author: By MINTON, J. By FRANKFURTER, J. By BLACK, J.

text:
    ARMSTRONG, Petitioner, v. ARMSTRONG, GENERAL MOTORS CORPORATION et.
    United States Supreme Court.
    No. 38.
    Decided April 9, 1956.
    Robert N. Gorman, Cincinnati, for petitioner.
    Walter K. Sibbald, Cincinnati, for respondent.
   OPINION

By MINTON, J.

The petitioner, while residing in Dade County, Florida, filed a suit for divorce from his wife, who had separated from him and gone to Ohio, where she had established her residence. The wife was not personally served, nor did she appear in person or by attorney in the Florida suit. Service on her was constructive only. A divorce decree was granted petitioner by the Florida court, and he contends that that court also denied alimony to the respondent.

Later, the respondent wife instituted a suit in Ohio for divorce and for alimony. The petitioner appeared and set up the divorce obtained in Florida. The Ohio court found that the respondent had established grounds for divorce in Ohio but denied the divorce because Florida had already decreed a divorce to the petitioner. The Ohio court proceeded to pass on the question of alimony and granted the wife alimony, taking into account the total property owned by the petitioner. The petitioner appealed to the Court of Appeals, 99 Oh Ap 7, 58 O. O. 79, 130 N. E. (2d), 710, and then to the Supreme Court of Ohio, which affirmed the judgments of the lower courts. 162 Oh St 406, 55 O. O. 234, 123 N. E. (2d), 267. Petitioner argued and contends here that the Ohio courts have denied full faith and credit to the Florida decree. We granted certiorari. 349 U. S., 915, 75 S. Ct., 604, 99 L. Ed., 1248.

The sole question presented by the petition for certiorari was whether the Ohio courts were required to give full faith and credit to the ex parte Florida divorce decree, which petitioner alleges not only granted him a divorce, but also decreed that the wife was not entitled to alimony. As we interpret the Florida decree, however, the Florida court did not purport to adjudicate the absent wife’s right to alimony. The Ohio courts, therefore, in awarding alimony to the wife, did not in fact fail to give full faith and credit to the Florida decree. Accordingly, we do not reach the constitutional question sought to be presented. But even if there is doubt as to the meaning of the Florida decree, we should construe its action as a refusal to pass on the question of alimony and thus avoid the constitutional question as to its power to do so.

The Florida court found that Mrs. Armstrong “has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is therefore, specifically decreed that no award of alimony be made to the defendant * * *.” Taken literally, that language means only that, for the reasons it gave, the court would refrain from making an affirmative award of alimony to the wife, not that it adjudicated in favor of the husband that his wife was not entitled to alimony. The husband’s bill of complaint did not ask for greater relief. It offered to show that Mrs. Armstrong’s interest in jointly held property was “ample to support the defendant and that she has no further need of alimony.” The purpose of this offer, however, was revealed by the next sentence of the complaint: “Nevertheless the plaintiff hereby offers to do equity and to abide by such orders or decrees, with reference to the settlement of the property affairs, as to this court may be deemed equitable.” Thus the husband did not seek a decree holding the wife not entitled to alimony but rather merely submitted to the court’s jurisdiction to condition its grant of divorce to him upon an award of alimony to his wife. The prayer for relief was fully satisfied by the decision that protection of the absent wife did not require the court to fix alimony before granting the divorce.

The Florida master’s report is confirmatory of the limited scope of the decree. The master stated that “the question of the wife’s alimony, if any, cannot be determined at this stage of the proceeding,” pointing out that most of the marital property was in the wife’s possession in Ohio and was the subject matter of litigation pending there. He accordingly found that “the defendant is not entitled to receive alimony * * * under the facts and circumstances presented in the case” and recommended “that no award of alimony be made.” The master’s recommendation meant no more than that the question of alimony should not be decided because the wife had in her possession property adequate to meet her immediate needs, and the unresolved litigation made it impossible to determine her future needs. Presumably, the court’s decree meant no more when it adopted in terms the master’s recommendation that “no award of alimony be made.” Like the master’s report, the decree expressly recognized that the parties’ property rights depended upon the outcome of the pending litigation in Ohio and that the wife had not shown any need for alimony.

When the Florida court said, “it is, therefore, specifically decreed that no award of alimony be made to the defendant,” it recognized that no issue of alimony should be decided by it. The court simply said that no award of alimony be made — a purely negative assertion that it would not pass on the question.

It is true that the decree “that no award of alimony be made” was followed in the same sentence by a declaration, based on the court’s and master’s view of Florida property law, quieting title in the husband to certain Florida real property. At most, however, the fact that both matters were dealt with in a single sentence suggests only that the court might have reserved alimony out of that specific property had it concluded that such action was necessary to protect the wife’s interest. That it did not do so is consistent with our conclusion that the Florida court did no more than refrain from awarding alimony at that time.

There was a valid decree in Florida dissolving the bonds of matrimony. There was no decree as to alimony. Ohio had personal service on both parties in a suit for divorce and alimony brought there by Mrs. Armstrong. The court denied her a decree of divorce because Florida had already dissolved the bonds of matrimony. The Ohio court found that, but for the decree in Florida, Mrs. Armstrong had established grounds for divorce in the Ohio suit. It considered that the matter before it was not a division of property, but an application for alimony, and it proceeded to hear evidence on that basis and finally entered a personal judgment against the defendant husband for alimony. The Ohio court, which had complete jurisdiction of both parties and the cause of action, entered a decree as to alimony only, which decree seems clearly authorized by the Ohio cases. Slapp v. Slapp, 143 Oh St 105, 38 O. O. 47, 54 N. E. (2d), 153; Cox v. Cox, 19 Oh St 502. The Florida judgment was given full faith and credit by Ohio as far as the judgment in Florida went, and no other questions are presented here.

Judgment affirmed.

CONCURRING OPINION

By FRANKFURTER, J.

It is, of course, desirable to have a Court opinion, if one can be achieved without straining one’s conscience. I am sufficiently in agreement with Mr. Justice Minton’s construction of the Florida decree to be able to join him.

On my study of the record, I would dismiss the writ as improvidently granted. And for these reasons. After a case has been heard on the merits, it is to be disposed of on the precise issue that full study of the case discloses, and not on the basis of the preliminary examination of the questions that were urged in the petition for certiorari. Due regard for the working of the certiorari system requires this. In view of the fact that about 1,300 applications were made last term for leave to be heard (and this is a fair average of the volume of the Court’s business), determination during this sifting process of the jurisdictional merits in all these 1,300 cases can hardly be expected. Theory and practice alike reject any such notion. The inevitably cursory consideration that is normally given in a case on the preliminary round precludes the assumption that a tentative finding of a federal question will survive the thorough study of the record which consideration of a case on the merits implies. Therefore, it is that cases have again and again been dismissed for want of jurisdiction, i. e., a substantial federal question was found wanting; on the contrary, it became clear that the state court judgment rested on an adequate state ground.

The petition for writ of certiorari in this case vigorously argued that “The sole question is whether the courts of Ohio, under Article IV of the Constitution of the United States, are compelled to give full faith and credit to the entire decree, granting a divorce, and denying alimony, rendered by the court in Florida, the matrimonial domicile of the parties, following the decision of Thompson v. Thompson, 226 U. S., 551 [33 S. Ct., 129, 57 L. Ed., 347].”

The references to the Florida decree in the opinion of the Ohio Supreme Court — the two documents are hardly to be deemed conspicuously lucid — warranted, without more, a belief that the case did present the question formulated by petitioner. Such a question would, no doubt, raise an important problems in the construction of the Full Faith and Credit Clause.

But the course of the oral argument, for such is one of its functions, and an exacting scrutiny of the record, for such is the requirement of plenary consideration of a case, put in a very different light the decree of the Florida court and thereby the significance of the litigation in Ohio.

A study of the Florida decree, a portion of which is set out in the margin, in conjunction with Florida case law demonstrates, I believe, that Florida expressly disavowed any adjudication regarding claims to and in property situated in Ohio, the very properties which are the subject matter of the challenged Ohio decree. “The sole question” which the record of the case disclosed was that since Florida, by virtue of its decree, had made an adjudication foreclosing the creation of any interest, called by whatever name, in the property, that decree must constitutionally be respected by Ohio.

Thus, the sole question that survives is the power of Ohio, as a matter of its own policy, to define rights in property situated in Ohio in the circumstances of this case. A question of due process might be raised, though not successfully. Both the real property and securities, which had their locus in Ohio were subject to Ohio’s control in that both items constituted “property within the state.” Pennington v. Fourth National Bank, 243 U. S., 269, 271, 37 S. Ct., 282, 61 L. Ed., 713. In any event, it was not raised, and the claim under the Full Faith and Credit clause has evaporated, because Ohio merely dealt with property within its borders which Florida had not purported to affect.

Of course we have to go through all this reasoning to determine whether a substantial federal question was raised by reason of Ohio’s disregard of Florida’s decree. The Court not infrequently is required to find its way through a tangled or confused record in order to determine whether a state court judgment turned on a state ground or on a federal ground. In short, the Court has jurisdiction to decide whether it has jurisdiction. But when adequate analysis discloses that a state judgment amply rests on a state ground, we are barred from proceeding to the merits of the alleged federal question. The appropriate disposition is to dismiss the case for want of jurisdiction.

CONCURRING OPINION

By BLACK, J.

The opinion of the Court takes the position that the Florida court did not adjudicate Mrs. Armstrong’s right to alimony. We cannot agree. In the husband’s Florida complaint he alleged that his wife’s property was “ample to support the defendant and that she has no further need of alimony or property settlement.” The Florida court expressly held that it had jurisdiction over both parties and over the subject matter of the complaint. It then proceeded to find that the wife was at fault in leaving her husband and the “matrimonial domicile.” The court even suggested that Mrs. Armstrong was guilty of a criminal act in taking some of her husband’s money and securities to Ohio. The decree continued: “This court, therefore, finds the defendant has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is, therefore, specifically decreed that no award of alimony be made to the defendant * * (Emphasis added.) This was plainly a denial of alimony, not on the ground that the court was leaving the matter open but because the judge thought the wife should not have alimony.

We agree with the majority that the Ohio decree was an alimony judgment and not a division of property. Thus in our view there is a direct conflict between that decree and the decree of the Florida court denying alimony to the wife. We therefore reach the constitutional question whether the Ohio court was justified in denying full faith and credit to the Florida decree.

We believe that Ohio was not compelled to give full faith and credit to the Florida decree denying alimony to Mrs. Armstrong. Our view is based on the absence of power in the Florida court to render a personal judgment against Mrs. Armstrong depriving her of all right to alimony although she was a nonresident of Florida, had not been personally served with process in that State, and had not appeared as a party. It has been the constitutional rule in this country at least since Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565, decided in 1878, that nonresidents cannot be subjected to personal judgments without such service or appearance. We held in Estin v. Estin, 334 U. S., 541, 68 S. Ct., 1213, 92 L. Ed., 1561, that an alimony judgment was this kind of “personal judgment.” See also Kreiger v. Kreiger, 334 U. S., 555, 68 S. Ct., 1221, 92 L. Ed., 1572; Barber v. Barber, 21 How., 582, 588, 16 L. Ed., 226; Barrett v. Failing, 111 U. S., 523, 525, 4 S. Ct., 598, 599, 28 L. Ed., 505. The Estin case was much like this one. There, after the wife had obtained a separation and permanent alimony decree in New York, the husband went to Nevada and obtained a divorce. In accord with our previous holding in Williams v. State of North Carolina, 317 U. S., 287, 63 S. Ct., 207, 87 L. Ed., 279, we held that the Nevada divorce was valid and must be given full faith and credit by New York even though rendered without personal service on the wife. It was argued that New York also had to recognize Nevada’s rule of law that the dissolution of a marriage put an end to a support order. We held, however, that Nevada could not adjudicate rights of the wife under the New York judgment because she had not been personally served with process and did not appear in the Nevada proceedings. 334 U. S., at 547-549, 68 S. Ct., at pages 1217-1218. The considerations supporting that holding are applicable here. The fact that Mrs. Estin’s claim to support had been reduced to judgment prior to divorce while Mrs. Armstrong’s had not is not a meaningful distinction. Mrs. Armstrong’s right to support before judgment, like Mrs. Estin’s right to support after judgment, is the kind of personal right which cannot be adjudicated without personal service. Cf., May v. Anderson, 345 U. S., 528, 73 S. Ct., 840, 97 L. Ed., 1221.

The husband here seeks to distinguish the Estin case on the ground that there the husband left the “matrimonial domicile” and established a residence elsewhere, while here the husband kept his domicile in Florida and the wife fled from him. He argues, as the Florida court held, that it was impossible as a matter of law for Mrs. Armstrong to obtain a new domicile separate and apart from that of her husband. He bases this argument on the Florida court’s finding on ex parte evidence that Florida, where the couple had resided during a considerable part of their marriage, was the “matrimonial domicile,” and that the wife had left her home in Florida without cause. On this premise, the Florida court held that she “did not have the right to separate and claim a separate legal domicile and in truth and in fact, her domicile was that of her husband.” The fiction that a woman cannot have a separate “domicile” from that of her husband is a relic of the old discredited idea that women must always play a subordinate role in society; it does not justify a departure from settled constitutional principles. The concept of “matrimonial domicile” was expressly repudiated in both the Williams cases. Yet the Court is asked to say here that a State’s power over an alimony case is to depend on which spouse is to blame in leaving the other. We adhere to what was said in the first Williams case: “the question as to where the fault lies has no relevancy to the existence of State power in such circumstances.” 317 U. S., at page 300, 63 S. Ct., at page 214.

Relying on Milliken v. Meyer, 311 U. S., 457, 61 S. Ct., 339, 85 L. Ed., 278, the husband further contends that regardless of “matrimonial domicile” personal service was unnecessary because Mrs. Armstrong was actually domiciled in Florida at the time the Florida action was brought. The Florida court did find she was domiciled there, but that was in an uncontested proceeding. This finding was open to challenge in Ohio. Williams v. State of North Carolina, 325 U. S., 226, 65 S. Ct., 1092, 89 L. Ed., 1577. The issue was tried in Ohio with both parties present, and the trial court expressly found that Mrs. Armstrong had returned to Ohio and was a “resident” there within the meaning of the Ohio divorce statute at the time the Florida divorce proceedings were instituted. See Page’s Ohio Rev. Code Ann. 1954, §3105.03 R. C. This statute has been uniformly interpreted by the Ohio courts to require residence accompanied by an intention to make the State of Ohio a permanent home. See, e. g., Saalfeld v. Saalfeld, 86 Oh Ap 225, 41 O. O. 94, 89 N. E. (2d), 165. We would accept the Ohio court’s finding that Mrs. Armstrong was such a resident of Ohio when the Florida suit was brought as amply supported by evidence in the record. Consequently the husband’s reliance on Milliken v. Meyer is misplaced.

There was nothing novel in our holding in Estin v. Estin that a State where one of the parties to a marriage is domiciled can dissolve the marriage without personal service but that it cannot render a personal decree granting or denying alimony. The distinction between a decree which grants a divorce and one which grants a personal money judgment was recognized and the reasons for the distinction were stated by this Court in Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565. The state courts have long recognized the rule that a court lacking personal jurisdiction over a husband cannot render a valid alimony judgment against him: We see no reason why a court lacking personal jurisdiction over a wife should be allowed to render a valid judgment denying alimony to her. Personal jurisdiction is as necessary to protect a wife’s interests as it is to protect a husband’s. It is an essential to this kind of determination. Not long after Pennoyer v. Neff was decided, this Court upheld the validity of a legislative divorce which was granted without notice, service of process or a hearing of any kind, judicial or otherwise. Maynard v. Hill, 125 U. S., 190, 8 S. Ct., 723, 31 L. Ed., 654. But legislative divorces attempting to create or destroy financial obligations incident to marriage have not been sustained by the courts. Thus the different treatment Estin v. Estin accorded to alimony and divorce is well grounded in the judicial and legislative history of our country.

It is argued that this case is controlled by Thompson v. Thompson, 226 U. S., 551, 33 St. Ct., 129, 57 L. Ed., 347. That case, however, was decided before the Williams cases, the Estin and Kreiger cases, and May v. Anderson. It relied, moreover, on the case of Atherton v. Atherton. 181 U. S., 155, 21 S. Ct., 544, 45 L. Ed., 794, which in holding that an ex parte divorce was entitled to full faith and credit itself quoted extensively from authorities recognizing that such a divorce may be binding “ ‘so far as related to the dissolution of the marriage, though not as to other parts of the decree, such as an order for the payment of money by the husband.’ ” 181 U. S., at 166, 21 S. Ct., at page 548. The Thompson case stands alone in the United States Reports in supporting the proposition that a valid ex parte divorce in one State cuts off alimony rights in another. To the extent that the Thompson decision can be considered as in any way inconsistent with Pennoyer v. Neff and Estin v. Estin, the Thompson case should no longer be considered to be the law.

For the foregoing reasons we concur with the Court in affirming the judgment of the Supreme Court of Ohio.

WARREN, CJ, DOUGLAS and CLARK, JJ, concur.

      . “This court takes recognition of the fact that litigation is now pending in the state of Ohio relative to the recovery of * * * stocks and bonds as well as the settlement of other matters concerning property rights between the parties. This court recognizes that the courts of Ohio will have the ultimate determination of the question of property rights where the property itself is in the state of Ohio * * *•”

      . Compare Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla., 457, 1 So. (2d), 872, and Lucian v. Southern Ohio Savings Bank & Trust Co., 156 Fla., 370, 23 So. (2d), 674, with Pawley v. Pawley (Fla.), 46 So. (2d), 464, 28 A. L. R. (2d), 1358, and Sorrells v. Sorrells (Fla.), 82 So. (2d), 684.

      . Mr. Justice Frankfurter’s separate opinion takes the position that “Ohio merely dealt with property within its borders which Florida had not purported to affect.” 76 S. Ct. 632 (60 O. O. 270). But the Florida decree stated that Mrs. Armstrong' “is hereby directed and specifically ordered to return the said stock certificates and bonds to the plaintiff within fifteen (15) days * * These were the very stocks which the Ohio court ordered Mr. Armstrong to transfer to Mrs. Armstrong as alimony.

      . Williams v. State of North Carolina, 317 U. S., 287, 63 S. Ct., 207, 87 L. Ed., 279; Id., 325 U. S., 226, 65 S. Ct, 1092, 89 L. Ed., 1577. In the latter case the Court said: “In view of Williams v. (State of) North Carolina, supra, the jurisdictional requirement of domicil is freed from confusing refinements about ‘matrimonial domicil’ * * * and the like.” 325 U. S., at page 230, 65 S. Ct., at page 1095.

      . “* * * we do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. * * * The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made to the tribunals of the complainant’s domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress.” Pennoyer v. Neff, 95 U. S., at pages 734-735.
      As early as 1832 the distinction received recognition in a state court. Harding v. Alden, 9 Me., 140. There the court said:
      “In giving effect here to the divorce decreed in Rhode Island, we would wish to be understood, that the grounds upon which we place our decision, is limited to the dissolution of the marriage. In the libel, alimony was prayed for; and certain personal property, then in the possession of the wife, was decreed to her. Had the court awarded her a gross sum, or a weekly or an annual allowance, to be paid by the husband, and the courts of this or any other State had been resorted to to enforce it, a different question would be presented * * 9 Me., at page 151. See also 2 Kent’s Commentaries (14th ed., Gould, 1896) *110, n. (a).

      . Beard v. Beard (1863), 21 Ind., 321; Ellison v. Martin (1873), 53 Mo., 575; Prosser v. Warner (1875), 47 Vt., 667; Bunnell v. Bunnell (C. C. 1885), 25 F., 214; Anderson v. Anderson (1893), 55 Mo. App., 268; Dillon v. Starin (1895) , 44 Neb., 881, 63 N. W., 12; De La Montanya v. De La Montanya (1896) , 112 Cal., 101, 44 P., 345, 32 L. R. A., 82. See also Barrett v. Failing, 111 U. S., 523, 525, 4 S. Ct., 598, 599, 28 L. Ed., 505. And see 2 Bishop, Marriage & Divorce (6th ed. 1881), §381a; Cooley, Constitutional Limitations (6th ed., Angell, 1890) 497-498.

      . See, e. g., Turner v. Turner (1870), 44 Ala., 487, 450; Vanderbilt v. Vanderbilt (1955), 1 App. Div. (2d), 3, 147 N. Y. S. (2d), 125, stayed pending appeal (1956), 309 N. Y., 971, 132 N. E. (2d), 333; Hopson v. Hopson, 95 U. S. App. D. C., 285, 221 F. (2d), 839.

      . In that case the Court said: “If the act declaring the divorce should attempt to interfere with the rights of property vested in either party, a different question would be presented.” 125 U. S., at page 206, 8 S. Ct., at page 727.

      . Crane v. Meginnis (1829), 1 Gill & J., Md., 463; Wright v. Wright’s Lessee (1852), 2 Md., 429. See also 1 Bishop, Marriage & Divorce (6th ed. 1881), §693; 2 id., §382; 2 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th ed., Blakemore, 1921), §§1471-1473.

      . It may be noted that this question was not argued by the wife in the Thompson case. And the District of Columbia Court of Appeals stated “it was conceded at bar that, if the Virginia decree was not void, this action could not, upon any theory, be maintained.” 35 App. D. C., 14, 26.


source: Caselaw Access Project

author: By BARTLETT, J.

license: Public Domain

text:
    COLUMBUS (City), Plaintiff-Appellee, v. SHUFFELT, Defendant-Appellant.
    Common Pleas Court, Franklin County.
    No. 194146.
    Decided August 23, 1956.
    Chalmers P. Wylie, City Atty., Frank A. Reda, Asst. City Atty., for plaintiff-appellee.
    Isadore L. Margulis, for defendant-appellant.
   OPINION

By BARTLETT, J.

This case is before this Court on appeal from the Municipal Court of Columbus, Ohio, on questions of law only. A bill of exceptions was furnished showing fully all that transpired at the trial of the defendant.

The jury returned a verdict of guilty on the charge of operating a motor vehicle while under influence of alcohol. Thereupon the Court sentenced the defendant to pay a fine of $200.00 and costs; to be imprisoned for ten days; and driver’s license suspended until he complies with the State Financial Responsibility Act.

This Court has read carefully the entire record of this case, and we find no prejudicial error in said record, other than the bill of exceptions clearly shows that the opportunity was not afforded the accused personally, to state whether he had anything to say why judgment should not be pronounced against him.

It is mandatory under §2947.05 R. C., that the Court afford the accused the opportunity to so speak. All reasonable doubts concerning statutory procedure relative to the trial and sentence of accused persons should be resolved in their favor to the same extent that juries are required to resolve all reasonable doubts in their favor in the course of their deliberation. If the defendant has not been afforded the opportunity in his own behalf before sentence, that opportunity should yet be afforded him. Silsby v. State, 119 Oh St 314, 317.

The allocation, defined by Bouvier as “the formal address of the judge to the prisoner, asking him if he has anything to say why sentence should not be pronounced against him,” was at common law indispensably necessary in capital cases, and is now expressly required by the Ohio Code in all Criminal cases. 12 O. Jur. 695.

This mandatory duty of the Court applies to misdemeanor as well as felony cases, and even where counsel for the accused is presnt. State v. Ausberry, 83 Oh Ap 514.

The appeal is sustained; the judgment of the Municipal Court is reversed; and this cause will be remanded to the Municipal Court for re-sentence of the defendant, and for no other purpose.


author: By FAUST, J.

text:
    WEATHERHEAD, Estate of, In re.
    Probate Court, Miami County.
    No. 37125.
    Decided May 15, 1956.
    Guy E. Landrey, Troy, John A. Robenalt, Lima, for the estate.
    L. E. St. John, Wm. H. Thornburgh, Troy, for exceptor.
   OPINION

By FAUST, J.

This cause came on to be heard upon the exceptions of Alma Amelia Weatherhead to the Inventory and Appraisement of the estate of Elmer Weatherhead, deceased, filed by G. E. Landrey, as Ancillary Administrator with Will Annexed, evidence and briefs prepared and submitted by counsel.

The Exceptor alleges the following irregularities in inventory which was approved by the Probate Court on November 3, 1954.

No. 1: Exceptor alleges that no set off was made to Alma Amelia Weatherhead as surviving spouse, of property exempt from administration, Schedule F, contrary to law and the provision of §2115.13 R. C.

No. 2: No widow’s year’s allowance, Schedule G, was made to Alma Amelia Weatherhead, as the widow of the decedent, contrary to law and the provisions of §2117.20 R. C.

No. 3: No notice was given to Alma Amelia Weatherhead, as widow of decedent, stating the time and place of making of Inventory and Appraisement, contrary to law and the provisions of §2115.04 R. C.

No. 4: No certificate of assets and liabilities, as required by §2129.15 R. C., was forwarded to the domiciliary Administrator, Alma Amelia Weatherhead or the Court having jurisdiction in the County of decedent’s residence (County Court, Jefferson County, Texas) within five months after the Ancillary Administrator’s appointment.

No. 5: No notice of the ancillary administrator’s appointment as required by §2129.09 R. C., was forwarded to the domiciliary administrator or to the Court having jurisdiction in the County of the decedent’s residence, until after more than nine months subsequent to the ancillary administrator’s appointment.

No. 6: No notice of the probate of decedent’s will in this Court was given to the surviving spouse, contrary to law and §§2107.13 and 2129.10 R. C.

No. 7: No notice of the admission of the Will to Probate in this Court was ever given to the surviving spouse, nor was any affidavit filed to the effect that her name and address was unknown and could not with reasonable diligence be ascertained, all of which was contrary to law and the provisions of §§2107.19 and 2129.10 R. C.

The facts submitted to the Court, and in which there is no dispute, that Elmer Weatherhead died testate in and a resident of the state of Texas owning an interest in real estate in Miami County, Ohio. That his only heirs at law and next of kin are his widow Alma Amelia Weather-head of Beaumont, Texas, and Pauline Dimrack, an adult daughter, Pittsburgh, Pennsylvania; that on October 20, 1953, Alma Amelia Weather-head was appointed and qualified as Independent Executrix of the Estate of Elmer Weatherhead, deceased, in Jefferson County, Texas.

The Court of Appeals for Lorain County, Ohio, has made a recent pronouncement of the law relative to exception No. 1 In Re: Mitchell, 97 Oh Ap 450.

A careful examination of the Mitchell case reveals that Roland Mitchell, a resident of the State of Florida, died in that state, July 16, 1952, possessed of personal and real property located in Lorain County, Ohio. To the Inventory and Appraisement filed by Elizabeth Mitchell, Ancillary Administratrix, Gladys Mitchell, surviving spouse of Roland Mitchell, deceased, filed her exceptions to the inventory July 3, 1953, stating that the appraisers of the estate and the Ancillary Administratrix had not provided her a year’s allowance under the provisions of §10509-74 GC; that the appraisers and the Ancillary Administratrix had not set aside to her the property exempt from administration under the provisions of §10509-54 GC.

The Court of Appeals found “an allowance for property exempt from administration, as provided for under §10509-54 GC, must be set off to a nonresident surviving spouse in the local estate of a nonresident decedent.”

“Sec. 10509-54 GC, made no distinction between residents and nonresidents, and this Court is bound by the language of that statute. We, therefore, determine that the surviving spouse herein, though a nonresident is entitled to have set off to her the property deemed exempt from administration, provided for by the statutes in effect at the time the husband died.”

The Court after due consideration sustains exception No. 1 to the Inventory and Appraisement of the estate of Elmer Weatherhead, deceased, and directs Ancillary Administrator and Appraisers to set off to Alma Amelia Weatherhead the property deemed exempt from administration.

The Court now considers exception No. 2 which states that no widow’s year’s allowance was made to Alma Amelia Weatherhead, as widow of Elmer Weatherhead. deceased.

Counsel by well considered briefs have injected into the issue of this cause §§2117.23 and 2129.10 R. C. The amendments to §10509-78 GC, have presented to the Court justified questions as to the intent of the legislature, exactly what did it say, not what it ought to have said or could have said.

Although the widow, Alma Amelia Weatherhead was not notified of the filing of the Inventory and Appraisement as is now provided by §2117.23 and 2129.10 R. C., and the section apparently contemplates that an ex parte application should be filed; relative to the applicant’s allegations as to the year’s allowance, waiver by surviving spouse, facts before the Court in brief form, prayer of exceptions to Inventory, and hearing, are sufficient to bring before the Court the issue of whether or not the surviving spouse is entitled to a year’s allowance under §2117.23 R. C. (§10509-78 GC).

Attorneys for the Ancillary Administrator call to the Court’s attention that under §2117.23 R. C., that before the widow and a child or children of a nonresident decedent is entitled to a year’s allowance the will of the decedent must have been originally admitted to probate in Ohio.

Sec. 2117.23 R. C., Year’s Allowance when decedent is nonresident.

“When a nonresident decedent dies leaving property in Ohio and the will of such decedent has been admitted to probate in Ohio as provided by §§2107.11 and 2107.18 R. C., the person granted letters testamentary or of administration shall, at any time prior to the approval of the inventory and appraisement notify the widow and a child or children, etc.”

Under the above quoted section the widow and child or children have received only the right to be notified by the person granted letters testamentary or of administration that “they have sixty days after approval of the inventory and appraisement to apply for a year’s allowance to be set off out of the Ohio property of the decedent.”

In reading further in the statute we find that “the probate court may set off a year’s allowance to such widow and child or children or apportion the same among them as it seems just and reasonable, etc.”

Under the liberalization of the terms of the statute it is still within the discretion of the court, upon proper application of the widow and children, whether or not the year’s allowance will be granted.

We have considered §2117.23 R. C., wherein a nonresident decedent dies leaving property in Ohio and his will has been admitted to probate as provided by §§2107.11 and 2107.18 R. C.

We are now confronted with §2129.10 R. C., which states as follows:

Procedure; year’s allowance.

“Except as otherwise provided by §§2129.01 to 2129.30, inclusive, R. C., the procedure in ancillary administration shall be the same as in the administration of the estates of resident decedents.
“All rights, powers, and duties authorized by §2117.23 R. C., relating to a year’s allowance shall be available to a widow and a child or children under the age of eighteen of a nonresident decedent except that the duty to notify such widow and child and children of their right to apply for a year’s allowance out of the Ohio property shall be exercised by the person granted ancillary letters of administration or ancillary letters testamentary.”

We have found that under §2117.23 R. C., that the widow and children have a right to be notified after the approval of the Inventory and Appraisement and to make application for a year’s allowance; now under §2129.10 R. C., we find that all rights, powers and duties authorized by §2117.23 R. C., relating to a year’s allowance shall be available to a widow and child or children except that the duty to notify them shall be exercised by the persons granted ancillary letters of administration or ancillary letters testamentary.

The Court finds that first paragraph of §2117.23 R. C. and second paragraph of §2129.10 R. C., are in pari-materia and that after an application is filed, in either event, there is no assurance that the Probate Court will grant a year’s allowance to the widow and children.

An article written by Francis J. Eberly under the title Probate Code amendments, Volume 14, 1953, Ohio State Law Journal, pages 372 and 373, reviews the legislation sponsored by the Probate and Trust Law Committee of the Ohio State Bar Association, pertaining to §§2117.23 and 2129.10 R. C.

It is observed that In re Estate of Mitchell, supra, that no year’s allowance was set off to the surviving spouse as “the state of Florida making provision for a personal property exemption to a surviving spouse as an allowance for a year’s support.”

However, the Court takes notice that in the application for appointment of Ancillary Administrator in Miami County, Ohio, that it alleges that Elmer Weatherhead died at Beaumont, Texas, testate, on or about the 29th day of September 1953, or a couple days prior to the effective date of the Revised Code of Ohio, and approximately fifteen days prior to October 16, 1953, the effective date of the present §2117.23 R. C. as amended.

The Appellate Court also held In Re Mitchell, that “the surviving spouse, though a nonresident is entitled to have set off to her the property deemed exempt from administration, provided for by the statute in effect at the time her husband died.”

If the nonresident surviving spouse has a right to property deemed exempt from administration, provided for by statute in effect at the time of her husband’s death, then also her right for consideration of a widow’s year’s allowance should be determined according to the statute in effect at the time of his death.

The first amendment of §10509-78 GC, effective October 1, 1953, was not in effect on the date of the death of Elmer Weatherhead. Even though the subsequent amendments had been in effect at the time of his death they serve only to liberalize and not to restrict, particularly the present §2117.23 R. C., the power of the Probate Court in granting a year’s allowance to the widow and children of a nonresident decedent.

Does the state of Texas make provisions for a year’s allowance for a widow?

9 Vernon’s Texas Statutes, Title 54, Chapter 16

Art. 3476. Within twelve (12) months after the original grant of letters testamentary or of administration, the court shall fix an allowance for the support of the widow and minor children of the deceased.

Art. 3477. Such allowance shall be of an amount sufficient for the maintenance of such widow and minor children for one year.

Art. 3478. No such allowance shall be made for the widow when she has separate property adequate to her maintenance; nor shall such allowance be made for the minor children when they have property in their own right adequate to their maintenance.

Judge Love, In Re Estate of McCombs, 52 Abs 353, interpreting the statute §10509-78 GC, before the new code revision date effective October 1, 1953, found that the laws of Texas have not made “provision for” widows and minor children as contemplated by the Ohio legislature.

“This Court cannot but believe that the intention of the legislature was to disqualify nonresident widows or minor children only when there exists in the state of domicile a benevolent law giving to all such persons the right to an allowance; that a statute which gives to one-fourth or three-fourths or any other percentage of such families such an allowance or a law that creates the right conditioned on wealth, color, age, belief, or some other state of facts which must be proved in the courts of that state does not make provision for such persons within the meaning of the Ohio statute. Any contrary holding would be a strict construction of this statute, not a liberal one.”

The Court finds that whereas the State of Texas has not made provisions for a widow’s year’s allowance as contemplated by the Ohio Legislature, Alma Amelia Weatherhead, upon her request, is entitled to have set off to her a year’s allowance.

The Court sustains exceptions No. Two to the Inventory and Appraisement of the Estate of Elmer Weatherhead, deceased.

In determining a year’s allowance for the widow the Court is without the benefit of the testimony of Alma Amelia Weatherhead and the only facts before the Court is contained in exceptor’s brief concerning the assets of the estate of Elmer Weatherhead being administered in the State of Texas. These facts are undisputed by Ancillary Administrator.

Wherefore, the Court, after due consideration of the facts and circumstances, sets off to Alma Amelia Weatherhead, widow, the sum of Fifteen Hundred ($1500.00) as and for her year’s allowance.

As the Court has sustained the first two exceptions to the Inventory and Appraisement the remaining exceptions although important become immaterial to the issue. For many years §10511-12 GC (now 2129.10 R. C.) has prescribed the procedure in ancillary administration.

The Court directs that Inventory be amended accordingly and that an appropriate entry be submitted by Counsel.


author: By THE COURT:

text:
    SHELBY MUTUAL CASUALTY CO., Plaintiff-Appellee, v. PUGLIESI, Defendant- Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2264.
    Decided November 25, 1953.
    Harshman, Young, Colvin & Alexander, Dayton, by Robert C. Alexander, of Counsel, for plaintiff-appellee.
    Matthews & Altick, Dayton, by Hugh H. Altick, of Counsel, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the Municipal Court of Dayton in an action in which judgment was rendered for plaintiff on a subrogated claim arising out of damage to the automobile of plaintiff’s insured, allegedly caused by defendant’s negligence.

Plaintiff claims that while the automobile of its insured was parked on the street near the curb adjacent to defendant’s premises, the defendant in trimming a tree situated near the curb, permitted limbs to fall on the automobile and that such limbs were pulled over said automobile, causing damage requiring the automobile to be repainted.

There was no direct evidence that the limbs fell on said automobile. The defendant testified that he held the limbs with the left hand and with his right hand severed the limbs by the use of a hatchet. The insured testified that his automobile was parked under a tree which had been trimmed; that on the night before when the automobile was parked there were no scratches on said automobile, but that on the evening following the day on which the trimming was done he observed scratches all over the automobile — on the top, hood, trunk and sides; that on the top of the automobile the scratches were long, and on the sides they were short. Defendant testified that automobiles were parked under the trees when the trimming was being done; that the limbs which were severed were at least five feet long and full of leaves; that no limbs touched the automobile, but he did admit that the leaves on the limbs touched the automobile and just brushed off the dust.

A judgment for the plaintiff can be supported only on the theory that the trial court, which tried the case without the intervention of a jury, from the facts proved could draw a reasonable inference that the damage was caused by the defendant by allowing the limbs to fall on the automobile. In The L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Oh St 426, the court on page 429 said:

“Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances to have that effect must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural inference from the facts proved.” In Vol. 39, O. Jur., page 847, Section 206, the text is as follows:

“If proof of a material fact necessary to establish negligence rests upon an inference only, the inference must be a rational one, such as could be reasonably arrived at from the facts and circumstances testified to.”

In our opinion an inference that the scratches on the automobile were caused by the defendant may reasonably be drawn from the facts proved. The only other explanation offered by counsel is that the scratches were caused by vandals. The inference drawn by the trial court, that the damage was caused by the defendant, is more probable than any other. In arriving at this conclusion one inference is not predicated upon another inference.

Judgment affirmed.

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


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. BENJAMIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23683.
    Decided March 14, 1956.

      Frank T. Cullitan, Pros. Atty., for plaintiff-appellee.
    Lyman & Lyman, Columbus, Webster S. Lyman, Jr., of Counsel, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County entered on the verdict of a jury finding the defendant guilty on each of two counts of an indictment wherein the defendant was charged separately with the crimes of maiming and disfigurement with the use of lye.

The indictments are as follows:

“1. That James Benjamin on or about the 11th day of March, 1952. at Cuyahoga County, unlawfully did make an assault on Elizabeth Stanley with malicious intent thereby to maim and disfigure the said Elizabeth Stanley and by so doing the said James Benjamin did then and there maim and disfigure the said Elizabeth Stanley by putting out and destroying the eye of the said Elizabeth Stanley, and
“2. That James Benjamin on or about the 11th day of March, 1952, at the County aforesaid, unlawfully did make an assault on Elizabeth Stanley and then and there the said James Benjamin threw upon the face of said Elizabeth Stanley, a quantity of caustic substance, to-wit: Lye Water, with the malicious intent thereby to disfigure and maim the said Elizabeth Stanley and by so doing the said James Benjamin did then and there disfigure the face of said Elizabeth Stanley, by putting out her eye.”

The statute in effect at the time and under which these indictments were returned, defining the crimes charged therein was §12416 GC, which provides:

“Whoever, with malicious intent to maim or disfigure, cuts, bites or slits the nose, ear or lip, cuts out or disables the tongue, puts out or destroys an eye, cuts off or disables a limb or member, of another, or throws or pours upon or throws at another scalding water, or assaults another with a dangerous instrument, shall be imprisoned in the penitentiary not less than three years nor more than thirty years; and whoever, with like intent, throws upon the person of another oil of vitriol or other corrosive acid, or caustic substance, so as to disfigure the person, may be imprisoned in the penitentiary for life.”

Three separate crimes are defined by this section. They are: maiming of another purposely by any one of the means detailed in the first part of the section that would in fact constitute the crime of “maiming” as defined at common law, or disfiguring another purposely by any of the means therein described. The third crime is found in the latter part of the section defining the purposeful disfigurement of another by the use of oil of vitriol, or other corrosive acid, or caustic substance. For the two crimes defined in the first part of the section, the penalty provided is inprisonment from three to thirty years while the penalty provided for the crime defined in the last part of the section is life imprisonment.

The defendant was charged in the first count with maiming by unlawfully and purposely putting out the eye of “Elizabeth Stanley.” This is a separate crime from that charged in the second count, to-wit: the purposeful disfigurement with the use of lye.

We are not favored in this case with a bill of exceptions so that any error claimed must be found on the face of the record.

It is the claim of the defendant that he could not be found guilty of two crimes by the performance of a single act. Whether more than one act was committed by the defendant is not determinable without a bill of exceptions. Assuming that the throwing of the lye water by which it is alleged the defendant destroyed the eye of Elizabeth Stanley, whereby she was disfigured, was the same act that put out the victim’s eye relied upon in the charge of maiming, we cannot agree that but one crime was charged.

The Supreme Court in the case of State v. Martin, 154 Oh St 539, said in the second paragraph of the syllabus:

“2. One act may constitute several offenses.”

The second paragraph of Sec. 294, headed “Offenses Growing Out of Same Act” found in Vol. 15, Oh Jur, (2d), at page 469, provides:

“However, a single act may be an offense against two statutes; and if either statute requires proof of an additional fact, and acquittal of the offense requiring proof of the additional facts does not exempt the defendant from prosecution and punishment under the statute which does not require proof of such additional fact. The legislature may carve out of a single act or transaction several crimes or offenses, so that an individual may at the same time, and in the same transaction, commit several separate or distinct crimes, and be prosecuted for all the crimes committed, without the prosecution for one crime being a bar to the prosecution or prosecutions for the other crimes. By way of illustration, if a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense for which the defendant may be tried without being twice put in jeopardy. So too, the crime of shooting with intent to kill or wound and that of an assault with intent to commit robbery are separate and distinct offenses, and conviction or acquittal as to one of them, or of an included offense, does not bar an indictment and trial for the other.”

The word maiming at Common Law had a very specific meaning that is “to deprive a person of such part of his body as to render him less able in fighting or defending himself than he would otherwise have been." Bouviers Law Dictionary. In the case of State v. Johnson, 58 Oh St 417, the Supreme Court said:

“1. Maim and mayhem are, at common law, equivalent words, and mean the same thing; therefore, a count in an indictment charging the defendant with maliciously biting the ear of another with intent to maim, cannot be supported as to the particular intent charged, as the citing of an ear does not in law constitute a maiming.
“2. Nor can a conviction be had on such a count, for biting the ear with intent to disfigure, under §7316 R. S., permitting a conviction of an inferior degree of the offense charged, as a biting with intent to disfigure is not inferior to a biting, with intent to maim, under §6718 R. S. Both offenses are of the same degree.”

The destruction of an eye by any purposeful and unlawful act would constitute maiming under the provisions of §13416 GC, and was the subject of the action charged as a separate and distinct crime in the first count of the indictment. To disfigure a person means “to mar the figure of, to render less complete or beautiful in appearance or character, to deface, deform.” (Webster’s International Dictionary.) Certainly to destroy an eye would constitute disfigurement of a very serious nature. The facts alleged in the second count of the indictment (disfigurement by the use of lye water) comes clearly under the last part of §12416 GC; the crime there being defined separate and distinct from disfigurement or maiming as defined and punished by the provisions set forth in the first part of this section. The fact that a single act of the defendant, if such was the fact, violated two of the three crimes defined by this section, will not relieve him of prosecution upon each count.

For the foregoing reasons, the defendant’s appeal is dismissed and the judgment of the trial court affirmed.

KOVACHY, PJ, HURD, J, concur.


author: By ZIEGEL, J.

text:
    TILLMAN, An Incompetent, In re.
    Probate Court, Darke County.
    No. 24351.
    Decided June 18, 1956.
   OPINION

By ZIEGEL, J.

A subtle family disturbance of apparently many years standing has come to the surface in these proceedings. Mrs. Fern T. Rehmert, now Mrs. Jefferis, has filed exceptions to her brother’s, Chauncey H. Tillman’s account as guardian for their mother, Mary c. Tillman. In August, 1951 this disturbance arose briefly when Mrs. Rehmert sought the appointment of a guardian for her mother, alleging that she was incompetent by reason of advanced age. At that time Mary C. Tillman was 97 years of age. That matter was “settled” when Mrs. Tillman consented to the appointment of her son, the said Chauncey H. Tillman, as her guardian 'for reasons of physical disability. No finding of mental incompetency was made at that time. As a matter of fact, there was testimony then, and considerable testimony in the present proceedings to the effect that while advancing years had caused her physical capacities to deteriorate considerably, her mind remained relatively alert to within a short time of her death in the spring of 1955.

The present controversy consists, basically, of three complaints the exceptor has regarding her brother’s administration of her mother’s guardianship. First, she complains that the expenditure of $737.78 for getting ready and conducting and sale of his ward’s personal property, which grossed only $1,037.24 was excessive, invalid, and against the best interests of the ward. Secondly, she insists that certain “Christmas gift” checks which the guardian drew on his ward’s account in December, 1951 were unlawful; and thirdly, she contends that by the guardian from time to time paying more for the care and support of his ward than was originally authorized by order of this Court entered on August 28. 1951, the credit asked is invalid and against the best interests of the ward.

In defending the credits taken in his account, particularly as to the first two matters complained of, the guardian advances an argument, both as to facts and as to law, the likes of which neither this Court nor any of counsel have been able to find any authority in point either in or out of this State. Chauncey H. Tillman, the guardian, testified, and his testimony was corroborated by other reliable witnesses, including his own attorney, that in spending the time and money in getting ready for and conducting the public sale of his ward’s personal property, and in sending out the “Christmas” checks, he was following the instructions of his ward. Counsel therefor contends that since this ward was never determined to be mentally incompetent, and since there was ample proof that she remained mentally alert, she did not lose dominion over her property; and that regardless of the fact that a legal guardian had been appointed over her estate, she was still privileged to exercise her own free will and to direct the expenditures of her own money and the disposition of her own property.

The legal question first to be disposed of, then, is whether or not there exists in Ohio a double standard for the administration of a guardianship — one where the ward is legally incompetent, either as a result of judicial decision, or as a result of minority; and the other where the ward is never determined to be legally incompetent, but rather consents to the appointment of a guardian over his or her property.

“Consent” guardianships arose in Ohio in 1932 when the then “new” probate code as enacted by the preceding legislature provided in §10507-2 GC (now §2111.02 R. C.) the following parenthetical language: “(except that if the incompetency be due to physical disability or infirmity the consent of the incompetent must first be obtained).” The present Revised Code takes this statement out of parentheses, and makes a positive paragraph out of it. Prior to that time former §10989 GC, provided that a guardian might be appointed for a person physically disabled or infirm, but the Supreme Court of Ohio held in 1923 in the case of Schafer v. Haller, Guardian, 108 Oh St 322, 140 N. E. 517, that such a provision “is an unwarranted abridgment of the liberty of such person, and an unwarranted abridgment of his right to acquire, possess and protect property, and is in violation, in that respect of ... . the Constitution of Ohio.” The present “Consent” provisions have been held to be in accordance with law and the Constitution. In re Watts, 60 Oh Ap 307 @ 311, 14 O. O. 239 @ 241, In re Faulder, 1 O. O. 63.

Except for this single procedural difference, with regard to the requirements for the appointment of a guardian, no other part of the Probate Code makes any distinction between a guardianship for a mentally incompetent person and a person incompetent by reason of physical disability or infirmity. Sec. 2111.01 R. C. (Definitions) is all inclusive when it defines a “guardian” as “any person .... appointed by the probate court to have the care and management of the person, the estate, or both of a minor, incompetent, etc.”; when it defines an “incompetent” as “any person who by reason of advanced age, improvidence, or mental or physical disability or infirmity, is incapable of taking proper care of himself or his property ....”; when it defines a “ward” as any person for whom a guardian as defined in this section is acting.” Emphasis has been here added to the words “any person” to point out that undoubtedly the legislature intended no distinction as to “any person” who might fall within the terms of its definition. Further, §2114.14 R. C. uses the words “every guardian.”

The legislature having neither established by specific terms nor logical implication from its language any distinction between a guardianship for a mentally incompetent person and a person incompetent by reason of physical disability or infirmity, it would be highly improper for a court to do so by judicial fiat. Whether or not there should be such a distinction is a matter for, legislative, rather than judicial, consideration.

The nature of the legal relationship established by a “consent” guardianship is best pointed out by the following statement made by Judge Hornbeck of this appellate district In re Guardianship of Jacobs, 73 Oh Ap 286 @ 289, 28 O. O. 449 @ 450: “The Legislature recognized its inability to make physical infirmity alone the basis of the appointment of a guardian and inserted in §10507-2 GC (now §2111.02 R. C.), a provision whereby the Probate Court could name a guardian for an incompetent because of physical disability or infirmity if the incompetent consented to the appointment, the effect of which would be a waiver of the incompetent’s constitutional right.” When Mary C. Tillman consented to the appointment of her son, Chauncey H. Tillman, as guardian of her estate for reasons of physical disability or infirmity, she waived her constitutional rights to control the disposition of her own property and consented to having her property administered by a guardian who was subject to rules of law and the supervision of the probate court. It is well to note here that she did not have to give her consent to the appointment of any guardian over her property. She could have stood upon her constitutional rights and have insisted that the allegation of mental incompetency made in the application to have a guardian appointed for her be litigated. Instead she elected to waive her constitutional rights. Furthermore, at any time during the course of the guardianship she could have requested its termination, §2111.47 R. C.

To hold otherwise would be to make the guardian of a “consent” guardianship an agent of his ward, rather than an officer of the Court, and to substitute the judgment of the ward for the judgment of a court of law. The services of a court of law cannot be enlisted for rubber stamp purposes.

Having determined that no legal distinction exists in the administration of a “consent” guardianship and any other guardianship, we may proceed to examine the exceptions here filed without reference to the volume of testimony in the record concerning the requests and directions of the ward. Seasonable objections were made during the course of the hearing to the introduction of this testimony, the rulings to which were withheld. The holding here effectively disposes of those objections.

The first exception concerns four checks totaling $526.20 for labor charges in getting the ward’s personal property ready for public sale. The guardian kept accurate records of the time spent, and the hourly rate paid was reasonable. It does, however, appear that in addition to getting property ready for sale, considerable accounted for time was also spent in going through family mementos and in selecting various items which were not sold but which were taken for their own personal use by the guardian and his other sister, Mrs. Tilden, without paying the guardianship anything for them. No claim is made in these exceptions for those items, so that question is not considered here. However, it is not proper for the guardian to charge his ward’s estate with labor that was not for the benefit of the ward’s estate, but was for his own or some third person’s personal benefit. While the time spent on each project was not broken down in the testimony, from the evidence before it this Court determines at least one half of the time spent in getting-ready for the sale was for the benefit of persons other than the ward and her estate. It is therefore ordered that Chauncey H. Tillman, the guardian, account to the estate of Mary C. Tillman, his ward for an additional sum of $263.10, the same being one-half of the amount excepted to; and to that extent Exception No. 1 is sustained.

The second exception concerns the “Christmas” checks, complaint being levied as to two of them, one in the amount of $500.00 which the guardian wrote to himself, and the other in the amount of $200.00 which he wrote for his sister, Mrs. Tilden. In addition the account in question reveals that on the same date the above two cheeks were given, the guardian also wrote “Christmas” checks to the exceptor in the amount of $50.00; to David C. Tillman, a grandson of the ward, in the amount of $50.00; and to Mary Catherine Brown, a granddaughter, in the amount of $75.00. This account being before the Court for examination, these three other checks will also be considered in this decision.

Both the statutes and the case law of Ohio bind the guardian to the most scrupulous good faith in the management of his ward’s estate, Berkmeyer v. Kellerman, 32 Oh St 240. A trustee is not permitted to manage his trust to make any gain or profit therefrom for himself, Cox, Admr. v. John, 32 Oh St 532; In re Estate of Binder, 137 Oh St 26, 17 O. O. 364. Sec. 2109.43 R. C., provides that “No fiduciary shall make any personal use of the funds or property belonging to a trust . . . .” Sec. 2109.44 R. C., provides that “Fiduciaries shall not buy from or sell to themselves nor shall they in their individual capacities have any dealing with the estate . . . .” Certainly, if a fiduciary cannot buy from or sell to himself, he cannot give any part of the funds of his trust to himself. Thus, the exceptions to the $500.00 Christmas gift made by the guardian to himself from guardianship funds in December, 1951, must be sustained.

The Christmas gifts to the other members of the ward’s family are also bad, but for a different legal reason. The question here concerns the right of a guardian to use funds of an incompetent for the benefit of persons other than the incompetent. Such uses have been approved in other jurisdictions where a relationship of the person benefited to the incompetent was shown which might give rise to a moral, if not to a legal, obligation; where such person was shown to be in need of the funds used; and where there was some proof of what the incompetent might have done if he were competent. See Annotations in 59 A. L. R. 664 and 160 A. L. R. 1444. Further, the power of the court to make allowances out of the estate of an insane person for the purpose of carrying out the presumed wishes of such person has been extended to the case of donations for charitable and religious purposes. 25 Am. Jur., 52, par. 79. In such cases, proof of what the incompetent had formerly been in the habit of doing was important, In re Brice, 233 Iowa, 8 N. W. (2nd), 576. The only Ohio case found on this subject is that of In re Beilstein, 145 Oh St 397; 31 O. O. 12; 62 N. E. (2nd), 205, in which the Supreme Court refused to permit a guardian to use guardianship funds for the relief of an adult daughter of the incompetent who was in destitute circumstances. The per curiam majority opinion holds that “a Probate Court is without authority to apply the doctrine of substitution of judgment by ordering a trustee or guardian of an incompetent person to withdraw funds from the ward’s estate for the support of another where there is no legal liability upon the ward for such support and no evidence that the ward himself, if sane, would furnish such support.” Matthias, J., concurred in the judgment, but for the reason that in his opinion the Probate Court has no jurisdiction whatever to declare and enforce a liability where no legal liability exists.

The case at bar does not involve the use of an incompetent’s funds for the benefit of a destitute relative. While there is here proof of what the incompetent might have done if she were competent, there is no proof that the relatives who received the “Christmas” gifts in any way actually needed them. Nor is this the case of a gift for charitable or religious purpose, the persons who received the gifts certainly not coming within the contemplation of those terms. While the testimony does show that the ward here was in the habit of making various Christmas gifts, no case has been found anywhere which covers that kind of situation. As is pointed out in the Beilstein case, supra, “It is a dangerous doctrine for a court to so substitute its judgment. The doctrine too far advanced might lead to gross abuse.” By any doctrine, for a court to permit a guardian to give away the funds of his ward certainly might establish a precedent that could easily lead to great abuse. The second exceptions are sustained in toto, and the court will order the guardian to account not only for the sums mentioned in the exceptions, but also for the other three gifts noted in this opinion.

The third exception, in three parts, concerns the payment by the quardian to himself and others for the care and support of his ward. Part a. of this exception may be disposed of summarily, it being established beyond a doubt that the matter there complained of was a bookkeeping error rather than an actual one, and the exception here is accordingly overruled.

The other two items of this third exception deals with the fact that the guardian, without applying to the court for authority to do so, increased from time to time the amounts paid to himself and his wife for his ward’s care and support. At the beginning of the guardianship, the guardian obtained court authority for paying $15.00 per week for this care and support. On September 28, 1952, a little more than a year after the guardianship started, this amount was increased to $30.00 per week without court order. On June 14, 1953, the amount paid was again increased, this time to $40.00 per week, again without court order. The exceptor complains that such increases are unlawful and the credit asked is therefore invalid and against the best interests of the ward.

While §3111.13 R. C., provides that “no part of the ward’s estate shall be used for the support, maintenance, or education of such ward unless ordered and approved by the court,” the statute does not require that the order of the court for payment be made prior to the rendition of the services. See In re Estate of Burns, 53 Abs 134 (Court of Appeals for Darke County). The matter is now before the Court on these exceptions, and the court will now consider it, with the question being whether or not the payments made were reasonable under the circumstances. Compare In re Estate of Brown, 98 Oh Ap 398 at 304 and 305; 129 N. E. (2nd), 509, 57 O. O. 342.

The evidence in this instant case was substantial that as time went on the ward’s physical condition deteriorated as a result of advancing years so that increasingly more care was necessary for her. In 1951, this court determined that $15.00 per week was an adequate figure. At that time she was ambulatory, and to a great extent able to take care of her own physical needs. At the time the guardian was paying himself and his wife the sums of $30.00 per week, and, again, $40.00 per week, she was a bed patient in need of constant personal care. While no testimony was submitted to show the reasonable value of the services then rendered, as the finder of the facts in this case, from his own personal knowledge of what is required to maintain a person in Mary C. Tillman’s condition, the court cannot find that the amounts expended for her care and support were unreasonable. It is interesting to note that the very account in question shows that the sum of $40.00 per week was paid to one rest home for the ward’s care for three weeks, and the sum of $45.00 per week to another rest home for 38 weeks, and that no complaint has been made by the exceptor to these credits. Exception 3 is overruled.

An entry in accordance with opinion may be submitted by counsel for the exceptor.


author: By MILLER, PJ.

text:
    STATE, ex rel. CHAPMAN, Plaintiff, v. PORTERFIELD, Dir., Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 5397.
    Decided January 27, 1956.
    Robert R. Freda, Columbus, for plaintiff.
    C. William O’Neill, Atty. Geni., William A. Carroll, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By MILLER, PJ.

This is an original action in mandamus wherein the petitioner alleges that he is incarcerated in the Franklin County jail under a detainer order issued by or under the control or authority of the defendant; that §§5119.01 and 5119.10 R. C., requires the defendant to make and prescribe rules and regulations for the control and performance of all duties imposed upon the Department of Mental Hygiene and Correction; that said statutes have been in force and effect for more than one year and that the defendant has failed, refused and neglected to promulgate such rules and regulations required by said statutes. He prays for an alternative writ of mandamus requiring the defendant “to make and prescribe rules and regulations to control the performance of the duties conferred upon his department, and to coordinate the work of the Pardon and Parole Commission with that of the division, and which will protect and preserve the rights of the petitioner as a citizen of the United States, from any trespass or invasion by the State of Ohio, its agents, officers and servants within the Department of Mental Hygiene and Correction, prohibited and forbidden to the State of Ohio, its officers and servants by the Constitution, and laws of the United States.”

To this petition a demurrer has been filed on the ground that the petition fails to state sufficient facts to show a cause of action. The defendant urges, and we think properly so, that the prayer of the petition is so vague and indefinite as to be virtually incomprehensible and incapable of enforcement by any writ of mandamus. It does not appear to us that it is necessary for the Director to promulgate any rules or regulations in order to protect the constitutional and legal rights of this petitioner. If his constitutional and legal rights are being invaded by way of trespass he must, perforce, have an adequate remedy at law against those who have perpetrated the invasion.

The petitioner also fails to suggest what specific rules or regulations should be promulgated by the Director and if a writ of mandamus were capable of being issued in this case it should be of sufficient definiteness as to apprise the defendant of precisely what the court will require him to do. The vague generalities requested by the defendant could lead to the adoption by the Director of rules and regulations which were merely a restatement of the statutory laws.

It further appears that the petitioner has failed to allege that he has been in any way affected by the alleged failure of the Director to promulgate the rules and regulations which he claims are mandatory. It is alleged that he is incarcerated by virtue of a detainer issued under the authority of the Director, but he does not allege that either his incarceration or the detainer pursuant to which he was incarcerated was the result of the failure of the Director to prescribe any rules or regulations in that regard.

It is stated in State, ex rel. Skilton v. Miller, 164 Oh St 163, in the syllabus:

“1. A relator, in order to maintain an action in mandamus, must have a beneficial interest in the act sought to be compelled.
“2. If no legal right of a person can be affected by the failure of a public official to act in any given matter, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus to require such official to so act.”

It is our conclusion that the petition fails to state a cause of action and the demurrer is sustained.

HORNBECK, J, concurs.

WISEMAN, J, not participating.


text:
    STATE, Plaintiff-Appellee, v. HICKS, Defendant-Appellant. STATE, Plaintiff-Appellee, v. FOX, Jr., Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    Nos. 479, 480.
    Decided November 9, 1954.
    J. H. DeWeese, Pros. Atty., Troy, for plaintiff-appellee.
    Wm. L. Bausman, Troy, for defendants-appellants.
   OPINION

By THE COURT:

These two appeals are on questions of law from the judgment of the Common Pleas Court of Miami County.

The defendants were separately indicted for receiving and concealing stolen property of the value of $160.00, knowing the same to have been stolen, in violation of §12450 GC.

Both defendants waived a jury and by agreement the cases were consolidated and tried together. Both defendants were found guilty. Motions for new trial were filed and overruled.

The six errors assigned may be epitomized as follows: The judgment is contrary to law, is not sustained by sufficient evidence, and is contrary to the manifest weight of the evidence.

Scienter may be inferred from the facts proved. Vol. 34 O. Jur., Section 6, Page 1112. Concealment, though not an essential element of the crime of receiving stolen property, tends to show guilty knowledge. Holtz v. State, 30 Oh St 486, 489. A recitation of the facts will serve no useful purpose. There was substantial evidence of sufficient probative force to warrant a finding of guilt beyond a reasonable doubt.

We find no assignment of error well made. Finding no error in the record prejudicial to the rights of the appellants, the judgment is affirmed.

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


text:
    STATE, ex rel. BRANNUM, Relator-Plaintiif-Appellee, v. SPARKS et, Respondent-Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 547.
    Decided October 21, 1954.
    Shoup & Hagler, Xenia, By Marcus Shoup, of Counsel, for relator, plaintiff-appellee.
    George R. Smith, Xenia, for respondent, defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of relator-appellee to dismiss the appeal: First, the question has become moot; second, to reduce the law and fact appeal to a law appeal; third, for failure to file assignments of error and briefs within time.

The appeal being on law and fact, time did not run on filing briefs, and in such appeals assignments of error are not required. The action being in mandamus an appeal on questions of law and fact was improper. The judgment below could be reviewed only on questions of law. Vol. 2, O. Jur. 2d, p. 728, Sec. 123.

The relator sought a writ of mandamus against members of the Board of Elections to require said Board to place the name of relator on the ballot as a Democratic Party candidate for election as a member of the County Central Committee. The writ was issued. The election was held. The relator was defeated. The question at issue has become moot. The appeal will be dismissed if the judgment which is sought to be reversed has been carried out or the thing which appellant seeks to prevent has been accomplished. The Court will not retain jurisdiction to determine incidental matters such as costs. Vol. 3, O. Jur. 2d, Sec. 603, pp. 539, 540, 541.

Motion to dismiss the appeal on the ground that the question is moot will be sustained.

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


text:
    DELANEY, Plaintiff-Appellant, v. DELANEY el, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23695.
    Decided April 18, 1956.
    Stephen J. Knerly, for plaintiff-appellant.
    Michael J. Delsander, for défendants-appellees.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment entered for the defendant on plaintiff’s petition seeking alimony, that is separate maintenance and support.

It is alleged in the petition, which was filed December 21, 1954, that the defendant, Joseph H. Delaney, was guilty of gross neglect of duty in that he abandoned her without just cause on December 4, 1954; that he then owned and was in possession of about $23,000 in money and other personal property; that unless enjoined, he would dispose of such property in an effort to defeat plaintiff’s right to support; that said money and property is in the possession of one, Helen Tomlin, also a defendant herein, against whom a like injunction was prayed for. Personal service was had upon the defendants and a temporary order enjoining both defendants from disposing of the property of the defendant, Joseph H. Delaney, then in their possession.

Before an order of support was entered against the defendant, Joseph H. Delaney, he died. (February 21, 1955.) Thereafter, on March 25, 1955, the defendant, Helen Tomlin filed a motion to dismiss the restraining order because of the death of her father, the defendant, Joseph H. Delaney, which occurred on February 21, 1955. A motion to show cause why the defendant, Helen Tomlin, should not be punished for contempt of court in reference to a claimed violation of the temporary restraining order was filed on September 21, 1955.

On October 7, 1955, the court, in giving consideration to these pending motions, made the following entry dismissing the plaintiff’s petition and entering judgment for the remaining defendant, noting that the action was abated because of the death of the principal defendant, Joseph H. Delaney:

“October 7, 1955: This cause came before the Court in Courtroom 9, upon the petition, the motion of defendant Helen Tomlin to dismiss the restraining order heretofore issued herein; the motion of plaintiff for an order in contempt against defendant Helen Tomlin and the statements of counsel for all parties hereto. It was conceded that no adjudication of any issues had been had herein prior to the death of defendant Joseph H. Delaney and that he died on February 21, 1955. Upon consideration of such facts the Court finds that this action abated upon such death and that this Court therefore, is without authority to proceed to the adjudication of any issue raised or to grant to the plaintiff any relief in this cause.
“It is therefore ordered, adjudged and decreed: That the motion of defendant Helen Tomlin to dismiss the restraining order heretofore issued herein is granted and said restraining order is hereby dissolved and the motion of plaintiff for an order in contempt against defendant Helen Tomlin is overruled without prejudice to the rights of either party and that the petition in this cause be and the same is hereby dismissed at the costs of the plaintiff for the reason that this action is abated by the death of the principal defendant, Joseph H. Delaney. To all of which plaintiff duly excepts. No record. (Memorandum filed.)”

While the subject of this action is not one of those enumerated in §2311.25 R. C. as being abated by death, yet the character of the action is such that a judgment entered for the plaintiff, if the allegations of the petition are sustained, must be in personam or against the person of the defendant ordering him to make good his obligation of support based on the duty of a husband to support his wife. Sec. 3103.03 R. C. Where such relationship is terminated by death, the duty is at an end. The result must be the same as in a divorce case where the event of death of one of the parties dissolves the relationship between them with far greater finality than a judgment of a court.

This is not to say that the plaintiff is without a remedy if indeed her right of support was violated during the life of the defendant, Joseph H. Delaney. An action for money only may be brought against his estate for the cost of all necessaries which he failed to furnish during his lifetime, if such be the fact. Likewise, the right to prevent the decedent from impoverishing himself by gifts of his property to others inter vivos so that he, during his lifetime, and his estate upon death, would be unable to meet his obligations of support and a widow’s right to a year’s support as provided by Probate Law could be petitioned for in a proper case.

These questions have been the subject of much litigation. In the case of Mark v. Mark, 145 Oh St 301, the court, in a divorce case, in considering whether or not a husband who attempted by gift to divest himself of all his property was guilty of gross neglect of duty, said:

“4. Where there is no invasion of a wife’s present, existing right to support, the fact that her husband made large inter vivos gifts to his children by a former marriage will not warrant the granting of a divorce on the ground that in so doing the husband has been guilty of either gross neglect of duty or extreme cruelty.”
“5. Failure to support, to constitute gross neglect of duty, must exist prior to or at the time the decree for divorce and/or alimony is rendered and may not be predicated upon a possible or probable failure of future support, nor does such possible or probable failure of future support constitute extreme cruelty within the purview of the statutes relating to divorce and alimony.”
“6. A husband may dispose of his personal property during his lifetime without the consent of his wife.”
“7. The provisions of §7995 and §7997 GC, do not require a husband to provide other than present support for his wife.”
“8. The finding by a trial court that the transfer of his personal property by a husband to his children by a former marriage ‘undetermined’ the wife’s ‘economic security’ is not sufficient to constitute either any gross neglect of duty or extreme cruelty under §11979 GC, or any gross neglect of duty under §11997 GC, where the trial court found no invasion of the wife’s right to present support and that the husband was still possessed of unincumbered, improved real estate.”
“9. Under §7995 GC, husband and wife contract toward each other obligations of mutual respect, fidelity and support. Under §7996 GC, the husband is the head of the family and may choose any reasonable place or mode of living and the wife must conform thereto. Under §7997 GC, it is the husband’s duty to support himself and his wife so long as he is able so to do. Under §7998 GC, neither husband nor wife has any interest in the property of the other except the present right of support as provided in §7997 GC, and rights given by statute to a surviving spouse in the remaining property of the deceased spouse.
“Quaere: Whether, under an appropriate action, a wife may prevent her invalid husband from disposing of so much of his property as to render him unable to discharge the duty incumbent upon him under §7997 GC, or whether she may cause to be set aside or modified a transfer without consideration which would have the same effect. Such was not an issue in this case and therefore not decided.”

In the case of Routson v. Hovis, 60 Oh Ap 536, the court said:

“1. Although a husband may, by conveyance and trust agreement made during his lifetime, defeat his widow’s interest as statutory heir and distributee, yet such conveyance and trust agreement will be constructively fraudulent to the extent of the wife’s statutory right to an allowance for a year’s support from the estate of the husband, and a lien for the amount of such allowance will be impressed on the real estate conveyed in the proportion that the value of such real estate bears to the total value of such real estate plus the value of the real estate of which the husband died seized.”
“2. A trust agreement, executed during the settlor’s lifetime and containing provisions similar to those ordinarily contained in wills creating testamentary trusts, but under which agreement title vests during the lifetime of the settlor, is a trust inter vivos and not a testamentary trust."

And in the case of Rose v. Rose, 34 Oh Ap 89, in dealing with these questions, the court said:

“1. Where a husband and wife occupy extra-marital relations toward each other, gifts of personal property by the husband may be a fraud upon the wife’s right to separate maintenance or to alimony.”
“2. Where the delivery of personal property, which is the subject of a claimed gift, is accompanied by a writing which upon its face purports to establish a valid gift, it is competent to receive evidence to determine the true intention of the alleged donor; and, if the transaction was colorable and the real intention of the alleged donor was to fraudulently deprive his wife of her right to separate maintenance or alimony, such transaction does not constitute a valid gift.”

See also Neville v. Sawicki, 146 Oh St 539.

These cases point the way to litigating any claimed rights the plaintiff may have against her deceased husband but the continuation of an action for separate maintenance and support instituted during his lifetime cannot be maintained after his death which occurred before a judgment or order had been entered adjudging the rights of the parties.

For the foregoing reasons, the judgment of the trial court is affirmed. Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.