text:
    MARLOW, Plaintiff-Appellant, v. McSWEENEY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23080.
    Decided November 17, 1954.
    Nathan M. Botwin, Cleveland, for plaintiff-appellant.
    Sam H. Griff, Cleveland, for defendant-appellee.
   OPINION

PER CURIAM:

This is an action seeking to vacate a default judgment taken March 12, 1937, which judgment had become dormant. A motion for revivor was filed September 29, 1953, execution issued Oct. 2, 1953 and the petition to vacate the judgment for want of jurisdiction was filed Oct. 20, 1953.

The evidence on the trial of the petition to vacate is uneontradicted. that the precipe for service of summons upon defendant directed the sheriff to serve the defendant at 15702 Holmes Avenue in Cleveland, Ohio. The residence building at 15702 Holmes Ave. is a multiple dwelling-house containing four separate suites. The house number is over the front door of the suite in the front of the first floor. This entrance has no connection with any other suite in the building. The suite occupied by the defendant at the time service of summons was attempted, was on the second floor in the front, the • only entrance to which was from a side door facing East 157th Street. This was also the only entrance to the other two suites in the building, one being at the rear of the building on the first floor and the other to the rear of the building-on the second floor. The suite occupied by the defendant and the other two suites reached through the side door entrance had no number separately designating such suite or suites.

The only evidence before the court on the motion to vacate the default judgment for lack of jurisdiction was that presented by the defendant and his witnesses in which he categorically denied ever having received the summons or having any knowledge whatever that he was the defendant in the action.

The physical circumstances which are uncontradicted, together with the defendant’s sworn testimony, presented sufficient evidence upon which the court would be justified in vacating the judgment and setting the case down for trial on its merits. We are supported in this conclusion by the decision of this court in the case of Ruckert v. Matil Realty Co., 35 Abs 324, 40 N. E. 2d, 688; Bowers on Process and Service, parag. 259; Kingsborough v. Tousley, 56 Oh St 450; Hayes v. Kentucky Bank, 125 Oh St 359, and Lenz v. Frank, Treas., 152 Oh St 153.

Judgment affirmed. Exc. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    PIRRO et, Plaintiffs-Appellants, v. GOLDMAN, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22817.
    Decided October 5, 1953.
    Payne & Hermann, Cleveland, for plaintiffs-appellants.
    Terrell, Williams & Salim, Cleveland, for defendant-appellee.
   OPINION

PER CURIAM:

This is an appeal on questions of law from the Municipal Court of the City of Cleveland. The record shows that when the case was called for trial and before evidence was introduced, the defendant moved for judgment on the pleadings. Whereupon the court entered judgment for the defendant on plaintiff’s petition. The case then proceeded to trial upon the cross-petition of the defendant and judgment was rendered thereon in favor of the defendant.

The petition alleges in substance that the plaintiff operated his automobile out of the west driveway of the Richmond Theater Building on Mayfield Road, and that he was driving his car in a northerly direction and that he came to a stopped position with the front of his automobile approximately one foot into Mayfield Road; that the defendant who was driving easterly on Mayfield Road in the second of three eastbound lanes, drove his car from the second lane into the first lane and collided with plaintiff’s-automobile; that the action of defendant in doing so was negligent in that defendant failed to maintain a look-out for vehicles in his path and that said negligence was the proximate cause of the accident and the resulting property damage.

Defendant, on the other hand, in his answer and cross-petition alleged that he was driving his automobile on Mayfield Road in the most southerly lane for east-bound traffic and that the plaintiff negligently operated his automobile out of the driveway and caused it to collide with defendant’s automobile and that such action was the proximate cause of the accident. Thus an issue was made on the pleadings as to the negligence of the respective parties and the proximate cause of the accident.

There are three assignments of error, as follows:

1. The court erred in granting a judgment for defendant on the pleadings before presentation of evidence.

2. The court erred in rendering judgment for the defendant on cross-petition.

3. The court erred in not filing separate findings of fact and conclusions of law as requested by the plaintiff’s attorney.

The members of this court are unanimously of the opinion that it was error prejudicial to the rights of the plaintiff to dismiss his petition before presentation of evidence in support of the allegations thereof inasmuch as the petition states facts sufficient to constitute a cause of action. In this state of the record, therefore, it was error to proceed to trial and to render judgment for defendant on the cross-petition.

We further hold that the trial court committed error prejudicial to the substantial rights of the plaintiff in refusing to comply with his request for separate findings of fact and conclusions of law timely made.

For these reasons the judgment is reversed and the cause is remanded for further proceedings according to law, in accordance with ' this opinion. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By THE COURT:

text:
    HUNTER, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 544.
    Decided January 28, 1955.
    R. Brooke Alloway, Columbus, for plaintiff-appellant.
    Hon. C. William O’Neill, Attorney General, Paul Tague, Jr., Asst. Atty. General, Columbus, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the defendant, and which denies the appellant the right to participate in the Workmen's Compensation Fund for injuries alleged to have been received on November 6, 1948.

The errors assigned may be epitomized as:

(1) The court erred in its charge to the jury.

(2) The verdict is against the manifest weight of the evidence.

The error in the charge relates to the issues of fact which the court charged the jury were before it for its determination. This charge contained the following:

“Did the claimant and plaintiff in this case sustain an accidental injury in the course of and arising out of his employment with his employer on or about November 6, 1948?”

It is urged that this issue should not have been presented, since certain stipulations were made in the record which show the accidental injury complained of. We do not think the stipulátions go this far. We are of the opinion that the stipulations show that the appellant received an injury to his ankle on the date alleged in the petition and for which he. had been compensated by the defendant. The claim as originally filed on January 4, 1949 set forth only the ankle injury. On August 21, 1950, a motion was filed to amend the original application by including injuries to the knees and back., This motion was denied for the reason of failure of proof.

A rehearing was had before a referee, and on November 10, 1952, the Industrial Commission entered the following order:

“It is ordered that the claimant’s claim for disability to his legs and back be denied on rehearing for the reason that the claimant has failed to prove by a preponderance of the evidence that his disability is the result of or related to an injury sustained by him while in the course of and arising out of his employment on or about November 6, 1948 while working for the employer herein named.”

It is a fundamental principle that the issues in a case are made up by the pleadings and proof is required to sustain all of the material allegations unless they are admitted.

In the petition the plaintiff alleges in part as follows: .

“Plaintiff states further that on or about November 6, 1948, * * *. while in the usual course of his employment, plaintiff was pushing a fiat truck on some rails when his feet slipped and caused plaintiff to fall to the ground in a twisted position and that as the direct and proximate result of said occurrence sustained physical damage to his ankles, back and legs, which conditions were disabling in excess of seven days.”

Defendant in its answer stated:

“* * * the defendant * 4 admits that on or about November 6, 1948, plaintiff sustained an injury resulting in a sprain of the right ankle, for which medical expenses were paid; * 4 4.

The defendant specifically denies that claimant sustained any injury other than sprain of his right ankle on November 6. 1948, and generally denies each and every material allegation of plaintiff’s petition not herein admitted to be true.”

It will be noted that from these pleadings the question of an accidental injury to the claimant’s back and legs was presented and which required proof before a verdict could be returned in favor of the plaintiff.

It is further urged that the court erred in stating to the jury: “The term ‘injury’ as used comprehends only such injuries as are accidental in origin and cause”. This definition of a compensable injury is approved in Matczak v. Rubber Co., 139 Oh St 183, and under the facts presented here was properly given. It might have been more complete, but it was not erroneous. Taken in its most favorable light towards the plaintiff it could have been only an error of omission and not commission. No request was made for further instructions by the appellant; hence it could not be assigned as error.

We have examined the entire record and find that there was a substantial conflict in the testimony as to whether or not the plaintiff received the injuries for which a recovery was sought. The verdict was therefore not against the manifest weight of the evidence.

Finding no error in the record the judgment will be affirmed.

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


author: By MILLER. J.:

text:
    SMITH, Plaintiff-Appellee, v. GREENVILLE-DAYTON TRANSPORTATION COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 707.
    Decided March 27, 1953.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellee.
    Pickrel, Schaeffer & Ebeling, Mr. William H. Selva, Of Counsel, Dayton, and Marchal & Marchal, Vernon Marchal, Of Counsel, Green-ville, for defendant-appellant.
   OPINION

By MILLER. J.:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff in the sum of $3,000.00. The action was one for damages for personal injuries alleged to have been received by the plaintiff while a bus passenger of the defendant corporation. The amended petition sets forth two specific acts of negligence as the proximate cause of her injuries, to wit:

(1) The agent and employee of the defendant, while acting in the course of his employment, failed to keep a lookout in the direction in which he was walking so that he collided with the plaintiff.

(2) Defendant, through its agent and employee, acting in the course of his employment, disregarded the rights of plaintiff and her position as a passenger of the defendant company in standing on said loading platform.

The answer admits the corporate capacity of the defendant but generally denies all other averments contained in the petition not admitted to be true.

The record reveals that on January 9, 1951, the plaintiff purchased from the defendant corporation at its Greenville office one round-trip bus ticket to Dayton, Ohio; that she went to Dayton on the morning bus and intended to return to Greenville on the bus leaving Dayton at 5:15 P. M.; that at approximately 5:00 P. M. she arrived at the loading dock of the defendant and while waiting for said bus, which had not yet appeared, she was bumped into and knocked .to the platform by an employee of the defendant, named Harry Delk. It appears that Delk was an employee of the defendant whose duty it was to drive the bus for which the plaintiff was waiting, but he had not as yet driven the same to the loading dock as the space was at that time occupied by another bus. Just prior to the injury complained of, Delk had been talking to two women on the loading platform and immediately back of him stood the plaintiff; that Delk turned around and in so doing bumped into the plaintiff with such force as to cause her to fall to the platform. It was the contention of the defendant that Delk was employed only to drive the bus and that while he was waiting to resume his duties he was not an employee but was free to do anything he might desire; that he was in no manner acting in behalf of the defendant while holding a private conversation with the two friends. We find evidence in the record tending to support the defendant’s views. However, the record discloses that it was the custom of the drivers while waiting for their time to depart, to assist the other drivers in loading and unloading their baggage. This was the individual duty of the driver of each bus, it appears, and the other drivers were not instructed to assist in the performance of these duties. The plaintiff urges that if Delk was there for this purpose he was at the time engaged in the furtherance of the defendant’s business and was therefore acting within the scope of his employment. This became a factual question which was properly submitted to the jury.

We are therefore of the opinion that the Court did not err in refusing to direct a verdict in favor of the defendant at the close of all the evidence and also properly overruled the defendant’s motion for a judgment non obstante veredicto.

It is next urged that the Court erred in refusing to submit the defendant’s interrogatories 1 and 2 to the jury. These read as follows:

No. 1. “Do you find that Harry Delk was negligent at the time and place set forth in plaintiff’s amended petition? A. -”

No. 2. “If your answer to interrogatory No. 1 is ‘Yes’, please state of what such negligence consisted. A. -”

It appears that the trial court refused to submit these interrogatories' for the reason that negligence is the failure to exercise ordinary care and that in this case since the highest degree of care was required, ordinary care would not be pertinent. We are of the opinion that the court properly found as a matter of law that the plaintiff was a passenger under all the facts appearing and that as such the defendant owed to her the highest degree of care, but we are of the opinion that the interrogatories seeking to determine whether Harry Delk was negligent and if so, of what such negligence consisted, were quite pertinent to the issues in this case and the defendant was entitled to this information as a matter of law under §11420-17 GC. Davison v. Flowers, 123 Oh St 89; Masters v. New York Central Railroad Company, 147 Oh St 293; Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154; Mellon v. Weber, 115 Oh St 91. The trial court erred, it seems, in the conclusion that “negligence” always means the lack of ordinary care. It is quite true that courts have often so defined the term in those cases wherein the defendant owes such a duty to the plaintiff, but actionable negligence is much broader in its scope than the application given it by. the trial judge in giving consideration to these interrogatories. In discussing the term “actionable negligence” in 29 O. Jur., 384, it is said:

“4. Actionable Negligence. — It has been asserted that there is no negligence, unless it be actionable negligence: that negligence is a term that is used to designate that, upon which, if it exists, an action can be predicated to recover. * * * Actionable negligence is a failure of duty, the omission of something which ought to have been done, or the doing of something which ought not to have been done. * * *”

And it is further stated at page 391:

“ ‘Negligence’, as the term is used in the law, is a recognized ground of legal liability. Every person, in the conduct of his affairs, is under a legal duty to act with care and forethought; and if injury results to another from his failure so to do, he may be held accountable in an action at law. An action for negligence involves three essential elements: First, the existence of a duty owing by the defendant to the plaintiff; second, defendant’s failure to discharge that duty; third, injury to plaintiff proximately resulting from such failure.”

Since the petition sets forth two specific acts of negligence it clearly seems prejudicial to deny the defendant the right to test the general verdict in accordance with the provisions of the General Code.

We have given consideration to all of the other errors assigned and find none of which to be well taken. For the reasons heretofore indicated the judgment will be reversed and cause ordered remanded fox-further proceedings according to law.

WISEMAN, PJ, and HORNBECK, J, concur.


text:
    STIRES, Plaintiff-Appellee, v. PARK BAR RESTAURANT, INC. et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 510.
    Decided December 2, 1954.
    William E. Bailey, Sprixxgfield, Adelaide Seip, Springfield, for plaintiff-appellee.
    Cole & Cole, John M. Cole, Orville Wear, Sprixxgfield, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment for $8000,00 in favor of the plaintiff and against the defendants.

The claim of the plaintiff was that he had advanced $12,000.00 toward the purchase price of a night club owned by defendant, Roberts, and afterwards incorporated by him to make possible the consummation of the purchase agreement respecting the sale of the club between the defendant, Roberts and Earl Stires, also known as Samuel E. Stires, a son of the plaintiff. The purchase price was $23,500.00. Plaintiff claimed an agreement whereby “defendant, Roberts, for the $12,000.00 advanced was to transfer 50 shares of the stock of the corporation, The Park Bar Restaurant, Inc., defendant, to the plaintiff; that defendant, Roberts had failed and refused to comply with the terms of the agreement and that plaintiff desires to rescind the contract and recover from defendants the money paid for the stock.”

Defendants denied that they had any dealings whatever with the plaintiff or that the sum of $12,000.00 down payment on the purchase price of the night club made by Earl Stires, was paid pursuant to the agreement alleged in the petition. They further assert that after Earl Stires had defaulted on his payments on the balance due on the purchase price defendant, Roberts, purchased Earl Stires interest in the shares of the corporation and at that time executed to defendant, Roberts, a full and complete release of all claims whatsoever, past or present, against either Roberts or Park Bar Restaurant, Inc., arising out of his former interest therein; that under the facts alleged this release was a complete bar to plaintiff’s claim. The son, Earl Stires, was made a party defendant and answered but was dismissed as a party before the case was presented to the jury.

Appellants assign as errors: Failure of the court to grant them a preliminary hearing on plaintiff’s equitable suit for rescission; refusing to submit the effect of the pleaded release to the trial judge instead of submitting it to the jury; in admitting evidence of an attempt; to compromise the issues existing between the parties; in refusing to give defendants Special Charge No. 2, to the jury before argument; that the verdict and judgment are not sustained by sufficient, evidence and are contrary to law.

Did the court err in refusing to grant defendants a preliminary hearing on the right of plaintiff to a rescission of the contract?

The petition after setting out the cause of action upon which plaintiff relied prays for a rescission of the contract, accounting, appointment of a receiver and for a money judgment in the sum of $12,000.00.

The trial proceeded before a jury upon the action for money judgment. The judgment entry is general for $8,000.00 entered upon the verdict.

In our judgment, thex-e was no necessity for submitting an equitable issue to the jury. The plaintiff elected to proceed on his action at law. If he established the contract and his performance of the terms, as alleged, it was admitted by the defendants that they had not performed by transfer of the 50 shares of stock to plaintiff. Whereupon, plaintiff had the right to elect to rescind the contract and to recover for the money which he had advanced in consideration of the transfer. 12 Am. Jur. 1028, Re Statement of the Law of Contracts Vol. 2, par. 347, 348, Taylor v. Brown, 92 Oh St 287; Clark v. Prefabricated Homes Corp., 54 Abs 120, 122; Fireproof Const., Inc., v. Brenner-Bell, Inc., 54 Abs 149, 152. The action is not one for damages for breach of contract.

This case is not of the type of Meyer v. Meyer, 153 Oh St 408 or Perry v. M. O’Neil Co., 78 Oh St 200, where as prerequisite to the right of plaintiff to proceed on her right to recover damages for personal injuries, it was essential that a duly executed release of any liability of defendant for such damages be first set aside.

It is manifest from the charge, the judgment entry and the proceedings that the trial judge did not try this case on the theory that there was any equitable issue for him to decide and adjudicate. We find no error in that conclusion.

The second error assigned is the refusal of the trial judge to hear and determine the effect of the release pleaded by defendants.

There was no evidence tending to show that plaintiff was a party to this release. It was executed long after the date when the contract sued upon was made, if it was made. The evidence does not make an issue of the authority of Earl Stires as agent to bind his father to the terms of the release.

The third assignment is that the court erred in permitting testimony to be offered by plaintiff of a proposed compromise by the parties of the subject matter of the action and the terms of that compromise.

We have carefully examined the testimony the admission of which it is contended offended against the well recognized rule that an offer of compromise or of its terms may not be admitted, if it relates to the claim upon which plaintiff bases his right to recover. With the exceptions hereinafter stated none of the testimony can be said to relate solely to a compromise. Most of it, in our judgment, pertained only to a proposal by a Mr. Mann, a prospective purchaser of the Park Bar Restaurant, Inc., to purchase shares of stock ostensibly owned by plaintiff. It was probative of plaintiff’s claim under the contract pled that he was entitled to the ownership of the stock in controversy. As the proposal was made in the presence of defendant, Roberts, it was clearly competent. In the situation developed, a general objection to the admission of the testimony was too broad and was properly overruled.

The other testimony which it is claimed suggested an offer of compromise of $8,000.00 was that of Mrs. Daniel E. S'tires and related to the same transaction to which we have heretofore referred and was developed inadvertently and not as an expected response to the question propounded. The question by counsel for plaintiff: “Did you hear Mr. Mann make an offer to your husband for his interest in the Park Bar Restaurant, Inc., in the sum of $8,000.00.” Answer. “That’s right.” The next question: “Did you hear that statement made in the presence of Mr. Elmer Roberts?” Answer: “Well, no, not the $8,000.00. That was made by Mr Roberts later on after Mr. Roberts was there, if I remember right. That is right.” On the objection the answer was ordered stricken and the jury admonished to disregard it. The answer was not necessarily indicative of an offer to compromise. It may have been of the same import as the other answers to which we have made reference. However, if it was improper the court acted promptly and it was not purposely brought into the record as it ultimately developed. In view of this fact and because of the other competent testimony which was properly admitted we are satisfied that it was not prejudicial.

Some of the testimony of defendant, Roberts, might be construed to relate to an offer to compromise wherein he said that upon certain conditions he would give plaintiff $6000.00. However, the witness probably intended to disclose a willingness on his part to make a gift to plaintiff rather than recognition in any sense of the merit of his claim.

The admission of the testimony under consideration is not in conflict with the authorities on the subject.

In Sherer v. Piper & Yenney, 26 Oh St 476, the first syllabus reads:

“The fact that an offer to compromise the matters in dispute between the parties was made, is incompetent, either as evidence of a fact from which the liability of the party making the offer may be inferred, or as an admission of such liability.”

This syllabus, of course, must be read in the light of the facts developed and upon which it was pronounced. In the trial a question was propounded to the witness to “state what offer, if any, defendant had made to plaintiffs, to compromise the matters of dispute between the parties to this cause growing out of the contract set out in the petition.” The court refused to admit the terms of the alleged compromise but permitted an answer to the effect that there had been an offer to settle. Judge Gilmore, writing the opinion, at page 478 said, “As we read and understand the record it leaves no grounds for conjecture as to the stage of the case or the condition of the evidence at the time the testimony objected to was admitted.”

In Cincinnati v. Henkel & Bro., 3 Oh Ap 339, the reversal was grounded upon the admission of the full terms of an offer of compromise. In Stillwater Turnpike Co. v. Coover, 25 Oh St 558, the court held that testimony which was objected to because it related to a proposed compromise was held to be competent because it also had another probative effect' The judgment was reversed for failure of the court to give a proper charge respecting a certain entry in the corporate books of the Turnpike Company, and a refusal to limit the effect of the entry.

It is urged that the amount of the verdict probably was responsive to the testimony of Mrs. Stires. If so, it may have reduced the amount of the verdict. If the plaintiff was entitled to recover upon the cause of action sued upon it should have been for the amount of the money that he had advanced on the purchase price of the Park Bar Restaurant, Inc. Otherwise, he should not have recovered anything.

The third assignment of error is not established. The refusal of the court to give defendant Special Charge No. 2 to the jury before argument was not prejudicially erroneous to defendants. Nor do we find that the verdict of the jury and judgment entered thereon are contrary to or against the manifest weight of the evidence. There were clear-cut issues between the parties as to which the witnesses were in direct conflict in their testimony. We cannot hold that the jury acted contrary to the manifest weight of the evidence.

The judgment will be affirmed.

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


author: By THE COURT. By NICHOLS, J.

text:
    R. K. O. RADIO PICTURES, INC., et, Plaintiffs-Appellants, v. DEPARTMENT OF EDUCATION, DIVISION OF FILM CENSORSHIP, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5166.
    Decided January 5, 1955.
    Wright, Harlor, Purpus, Morris & Arnold, John C. Harlor and Harry Wright, of Counsel, Columbus, for plaintiffs-appellants.
    C. William O’Neill, Attorney General, Robert E. Leach, Chief Counsel, Gwynne B. Myers, Asst. Attorney General, Columbus, for defendant-appellee.
    (MONTGOMERY, PJ, of the Fifth District, GRIFFITH and NICHOLS, JJ, of the Seventh District, sitting by designation.)
   OPINION

By THE COURT.

Judgment reversed on the authority of R. K. O. Radio Pictures, Inc., et, v. Department of Education of the State of Ohio, etc., 162 Oh St, 263.

MONTGOMERY, PJ, GRIFFITH and NICHOLS JJ, concur in the reversal.

MONTGOMERY and GRIFFITH, JJ, do so with reluctance, but feel that the above-mentioned case is conclusive.

NICHOLS, J, concurring in the reversal, submits herewith a separate concurring opinion.

CONCURRING OPINION

By NICHOLS, J.

This action was instituted in the Common Pleas Court of Franklin County, Ohio, by R. K. O. Radio Pictures, Inc., Independent Theatre Owners of Ohio, a nonprofit corporation, and Martin G. Smith and Horace Adams, individual residents, taxpayers and property owners in Ohio, wherein they seek to enjoin the Department of Education of the State of Ohio, Division of Film Censorship, Clyde Hissong, Superintendent, from requiring compliance with the provisions of §§3305.01 to 3305.99, inclusive, R. C., basing their action upon the claim that such sections of the Revised Code are in conflict with and repugnant to the First and Fourteenth Amendments of the Constitution of the United States, and Art 1, Sec 2, Sec 11 and See 19, and Article XI, Sec 1, of the Constitution of the State of Ohio.

The Common Pleas Court upheld the authority of the defendant, Hissong, as Superintendent of the Division of Film Censorship, in the Department of Education, to censure motion pictures and to require a license from such Department before motion pictures can be exhibited in Ohio, such license obtainable only after an advance private inspection and screening by or under the direction of the Superintendent and at the expense of those engaged in producing and seeking the right of exhibiting motion pictures.

From the decree rendered by the Court of Common Pleas the plaintiffs appealed to the Court of Appeals on questions of law. Judge Montgomery, of the Fifth District, and Judge Griffith, of the Seventh District, sitting by assignment in the Second Appellate District, were reluctant to reverse the decree of the Common Pleas Court and inclined to affirm upon the opinion of Bartlett, J. Since the hearing upon this appeal the Supreme Court of Ohio, in the case of R. K. O. Radio Pictures, Inc., et, v. Department of Education of the State of Ohio, etc., 162 Oh St 263, has confirmed my view that the decree of the Common Pleas Court in this case must be reversed. Judges Montgomery and Griffith now reluctantly join with me in such reversal.

In support of my original position I submit the following opinion written by me November 12, 1954, before the decision of the Supreme Court of Ohio reported in 162 Oh St 263, wherein I was compelled to speak frankly about the opinion of the trial judge, sitting as a chancellor, but without any feeling of disrespect for his honesty and sincerity. (Judge Bartlett’s opinion is now published in 68 Ohio Law Abstract, 493, Ohio Bar of November 29, 1954.)

I am stirred, as I have been many times before, with the eloquent discourse of Judge Bartlett, wherein he sets forth verbatim (without quotation) a portion of the ritual of one of the fine benevolent and patriotic organizations of which we are both members, wherein he describes the difference between liberty and license; and had I needed an endorsement of the able Attorney General of the State of Ohio I must have been, convinced by the praise given him by the chancellor.

But the decision of this case rests neither upon oratorical eloquence nor upon fulsome praise of the Attorney General. I am constrained to say that I would have been more persuaded to affirmance in this case had the distinguished judge and the able Attorney General kept more clearly before them the nature of the oath required of them to support, uphold and defend the Constitution of the United States and the Constitution of the State of Ohio, in which event I am sure the decree would have been to the contrary and their fine talents not wasted in whittling away at these great charters of human liberty under which the citizens of the United States have lived, prospered, been happy and secure in the rights and privileges guaranteed by the Bill of Rights.

Likewise, I have no doubt of the honesty and sincerity of Mr. His-song, and I am well aware of the concern of a great body of the people of this state and nation, well thinking, right living and morally sound individuals, who are alarmed because of what they conceive to be the harmful effect upon our children. Yet many of these good people never attend a motion picture show and many will not have a television set in their home, yet they profess to believe there should be more censoring of motion pictures. I can say with authority that 1 have never seen a “movie” where the villain of the play was not apprehended and duly punished.

And I have seen exhibited in some of the great art galleries of the world paintings by celebrated artists where the portraits of male and female show them entirely in the nude and engaged in the most lascivious conduct, yet great fortunes are spent in preserving such paintings as works of Art. As I write this, I have taken down from my library and have before me reproductions of some such paintings; one is “The Birth of Venus”, by Botticelli; another is “Venus and Cupid” by Valasquez; another is “A Summer Night” by Moore; all in the nude but the work of famous artists. Although such paintings do not offend me I much prefer other reproductions in my library, such as the chaste painting of “The Madonna, Child, St. John and Angels”, by Michelangelo, and “The Virgin and Child and Donor” by Jan VanEyck, and “The Adoration of the Kings”, by Mabuel, and “The Blue Boy” by Gainesborough, “The Age of Innocence” by Reynolds, and “The Music Lesson” by Muenier.

But the point is; who am I to impose upon another my conception of what is beautiful, or moral, or educational, or amusing. All the famous paintings I have mentioned hang in the great galleries of the world. I imagine I can hear a mother say, “But my children never get into the great galleries of the world.” And I can answer that you need not let your child attend a moving picture show or see a television play — it is up to you.

I do not doubt that abuses may occur under the cloak of our constitutional provisions. But a reference to the arguments in the convention wherein the amendments known as the Bill of Rights were under consideration will demonstrate that the statesmen of that day were quite aware that abuses could be and likely would be perpetrated under the guarantees of free speech and freedom of the press, nevertheless it was decided that the great good arising and preserved under such guarantees far outweighs the evils which might arise.

And in this connection, the trial judge might well have re-examined his knowledge of history, known by every student in our great common schools, from which he would have been reminded that Patrick Henry, who was willing to give his life for the establishment of liberty under the new government then undertaken upon severance of the sovereignty of Great Britain, refused to attend the convention called to approve the Articles of Confederation until assured that freedom of speech and of the press would be guaranteed by a Bill of Rights. This great patriot well understood the difference between liberty and license. He then understood that abuses might arise under such guarantees.

Dean Erwin H. Griswold, of the Harvard University Law School, has well observed:

“Abolishing the Fifth Amendment would be to commit the time honored folly of burning down the house to get rid of the rats. It also would permit the restoration of torture as a method to extract confession from witnesses * * *. The man who abuses his Fifth Amendment privilege will have to live with his own conscience. But using it for protection is his constitutional privilege.”

So far as I am aware there is no serious movement to repeal the Fifth Amendment, but there has been, outside the Supreme Court of the United States, a persistent effort to modify it to conform to the private notions of individuals, boards and commissions, acting under legislative sanction such as our censor statutes. Honesty of purpose may well be admitted, but again we see the wisdom of the requirement that every official performing legislative, judicial or administrative functions must first subscribe the oath to faithfully support the State and Federal Constitutions before being permitted to function.

I would admonish the moving picture industry that any violation of the universally recognized laws of decency and morality will bring such condemnation as will destroy this instrumentality capable of so much good in furthering morality, education and wholesome amusement.

The guarantees of freedom of speech and of the press are couched in the unmistakable language that NO LAW shall be passed abridging such guarantees; that language is not susceptible of interpretation that some laws having that effect may be passed while other laws may not be passed. It is interesting to note that Congress has passed no law which abridges the right to transmit motion pictures by television, although television has brought motion pictures into the homes of millions of our people, although many of us are convinced some of such pictures have no education, religious or humorous characteristics.

Thus we arrive at the sole question determinative of this appeal: are motion pictures a form of free speech? In 1914 the Supreme Court of the United States, in the case of Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 59 Law. Ed. 553, affirming the decision of the District Court for the Northern District of Ohio, Eastern Division, 215 Fed. Rep. 138, upheld the legality of the legislative act of Ohio which authorized censoring of motion pictures, evidently on the theory or premise that such pictures did not come within the meaning of freedom of speech.

But the moving picture industry has advanced far since 1914 and by synchronizing the speech with the picture, by the use of advanced 3-D photography, the wide screen and color, motion pictures are now truly a remarkable method of speech and it is now definitely determined by the Supreme Court of the United States that motion pictures constitute a method of speech the freedom of which is guaranteed from abridgment under the Constitution of the United States.

In the case of Joseph Burstyn, Inc., v. Wilson, Commissioner of Education of the State of New York, decided May 26, 1952, 343 U. S., 495, the Supreme Court of the United States went on record “disapproving a contrary opinion expressed in Mutual Film Corp. v. Industrial Commission of Ohio, 236 U. S. 230, 59 Law Ed. 553” and held that “the basic principle of freedom of speech and press applied to motion pictures, even though their production, distribution and exhibition is a large scale business conducted for profit.”

Since the decision in the Burstyn case, in every action coming before the Supreme Court of the United States that tribunal has voided every attempt to deny to motion pictures the guarantee of freedom of speech. See:

Winters v. New York, 333 U. S. 517, 92 Law Ed. 840; W. L. Gelling, Appellant, v. State of Texas, 343 U. S. 960, 96 Law Ed. 1359; Commercial Pictures Corp. v. Board of Regents of University of New York, 346 U. S. 587, 98 Law Ed. (Advance p. 235), No. 274; Superior Films, Inc., Appellant, v. Department of Education of the State of Ohio, Division of Film Censorship, Clyde Hissong, Superintendent, 346 U. S. 587, 98 Law Ed. (Advance p. 235), No. 217. (Thus reversing the Supreme Court of Ohio, 159 Oh St 315.)

The fearless courage of the members of the Supreme Court of the United States is shown by the unanimous decision reversing the Court of Appeals of New York, thus striking down the effort to censor the picture “Laronde”, which was the subject of the litigation involved in that case. An examination of the character (or lack of it) in that picture, is revealed in the opinion of the New York Court of Appeals, 113 N. E. 2d, 502, wherein it is seen that the picture transgresses all bounds of decency and morality. I quote from 113 N. E. 2d, 502:

“The film from beginning to end deals with promiscuity, adultery, fornication and seduction. It portrays ten episodes, with a narrator. Except for the husband and wife episode, each deals with an illicit amorous adventure between two persons, one of the two partners becoming the principal in the next. The first episode begins with a prostitute and a soldier. Since the former’s room is ten minutes walk from their meeting place on the street, and the soldier must hurry back to his barracks, they take advantage of the local environment. She informs him that ‘civilians’ pay, but for ‘boys like you its nothing’. The cycle continues with the soldier and a parlormaid; the parlormaid and her employer’s son; the latter and a young married woman; the married woman and her husband; the husband and a young girl; the girl and a poet; the poet and an actress; the actress and a count, and finally the count and the prostitute. At the very end, the narrator reminds the audience of the author’s thesis: ‘It is the story of everyone’.”

In the opinion of the trial court in the case we review the judge made only the scant statement that the Supreme Court of the United States reversed the judgment of the Court of Appeals of New York, but in my judgment such reversal definitely establishes that any law which abridges the guarantee of freedom of speech is unconstitutional.

From the syllabi to the two cases last cited, I quote first that which is applicable to No. 217:

“1. The constitutional guaranty of free speech and press is violated where a state vests in a state official the power to refuse a license, required by state law for the exhibition of a motion picture, on the ground that it is ‘immoral’ and ‘would tend to corrupt morals,’ or is ‘harmful’.”

And next I quote what is held applicable to No. 274:

“2. The constitutional guaranty of freedom of speech and press prevents a state from establishing censorship over motion pictures. (Per Douglas and Black, JJ.) ”

And here I think it pertinent to quote in full what is said by Mr. Justice Douglas, with whom Mr. Justice Black agrees, concurring:

“The argument of Ohio and New York that the government may establish censorship over moving pictures is one I cannot accept. In 1925 Minnesota passed a law aimed at suppressing before publication any ‘malicious, scandalous and defamatory newspaper’. The Court, speaking through Chief Justice Hughes, struck down that law as violating the Fourteenth Amendment, which has made the First Amendment applicable to the States. Near v. Minnesota, 283 U. S. 697, 75 L. Ed. 1357, 51 S. Ct. 625. The ‘chief purpose’ of the constitutional guaranty of liberty of the press, said the Court, was ‘to prevent previous restraints upon publication’. Id. 283 U. S. p. 713.

“The history of censorship is so well known it need not be summarized here. Certainly a system, still in force in some nations, which required a newspaper, to submit to a board its news items, editorials, and cartoons before it published them could not be sustained. Nor could book publishers be required to submit their novels, poems ,and tracts to censors for clearance before publication. Any such scheme of censorship would be in irreconcilable conflict with the language and purpose of the First Amendment.

“Nor is it conceivable to me that producers of plays for the legitimate theatre or for television could be required to submit their manuscripts to censors on pain of penalty for producing them without approval. Certainly the spoken word is as freely protected against prior restraints as that which is written. Such indeed is the force of our decision in Thomas v. Collins, 323 U. S. 516, 540, 89 L. Ed. 430, 445, 65 S. Ct. 315. The freedom of the platform which it espouses carries with it freedom of the stage.

“The same result in the case of motion pictures necessarily follows as a consequence of our holding in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502, 96 L. Ed. 1098, 1106, 72 S. Ct. 777, that motion pictures are ‘within the free speech and free press guaranty of the First and Fourteenth Amendments.’

“Motion pictures are of course a different medium of expression than the public speech, the radio, the stage, the novel, or the magazine. But the First Amendment draws no distinction between the various methods of communicating ideas. On occasion one may be more powerful or effective than another. The movie, like the public speech, radio, or television, is transitory — here now and gone in an instant. The novel, the short story, the poem in printed form are permanently at hand to reenact the drama or to retell the story over and over again. Which medium will give the most excitement and have the most enduring effect will vary with the theme and the actors. It is not for the censor to determine in any case. The First and the Fourteenth Amendments say that Congress and the states shall make ‘no law’ which abridges freedom of speech or of the press. In order to sanction a system of censorship I would have to say that ‘no law’ does not mean what it says, that ‘no law’ is qualified to mean ‘some’ laws. I cannot take that step.

“In this Nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.”

Thus has been repudiated by the Supreme Court of the United States all of the fine reasoning previously advanced for the deviation from the plain unambiguous inhibition of the Constitution relating to abridgment of the right of free speech and of the press. It is fair here to state that Judges Taft and Stewart of the Ohio Supreme Court dissented from the majority decision announced in 159 Oh St 352.

It is my judgment that the censor statutes of Ohio are unconstitutional and void.

In deference to my high regard for the Judge of the Common Pleas Court of Franklin County and the distinguished Attorney General of the State of Ohio (as well as Mr. Hissong, Superintendent), it is desired to mention that both these fine officials seized upon and were misled by certain expressions in the opinions of the members of the U. S. Supreme Court to the effect that the Court was only deciding the issues raised in each case and was not attempting to decide therein that all censorship statutes were beyond the power of the state to create and maintain. It is a fundamental principle, however, that all courts customarily limit their decisions to the law governing the facts in each particular case. But from the over-all reasoning of the Supreme Court of the United States in its recent decisions and its universal reversal of every case upholding censoring, it is quite evident the Supreme Court has declared the censor provisions of the Ohio Motion Picture Censorship Act contravene the First and Fourteenth Amendments to the Constitution of the United States.

I am well aware of the hope, in which I share, that some means may be conceived to curb and prevent abuses condemned by all right thinking persons. There is hope in the program set forth in the pastoral letter addressed by the Most Reverend Emmet M. Walsh, Bishop of Youngstown, to all his churches, calling upon Catholics to boycott morally objectionable moving picture exhibitions. I am certain the good Bishop does not intend that his people shall deprive themselves of the benefit and enjoyment of the many wonderful pictures shown upon the screen and by television, presenting as they do the opportunity for all to see and hear the great dramas, the musical extravaganzas, the historical sequences such as in “You Were There”, the political arguments, the news of what is going on daily in the world, the religious services, the adoration of Christ at the Christmas season, the wholesome amusement for the children as well as adults. Others may shut their eyes and their ears to these things but I thank God for having let me live in the day when these blessings have come about through motion pictures and television, realizing that most of that which is presented must first be acted and produced in the studios provided by the moving picture industry.

It is yet possible that through the churches of all denominations, the civic organizations, the service societies and other means, ways may be provided to censor that which is evil without sacrificing our sacred Bill of Rights. The call of Bishop Walsh is a call to arms against which the motion picture industry cannot long dare to offend. It was a grievous mistake to bring to the United States the foreign production “LaRonde”.

In the case we review, the Common Pleas Judge based his decision largely upon the police power of the State to protect the morals of its citizens. It is elementary that the police power of the State cannot transcend the limits of the Constitution of the United States.


author: By FAUST, J.

text:
    GARBRY, Estate of, In re.
    Probate Court, Miami County.
    No. 37030.
    Decided May 6, 1955.
    Earl N. Merwin, Assistant Attorney General, Columbus, for Ohio State Department of Taxation, Exceptor.

      Baird Broomhall, Troy, and John E. Fulker, Troy, for Ralph B. Garbry and J. Scott Garbry, Administrators of the Estate of Pearl D. Garbry, deceased.
   OPINION

By FAUST, J.

This cause came on to be heard upon the exceptions filed herein to the determination of inheritance tax in the Estate of Pearl D. Garbry, deceased, by the Department of Taxation, State of Ohio.

The exceptions stipulate that the application and journal entry in the determination of the inheritance tax do not include the value of certain property which Pearl D. Garbry received from the estate of her late husband, Joseph F. Garbry, Administration No. 32278 and which property she subsequently transferred to her sons, J. Scott Garbry ánd Ralph B. Garbry, by deed, reserving to herself a life estate in said real estate, thereby creating a succession taxable to the sons under the provisions of §5731,02, C-2 R. C.

It is agreed by Counsel that the facts in this cause are not in dispute. From the testimony it is apparent that no or substantial consideration was given by the two sons to the mother for the transfer of the real estate. • Federal Documentary Transfer Stamps as indicated by the photostatic copy of the deed in the sum of fifty-five cents would suggest that the consideration was for $500.00. However, upon investigation, it was revealed by counsel that the transfer stamps were inadvertently annexed to the deed, that the conveyance recites a consideration of “One Dollar and other good and valuable considerations;” that the parties herein testified that the transfer was made to protect the grant- or and that “she wanted to give it to the boys.”

In a review of the testimony it is found by the Court that sometime prior to March 15, 1950, Pearl D. Garbry, now deceased, counseled with her attorney relative to contemplated disposition of certain real estate which she inherited from her husband, Joseph F. Garbry.

After some deliberation she conveyed her interest in the real estate to her two sons, J. Scott Garbry and Ralph B. Garbry, who contend that they actually had entered into possession and enjoyment of the real estate subsequently conveyed to them by their mother many years prior to her death, and therefore the conveyance is not within the purview of the statute.

The Department of Taxation maintains that the transfer by Pearl D. Garbry to her sons was intended to take effect in possession or enjoyment at or after such death was within the meaning and intendment of §5731.02 R. C., and accordingly subject to inheritance tax.

Sec. 5731.02 R. C.

Levy of Tax; successions subject to tax.

A tax is hereby levied upon the successions to any property passing, in trust or otherwise, for the use of a person, institution or corporation in the following cases.

C. When the succession is to property from a resident, or to property within this state from a non-resident, by deed, grant, sale, assignment, or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property.

1. In contemplation of the death of the grantor, vendor, assignor, or donor;

2. Intended to take effect in possession or enjoyment at or after such death.

After a review of the law, facts and testimony in issue in this cause, the Court finds that the transfer of the interest of Pearl D. Garbry to J. Scott Garbry and Ralph B. Garbry, reserving her life estate, was “made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property” as provided in §5731.02 (C) R. C.

Therefore we have the following facts for consideration: The transfer of real estate by Pearl D. Garbry, grantor to J. Scott Garbry and Ralph B. Garbry, grantees, the remaindermen; made without valuable consideration substantially equivalent in money or money’s worth to the full value of the said property; grantor reserved life estate in the real estate transferred.

Many cases have been cited by Counsel pertaining to a transfer to take effect in possession or enjoyment at or after death when the legal title is transferred by way of a trust, reservation of life estate or some other devise whereby the grantor attempts to retain the beneficial interest until his death or after. However, except for one particular case, no Ohio cases seem to deal directly with the question at issue.

Rising’s Estate v. State

242 N. W., page 463,

“It is said in that opinion, arguendo, that ‘succession is effected as completely by a transfer of a life estate to one and remainder over to another as by a transfer in fee.' That is a transfer of the fee, but incumbered by a life estate. And certainly the immediate vesting of the remainderman’s interest does not bring him either possession or right of possession, two essentials of perfect title. His successions to both is postponed to the donor’s death. A remainder is an estate or interest ‘to take effect in possession or enjoyment upon the determination of a prior estate.’ So in the very nature of the thing, the remainderman’s real succession can come only upon, and by reason of the death of life tenant.”

Sharp, Estate of, In re,

67 Abs, 415, 416,

“It is the opinion of this Court that the question of title vesting is not the controlling factor. By the very terms of the statute involved herein the question is when did grantees have the right to ‘possession or enjoyment’ and not when did title vest in them. That is to say, even though legal title may have vested in grantees as of the day of the conveyance, they did not in fact have the right to possess the property herein; they did not have the right to enjoy said property, in fact, they could do nothing with the property until the death of grantor herein.”

The terms of the instrument granting unto J. Scott Garbry and Ralph B. Garbry a remainder estate would limit their right to actual possession or enjoyment until after either the death of Pearl D. Garbry or upon her conveyance of the life estate to them.

J. Scott Garbry and Ralph B. Garbry managed the farm for Pearl D. Garbry for which they received compensation for work This was an agreement which could have been terminated by either party. Pearl D. Garbry could hire whomever she chose to manage and cultivate the soil on her farm. Only upon her death or conveyance of her life interest would she be deprived of her right to immediate possession. .

The Court, therefore, must conclude that the exceptions filed to the Determination of Inheritance Tax in the estate of Pearl D. Garbry, deceased, to the exclusion of the transfer of real property from Pearl D. Garbry to J. Scott Garbry and Ralph B. Garbry is well taken, and exceptions sustained.

An entry may be prepared by Counsel accordingly.


author: By STEVENS, PJ:

text:
    INDUSTRIAL CREDIT CO., Plaintiff-Applele, v. KEN RAY CORP., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23512.
    Decided June 8, 1955.
    Gorman, Arthur & Schofield, Cleveland, for plaintiff-appellee.
    Blum & Blum, Cleveland, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District sitting by designation in the Eighth District.)
    HISTORY: — Motion to dismiss appeal. Appeal dismissed. For further history see Omnibus Index in bound volume.
   OPINION

By STEVENS, PJ:

On August 30, 1954, plaintiff, Industrial Credit Company, filed its petition in the Court of Common Pleas of Cuyahoga County, wherein it alleged:

That plaintiff was a corporation organized and existing under the laws of the State of Ohio, with its principal place of business in Cleveland, Ohio.

That defendant was a corporation organized and existing under the laws of the State of Ohio, with its principal office in Cleveland, Ohio.

That plaintiff was a judgment creditor of defendant by reason of a judgment rendered in its favor by that court against defendant on August 11, 1954, in the sum of $7,897.18, in case No. 662,780, then pending in said court, which judgment was rendered upon an installment note for the amount then remaining due.

That said note was secured by a chattel mortgage upon personal and chattel property, located in the Zanzibar Tavern, situated at 202 East Water Street, Sandusky, Ohio, which premises are leased.

That defendant had recently been operating said tavern in such manner that defendant’s assets were, being dissipated, and its lease and permit to sell intoxicating liquors in danger of being cancelled, which would impair the security of said mortgage and defeat plaintiff’s rights to have its judgment and note satisfied from the sale of said tavern as a going concern.

That plaintiff had no remedy at law.

Wherefore, plaintiff prayed that a receiver be appointed to take charge of said assets of defendant, including the permit to sell intoxicating liquors; that said tavern be sold as a going concern, including the permit to sell intoxicating liquors; that plaintiff be paid first from the proceeds thereof; and for such other relief as would be equitable and just.

A summons was issued and duly served on defendant on August 31, 1954, by handing to Maurice Wolkoff, secretary, a true and certified copy thereof, the president or other chief officers of said company not being found in the county.

A motion for appointment of a receiver was filed on August 30, 1954, and set for hearing on September 1, 1954. On September 2, 1954, an order appointing a receiver was duly made, both plaintiff and defendant being in court, which order was approved by counsel for plaintiff and defendant. Thereupon, the receiver duly qualified and entered upon the discharge of his duties.

On February 10, 1955, leave was granted to Helen Rosenberg to become a new party defendant, and to file an answer and cross-petition instanter and to make a new party defendant. On February 21, 1955, a motion by defendant, Helen Rosenberg, to vacate the appointment of the receiver was filed.

On March 18, 1955, the motion by defendant, Helen Rosenberg, to vacate appointment of receiver was heard and overruled.

On April 6; 1955, notice of appeal on questions of law was filed by Helen Rosenberg.

The matter now for decision by this court arises upon appellee’s motion to dismiss the appeal herein for the assigned reason that the order appealed from is not a final order or judgment.

It is the contention of appellant, Helen Rosenberg, that the trial court did not have jurisdiction to appoint a receiver in this case, for the reason that all of the assets of the defendant corporation were outside of this county, and were situated in Erie County, Ohio.

Sec. 2735.01 R. C., sets forth the statutory grounds for appointment of a receiver. The petition filed herein includes two of said statutory grounds, and the cause of action therein set forth is one over which the Court of Common Pleas is given jurisdiction of the subject matter of the action.

Jurisdiction of the parties to the action attaches after the service of summons in accordance with §2397.36 R. C., both plaintiff and defendant being residents of Cuyahoga County. Inasmuch as the court possessed jurisdiction of the parties, and of the subject matter of the action, appellant’s claim of lack of jurisdiction is untenable.

Then, too, the order appointing a receiver has not been appealed, and the motion to discharge the receiver was filed long after the expiration of the time for appeal of the order appointing a receiver.

The court did have jurisdiction to appoint a receiver herein, the subject matter of the action being personal, and not real property.

Did the overruling of appellant’s motion to vacate the appointment of the receiver, and/or to discharge the receiver, constitute a final, reviewable order or judgment?

That question has been answered in the negative on many occasions by this and other courts of Ohio. See: Neighbors v. Thistle Down Co., 26 Oh Ap 324, par. 2 of the syllabus; Stiver v. Stiver, 63 Oh Ap 327; Koring v. Chicago Pneumatic Tool Co., 10 Abs. 474; Eaton Loan & Home Aid Co. v. Wespiser, 20 Abs 690.

The motion of appellee to dismiss the appeal herein is sustained, for the reason that the order from which the appeal was taken is not a final, reviewable order.

Exceptions. Order see journal.

Appeal dismissed.

HTJNSICKER, J, DOYLE, J, concur.


author: By CASE, J.

text:
    HOPPES et, Plaintiffs, v. AMERICAN NATIONAL RED CROSS, et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21939.
    Decided September 6, 1955.

      Richard P. Rankin, Washington C. H., for plaintiffs.
    William M. Junk, Junk & Junk, Washington C. H., for American National Red Cross.
    Charles S. Hire, Maddox & Hire, Washington C. H., for Nancy A. Hall.
   OPINION

By CASE, J.

This is an action for declaratory judgment seeking interpretation of three deeds of general warranty, three wills, and four mortgages: and a determination of the rights and interests of the children and grandchildren of Samuel B. Hoppes, deceased, the same being the two brothers and a sister and fourteen nieces and nephews of John Hinton Hoppes, deceased son of Samuel B. Hoppes; and the interests of two mortgages of John Hinton Hoppes, and of the American National Red Cross, a devisee under the will of John Hinton Hoppes. This matter was submitted upon the pleadings and an agreed statement of facts as hereinafter discussed and set forth.

THE FIRST CAUSE OF ACTION

The first cause of action seeks determination of the rights and interests of the various parties with respect to 78 acres originally conveyed by Samuel B. Hoppes to John Hinton Hoppes by deed of general warranty dated December 23, 1912.

The factual situation of the first cause of action may be summarized as follows:

1912 Deed: Samuel B. deeded to John H. “for the term of his natural life, then to the heirs of his body their heirs and assigns forever.”

1929 Deed: John H. reconveyed to Samuel B. in fee simple reciting the purpose thereof “being to vest the fee simple title to said premises in the grantee, Samuel B. Hoppes.”

1934 Deed: Samuel B. reconveyed to John H. in fee simple.

1935: Samuel B. died testate but without specifically making mention or devise of said 78 acres and without including a residuary clause in said will.

1939, 1948, 1953, and 1954: John H. mortgaged said premises.

1954: John H. died testate, without issue; and without said mortgages being cancelled or released; and devising the net proceeds from the sale of said premises to The American National Red Cross.

No one of the parties to this action has contended that there is any ambiguity or uncertainty in the intent of the parties to the 1912 deed by reason of the language used therein. The granting and habendum clauses use identical words and phrasing — ^“for the term of his natural life, then to the heirs of his body their heirs and assigns forever”; and the warranty clause uses the phrase — “and the heirs of his body, their heirs, and assigns.”

In Long v. Olinger, 16 Abs 182, the appellate court for Ohio Appeals, 2nd District, held:

■ “3. A deed from a father to a son who had no children, granting the premises to the grantee ‘and the children of his body begotten and their heirs and assigns forever,’ does not convey a fee simple to the son.”

In the second headnote to In Re Estate of Jones, 44 Abs 339, the appellate court for Ohio Appeals, 3rd District, held:

“2. A granting clause in a deed executed in 1897 which recited that premises are conveyed to ‘Thomas T. Jones and heirs of his body,' entitled the grantee as the first donee or tenant in tail to full enjoyment of all rights and subject to all the disabilities incident to that species of estates, and upon his death the right of entry accrued to the issue of his body and their estate immediately became an absolute estate.in fee simple.”

In Pollock v. Speidel, 17 Oh St 439, the Supreme Court of Ohio held:

“1. Where lands are conveyed by deed ‘to A, their heirs of his body, and assigns, forever,’ the grantee takes an estate tail.

“2. By force of the statute of this state limiting entailments, the issue of A takes the inheritance as an absolute estate in fee simple.

“3. The first donee in tail can not, in this state, by a sale and conveyance in fee simple, with covenants of warranty, bar the entail, or deprive his issue of the right of succession to the inheritance.

“4. Though the issue, in such case, take by descent, yet the tenant in tail is not the source of their title; they take, per formam doni, from the person who first created the estate, and are therefore not estopped by the deed of the tenant in tail.”

It is undisputed that John Hinton Hoppes was unmarried and without issue on December 23, 1912, that these two conditions continued unchanged throughout his life-time, and that he died on October 22, 1954, without issue..

In the interpretation of deeds, it is a well established rule of law that the intention of the parties shall govern unless the language used therein renders it imposible to give that intention effect. As to the intention of the parties to said deed of 1912, this Court must be guided by the language contained therein for all of the parties thereto are now deceased.

Sec. 8622 GC, was in force and effect on December 23, 1912, and contained the following provisions:

“No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail.” (Emphasis added by the Court.)

In 16 O. Jur. 415, 416, we find the following analysis and comment upon §8622 GC: t

“No. 34. * * * It is well established that this statute did not change the nature of the estate of the first donee in tail from an inheritable estate to an estate for life merely. In other words, the statute does not come into operation until the estate passess by the first donee in tail and reaches the issue of such donee. In an early case, it was asserted that the statute recognized the first donee in tail as holding an estate for life only as tenant in tail. But this statement has been construed merely to mean that the donee holding as tenant in tail cannot convey an estate that will endure beyond his own life.” (Emphasis added by the Court.)

Therefore, upon application of established statutory and case law of Ohio to the clear and unambiguous language of the 1912 deed, it must be concluded that the force and effect thereof was to entitle the grantee, John Hinton Hoppes, as the first donee or tenant in tail to full enjoyment of all rights and subject to all the disabilities incident to a fee tail estate.

Coming next to consider the force and effect of the 1929 deed, whereby the first donee in tail purported to reconvey said 78 acres in fee simple to the donor who created said fee tail estate, it becomes necessary to examine those rules of law applicable to the powers of the first donee in tail to transfer any interest in said land.

In Vol. 1, Hausser’s Ohio Practice, Real Property, 206, 207, we find the following:

“No. 451. Power of First Holder to Transfer — Same as Owner of Fee Simple Absolute Estate, but Subject to Defeasance. The donee of the estate in fee tail preserved for the lifetime of the first taker only, has both the privilege and the power to create any interest in the land which could be created by a person having an estate in fee simple absolute. However, any interest so created may be defeated, upon the death of the donee in tail, by the persons entitled after the donee under the limitation which created the estate.

“This characteristic holds true whether the first donee in tail purports to convey an estate in fee simple absolute, or an interest given as security in the form of a mortgage, or an interest to be held in trust, and whether the conveyance is voluntary or involuntary (Restatement, Property. Vol. I, No. 89.).”

“Example:

“1. A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B and the heirs of his body.’ B makes an otherwise effective mortgage of Blackacre ‘to C and his heirs.’ B marries D and has a son E. D dies, B dies. E acquires an estate in fee simple absolute in Blackacre and may limit C’s mortgage interest in Blackacre to the estate of B, which ended on his death (Wolf v. Stout, 9 Dec. Repr. 231, 11 Wkly. Law Bull. 236—Dist. Ct., Pickaway Cty., 1884).”

“No. 452. — Defeasibility of Estate of First Donee

“When the first donee of the estate in fee tail transfers any interest, such interest of course does not last longer than the duration specified for it in the conveyance which created it. If the donee in tail purports to convey an interest that is to continue beyond his death, the interest ‘does not automatically terminate with the death of the conveyor, but, after such death it becomes defeasible by the persons entitled after the conveyor.’ (Restatement, Property, Vol. I, No. 89) (Emphasis added by the Court.)”

“The persons who are entitled to contest the right of the transferee of the first donee in tail to hold his interest after the death of the first donee in tail, include the specified issue of the first donee in tail, the remaindermen in the original conveyance, persons in whose favor an ex-ecutory interest have been validly limited by the original conveyance, and the reversioner who made the original conveyance. (Restatement, Property, Vol. I, No. 89.)”

“454. — Characteristics of the Estate Transferred

“Until the persons entitled to take after the death of the first donee in tail act to assert their rights, the interest created by a conveyance made by the first donee in tail, for the period of its continuance, has the characteristics of the type of interest in the land purported to be created thereby. (Restatement, Property, Vol. I, No. 89)

“The above discussion' as to the inability of the first donee in tail to transfer interests continuing beyond his lifetime against the wishes of the persons entitled to take after his death, is indicative of the law of Connecticut and Ohio. * * *

“Neither by a conveyance in fee simple, a mortgage, a trust, or a voluntary or involuntary transfer may the first donee in tail bar the entail or deprive his issue of the right of succession to inheritance. In Pollock v. Speidel, 27 Oh St 86 at 95 (1875), the Supreme Court explained that the first donee in tail has no power to bar the entail or to cut off the heirs of his body from their right of succession to the inheritance at his death, and that upon his death a right of entry accrues to the issue of his body, whose estate becomes, by force of the statute, an absolute estate in fee simple.”

After diligent search and examination of the statutory and case law of Ohio, this Court is of the opinion that the rules of law hereinabove set forth and discussed by “Hausser” are consistent with and correctly state the law of Ohio with respect to estates in fee tail for single lifetime only. Therefore, this Court will apply those rules in reaching its determination of the issues raised by the first cause of action herein.

The 1929 deed purported to convey an interest that was to continue beyond the death of John Hinton Hoppes who was the conveyor and first donee in tail. Therefore, the fee simple title so conveyed did not automatically terminate with the death of the conveyor, John Hinton Hoppes, but, after his death, the fee simple title so conveyed merely became defeasible by any person or persons entitled to take succession to the inheritance created by the original deed of 1912; and, until any person or persons entitled to take after the death of John Hinton Hoppes act to assert such right, the -fee simple interest created by the deed of 1929 continues in force and effect unless contested and defeated by such action.

Is any one or more of the parties to this action such person or persons entitled to contest and defeat the fee simple title to the 78 acres conveyed by the 1929 deed? We think not, for it is apparent from the undisputed facts that no one of the parties to this action is the issue of the first donee in tail, or.is a remainderman named in the original deed of 1912, or is a person in whose favor an executory interest had been validly limited by the original conveyance, or is ‘ the reversioner who made the original deed of 1912.

Since no remainderman was named in the deed of 1912, and since said deed contained no terms concerning such executory interest, then there were only two classes of persons who could have contested and defeated the fee simple title so conveyed by the donee in tail through the 1929 deed of general warranty, namely the issue of the first donee in tail and the reversioner. And, since it is admitted that the donee in tail, John Hinton Hoppes, lived and died without any issue of his body, and that the reversioner, Samuel B. Hoppes, was the transferee of the fee simple conveyed by the 1929 deed, and, subsequent thereto, re-conveyed said 78 acres in fee simple to the said John Hinton Hoppes by warranty deed dated November 10, 1934, and then died testate in 1935 without specifically making mention or devise of said premises; it is clearly apparent that no person living at the time of the death of John Hinton Hoppes, October 22, 1954, was entitled to contest the rights acquired by the transferee of the first donee in tail through said deed of 1929, or the rights acquired by the successive transferees through the respective warranty deed of 1934 and the mortgage deeds of 1939, 1948, 1953 and 1954.

Therefore, it must be concluded that the respective interests created by each of said warranty and mortgage deeds are such estate and interest as the respective conveyances purported to create.

In the light of all of the foregoing findings of law and fact, this Court further finds:

1. That John Hinton Hoppes died seized of a fee simple estate in and to said 78 acres of land:

2. That said mortgage deed by John Hinton Hoppes to Effie Palmer, Trustee of the Good Hope Baptist Church Fund, under the date of March 29, 1939 (Fayette County Mortgage Record 38, Page 541) is a valid and subsisting lien against said real estate;

3. That said respective mortgage deeds by John Hinton Hoppes to The Columbus Production Credit Association, under the dates of September 21, 1948, May 7, 1953, and July 21, 1954 (M. R. 50, Page 317; M. R. 60, Page 9; M. R. 61, Page 319) are valid and subsisting liens against said real estate; and

4. That said real estate should be sold and the proceeds therefrom applied to the payment of debts as provided by law and the remaining net proceeds distributed to The American National Red Cross pursuant to the terms and provisions of said last will and testament of John Hinton Hoppes, deceased.

THE SECOND CAUSE OF ACTION

The second cause of action seeks determination of the rights and interests of the various parties with respect to 50 acres specifically devised to defendants, Pauline H. Zurface, Glen Hoppes and Beulah H McFadden, by Item Four of the last will and testament of their uncle, John Hinton Hoppes, deceased; and the issue raised therein is summarized in plaintiffs’ petition as follows:

“Your plaintiffs as such Executors are in doubt as to the proper construction of Item Four of said will with regard to the premises above described for the reason that the terms and provisions of said Item relating to the manner in which the said John Hinton Hoppes supposed that he had acquired title thereto were not actually fulfilled and therefore said Item may fail and thereby the devise may lapse and pass under the residuary clause thereof.”

The factual situation of the second cause of action may be summarized as follows:

Acquisition of 50 acres by Nancy Hoppes: Nancy Hoppes, mother of John Hinton Hoppes, acquired a fee simple estate in said premises by deed dated February 19, 1907 (Fayette County Deed Record 34, Page 76).

50 acres devised by her will: Nancy Hoppes died testate, May 25. 1951, and by Item II of her will'devised said premises as follows:

“Item II. All the property, real and personal, of every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my son, John Hinton Hoppes, Route 1, Washington Court House, Fayette County, Ohio, for and during his natural lifetime, and after his death I give and devise all of my said property, both real and personal to the brothers and sister of said John Hinton Hoppes, namely Charles H. Hoppes, Samuel J. Hoppes, and Nancy Ann Hoppes, their heirs and assigns, equally, share and share alike.”

Identity of Devisees named in Item II: The Nancy Ann Hoppes named in Item II of said will and the Nancy A. Hall named defendant in this action are one and the same person. The Charles H. Hoppes and Samuel J. Hoppes named in Item II of said will and the C. H. Hoppes and S. J. Hoppes named plaintiffs in this action are one and the same persons.

1952 Deed: By warranty deed, dated April 1, 1952, Nancy A. Hall, unmarried; Samuel J. Hoppes and his wife;-and Charles H. Hoppes and his wife; conveyed their respective interests to John Hinton Hoppes (Fayette County Deed Record 84, Page 596).

Date of Execution: The last will and testament of John Hinton Hoppes was executed September 7, 1946.

50 acres devised by John Hinton Hoppes: The fourth item of his will reads as follows:

“FOURTH, whereas my mother, Nancy Hoppes, has made a will devising to me fifty acres of land in Perry Township, Fayette County, Ohio; in the event that I shall survive her and inherit from her said land, I give and devise said land to Pauline H. Zurface, Glen Hoppes and Beulah McFadden, children of my brother Samuel J. Hoppes, in fee simple, share and share alike.”

It is undisputed that the mother, Nancy Hoppes, died testate in 1951 seized of fee simple title to and being the sole owner of said 50 acres, as described and set forth in plaintiffs’ petition. It is also undisputed that, under the terms and provisions of her will, John Hinton Hoppes was devised a life estate only in said premises, and that the remainder was specifically devised to Nancy A. Hall, a named defendant herein, and to C. H. Hoppes and S. J. Hoppes, named individually as plaintiffs herein; and that said remaindermen, by their 1952 deed of general warranty, conveyed all of said remainder to the life tenant, John Hinton Hoppes, who thereby became the owner in fee simple of said 50 acres on April 1, 1952.

All parties to this action admit that John Hinton Hoppes died testate on October 22, 1954, and that his will was executed on September 7, 1946. It is also admitted that Nancy Hoppes, his mother, died testate on May 25, 1951, and that her will was executed November 1, 1939 Therefore, it is apparent from the explanatory language contained in item Fourth of his will that John Hinton Hoppes knew, at the time of making his will, that his mother had made a will devising said 50 acres to him: and that, in the event he inherited said premises under the provisions of her will, he intended to devise said premises to the two nieces and nephew specifically named in the fourth' item of his will.

The sole issue remaining to be determined under this second cause of action is whether the words — “* * * in the event I shall survive her and inherit from her said land * * *” — are words of limitation as used in the fourth item of said will. This Court is of the opinion that they are not words of limitation.

In 41 O. Jur. 590, 591, 593, 594 and 595, the interpretation of wills is commented upon as follows:

“No. 467. In General. — The cardinal rule of interpretation of a will is to ascertain and give effect to the intention of the testator, which has been variously declared to be the paramount rule, the primary guide, the sole guide, the guiding spirit, and the polar star. This intention will be followed unless the testator attempts to make disposition contrary to some rule of law or public policy. To that end all rules of construction are to be followed only as they are seen to be aids to a determination of that intention, and no rule, however sanctioned by usage, may be applied to a thwarting of the testator’s intention. If however, the testator attempts to effect that which the law forbids, his will must yield to the rules of law, as, for example, where he attempts to disregard the rule against perpetuities, or in any sense break down or violate the fixed principles of property.”

It is clearly apparent and must be conceded that the testator in the case at bar did not attempt to make disposition contrary to some rule of law or public policy; nor did said testator attempt to effect that which the law forbids, or to break down or violate any fixed principles of property.

In 41 O. Jur. 595 to 600, it is stated:

“No. 468. Language Indicating Intention. — The intention of a testator must be ascertained from the language used in the will, as applied to the subject-matter and read in the light of surrounding circumstances at the time of the execution thereof, and not with reference to the circumstances at the time of the death of the testator, except in so far as the latter are connected with the former. Even the circumstances surrounding the testator at the time of its execution can effect its construction only when it appears that they were known to the testator at that time.

“No deduction may . be made from circumstances that annihilate the written terms of the will.

“In considering the surrounding circumstances, a court should, as far as possible, try and put itself in the position of the testator at the time of making the will. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him and to influence him in the disposition of his property, are all entitled to consideration.

“While, as shown in the preceding section, the purpose of construction as applied to will is unquestionably to arrive at the intention of the testator, that intention is not that which existed in.the mind of the testator, but that which is expressed by the language of the will. The question always before the mind of the court must be not what should the testator have done, but what did he do, and what did he mean by the words which he actually employed. If language of will is plain, and the meaning obvious, the court cannot qualify or control the language by conjecture or doubt arising from extraneous facts. The testator must be presumed to have meant what he said. * * *”

It is obvious that, at the time of making said will, John Hinton Hoppes knew he was not the owner of said premises which were then owned by his mother; that he anticipated if he survived his mother, becoming the sole owner thereof through a will which he knew she had made; and that, in the event he did become the owner and died seized thereof, he desired and intended to devise said 50 acres to the two nieces and the nephew so designated and named in the fourth item of his will.

His mother died on May 25, 1951, and by her will devised only a life estate to John Hinton Hoppes in said premises, with the remainder therein specifically devised to his two brothers and his sister. Within less than one year of his mother’s death, John Hinton Hoppes had acquired the fee simple estate in said premises through a deed of general warranty executed and delivered by said remaindermen on April 1, 1952. He died October 22, 1954, seized of such estate which by the terms of his will was expressly devised in fee simple to his two nieces and nephew named and designated in the fourth item thereof.

Therefore, it must be concluded that the language which preceded said devise in the fourth item of his will was merely descriptive and explanatory of his anticipated ownership of said 50 acres; and that said language was not used with the intent or purpose to limit or nullify said devise in the event he should acquire ownership of said premises by any means other than through his mother’s will.

In the light of the foregoing findings of law and fact, this Court further finds:

1. That such portion of the fourth item of said will which recites— “whereas my mother, Nancy Hoppes, has made a will devising to me fifty acres of land in Perry Township, Fayette County, Ohio;” — is merely descriptive and explanatory and does not in any way limit or nullify the devise thereinafter set forth.

2. That such portion of the fourth item of said will which recites— “in the event I shall survive her and inherit from her said land,” — is merely explanatory of an anticipated ownership of said premises and was not intended to limit- or nullify the de-vise thereinafter set forth where the testator acquired only a life estate through his mother’s will but, prior to his death, became seized of the fee simple estate in said premises through a deed of general warranty from the remaindermen named in his mother’s will.

3. That such portion of the fourth item of said will which recites— “I give and devise- said land to Pauline H. Zurface, Glen Hoppes and Beulah McFadden, children of my brother Samuel J. Hoppes, in fee simple, share and share alike.” — constitutes a valid devise of such estate even though preceded by certain language of description and explanation herein above set forth.

THE THIRD CAUSE OF ACTION

The third cause of action as amended seeks construction and interpretation of that portion of Item II of the will of Samuel B. Hoppes which reads as follows:

“* * * After the death of my said wife, Nancy Hoppes, I give and devise the Real Estate situate in the Township of Perry, County of Fayette and State of Ohio, consisting of two farms, one farm containing about 100 acres and the other farm containing about 155 acres to my son, John Hinton Hoppes, during his natural life. After the death of my said son. John Hinton Hoppes, I give and devise said Real Estate to my grandchildren, their heirs and assigns forever absolutely and in fee simple, each to share equally.”

It is noted that said 155 acres was one and the same premises described as the “FIRST TRACT” in the 1912 deed of general warranty which conveyed same to John Hinton Hoppes “for the term of his natural life, then to the heirs of his body their heirs and assigns forever”; and was also the same premises described as the “FIRST TRACT” in the 1929 deed of general warranty purporting to reconvey same to the original grantor, Samuel B. Hoppes.

It is the opinion of this Court that such reconveyance was effective but subject to defeasance by any issue of the body of John Hinton Hoppes, who lived and died without issue, as hereinbefore discussed and set forth in this Court’s determination of the first cause of action herein. Therefore, it must be concluded that Item II of the will of Samuel B. Hoppes constituted a valid devise of a fee simple estate in said 155 acres upon the death of John Hinton Hoppes without issue.

It is admitted that fourteen of the defendants named herein are all of the living children of C. H. Hoppes and S. J. Hoppes, the plaintiffs herein who are the sons of Samuel B. Hoppes, the testator; and that defendant, Nancy A. Hall, a daughter of said testator, has had no children. It is also admitted that said fourteen grandchildren were living at the time of the death of Samuel B. Hoppes. But, at the trial, it was developed and stipulated that Ronald J. Hoppes, a minor and unmarried son of S. J. Hoppes, was living at said testator’s death and died intestate in 1945 survived by his parents who are still living.

The major issue raised by this third cause of action is whether the estate in remainder devised by said Item II vested in said grandchildren upon the death of said testator (1935) or at the later death of his son, John Hinton Hoppes (1954).

In Ohio Natl. Bank v. Boone, 139 Oh St 361, 22 OO 414, 40 N. E. 2d. 149, it was held:

“1. Ordinarily, a will speaks as of the death of the testator.

“2. The law favors the vesting of estates at the earliest possible moment, and a remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.

“3. To the frequently stated general rule that if there is no gift in a will but by a direction to pay at a future time or event, the legacy will not vest in the beneficiary until the time for payment arrives, is the well recognized exception that where the postponement of payment is for the convenience of the estate, as the appropriation of the subject-matter of the legacy to the use and benefit of another for life, the ultimate interest will vest at the death of the testator. Under such exception, the postponement of payment relates merely to the enjoyment of the legacy and is not attached to the substance thereof.

“4. Where a testator wills a part of his estate to another, directing that she shall receive therefrom a stipulated sum annually for and during her natural life and further provides that after her death the unconsumed portion shall be paid to ‘my heirs, share and share alike,’ the remainder in such portion of the estate as may be unconsumed by the life beneficiary vests at the testator’s death in such person or persons as then answer the description of testator’s heirs under the statute of descent and distribution in force at such time, .unless a contrary design on the part of the testator is plainly apparent.”

In arriving at its decision in that case, Judge Zimmerman stated in part as follows, beinning at page 365:

“* * * The criterion of a vested remainder is a present capacity to take. So, when there is a person in being who would have the right to possession immediately upon the determination of the particular intervening estate, the remainder is vested. In re Hutchinson, 120 Oh St 542, 549, 166 N. E., 687, 690. It is not the uncertainty of the actual enjoyment, but the uncertainty of the right to enjoyment that makes a remainder contingent. Smith v. Block, 29 Oh St 488, 497. The law favors the vesting of estate at the earliest possible moment, and it is well settled in Ohio that a remainder after a life estate vests in the remainder-man at the death of the testator, unless an intention to postpone the vesting to some future time is clearly expressed in the will. Bolton v. Bank, 50 Oh St 290; Tax Commission v. Oswald, Exrs., 109 Oh St 36, 141 N. E., 678.

“The devise or bequest of an estate for life, followed by a direction to divide or distribute such estate among others after the death of the life beneficiary, does not defer the time of vesting unless an opposite intention plainly appears. Linton v. Laycock, 33 Oh St 128; Collier v. Grimesy, 36 Oh St 17; Bolton v Bank, supra; Johnson v. Johnson, 51 Oh St 446, 38 N. E., 61. In the cases of Sinton v. Boyd, 19 Oh St 30, 2 Am. Rep., 369; Richey, Exr., v. Johnson, 30 Oh St 288; and Hamilton v. Rodgers 38 Oh St 242, words of survivorship or other compelling language was present evidencing a well defined purpose on the part of the testator that the remainder should not vest until the time of division or distribution arrived.”

It must be conceded that there are no compelling words or language present in Item II of said will which would evidence any intention on the part of said testator to postpone the vesting of such remainder interests until the death of John Hinton Hoppes. And it is admitted that no additional grandchildren came into being between the time of said testator’s death and the subsequent death of John Hinton Hoppes. It is admitted, however, that of the fifteen granchildren who survived the testator only fourteen of them survived the life estate of John Hinton Hoppes.

In P. S. Bank & Tr. Co. v. Nash, 75 Oh Ap 493, 31 OO 290, 62 N. E. 2d 736, the Court of Appeals for Hamilton County held:

“2. In the absence of clear and unambiguous indications of a contrary intention disclosed in a will, the members of a class described in a will are to be ascertained as of the death of the testator.”

Upon applying the foregoing rules of law to the undisputed facts in the case at bar, it must be concluded that the remainder interests in the two farms so devised by Item II of the will of Samuel B. Hoppes immediately vested in his fifteen grandchildren who survived him.

With respect to that portion of such remainder interests which so vested in Ronald J. Hoppes immediately upon the death of his grandfather, Samuel B. Hoppes, it becomes necessary to next determine its disposition by reason of said grandchild’s death in 1945 prior to the expiration of the intervening life estates of his grandmother, Nancy Hoppes, and his uncle, John Hinton Hoppes.

Sec. 10512-4 GC, was in full force and effect at the death of Samuel B. Hoppes, the testator, and at the death of Ronald J. Hoppes, the remainderman who died prior to the expiration of said intervening life estates; and said statute provides as follows:

“Remainders, whether vested or contingent, executory interests, and other expectant estates are descendible, devisable and alienable in the same manner as estates in possession.”

Therefore, by reason of the aforesaid statutory provisions, that portion of such estate in remainder, as was vested in Ronald J. Hoppes immediately upon the death of Samuel B. Hoppes (1935), was descendible at the death of Ronald J. Hoppes (1945), an unmarried minor who died intestate and without issue; and such estate in remainder therefore passed by operation of law according to the pertinent provisions of §10503-4 GC, which were then in full force and effect and provided as follows:

“When a person dies intestate having title or right to any personal property, or to any real estate or inheritance in this state, such personal property shall be distributed, and such real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:

“5. If there be no spouse and no children, or their lineal descendants, to the parents of such intestate equally, or the survivor of such parents.”

For it is now established that the death of the owner of a vested future interest before his interest took effect in possession, does not cause such interest to fail unless the will creating the remainder interest so provides. Everhard v. Brown, 75 Oh Ap 451, 31 OO 268, 62 N. E. 2d 901. It must be conceded that the language of the will of Samuel B. Hoppes created such estate in remainder and contained no intention, express or implied, which would cause such interest to fail upon the death of said grandchild; for the testator expressly devised such estate in remainder “to my grandchildren, their heirs and assigns forever, absolutely and in fee simple, each to share equally.” It is also noted that said will contained no residuary clause.

In the light of the foregoing findings of law and fact, this Court further finds:

1. That the fee simple title to said 155 acre farm, as vested in Samuel B. Hoppes by said 1929 deed of general warranty from the first donee in tail, John Hinton Hoppes, remained uneontested and undefeated after the death of said John Hinton Hoppes without issue.

2. That Item II of said will of Samuel B. Hoppes was a valid devise of all of the right, title and interest of the said testator in and to the 100 acre farm and the 155 acre farm therein described.

3. That the estate in remainder, so devised to said testator’s grandchildren by Item II of said will, vested immediately upon the death of said testator in fifteen of said testator’s grandchildren who were all of his grandchildren then in being.

4. That each of the following named persons became vested with an undivided one-fifteenth interest in said estate in remainder to said 100 acres and 155 acres as the grandchildren in being at the death of said testator, Samuel B. Hoppes: — Pauline H. Zurface, R. Glen Hoppes, Beulah McFadden, Naomi Priest, Winifred Dellinger, Lawrence ■ Hoppes, Wilbur Hoppes, Wendell Hoppes, Merrill Hoppes, Ronald J. Hoppes, Helen Whitmer, Herbert Hoppes, Samuel I. Hoppes, Maynard Hoppes and Floyd Hoppes.

5. That no additional grandchildren were born after the death of Samuel B. Hoppes.

6. That Ronald J. Hoppes, one of the above named grandchildren, died intestate in 1945, being then unmarried and without issue; and that his undivided one-fifteenth interest of said estate in remainder passed to and vested in his parents, Samuel J. Hoppes and Lelia Hoppes, by-operation of law; and that the remaining fourteen grandchildren survived the said John Hinton Hoppes.

7. That the intervening life estates created by Item II of said will terminated with the death of John Hinton Hoppes on October 22, 1954; and that by reason thereof each of the fourteen grandchildren then living became vested with an undivided one-fifteenth fee simple estate in and to the aforesaid farms of 100 acres and 155 acres; and that the aforesaid parents of Ronald J. Hoppes, deceased, also survived John Hinton Hoppes and be.came vested with the remaining undivided one-fifteenth fee simple estate therein.

The Court further finds that counsel for plaintiffs should prepare an entry in conformity with each and all of the findings hereinbefore made with respect to each of the causes of action set forth in plaintiffs’ petition, and with appropriate notation therein of exceptions on behalf of each and all of the parties plaintiff and defendant, and thereupon submit same within five (5) days to opposing counsel and to this court for approval.