Island Company was adopted. An agreement of merger was filed in the office of the Secretary of State. It provided that the principal office of the Company was on Kelleys Island, Erie County, Ohio, and that its statutory agent was Roy M. Fenwick, P. O. Box 11, Kelleys Island. On July 21, 1955, Kelley Island Company sold its plants, business, contracts and license to Easic Refractories, Incorporated, and on August 1, 1955, by document entitled “Consent to Use of Name,” transferred its consent to said Easic Refractories, Incorporated, to the use of the name “Kelley Island Company.” However, when the certifícate of dissolution of the Kelley Island Company was filed wnh ihe Secretary of State on October 6, 1955, Basic Refractories, Incorporated, made arrangements that no application for reservation of the name “Kelley Island Company,” as specified in the “Consent to Css of Name,” accompany it. Instead, on the same day, a subsidiary corporation of Basic Refractories, Incorporated, namely, the BCD Co., organized December 9, 1954, filed an amendment to its Articles of Incorporation with the Secretary of State, changing its name to “Kelley Island Company.’" The principal office of this latter corporation is and has always been Cleveland, Cuyahoga County, Ohio. All documents filed with the Secretary of State of the original Kelley Island Company recited that the principal office of the corporation is located at Kelleys Island, Erie County, Ohio, and the affidavit of the Secretary of said company, filed in the case, stated that the principal office of said original Kelley Island Company was located on Kelleys Island, Erie County, Ohio, on October 18, 1955 when this lawsuit was instituted.

* S& sis & *

Plaintiff contends that the trial court erred in ruling that his action for the determination of the fair cash value of his shares as a dissenting shareholder of defendant corporation in dissolution could only be brought in the county in which the principal office of such corporation is located.

The defendant, on the other hand, maintains that the trial court acted in accordance with law in holding that plaintiff was required to file his proceeding in the common pleas court of the county where the principal office of the corporation is located, to wit: Kelleys Island, Erie County, Ohio.

Hence, the sole question presented to this Court is whether the action commenced by the plaintiff dissenting shareholder in the Common Pleas Court of Cuyahoga County against the Kelley Island Company was properly brought in said county.

The part of §1701.85 R. C., pertinent to our consideration, under paragraph (B), reads:

“(B) The fair cash value of the shares involved in the demand by the shareholder shall be deemed to be the amount demanded by him if he has complied with the provisions of this section, or, if the corporation as aforesaid shall have made a counter-offer of a different amount per share, then the amount per share specified in such counter-offer, unless either (1) the corporation and the shareholder at any time within three months from the time said vote was taken shall agree upon a different amount or (2) the shareholder or the corporation, within said three months period (but not thereafter), shall file a petition in the court of common pleas of the county in which the principal office of the corporation is located to determine the fair cash value per share.” (Emphasis ours.)

The Supreme Court of Ohio in Pelton v. Transportation Co., 37 Oh St 450, said at page 455:

“* * * In this state, where corporations are required to designate in their certificates of incorporation the place of the principal office, such office is the domicil or residence of the corporation. The principal office of a corporation, which constitutes its residence or domicil, is not to be determined by the amount of business transacted here or there, but by the place designated in the certificate. True, several offices may be established at the place specified in the certificate, as it is sufficient, under this statute, to specify the ‘county or place.’ Eut where a single office is established in the county, or township, or city, or other place designated, no further inquiry as to the identity of the principal office is admissible. * * *”

This rule has consistently been adhered to in subsequent cases. See State, ex rel. Stanton v. Zangerle, 117 Oh St 438; Sweeney v. The Keystone Driller Co., 123 Oh St 16.

A statement in 10 O. Jur. 981, Section 741, shows how far-reaching the application of the law is with respect to actions against Ohio corporations:

“Ohio Corporations must be sued in the county which the corporation has designated in its articles of incorporation, as the place where its principal office or place of business is to be located, although as a matter of fact no principal office is maintained in that county. And since the legal situs of a corporation can be changed legally only by a vote of the stockholders, an action against the corporation is rightfully brought in the county designated in the original articles of incorporation as the place where the corporation would maintain its principal office and place of business, notwithstanding a subsequent attempt by the directors to change, by resolution, the principal place of business to another county, followed by the actual residence of the corporation in the latter county. Nor can a domestic corporation, against which an action is brought in such county, sustain a motion to quash service on the ground that the venue is improperly laid, although, the village in the county named in the articles of incorporation as its principal office may have been so inserted for postal convenience, and the business of the corporation may be actually carried on in another county, for the statement of the certificate of incorporation as to the location of the principal office is conclusive upon the corporation.”

The language of the statute involved in this matter is unmistakable when it says: “* * * (the shareholder) shall file a petition in the common pleas court of the county in which the principal office of the corporation is located * * *”

Service of summons upon the Secretary of the original Kelley Island Company in an office in Cuyahoga County, even though said office be set up to carry on the business of said corporation, in our opinion, does not meet the requirement of the law and is without effect and void as regards the cause of action set forth in the petition herein.

We find no merit to plaintiff’s claim that the original Kelley Island Company is estopped from denying that it was properly sued on the ground that it had created a state of confusion in making it possible for two corporations to carry the name Kelley Island Company.

We consequently unanimously hold that the trial court was not in error in granting the motion to quash, in dismissing the petition and in entering judgment for the defendant and that, accordingly, the judgment of the Common Pleas Court should be and the same is herewith affirmed.

Judgment affirmed. Exceptions. Order see journal.

SKEEL and HURD, JJ, concur.


author: By PHILLIPS, PJ.

text:
    WATSON, Plaintiff-Appellant, v. WATSON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 745.
    Decided December 22, 1956.
    Riddle & Riddle, Lisbon, for plaintiff-appellant.
    Amerman, Burt, Shadrack, McHenry & Jones, Canton, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

The question presented to this court by plaintiff’s appeal on questions of law is whether the trial judge erred to her prejudice in overruling her motion for change of custody of her daughter, Wanda Watson, a minor over fourteen years of age, to live with plaintiff (reversing her choice of August 2, 1954, to live with defendant).

Plaintiff divorced, defendant. Plaintiff is now married to Herman Rufener, with whom it is alleged plaintiff committed adultery resulting in her pregnancy while Rufener’s wife was confined in Massillon State Hospital as a hopelessly and incurably insane person.

The trial judge overruled plaintiff’s motion for change of custody of Wanda Watson and granted her custody to defendant finding the plaintiff was an unfit person to whom to confide the custody of her daughter.

In his opinion ruling on plaintiff’s motion to allow Wanda Watson to elect the judge of the Juvenile Court said inter alia:—

“Therefore, the only change is the choice of the 14 year old child to go to her mother. Since this court has ruled this is no longer obligatory upon the court to accept even if both parents were declared to be morally fit this court does not believe this is enough to warrant a change of custody. The father has always been a fit person with a proper home. A short year ago he obtained custody of his child because of the confessed immorality of the mother. Nothing he has done has changed his moral fitness. Now the mother, having gained her paramour as a husband and living with him and being faithful to him and their child conceived in adultery asks that the child be taken from the father, who, so far as evidence in any part of this case discloses, has never perpetrated any immoral acts to render him unfit. Under the Rauth Case (73 Oh Ap 564), such request must be denied. See journal.”

Plaintiff urges that the trial judge erred prejudicially to her in his interpretation and construction of §3109.04 R. C.

Sec. 3109.04 R,. C., formerly §8005-4 GC, provides:—

“Upon hearing the testimony of either or both parents, corroborated by other proof, the court shall decide which of them shall have the care, custody, and control of the offspring, taking into account that which would be for their best interest, except that if any child is fourteen years of age or more, it may be allowed to choose which parent it prefers to live with, unless the court finds that the parent so selected is unfitted to take charge. The provisions permitting a child to choose the parent with whom it desires to live shall apply also to proceedings for modification of former orders of the court fixing custody. If the court finds, with respect to any child under eighteen years of age, that neither parent is a suitable person to have custody it may commit the child to a relative of the child or certify a copy of its findings, together with so much of the record and such further information, in narrative form or otherwise, as it deems necessary or as the juvenile court requests, to the juvenile court for further proceedings, and there upon the juvenile court shall have exclusive jurisdiction. This section applies to actions pending on August 28, 1951.”

In 18 O. Jur. (2nd), Page 125, Section 171, it is said:—

“In awarding the custody of children in a divorce or alimony proceeding, children over fourteen years of age may be allowed to choose which parent they prefer to live with, and in such case the parent so selected is entitled to such custody unless the court finds that he or she is unfitted to take charge.
“The statutory provisions permitting a child to choose the parent with whom it desires to live apply to proceedings for the modification of former orders of the court fixing custody, as well as in original actions. The child’s choice has been held to cast the burden of proof upon the parent opposing it. * *

By brief counsel for plaintiff say:—

“The question presented to this court is: Is it mandatory under §3109.04 R. C.. for a trial court having allowed a minor child of 14 years to elect with which parent it preferred to live, to award custody of that minor child to that parent selected, unless the parent so selected is an unfit person?”

In the case of Mollencamp v. Mollencamp, 18 Abs 90, cited and relied upon by plaintiff, and decided when §8033 GC, was in effect, it is said:—

“In a divorce suit the trial court is bound by §8033 GC, to consider the preference of a child over ten years of age as to which parent its custody shall be awarded, failure to do so being reversible error.”

The provisions of §8033 GC, are:—

“Upon hearing the testimony of either or both of such parents, corroborated by other proof, the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interest, except that, if such children be ten years of age or more, they must be allowed to choose which parent they prefer to live with, unless the parent so selected, by reason of moral depravity, habitual drunkenness or incapacity, be unfitted to take charge of such children, in which event the court shall determine their custodian. The above provisions permitting children to choose the parent with whom they desire to live, also shall apply to proceedings for modification of the former orders of the court, fixing the custody thereof, as in original actions. If upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, or commit them to a county or district children’s home in which they or their parents have a legal settlement.”

The trial judge considered the preference of Wanda Watson to live with her mother and he found adversely to Wanda Watson, in which finding we concur.

The welfare of Wanda Watson is of the paramount importance, and the question of her welfare under all the circumstances shown by the evidence is the important matter to be decided by the trial judge.

The evidence supports the decision of the trial judge journalized January 15, 1955, that:—

“Although the plaintiff knew, as far back as November 1953, at the time of the first hearing, that she was doing something contrary to the accepted morals of society in keeping company with a married man and openly associating with him, she did nothing about it. In fact, after that date, she began an adulterous relationship with him and moved into his home. In addition to that she conceived a child born three months after her marriage to this man. She openly consorted with this man in the presence of his children and this girl, even to the extent of a trip to Canada with him and the children. * *

The trial judge did not erroneously misconstrue §3109.04 R. C., as amended effective August 23, 1951, nor err “in determining that the selected parent was an unfit person to be awarded custody.”

In the case of Schwalenberg v. Schwalenberg, 65 Oh Ap 217, cited by counsel, this court said in the syllabi:—

“The right of a minor over ten years of age to elect with which of his divorced parents he wishes to live is controlled by §8833 GC, and the statute is mandatory in operation unless the parent so selected is unfit by reason of moral depravity, habitual drunkenness, or incapacity, in which event the court will select the proper custodian.
“In such case, the burden of proof is upon the parent seeking modification of a decree awarding custody of a child, at the child’s election, to the other parent to show unfitness by reason of moral depravity, habitual drunkenness or incapacity of such other parent.
“It is not error, in such case, for the court to refuse to entertain evidence of that parent’s habits earlier than one year immediately preceding the hearing, as this matter rests in the sound discretion of the trial court.”

At page 220 of the opinion in the Schwalenberg case this court said:—

“True, if the evidence disclosed that plaintiff was an unfit person to have custody of the minor, then clearly the court would not be bound to respect the wishes of the minor in his election, and could ignore such election, and under such conditions the rights and duties of the court are clearly defined by statute.
“However the fitness of plaintiff to have custody of the minor was a question addressed to the sound discretion of the court.
“The burden of proof was upon the defendant to establish the unfitness of the plaintiff to take care of the minor by reason of moral depravity, habital drunkenness, or incapacity. * * *
“The matter of the introduction of evidence in this respect was within the sound discretion of the trial judge. In the absence of the abuse of that discretion this court will not interfere with the ruling of the trial court thereon. * * *”

Finally plaintiff contends that the trial judge “committed error prejudicial to the rights of plaintiff-appellant in its finding that there had been no substantial change of conditions since the awarding of custody of Wanda Watson to her father, the defendant-appellee herein, on a prior hearing on motion to modify custody.”

In the case of Graviess v. Graviess, 28 Circuit Court Reports 26, the first and second paragraphs of the syllabi state:—

“In divorce proceedings the care and custody of children is a question addressing itself to the sound discretion of the trial court, and when this discretion has been exercised, a reviewing court will not interfere with or disturb an order with reference thereto, unless there has been a serious error or an abuse of discretion.
“A trial court has a continuing jurisdiction as to the care and custody of the children of divorced parents, but it is not authorized to reopen questions relative thereto previously submitted and adjudicated, unless a substantial change has taken place in the condition of the parties, which requires a modification of the former order.”

The court said at page 27:—

“* * • The continuing jurisdiction of a court of common pleas in the natter of custody of children, does not mean that that court may change its former orders and decrees at any time because the court may have changed its mind. This continuing jurisdiction to modify former orders is not to be used for the purpose of a rehearing of the matter theretofore submitted and adjudicated, but is only to be called into exercise when a substantial change has taken place in the condition of the parties, which would call for, and require, a modification of the former order.

In Godbey v. Godbey, 70 Oh Ap 450, it is said:—

“The privilege of a child ten years of age or more, who is the subject of a custody proceeding under §SG33 GC, to choose the parent with which he wishes to live, exists only where the court finds that both parents have capacity to properly care for the child.”

The only changes in conditions since the trial court confided custody of Wanda Watson to defendant was that plaintiff and Herman Rufener had a child three months after they married, and that Wanda Watson had changed her mind and elected to live with her mother.

The trial judge further said in his decision journalized January 15, 1955, in which we concur:—

“There is a popular misconception that all that is owed to a child is food, clothing and shelter. That is wrong. A parent must be a moral person, an inspiration and guide for their children. This is a girl of some thirteen years of age. She has openly seen her mother consort with I a married man and conceive a child to him previous to her own marriage I to him. To decree the custody of this child to her mother is to give I official sanction by this court to an adulterous relationship. In the eyes B of this impressionable youngster, not only would her mother be vindi- H cated in her immoral actions, but they would have the approval of constituted authority. It would be difficult for anyone then to tell this child, when sexual temptations beset her, that she should refrain from them.
“There was no evidence to indicate the father to be other than an upright moral citizen. The evidence was overwhelming that the mother was not only an adulteress, but felt herself justified in her position. The court therefore finds that she is not a fit person to have the custody of this child.”

Finding no error in any of the respects urged by the plaintiff the judgment of the trial court is affirmed.

GRIFFITH and NICHOLS, JJ, concur.


author: By THE COURT.

text:
    WALCUTT, Plaintiff-Appellee, v. WALCUTT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5632.
    Decided March 5, 1957.
    Donald H. Tishman, Columbus, for plaintiff-appellee.
    Lewis F. Byers, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that the order is not an appealable one. The record reveals that the notice of appeal is directed to an order of the Common Pleas Court commanding the appellant to vacate certain premises which it appears was the home of the parties to this action, for divorce, alimony and support money for the minor children. This is an intermediary order as the records reveal that the case has not been finally adjudicated. The order giving the appellee the exclusive use of the home appears to be in the nature of an award for temporary alimony. It is provisional in its nature, subject to modification and does not determine the ultimate rights of the parties to the action. Such an order is not a judgment or final order from which an appeal may be taken under §2505.02 R. C. See McMahon v. McMahon. 156 Oh St 280, which is a case that was certified to the Supreme Court for the reason of conflict with the case of Taylor v. Taylor, 74 Oh Ap 191. This court relied upon the Taylor case when it decided the case of Deitsch v. Deitsch, 86 Oh Ap 375, which was cited by the appellant. It should be noted that counsel for appellant concedes that §3105.14 R. C., can have no application to the issue presented; hence no attempt was made to comply with its requirements.

Upon the authority of the McMahon case, supra, the motion to dismiss will be sustained.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By HURD, J:

text:
    LARONGE, INC., Plaintiff-Appellee, v. ALBRECHT et al, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24038.
    Decided March 7, 1957.
    Ulmer, Berne, Laronge, Glickman & Curtis, for plaintiff-appellee.
    Roudebush, Adrion, Brown, Corlett & Ulrich, for defendant-appellant.
   OPINION

By HURD, J:

This is an appeal to this court on questions of law from a judgment of the Common Pleas Court overruling a motion to discharge attachment.

The plaintiff filed a petition for money only against the defendant, Olive E. Albrecht, for recovery of real estate broker’s commission alleged to be due the plaintiff and obtained an attachment of defendant’s funds in this state by filing an affidavit in attachment under §2715 R. C., alleging the defendant to be a non-resident of this state; and that the claim of plaintiff is a debt or demand arising upon contract.

Defendant filed a motion to discharge plaintiff’s attachment, supported by an affidavit, which denied plaintiff’s right of attachment and, in substance, stated that at the time of the attachment, there was no valid or enforceable contract in existence and that defendant was not indebted to plaintiff in any sum whatsoever. However, the defendant attached to her affidavit a copy of the contract, marked “Exhibit A,” which upon examination shows that is the contract upon which plaintiff relies. When defendant’s motion to discharge attachment came on for hearing, it was admitted that the defendant was a non-resident of the State of Ohio.

The Court of Common Pleas overruled defendant’s motion to discharge the attachment, whereupon appeal was perfected to this court

To support her contention that the motion to discharge the attachment should have been granted, defendant relies solely upon the case of Heald v. Goebel, et al, 89 Oh Ap 12, 96 N. E. (2d) 208, decided by this court August 16, 1950.

In our opinion, the Heald v. Goebel case, supra, must be distinguished from the instant case. The ratio decidendi of that case has to do only with the question of whether there exists the statutory grounds as a prerequisite to attachment as provided in §2715.01 R. C. Our holding in that case had nothing to do with the merits of the case.

In the Heald case, we held, as appears by the syllabus, that when an affidavit is filed by a defendant contesting the right of attachment, the burden devolves upon the one seeking the attachment to proceed with evidence to sustain the same. In that case, there was complete denial of any contract existing between the parties and a denial of any dealings of any kind. In the instant ease, the defendant, by attaching a copy, admitted the existence of a contract but denied liability under it. By her admissions, therefore, the grounds of attachment are present, namely, non-residence and a claim arising ex contractu. Therefore, we find no error in the judgment of the Court of Common Pleas in overruling the motion to discharge the attachment.

We do not decide any questions here as to the respective claims of the parties on the merits. Such questions must be determined when the issues are properly joined in the trial of the case. Holding these views, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed. Exceptions. Order see journal.

SKEEL, PJ, KOVACHY, J, concur.


text:
    BYRD, Plaintiff-Appellant, v. INGALLS, Exr. etc. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5308.
    Decided August 1, 1955.
    W. S. Lyman, Webster S Lyman, Jr., Columbus, for plaintiff-appellant. Gene A. Jones, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a motion filed by the appellees seeking an order dismissing the appeal on questions of law for the reason that no bill of exceptions has been filed as required by §2321.05 R. C.

The record discloses that the notice of appeal was filed on June 2, 1955, and that no bill of exceptions has been filed in the trial court within forty days after the overruling of the motion for a new trial. The cited section of the Code provides in part,

“When the decision is not entered on the record, * * *, the party excepting must reduce his exception to writing * *

The appellant is urging that the decision of the trial court has been made a part of the record and therefore a bill of exceptions is not necessary. We have examined the decision of the court which was properly filed in the trial court and is carried into the transcript, and find that it exemplifies the errors assigned by the appellant. The motion will, therefore, be overruled.

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


author: By DOYLE, J.

text:
    KRIEGER, Plaintiff-Appellant, v. CLEVELAND (City), Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23981.
    Decided May 9, 1957.
    Howard J. Heilman, for plaintiff-appellant.
    Ralph S. Locher, Director of Law, for defendants-appellees.
    (HUNSICKER. PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

This case is presented as an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Cuyahoga County. The case has been heard de novo upon the pleadings and the evidence.

We are asked to declare the part of the comprehensive zoning ordinance of the charter city of Cleveland which restricts the use of property of the plaintiff, and that in the immediate locale, invalid; and to enjoin the building commissioner of the city of Cleveland to issue a building permit to the plaintiff, or his designee, “for the erection of the building for use in light manufacturing, storage and office use * *

It is claimed by the petitioner “that the zoning ordinance * * * which places the property of the plaintiff in a Class 3, or two-family, district, * * * and deprives the plaintiff of the right to use his property for industrial uses * * *, constitutes the taking of plaintiff’s property without compensation in violation of Article I, Section 19, Ohio Constitution, and deprives the plaintiff of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States, for the reason that the zoning restriction imposed on said property bears no reasonable relationship to the health, safety, welfare and morals of the community.”

It is not claimed, nor could it successfully be, that the comprehensive zoning legislation of the city of Cleveland is invalid. Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 54 A. L. R. 1016.

The claims are those set out in the paragraph second above, and relate to presently-existing conditions.

We have examined carefully the evidence, and find that the plaintiff owns six lots in an approximately 13-acre area, which is divided into 77 platted sublots, 55 of which have one or two-family houses erected thereon. The lots are 40 x 130 feet in size.

The area was restricted, under comprehensive zoning legislation enacted in 1929, to two-family dwelling houses, which classification continues to the present time. There are no nonconforming uses within this area, except the use of a relatively small portion for spur railroad tracks, owned by one of the divisions of the General Motors Corporation. Some of the lands adjoining this area are zoned for business uses.

It may be that in the near future the industrial development of the city of Cleveland will require in this vicinity a change in zoning, but for this court to say, from the facts shown now to exist, that the present zoning is not best for the body politic, and that the zoning must be changed, would be an unwarranted and illegal intrusion upon the functions of the legislative body of the city.

We are fully aware that zoning under constitutional rights must not be made static; but when the constitutionality of a zoning law is questioned, a court is required to base its judgment on existing facts, and not speculate on whether future developments, when and if they come into being, may render the zoning unconstitutional as to the changed conditions.

From the facts before us, we cannot say that the plaintiff, upon whom rests the burden of proof, has established no relation between the present zoning regulation and the public health, safety, morals and general welfare. Whether the present zoning is wise or expedient is not a matter for judicial decision.

For a comprehensive analysis of the law of zoning as revealed in numerous opinions of the courts, reference is made to the masterly opinion of Judge Hurd in Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351.

Reference is further made to the opinion rendered by the trial judge, wherein a more elaborate statement of the facts is made.

A decree will be entered as was recorded in the trial court.

HUNSICKER, PJ, STEVENS, J, concur.


text:
    HENNEY, an Incompetent Person, Estate of, In re: O’NEILL, Plaintiff-Appellee, v. HENNEY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5603.
    Decided January 15, 1957.
    Lewis F. Byers, Columbus, for Henry M. O’Neill, Guardian of Kathleen O. Henney, etc., plaintiff-appellee.
    Jeannette H. Henney, Columbus, per se, defendant-appellee.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for appellant, The Buckeye Union Casualty Company.
   OPINION

By THE COURT.

Submitted upon motion of Henry M. O’Neill, Appellee, seeking an order dismissing the appeal of The Buckeye Union Casualty Company for the reason that the judgment of the trial court has been fully complied with and the question presented by this appeal has therefore become moot.

The record reveals that on May 18, 1956, a complaint was filed by Henry M. O’Neill, guardian of the estate of Kathleen O. Henney, an incompetent person, against the defendant, Jeannette H. Henney, under the Provisions of §2109.50 K. C., seeking an order cancelling her assigned certificate of title to a certain Cadillac automobile, for the reason that his ward was an incompetent person and therefore not capable of transferring her title to the defendant.

It also sought a restoration of the original certificate of title to the ward. The Buckeye Union Casualty Company then filed a motion to intervene, alleging that on December 10, 1855, it had issued a certain policy of insurance on said automobile to Kathleen O. Henney and that its policy became null and void on February 28, 1956, when the title was transferred to the defendant.

It further alleged “that its rights may in some way be affected by any order, judgment or decree entered in this proceeding and said The Buckeye Union Casualty Company, appearing specially and solely for the purpose herein stated, therefore moves the court for leave to intervene herein solely for the purpose of raising the question of jurisdiction of the court over the subject matter and for no other purpose.”

The record reveals that the cause came on for hearing and the. court found that the complaint of the guardian was true. It therefore ordered the title restored and the invalid assignment on the back thereof held for naught. It also assessed a statutory penalty of $200.00 against the defendant, Jeannette H. Henney.

The court also by separate entry overruled the motion of The Buckeye Union Casualty Company for leave to intervene. It is from this order that the appeal is directed by The Casualty Company. It appears that no stay bond was filed and the order of the court has been fully complied with by the defendant. The penalty has been paid and the certificate of title restored. It is therefore urged by the appellee that the appeal be dismissed for the reason that the matter has become a moot question. The appellee cites the case of Wagner v. Boggess Coal & Supply Co., 57 Abs 270, by this court. The legal principles pronounced in this case appear to be analogous to the case at bar. We there held that when a corporation has been ordered dissolved and appellant fails to give a stay bond he has failed to avail himself of his rights under the law of holding in abeyance the enforcement of the judgment, and the question in issue becomes moot by reason of developments subsequent to and in accordance with that judgment, and appeal from that judgment will be dismissed. The rule seems to be well stated in 2 O. Jur. 2d, 539, as follows:

“It is well settled that where, by a change of circumstances or otherwise pending an appeal on questions of law, the questions which would be presented to the reviewing court have become purely academic or abstract, and any judgment which the court might render thereon would in no way avail, or be beneficial, to, any party, the proceeding will ordinarily be dismissed, because it is not the duty nor responsibility of the court to answer moot questions. So the proceeding will be dismissed if the order or judgment which the appellant seeks to reverse, not having been stayed, has been carried out or if the thing which he seeks to prevent or avoid has been accomplished, and the situation is such that reversal would be wholly ineffectual to re-establish the status quo or to accord any relief or advantage to the appellant; or if the situation has so changed that the relief sought by the appellant has become unnecessary.”

See also cited cases there.

A reversal by this court of the order appealed from would not reinstate the certificate of title in the name of Jeannette H. Henney; hence no relief or advantage could be gained by the appellant. Furthermore, it was not made a party to this action. Therefore we do not see how the judgment could be considered as a determination by the court of any of its rights.

“It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v. Witt, 82 Oh St 379.

We therefore hold that the question has become moot and the motion will be sustained.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.