author: By MCCLELLAND, J.

text:
    MOSIER, Estate of, In re: MOSIER, Plaintiff, v. MOSIER et, Deceased, Defendants.
    Probate Court, Franklin County.
    No. 159052.
    Decided December 21, 1954.

      Carl Tresemer, Columbus, for Albertine B. Mosier, plaintiff.
    Bricker, Margburger, Evatt & Barton, Columbus, for Marjorie M. Balogh, Executrix of the estate of O. H. Mosier, defendant.
   OPINION

By MCCLELLAND, J.

This matter comes before the Court on a petition filed on August 25, 1954, for a declaratory judgment as to certain matters raised by the petition. The plaintiff is Albertine B. Mosier, the surviving spouse of O. H. Mosier. In the petition she alleges that O. H. Mosier died on April 7, 1954, aged eighty-four years; that on April 19, 1954, the will of O. H. Mosier was admitted to probate in the Probate Court of Franklin County, Ohio, and the defendant, Marjorie M. Balogh was appointed Executrix and qualified as such.

The plaintiff further says that she is now seventy-two years of age and was married to O. H. Mosier on November 1, 1941, when she was fifty-nine years of age and he was seventy-one years of age; and that on the day preceding the marriage Mr. Mosier, who was a lawyer, practicing his profession in Columbus, Ohio, caused the plaintiff to come to his law office and caused her to sign an antenuptial agreement, a copy of which is attached to the petition, and by the terms of which agreement the plaintiff purported to release all claims and demands, rights and interests, which she might have as the future wife of O. H. Mosier in his property and estate; that at the time of signing the agreement she was betrothed to wed said O. H. Mosier, reposed full confidence in him and trusted him to deal fairly and reasonably and lawfully with her; that the terms of said purported agreement were dictated exclusively by him; that she read the agreement before she signed it, but had no exact knowledge of the actual extent or value of his property, and no knowledge or understanding as to the extent or value of the rights proposed to be released by the purported agreement, but she thought they were simply releasing to their respective children their rights in property which they respectively then owned; that she relied solely on her prospective husband’s advice in signing said purported agreement; that he did not disclose to her or inform her of the nature, extent and value of the interest which the agreement purported to release and did not advise her to seek or obtain legal advice in connection therewith; and that the plaintiff was not actually advised or counseled as to her legal rights.

The plaintiff .further alleges that the decedent left real and personal property of a value of not less than $58,700.54, as shown by the inventory filed in this Court, and that the only provision made for the plaintiff in said purported agreement upon the death of O. H. Mosier is the sum of $3,000.00, payable at the rate of $100.00 per month, beginning fifteen days after his death.

The plaintiff further alleges that if Mr. Mosier had died without a will, she would be entitled to a certain amount of money as his surviving spouse by way of a widow’s allowance, her statutory exemption, and her distributive share in the estate.

The plaintiff further alleges that Mr. Mosier lived in the house owned by her and by her completely furnished and equipped, for one hundred and fifty months from November 1941 to April 1954 inclusive, the reasonable rental value of which is not less than $100.00 per month.

The plaintiff further alleges that Mr. Mosier agreed to pay her the sum of $30.00 per month in lieu of a pension which she was receiving at the time of the marriage, and that for sixteen months prior to his death he failed to make said payments.

The plaintiff further alleges that she has presented to the Executrix a claim in the amount of $16,666.66 as her distributive share, a claim for $2500.00 as her exemption, a claim in the amount of $3000.00 for widow’s allowance, and a claim for $15,000.00 as a reasonable rental value of the property which was occupied by both Mr. and Mrs. Mosier during the period of con ver ture.

The plaintiff prays that the so-called antenuptial agreement dated October 30, 1941, be cancelled, set aside and held for naught, that she be restored to all her legal rights as surviving spouse of O. H. Mosier, and that she be allowed the respective amounts as set forth in the petition.

To this petition was attached a copy of the antenuptial agreement executed on October 30, 1941. Upon examination of this agreement, the Court finds that the parties contemplated marriage with each other, that each has children by a former marriage, and that both are owners of real and personal property, and that the party of the first part (being Mr. Mosier) is the owner of certain real estate therein described, the value of which is $47,075.00, and that said property is subject to mortgage indebtedness in the amount of $5450.00, the net estate being of the value of $41,625.00.

The agreement further sets for the value of the property owned by the prospective wife as real estate valued at $5000.00 and personal property in the amount of $500.00, making a total of $5500.00. She also alleges that she has an annuity payable $66.45 a month during her natural life, all of which property was inherited from her former husband.

The agreement further stipulates that neither party shall have any right or claim in or to the property of the other, either during their marriage or upon the death of the other, except as to the lien of the second party on the real estate of the first party for the cash payment as thereinafter provided her. The agreement also contains the following language:

“Now, therefore, in consideration of said marriage and of the covenants of the second party herein contained, the said first party hereby promises and agrees that the representative of his estate shall pay to the second party the sum of Three Thousand Dollars ($3,000.00), payable as follows: One Hundred Dollars ($100.00) fifteen days after the decease of the first party and a like amount each thirty days thereafter, until the full sum is paid in full, which cash payment shall be a lien on any real estate owned by the first party at the time of his decease, provided, however, that at his option the said first party, during his life, may purchase an annuity for a like sum payable in monthly installments in any good and solvent insurance company, which annuity shall be received by the second party as a substitute for said cash payment. Provided also that if the second party shall predecease the first party, this agreement shall terminate upon her death.

“Whereas, the second party now is, and since the death of her former husband, has been, receiving a pension from the U. S. Government of Thirty Dollars ($30.00) per month which will cease upon her re-marriage, the first party agrees to pay her the sum of Thirty Dollars ($30.00) per month during his natural life, which is in lieu of the pension above referred to, and he further agrees that if he should purchase any real estate in the future and should sell the same and a profit be made thereon, he will pay to the second party one-third of such profit.”

The remainder of the contract contains the agreement that each shall release dower, etc., in the property of the other during coverture and that each gives up all rights in the property of the other.

At the hearing of this matter it was contended by counsel for Mrs. Mosier that this action is one for the determination of heirship and that by reason thereof Mrs. Mosier was a competent witness to testify as to the transactions leading up to the contract. This Court held that this action is not one for determination of heirship, but is an action to cancel a written contract and by virtue of the provisions of §2317.03 R. C., Mrs. Mosier is not a competent witness, and the Court now re-affirms that holding.

The plaintiff asks that the Court set off to her her interest in the property as if her husband had died intestate. This the Court cannot entertain until and unless the antenuptial agreement is set aside. The plaintiff has also asked the Court to grant the sum of money which she claims due from the estate of Mr. Mosier because of the fact that he lived in her home during converture. This is a matter over which this Court has no jurisdiction, and, therefore, declines to grant the relief prayed for as to that particular claim.

We now come to consider the merits of the controversy. It is fundamental that a man and woman, who are of full age and of sound mind, may enter into an agreement to marry providing said agreement is made after a full disclosure to each other of the property held by each of them, that the same is not unfair under all of the circumstances, and that each understands the legal effect of the contract. If the agreement was unfair, we must look to the circumstances existing at the time the contract was made and must determine what the effect or the operation of the agreement might be if death should occur immediately after the marriage. We cannot look to the future conduct of the parties toward each other as to any matters extraneous to the terms of the antenuptial agreement.

We will now determine what Mrs. Mosier gave up at the time she entered into this agreement. The agreement recites that Mr. Mosier had an estate at the time the agreement was made in the net amount of $41,625.00. Should Mr. Mosier have died intestate and no contract having been made, Mrs. Mosier would have an exemption of $2500.00; ' she would have had approximately $2500.00 for her year’s allowance, and after the debts were paid she would have one-third of the balance. Deducting the $2500.00 for year’s allowance and the $2500.00 for the exemption would leave a balance of $36,625.00. We make no deduction for debts and in that event she would be entitled to $12,208.00 as her distributive share. This amount plus the amount of $5000.00 above mentioned, would ' make a total of $17,208.00. She also by the terms of the contract gives up her annuity of $30.00 per month payable for the remainder of her life. In order to determine the value of this right which she forfeits, we must consider her life expectancy at the age of fifty-nine years and by the mortality tables compute the then cash value of the annuity. In examining the tables for computing the cash value of the annuity, we find that the then cash value of the annuity was $5407.00. Adding this to the $17,208.00 would make the sum $22,615.00. This is the amount which she has given up by the terms of the contract.

Now what has Mr. Mosier given up by the contract, assuming that she had died intestate immediately after the marriage and no contract was made. The contract provides that she has a net worth of $5500.00. His exemption would be twenty percent (20%) thereof, which would be $1100.00, leaving a balance of $4400.00. We disregard the matter of debts as we did in computing the prospective rights of Mrs. Mosier. In doing so, Mr. Mosier would be entitled to one-third of the balance of $4400.00, which amounts to $1466.67. To this we add the sum of $1100.00, making the sum of $2566.67, which is the value of his interest in her estate which he gives up by virtue of the terms of the contract. In addition thereto, he agrees to pay to Mrs. Mosier the sum of $30.00 per month during his natural life, but not during the remainder of her life in case he predeceases her. This is to be in lieu of the pension of $30.00 per month to which she was entitled prior to her marriage. In order to ascertain the cash value of that annuity, we must take the expectancy of life of Mr. Mosier at the age of seventy-one years and compute the value of that annuity. In doing so, we find the cash value of same to be $2890.00. Adding this to the sum of $2566.67, we arrive at a figure of $5456.67, which is the amount of the interest in his wife’s estate which he gives up, together with the cash value of the annuity which he agrees to pay her for the remainder of his life. In addition thereto, Mr. Mosier agrees that subsequent to his death, his personal representative will pay to Mrs. Mosier the sum of $3000.00, which is to be paid at the rate of $100.00 per month, beginning fifteen days after his death. Assuming that the $3000.00 would be paid immediately after his death, we must then calculate the then cash value of that $3000.00. Taking the expectancy of life of Mr. Mosier, we find that the then cash value of the $3000.00 is $2030.40. This added to the foregoing figure makes a total sum of $7497.40, which is the consideration which Mrs. Mosier agreed to pay in consideration of what Mrs. Mosier agrees to forfeit.

We therefore find that Mrs. Mosier, by virtue of the contract, has given up a prospective interest in the amount of $22,615.00, while Mr. Mosier has given up a prospective amount of approximately $7497.00. In other words, he has given up only about one-third of the amount which she has agreed to give up by the terms of the contract. He, however, has paid more than the amount which would be the cash value of that annuity, but we cannot consider that. We can only consider the values of their respective properties at the time the contract was made.

Plaintiff, in her petition, says that she read said purported agreement before she signed it, but had no exact knowledge of the actual extent or value of his property, and no knowledge or understanding as to the extent or value of the rights proposed to be released by the purported agreement, but she thought they were simply releasing to their respective children their rights in property which they respectively then owned; she further says that she relied solely on her prospective'husband’s advice in signing said purported agreement, but that he did not disclose to her or inform her of the nature, extent and value of the interest which the agreement purported to release and did not advise her to seek or obtain legal advice in connection therewith; neither is there any proof of her allegation that she was not so instructed; and neither is there any proof that she had explained to her her rights under the law in case he should die without a will. She is constructively presumed to know the law and it may be argued that ignorance of the law is no excuse. That maxim, however, cannot be applied in the present case. Mr. and Mrs. Mosier from the time of their betrothal up until the time of his death were living in confidential relationship to each other and he, therefore, was under,the legal obligation to disclose to her fully her rights in his property in case no antenuptial contract was made. There is no evidence that he did explain to her those rights, nor is there any evidence that he did not explain same to her. The testimony discloses that when Mrs. Mosier signed the antenuptial contract she came to Mr. Mosier’s office by appointment and was accompanied by a woman friend. After the exchange of a few pleasantries, Mr. Mosier said to her “sign here.” This she did and then departed. She did not read the contract at the time it was signed, but she alleges in her petition that she did read the contract. There is therefore a strong presumption that he and she discussed the matter prior to her coming to his office to sign same. As we have heretofore observed, there is no evidence that he did explain the legal effect of the contract to her, nor is there any evidence that he did not do so.

We have now stated the facts and the amount which each one gave up in the rights of the property of the other as an inducement for entering into the contract.

Mr. Mosier at that time was a man seventy-one years of age, and Mrs. Mosier was fifty-nine years of age. Both had children by a former marriage.

Now, what is the effect of that contract under the law as we understand it? Probably the best statement of the law of Ohio is contained in the opinion of Judge Williams, reported in the case of Juhasz v. Juhasz, 134 Oh St 257, the first four syllabii of which read as follows:

“An agreement to marry gives rise to a confidential relation between the contracting parties.

“An antenuptial contract voluntarily entered into during the period of engagement is valid when the provision for the wife is fair and reasonable under all the surrounding facts and circumstances.

“When the amount provided for the wife in an antenuptial contract entered into during the existence of the confidential relation arising from an engagement is wholly disproportionate to the property of the prospective husband in the light of all surrounding circumstances and to the amount she would take under the law, the burden is on those claiming the validity of the contract to show that before it was entered into he made full disclosure to her of the nature, extent and value of his property or that she then had full knowledge thereof without such disclosure.

“Although the provision made for the intended wife in an antenuptial contract is wholly disproportionate, she will be bound by voluntarily entering into the contract after full disclosure or with full knowledge.”

At page 264 of the opinion, the Court finds the following language which, we believe, to be a statement of the law of Ohio and which is in conformity to the syllabii:

“An engagement to marry creates a confidential relation between the contracting parties and an antenuptial contract entered into after the engagement and during its pendency must be attended by the utmost good faith; if the provision for the prospective wife is, in the light of surrounding circumstances, wholly disproportionate to the means of her future husband and to what she would receive under the law, the burden rests on those claiming the validity of the contract to show that there was a full disclosure of the nature, extent and value of the intended husband’s property, or that she had full knowledge thereof without such disclosure, and that she, with this knowledge, voluntarily entered into the antenuptial settlement. Debolt v. Blackburn, 328 Ill., 420, 159 N. E., 790; Watson v. Watson, 104 Kan., 578, 180 P., 242; in re Waller’s Estate, 116 Neb., 352, 217 N. W., 588; Harlin v. Harlin, 261 Ky., 414, 87 S. W. (2d), 937; Pattison v. Pattison, 129 Kan., 558, 283 P., 483; in re Flannery’s Estate, 315 Pa., 576, 173 A., 303; Denison v. Dawes, 121 Mo., 402, 117 A., 314; Megginson v. Megginson, 367 Ill., 168, 10 N. E. (2d), 815; in re Khyart’s Estate, 100 Neb., 337, 160 N. W., 120; In re Maag’s Estate, 119 Neb., 237, 228 N. W., 537. This court is aware that the burden of proof does not shift in Ohio (Ginn, Admr., v. Dolan, 81 Oh St 121, 90 N. E., 141, 135 Am. St. Rep., 761); but is of the opinion that disclosure as a justification or excuse for the disproportionateness is an affirmative defense.

“Under the rule, the contract is not invalidated merely because the portion fixed for the bride is small or disproportionate. After being fully informed and advised, the intended wife may be entirely satisfied with the provision made for her, and, if she then voluntarily enters into the contract, she is bound by its terms.”

In this case the prospective wife agreed to take one-sixth of the value of her husband’s estate in consideration of her giving up all of her statutory rights as a surviving; spouse. The Court, in that case, found that the property which the prospective wife agreed to receive instead of her statutory allowances consisted of one-sixth of the property and that therefore the division was so unfair as to raise the presumption that the contract was fraudulent and therefore set the same aside.

Our attention has also been called to the case of Speckman v. Speckman, et al., reported in 15 Oh Ap 283, the second and third syllabii of which are as follows:

“Where such a contract is in contemplation, it is the duty of the dominant party to make a clear and complete disclosure of all facts pertaining to the subject-matter of the contract and thereby place full information as to the property fights and interests involved in possession of the opposite party

“An antenuptial contract which fixes the interest of the wife in the thirty-one thousand dollar estate of her husband at thirteen hundred dollars, and bars her from dower and all other rights in the estate, which was signed by the wife without disclosure as to the property rights and interests of the husband, at a time when she was forty-six and he sixty-four years of age, and with unquestioning confidence in his disposition to deal fairly with her, will not be upheld by the courts where the husband made no further provision during his lifetime for his wife.”

In examining this decision, and many others, we find that this is the only one which specifically states that one shall make a complete disclosure to the other as to the legal effect of the contract.

In the case of Mettler v. Warner, reported in 11 O. P. (N. S.) page 363, the man was worth approximately one 'hundred and thirty-one thousand dollars and he made a contract with a young woman without means of support or business experience, by the terms of which he agreed to pay her an annuity of five hundred dollars and then thousand dollars payable at his death. The Court held that the amounts were so disproportionate to the statutory interest which she would receive, that the contract was held to be fraudulent.

In the Brewer case, reported in 84 Oh Ap 35, to which our attention has been directed, Judge Wiseman uses the following language in syllabus 4 thereof:

“Where the husband required the wife to enter into a separation agreement at the end of a two-day discussion of their marital difficulties, during which time the wife had little or no opportunity to discuss her property rights with other members of her family or to seek individual legal advice, the court will conclude that undue advantage was taken of the wife.”

In syllabus 5 thereof he uses the following language:

“Because of the dominating influence which the husband exercises over the wife, transactions between husband and wife to be valid, particularly as to the wife, must be fair and reasonable, and voluntarily and understandingly made.”

Syllabus 7 thereof reads as follows:

“Whenever advice of counsel will be of real assistance to the wife in deciding whether to enter into an agrément with the husband, it is his duty to advise her to seek such counsel.”

In that case the Court held the contract was not tainted with fraud and sustained same.

We have examined all of the cases cited by counsel for Mrs. Mosier and also those cited by counsel for the Executrix of his will. We must keep in mind that these contracting parties were past middle age and could be classified as persons of advanced age. Both had children by a former marriage to whom they had obligations. -The contract set forth fully and accurately the nature and value, of their respective property holdings. She gave up her interest in the estate of Mr. Mosier which consisted of a little more than $40,000.00, and he, for same, agreed to pay certain considerations which amounted to over $7000.00, which was approximately one-third of what she gave up. We must keep in mind the aggregate value of her property was only $5,500.00, while the aggregate value of his property was a little more than $40,000.00. Taking all of these facts into consideration, the relationship of the parties, their respective ages, and the terms of the contract, we. are forced to come to the conclusion that although the respective amounts were disproportionate to the value of the property, they are not so disproportionate as to give rise to a presumption of fraud. That being the situation, the Court is impelled to sustain the motion of counsel for the Executrix to render a judgment for the defendant.

An order may be drawn accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    GINDER and SMITH, Co-Executors, Plaintiffs, v. GINDER et, Defendants.
    Probate Court, Franklin County.
    No. 155674.
    Decided December 28, 1954.
    Forrest R. Detrick, Frank A. Koenig, Columbus, for executors.
    Kennedy & Kennedy, Columbus, for Union Cemetery Association.
    Guy G. Cline, Circleville, for Floyd Woolever.
    McClelland & DeVennish, Columbus, for Violet Roush and Edwin Roush.
   OPINION

By MCCLELLAND, J.

This matter comes before this court on an application filed by Bernice Ginder and Irvin G. Smith, co-executors of the Last Will and Testament of Floyd E. Ginder, deceased, against Bernice Ginder, et al.

Upon examination of the file, the court finds that all of the parties are before the court, either by summons or by entry of appearance. The only defendant who has filed an answer herein is Union Cemetery Association. The plaintiffs ask the court’s declaration as to certain matters set forth in the application.

We must now look to the contents of the will. By item second, the testator asks that his remains be interred in Forest Rose Cemetery at Lancaster, Ohio, and also directs that his executors shall buy and have erected a suitable monument upon his grave.

By item third of the will, he directs that the sum of $300.00 be paid to the Trustees of the above named cemetery, to be held in trust and the income to be used to keep up his lot.

By item fourth of the will, he bequeaths the sum of $500.00 to the Trustees of Darbyville Methodist Church, the same to be held in trust and the income to be used in providing Christmas cheer and gifts for the children of the community. He further provides-that if the church should be disbanded, then the same shall be given to White Cross Hospital as a memorial to himself and his wife.

By item fifth of the will, he gives to the Trustees of the Lancaster Hospital the sum of $1000.00 in memory of the Ginder Family.

By item sixth of the will, he devises to three different persons the old family homestead in Lancaster, Ohio.

Item seventh of the will consists of the following language:

“I give, devise and bequeath to my wife, Bernice Ginder absolutely all of the remainder of the personal property of which I may die seized and a life estate in all of the remainder of the real estate of which I may die seized.”

Item eighth of the will consists of the following language:

“Subject to the life estate of my wife, I give, devise and bequeath the property known as 27 and 29 Midland Avenue, Columbus, Ohio, to Violet Roush for and during her natural life and then to the heirs of her body. Should she have no such heirs then the same shall revert to my heirs.”

Item ninth of the will reads as follows:

“Subject to the life estate of my wife I give, devise and bequeath the five (5) family apartment in Lancaster, Ohio, and purchased from my father’s estate, to Irvin G. Smith, Nada Smith Kerr and Mary Jane Kegley, share and share alike.”

Item tenth of the will reads as follows:

“Subject to the life estate of my wife, I give, devise and bequeath all of the property in Fairfield County, Ohio, which I purchased from my father’s estate, to Irwin Smith, Nada Smith Kerr and Mary Jane Kegley, share and share alike.”

Item eleventh of the will consists of the following language:

“All of the remainder and residue of the real estate of which I may die seized, and in which my wife, Bernice Ginder, shall have a life estate, is hereby divided into four (4) shares, which I give, devise and bequeath as follows: One share to Violet Roush and Edwin Roush; one share to William Carpenter, Jack Carpenter and Edwin Roush; one share to Harold Farmer, Sr. and Floyd Woolever, if they are still tenants on my farm; and one share to Irwin Smith, Nada Smith Kerr and Mary Jane Kegley.”

We will not take up the questions propounded by the application in the order in which they are propounded, but in discussing this will we will discuss the matters in what we consider a logical order.

We first refer to the sixth item of the will, in which the property at 185 East Sixth Avenue, Lancaster, Ohio, is given to the three persons named therein absolutely and in fee simple. In item seventh he gives his wife, Bernice Ginder, a life estate in all of the remainder of the real estate of which he may die seized. It is to be noted in the subsequent items by which certain real estate is specifically devised, he specifically reserves a life estate in those devises. He did not use such language in the devise contained in the sixth item and it is our opinion when he used the word “remainder” in item seventh, .he used that in the sense as if he had used the term “residue” rather than “remainder.” If he used the term “remainder” in a technical sense, he would have given a life estate in all of the property and then a life estate in the “remainder,” which, of course, creates an incongrous situation. It is therefore our holding that the devise created by item sixth is not subject to the life estate of his wife, but that all of the real estate devised by the testator, other than that which is disposed of in item sixth, is subject to the life estate of his wife, Bernice Ginder.

The next question which we will consider is whether the federal estate tax, the amount of which will be determined by virtue of the federal estate tax law., shall be paid out of the general estate before distribution, or whether it shall be paid out of the general estate before distribution, or whether it shall be charged against the devisees and legatees and not against such portion as may pass to the surviving spouse. When this application was filed on July 8, 1954, it raised a serious question but that question has now been answered by the decision of the Supreme Court of Ohio, in the case of Campbell v. Lloyd, reported in 162 Oh St 203, and which appears in the November 22, 1954, number of the Ohio Bar, the syllabus of which case reads as follows:

“Where a widow elects under §10504-55 GC, to take under the statute of descent and distribution and the applicable portions of that statute (§10503-4 GC) provide that ‘personal property shall be distributed’ and ‘real estate or inheritance shall descend and pass in parcenary’ in part to the surviving spouse, the amount of the federal estate tax on the decedent’s estate should be deducted therefrom before computing the widow’s share thereof. (§§10503-4, 10504-55, 10504-77, 10509-121, 10509-181, 10509-182 and 10510-2 GC, and Section 812 (3), Title 26, U. S. Code, construed and applied. The syllabus in Tax Commission, ex rel Price, Attorney Genl., v. Lamprecht, Admr., 107 Oh St 535, approved and followed. Paragraphs two, three and four of the syllabus and the decision in Miller, et al, Exrs., v. Hammond, 156 Oh St 475, overruled. McDougall, Admr. v. Central National Bank of Cleveland, Trustee, 157 Oh St 45, distinguished).”

It is to be noted in that syllabus that the decision of the Supreme Court in the case of Tax Commission, ex rel Price, Atty. Genl. v. Lamprecht, Admr., is approved and followed, and that part of the decision in the case of Miller v. Hammond, reported in 156 Oh St 475, is overruled. Therefore, whether the surviving spouse takes under the will or under the statute of descent and distribution, the federal estate tax is considered a debt against the entire estate and shall be deducted before a distribution.

The next question is to what property we shall look for money with which to pay the debts of the estate. We have a most unusual will in the fact that we have two residuary clauses; one residuary clause disposes of all the remainder of the personal property, and another residuary clause disposes of all the real estate not specifically devised and by which the widow is given a life estate in all the property not specifically devised and the remainder to four other persons in equal shares. Are the co-executors required to exhaust the personal property in the residue of the estate, or is the personal property and the real estate to share in proportion to the amounts which each bear to the total amount of the residuary estates? We have made an exhaustive research in answer to this question. In case there are specific devises and specific bequests and no residuary estate, courts of equity have equitably assessed a certain portion of the debts against personalty and a. certain portion against realty. The statutes of Ohio are entirely silent as to the property which must be first exhausted in the payment of debts. One of the statutes provides that when the executor or administrator ascertains that the personal property is insufficient to pay the debts, then he shall proceed to sell the real estate. There is a strong implication in this case that the personal property shall first be exhausted before going to the real estate. Courts of Ohio have held that personal property shall first be exhausted and the practice has been so universal in Ohio that it is now considered to be the law that personal property, especially in intestate estates, shall first be exhausted before going to the real estate.

At section. 197, under title Executors and Administrators, appearing in Vol. 21 of American Jurisprudence, we find the following language:

“At common law the real estate of a decedent vests immediately in his heirs and is not assets in the hands of the executor or administrator for the payment of debts, unless there is a will expressly charging it for that purpose, although in equity, in some instances, it is liable to be subjected to the payment of debts. In many jurisdictions, however, statutes expressly make the realty belonging to the estate of a decedent assets for the payment of debts and expenses of administration and authorize an administrator, after he has exhausted the personal estate, to apply to the court and obtain leave to sell so much of the real estate of which the intestate died seized as will be sufficient to discharge the residue of the debts.”

The foregoing seems to be a clear statement of the law of Ohio. Referring to the Overturf case, appearing in 29 Oh St 230, we find the Supreme Court has made a similar announcement and which decision has been followed consistently in subsequent reports.

At section 391, under title Executors and Administrators, appearing in 21 American Jurisprudence, page 604, we find the following language:

“It is well settled that the personal property of a decedent is primarily liable for his debts. The realty of a decedent is liable for his debts only after exhaustion of the personalty for the purpose, even though the debts are secured by deed of trust or mortgage on the realty.”

As heretofore stated, there are two residuary clauses in this will, one giving all the remainder of the personal property to the surviving spouse and another residuary clause giving her a life estate in the residue of the real estate, and the remainder to four different persons in equal shares.

At page 681 of A. L. R., we find the following language:

“In some cases, instead of the usual residuary clause, the testator has disposed of the residue in such a manner as to indicate an intention on his part to keep the realty and personalty separate, and to dispose of them as two funds, rather than to mingle them into a common mass from which debts and legacies should be paid. The question is always one of intention, to be determined from the particular provisions of the will, and no general rule can be laid down.”

In reading the citations hereunder, we find that it was the intention of the court to ascertain the wishes or desires of the testator, and when the will was silent on that question, the general rule was applied. We have heretofore stated the general rule applying in Ohio and we are unable to find any language in the will which would indicate that the testator wished his executors to deviate from the general rule in Ohio.

While the Court was considering the foregoing application, Violet Roush and Edwin Roush, on December 22, 1954, filed an answer and cross petition, in which three questions are asked, and the court will now attempt to answer them in the order stated in the cross petition.

Question 1. What items of this will, if any, make provision for either specific legacies or devises as opposed to legacies and devises of a general nature? This question has been answered by the foregoing-decision.

Question 2. In the event that the surviving widow of the decedent should elect to take against the will and under the statute of descent and distribution, what rights of exoneration arise in favor of the specific legatees or devisees, and if rights of exoneration are thereby created, what is the measure or amount of same? And if such rights of exoneration are created, to what funds or property comprised in the estate do they attach? In answer to this question the court has made an examination of a number of authorities, one of which is Pomeroy’s Equity Jurisprudence, and in Vol. 2 thereof, Section 517, at page 462, we find the following language:

“If the person on whom the duty of electing rests elects to take in conformity with the will or other instrument of donation, he thereby relinquishes his own property, and must release or convey it to the donee upon whom the instrument had assumed to confer it. If he elects against the will or other instrument of donation, he thereby retains his own property, and must compensate the disappointed donee out of the estate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing beneficiary, in order to secure compensation to those persons whom his election disappoints. This rule is applied in many of the American cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such dissappointed devisees are held entitled to compensation out of the benefits intended to be conferred by the will on the widow, but which she had rejected.”

This principle has been followed by the Supreme Court of Ohio in the case of Jennings v. Jennings, reported in 21 Oh St 56, the third syllabus of which reads as follows:

“Where, in such case, the widow elects to be endowed of the lands of her husband, the devisees who are prejudiced by such election, are equitably entitled to compensation out of the rejected provision made for her in the will.”

The Supreme Court of Ohio has also followed the same principle in the case of Dunlap v. McCloud, et al., reported in 84 Oh St 272, the third syllabus of which reads as follows:

“While in such case the devisees who are prejudiced by the widow’s election to be endowed of the lands of her husband, are equitably entitled to compensation out of the rejected provisions made for her in the will, yet where the rejected provisions do not fully compensate, the resulting uncompensated loss should fall upon the residuary estate in preference to the specific devises, unless a contrary intention appears from the will.”

A much later case by the Supreme Court of Ohio supporting the same proposition is the case of Kenyon College v. The Cleveland Trust Co., et al, reported in 130 Oh St 107, to which reference is hereby made.

The remaining portions of the second question this court feels are moot unless and until the surviving spouse makes her election as to whether she will or will not take under the will of her deceased husband. We therefore defer any further decision on that matter until her election is made.

The third question read as follows: In the event the surviving spouse elects to take against the will and under the statute of descent and distribution, is there an acceleration of the remainder interests which appear by the will to be dependent entirely upon the life tenancy of the said widow? The general rule applying to acceleration of remainders is that a remainder is accelerated by the failure or extinction of the life estate unless there is something in the will to indicate otherwise. This will indicates that it was the intention of the testator to provide his wife an income for life. There is no indication of any other purpose on the part of. the testator in creating the life estate and remainders as he did. Therefore, when the widow renounces her life estate, the remainders are accelerated. That is the case in the will now under consideration.

An order may be drawn in harmony with the foregoing findings.


author: By HORNBECK, J:

text:
    GOTTLIEB, Plaintiff-Appellant, v. MEAD CORPORATION et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2313.
    Decided April 27, 1955.
    Harrison, Spangenberg & Hull, By Allan Hull, of Counsel, Cleveland, for plaintiff-appellant.
    Smith, Schnacke & Compton, By Murray Smith and Francis D. Schnacke, of Counsel, Coolidge, Becker, Wall & Wood, By J. B. Coolidge, of Counsel, Turner, Wells & Courson, By W. B. Turner, of Counsel, Dayton, for defendants-appellees.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court dismissing plaintiff’s petition.

The suit is in equity. Issues are drawn in this Court upon n'ew pleadings, a second amended petition, answers of defendants, The Mead Corporation, The Mead Sales Company, and the other named individual defendants and, according to the Bill of Exceptions, a reply which we do not find in the files. Although the plaintiff hds changed somewhat the averments of her petition and first amended petition, basically the charges against the defendants are the same, although now it is urged that defendant, George H. Mead, has created a trust of. his holdings in The Mead Sales Company in favor of The Mead Corporation.

We have been favored by the briefs of the parties, which are most complete in setting out the facts and the law involved, which does not require extended examination because the legal principles controlling the judgment are well established. We have also the sixty-five page opinion of Judge Martin, who tried and disposed of the cause in the Common Pleas Court. He has with exceptional detail found the facts respecting the origin, history, business developments of the defendant corporations, and, insofar as germane, the relation of the. individual defendants thereto and has applied the law to these findings of fact. We are in complete accord with Judge Martin’s conclusion and the reasons therefor, and could well enter the same judgment here as in the Common Pleas Court upon the authority of his opinion. Because of the thoroughness and correctness with which the cause was tried and disposed of in the Common Pleas Court, it would serve no useful purpose for this Court to again detail the issues and discuss at length the manifold questions, principally factual, which are developed by the very voluminous record. We will then restrict this opinion to a few general observations with the knowledge that counsel and this court have full appreciation of the issues, disposition of which must determine the judgment here.

It is contended by the appellant that this Court, upon the statements in the cross-examination of defendant, George H. Mead, as to his holdings individually, and through The Mead Investment Company in The Mead Sales Company, should declare that they are held as an express or a resulting trust in favor of the defendant, The Mead Corporation. This claim is the antithesis of the relief sought in the original and first amended petition and, in part, in the second amended petition; namely, a constructive trust, or a trust ex maleficio.

It is unnecessary to labor the issue as to an express or resulting trust of the holdings of George H. Mead, because the primary and basic elements of such a trust may not be found, viz: A declaration of purpose to create a trust, a designation of beneficiary, or the object of the trust. As there is no showing that a trust was created by the settlor, a court of equity will not create it for him. The statements" of Mr. Mead in his testimony upon which appellant relies, in their true interpretation do not permit of the conclusion that there ever was any intent, either on the part of Mr. Mead, The Mead Corporation, or The Mead Sales Company, that a trust, express or resulting, should be created. To construe his statements otherwise is to distort their obvious meaning in the light of his testimony in its entirety.

A constructive trust, according to Bouvier, is one that is raised independently of any intention of the parties thereto but is forced on the conscience of the trustee by equitable construction and the operation of law. It was the original intention of plaintiff, maintained on this appeal, that the named defendant with common purpose and by common action caused The Mead Corporation and its predecessor to enter into an agreement and to continue that agreement with The Mead Sales Company, whereby it sold the product (white paper) of The Mead Corporation, with a known substantial loss of profits to which it was rightfully entitled. Although the second amended petition proceeds, in part, as upon overt fraud of the corporate and certain individual defendants, if gross mismanagement by the named defendants and failure to protect the interest of The Mead Corporation brought about the contract between The Mead Corporation and its predecessor and the Sales Company to the obvious and marked financial loss of The Mead Corporation, a court of equity could attribute to the defendants malfeasance by implication.

• However, a careful examination of all of the factual developments in this cause discloses no proof whatever of bad faith, dishonest dealing, or over-reaching on the part of the corporate or individual defendants in the transactions involved in this suit. The agreement under attack could not have even been in contemplation when the Sales Company was organized. .The plaintiff now concedes that fact, but insists that since the early ’30’s the arrangement between The Mead Corporation and The Mead Sales Company has been so detrimental to the financial interests of The Mead Corporation that it should be terminated.

Upon the whole record in its most favorable light to the plaintiff, all that can be said is that there might be a difference of opinion if, in its later and more prosperous years, The Mead Corporation would have made more money if it had set up its own sales organization and made its sales through that organization. Determination of this question was exclusively for the Board of Directors of The Mead Corporation, provided only that it acted in good faith. This has been the law without question since the pronouncement of the first syllabus in Sims v. Street Railroad Co., 37 Oh St 556. It is developed that the question thus raised had been considered in 1933, a significant time in view of plaintiff’s contention, and referred to a committee of five of the officers of The Mead Corporation, which committee was free from any suggestion of domination by any of the defendants. This committee had the matter under consideration for eight or nine months and reported favorably to the continuation of the subsisting sales arrangement. Thereafter, the sales agreement between the defendant companies came under the scrutiny of two independent organizations, acting for investment companies, which made surveys preliminary and pertinent to the contemplated sales of certain securities of The Mead Corporation. Both approved the plan, stating it was sound business procedure.

It is further urged that the policy followed by The Mead Corporation is at variance with that of other large companies which maintain their own sales organizations. Obviously, such procedure is not without exception. The test of the plan which the Board of The Mead Corporation had to apply in charting its course was: How does this arrangement affect our corporation in view of its own experience? The experience of the Mead Corporation, through its contract with the Sales Company, has been so conspicuously successful as to constitute a compelling argument in favor of the arrangement under attack.

The fact also that the policy involved in this action was challenged as early as 1949, and has continued for six years, must have been made known to numerous stockholders of The Mead Corporation, not one of whom intervened as a party or appeared as a witness to question the soundness of that policy. This is further and convincing argument for the soundness of the practice.

The character' and eminence of the members of the Board of Directors of The Mead Corporation in the business world is persuasive, not only that they had the purpose and the acumen to protect and advance the interests of their company and their own interests, but that they would not and could not afford to be a party to any questionable contract with the Sales Company.

The judgment will be for the defendants, and the second amended petition will be dismissed.

MILLER, PJ, WISEMAN, J, concur.


author: By STEVENS, J:

text:
    STATE, ex rel. COSSAIRT, Plaintiff-Appellee, v. LAKEWOOD POLICE RELIEF AND PENSION FUND et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23090.
    Decided July 7, 1954.
    Krewson & Williams, Cleveland, for appellee.
    Charles F. Ross, Cleveland, for appellants.
    (DOYLE, PJ, HUNSICKER, J, STEVENS, J, of the Ninth District, sitting by designation in the Eighth Appellate District.)
   OPINION

By STEVENS, J:

Charles J. Cossairt was appointed and became a duly qualified and acting member of the Division of Police of the City of Lakewood on April 8, 1924. Thereafter he was appointed and became the duly qualified and acting Chief of Police of the City of Lakewood on August 1, 1951

Cossairt continued to serve as Chief of Police until December 4, 1952, on which date he died while still in office.

The relatrix, Vhelma A. Cossairt, was married to Charles J. Cossairt while he was in active service, and, upon his death became and is his surviving spouse and widow.

Vhelma A. Cossairt is now living and has not remarried.

During his lifetime, Charles J. Cossairt was a member of the Lakewood Police Relief and Pension Fund and elected in writing to receive benefits and pensions in accordance with the rules and regulations of said fund in force on April 1, 1947, as provided by §4631-1 GC.

After the death . of Cossairt, the defendants tendered to relatrix monthly checks for $60.00 each in accord with the provisions of §741.49 R. C., which were refused and returned by relatrix.

Plaintiff claims that relatrix is entitled to one-half of 11/16 of the salary of her deceased husband at the time of his death, in accordance with the rules. and-regulations of said Lakewood Police Relief and Pension Fund in force on April 1, 1947.

Upon the refusal of defendants to pay according to said rules of the Lakewood Police Relief and Pension Fund, this action in mandamus was instituted in the Court of Common Pleas of Cuyahoga County by plaintiff, seeking a peremptory writ compelling the defendants to pay in conformity to said rules.

The trial court issued the writ sought and this appeal on questions of law seeks a reversal of the judgment of the trial court.

The appellant has set out eight assignments of error all of which may be condensed into two assignments as follows:

1. The judgment is manifestly against the weight of the evidence.

2. The judgment is contrary to law.

Our reading of this record impels the conclusion that the judgment is not manifestly against the weight of the evidence.

Is the judgment contrary to law?

Sec. 4631-1 GC provided:

“Persons who, on the effective date of this act, have been contributing two percent of their annual salary to the police relief and pension fund may elect to receive benefits and pensions from said fund in accordance with the rules and regulations governing the granting of pensions and benefits therefrom, in force on the first day of April, 1947. Such elections must be in writing and filed with the trustees of said fund within sixty days after the effective date of this act. Provided, however, such person shall be required to contribute to the fund in the manner, and in the amount provided for in §4625 GC.”

The stipulations of fact contained in the bill of exceptions provide, among others:

“7. During his lifetime, Charles J. Cossairt elected in writing to receive benefits and pensions in accordance with the Rules and Regulations in force on April 1, 1947 * * *.”

The rules and regulations of Lakewood Police Relief and Pension Fund bearing on the question under consideration are:

“Section No. 1. If any member * * * who has been in the service of such Police Department for twenty-five consecutive years * * * be retired from all service in the Police Department * * * the Board of Trustees shall authorize the payment to such retired member, monthly, from the Relief Fund, an amount equal to eleven-sixteenths of the salary paid from time to time for the position from which said member retired.

“Section No. 3. * * * in case of death while on the Department * * * their widows shall receive one-half of their pension subject to the provisions set forth in Section 1, of this Act. * * * said pension to the widow shall cease in case of her death or remarriage.

<<* * *

“Section No. 5. The Board of Trustees shall make all rules and regulations for distribution of the Fund * * f.”

Under the heading “Beneficiaries” contained in said rules, the following appears:

“Said amendment (applying to Sections 1, 2, 3 and 4), to become effective as to all persons receiving pensions or who hereafter may be entitled to receive pensions.”

It will be observed from the foregoing that, under the decedent’s election, duly made, he would, in the event of his retirement after twenty-five consecutive years in the police department, if in good standing, have been entitled to receive 11/16 of the salary paid for the position from which he retired; that would have been his pension under the rules and regulations of the fund in force on April 1, 1947.

Section 3 of the rules of said fund states:

“* * * in case of death while on the Department * * * their widows shall receive one-half of their pension * * (Emphasis ours.)

The decedent, while alive, made his election in writing to receive benefits and pensions from said fund, under the rules and regulations in force on April 1, 1947.

By that election, he procured for himself and for the other persons named in said rules, the right to be paid under the rules and regulations in force on April 1, 1947.

No one other than the decedent could make that election, and the other persons named in the rules as potential beneficiaries could not, under the statute (§4631-1 GC) have made any election, because they had not been contributing anything to the police relief and pension fund, and hence did not fall' within the statutory classification of “Persons who, on the effective date of this Act, have been contributing two percent of their annual salary to a police relief and pension fund.”

The decedent died before retiring from the force, while still a member of the relief fund, and, under Section 3 of the rules, his wife was entitled to receive one-half of his pension, or one-half of 11/16 of his salary at the time of his death, and that right may be enforced by mandamus. State ex rel Zupnik, 161 Oh St 43.

There was nothing in the legislation (§4616 et seq. GC as amended) which provided that previously existing police relief funds should be abolished; in fact, the contrary expressly appeared in §4625 GC, effective September 25, 1947, which provided in part:

“Nothing contained herein shall in any manner affect any police relief subsidiary fund heretofore established and maintained, and the right of the trustees to receive contributions thereto and to make disbursements in accordance with its rules.”

The judgment will be affirmed. Exceptions. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.


author: By THE COURT.

text:
    POE, Plaintiff-Appellant, v. SUBURBAN MOTOR FREIGHT, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5210.
    Decided March 7, 1955.
    Charles J. Chastang, Columbus, for plaintiff-appellant.
    Wiles & Doueher, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This appeal is directed to an instruction of the trial judge upon a request of the jury which was considering the case.

The cause was submitted upon the request of counsel for a special verdict and it is conceded that the trial judge properly instructed the jury in his general charge.

Three specifications of negligence were asserted in the petition:

1. Failure of defendant to yield the right of way.

2. Failure to give any signal or warning of his intention to drive motor truck of defendant into the intersection.

3. In driving the motor truck to the left of the center line of East Long Street.

All of these specifications were submitted to the jury.

The answer was a general denial with five separate specific defenses, one of which was that the collision was proximately caused by plaintiff in that he was negligent in operating his motor vehicle into the intersection against a red light. The jury, after considering the case for some time made this request in writing, of the trial judge:

“Judge Parker—

“YOUR HONOR — The jury wishes to be informed — Does the plaintiff have to definitely prove that the defendant ran the red light before he can recover any damages?”

While the trial judge was considering the answer to be made to the query of the jury counsel for plaintiff insisted that the answer should be in the negative. Thereafter the Court instructed the jury as follows:

“Members of the Jury, in response to your inquiry, you are to find what the facts are as shown by the evidence; what the facts are according to the evidence with reference to the condition of the traffic light is for you to say from the evidence.”

One error is assigned, namely, that the answer as given to the jury was prejudicial and reversible error.

It is urged that the answer of the trial judge was not correct, that it should have been “No,” coupled with further instruction or explanation as to the quantum of proof required of plaintiff, the latter contention because of the use of the language in the inquiry, “Does the plaintiff have to definitely prove that the defendant ran the red light”; that definite proof implies greater proof than a mere preponderance of the evidence. The statute defining the obligation of the Court upon receiving the inquiry is cited, §11420-6 GC.

“After the jurors retire to deliberate, if they disagree as to the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, * * *.”

It was the obligation of the Court to give the information sought on the matters of law which were germane to and proper on a special verdict. This obligation was no greater nor less than devolved on the Court as to the general charge and must be judged by the same standard.

We are of opinion that the charge as given was correct and if not as full and complete as it should have been the Court did not err to the prejudice of plaintiff. A negative answer to the question, if proper, would not have been complete. In the case of State v. Tudor, 43 Oh St 130, involving a verdict of first degree murder with the death sentence, the jury requested explanation “When could the defendant be pardoned if a verdict of guilty of first degree murder with recommendation of mercy be returned.” The trial judge, in part, said to the jury ‘But the point is that a person convicted of murder in the first degree is eligible for parole after the expiration of twenty years.” We held the answer of the trial judge to be an incorrect statement of the law in that is failed to include other conditions preliminary to a parole, such as good conduct, recommendation by the Pardon and Parole Board that there be a commutation of sentence, and the commutation by tne Governor. Manifestly, these further requisites unknown to the jury may have weighed heavily in its refusal to extend mercy. The trial judge recognized this in ruling on the motion for a new trial when he said, “I am of the opinion that this additional information removed any chance the defendant may have had of escaping the death penalty.” We followed the principle contended for by appellant here that when a judge undertakes to charge the law upon a given proposition, he must do it fully and that a failure so to do is an error of commission. The Supreme Court in 154 Oh St 249 reversed, and in the first syllabus held:

“Where a trial court gives an instruction in answer to an inquiry of the jury which instruction is incomplete but correct as far as it goes, counsel has the duty to request the trial court to charge further so as to eliminate any possible confusion of the jury which may result from the incompleteness of such instruction. Any failure to charge further, if it is error, is an error of omission and not of commission. Unless counsel has requested the court to supply the omission, such error will not ordinarily justify reversal even in a criminal case.”

Inasmuch as it does not appear that counsel for appellant requested the Court to charge the jury any further than to answer the question in the negative, the Tudor case would seem to be controlling. If it be that the Court should have charged the jury as to quantum of proof, it was not an error of commission to fail to so charge inasmuch as the charge was correct as far as it went and as counsel did not request the Court to supply the omission. The error, if any, will not justify a reversal.

Upon the question of further charging on quantum of proof, the trial judge did not interpret the question as calling for an elucidation as to the burden of proof nor does it appear that counsel for appellant informed the Court that he so interpreted the question. This then is not a situation where a trial judge has charged correctly and incorrectly on a principle of law as in the cases cited by appellant, Bosjnak v. Superior Sheet Steel Company, 145 Oh St 538; Marcoguiseppe v. State, 114 Oh St 299; Industrial Commission v. Ripke, 129 Oh St 649; Montanari v. Haworth, 108 Oh St 8. The Judge several times in the general charge defined preponderance of the evidence and stated that the burden of proving the facts alleged by plaintiff was upon him by such degree of proof. This was the only instruction on the quantum of proof that the jury was given and it is highly improbable that it meant to express any doubt on the matter by reason of the language in the question. It is urged that the jury would probably have returned findings of fact favorable to the plaintiff on one or both of the other two allegations of negligence but for the answer of the trial judge to the question of the jury. But the question gave no consideration to nor asked any enlightenment upon these other charges and the failure to make any finding relative to them is convincing that the proof did not support a finding favorable to the plaintiff. The finding of fact that the plaintiff ran the red light must have been proven at least by a preponderance of the evidence, or if the interpretation of the appellant of the meaning of the question is sound, by a greater degree of proof than a preponderance. We cannot find that the Court erred to the prejudice of appellant either in refusing to answer the question of the jury in the negative or in failing to elucidate on the question of the quantum of proof.

The judgment will be affirmed.

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


author: By CROSSLAND, J:

text:
    GRASLEY, Plaintiffs, v. EPPLEY, Defendant. PARR, Plaintiffs, v. EPPLEY et, Defendants.
    Common Pleas Court, Muskingum County.
    Nos. 38747, 38750.
    Decided August 25, 1953.

      Ralph G. Marshall, Zanesville, for plaintiffs.
    Graham, Graham, Gottlieb & Johnston, Zanesville, for defendant Eppley.
    ' Joseph McNerney, Pros. Atty., Zanesville, for defendaht Township Trustees.
   OPINION

By CROSSLAND, J:

These two actions in equity for injunction and damages were heard and tried together,’upon the separate issues of each.

No damages were sufficiently shown to have actually resulted to either plaintiffs from the matters complained of in either case, to the time of suit, March 16, 1953, while in fact the gravamen of the claims of the respective parties plaintiffs is that loss and damages are likely to occur if and when they seek to utilize certain portions of their respective properties for agricultural purposes, due to the matters complained of against which injunctions are sought. The question and element of claimed damages is therefore dismissed in each case and the court proceeds only to the further consideration of the issues of injunction.

The general rule governing the granting or refusal of injunctive relief sought is well stated in 28 American Jurisprudence 222, Section 29.

“Courts cannot determine the right of parties in advance of an actual existing controversy concerning them, and the power to grant injunctive relief is never exercised to allay mere apprehension of injury or against something merely feared as liable to occur at some indefinite time in the future. The injury must be real, not imaginary. It must appear to the satisfaction of the court that the apprehension is well grounded, that there is a reasonable probability that a real injury, for which there is no adequate remedy at law, will occur if the injunction is not granted. Where the danger is apparent and real as distinguished from an imaginary fear of injury, injunctive relief may be warranted. The Court ought not to interfere, however, where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized, or where nothing more than a mere opportunity to do wrong is disclosed.”

The foregoing statement is referred to, not as indicating any clear direction in the premises of these two cases, but rather as reflecting the factor of uncertainty that frequently confronts a court in attempting to pass upon the merits of a controversy that is somewhat entwined with clashing personalities and a tendency toward recriminations.

The Court believes that both plaintiffs and the principal defendant in each case are genuinely concerned as to their respective legal rights and sincerely convinced of the legal correctness of their opposite positions. Their view and assertion of separate rectitude merely accentuates their differences and intensifies their separate determinations to resist each other’s efforts.

This Court says with all frankness that it cannot determine and knows no way now to determine what the natural drainage of these three separately owned properties was in their original undivided and unimproved- state, from any evidence presented; that the private and public man-made improvements during generations of previous ownership, as well as recently, from which past and present owners have benefited, effectively precludes any possibility of ascertainment; and that any endeavor to so ascertain would not only be merely academic in the face of all that has been done by these parties and their predecessors to change the original drainage in so many ways to their common and mutual advantages but that it would also prove utterly futile and useless as a projected solution of their actual differences and difficulties.

Accordingly, this Court flatly discards what the parties and their predecessors in title themselves already long ago discarded, as a rule for determining controversial drainage questions between and among them, when they directed water away from their buildings, sought and obtained public roads abutting and through portions of their properties, from which they caused and permitted natural drainage to be diverted, captured and carried water through tile down their fields, and in countless other ways at various times controlled the water falling upon and flowing through their lands so that it would be helpful where they needed and wished it and innocuous where it was detrimental and unwanted.

Nature’s own drainage operating upon, over,- through and under the original wilderness that pre-existed the three farms in question has been so far affected by the acts and improvements privately and publicly performed during the past 200 years that only God knows what was natural to the forestation and wilderness that preceded the advent of American civilization or even as recently as 100 years ago .and this Court has received no special message on the subject in this particular controversy in any respect.

In essence, therefore, what the parties really are seeking and what they are entitled to know as nearly as the Court can tell them from the evidence, instead of natural drainage, is the drainage that is now natural and logical to the physical factors which former and present owners have helped create in their conditions and surroundings, for their own mutual and general benefit, and which is now natural and logical to the artificiality of the changes and improvements made and accepted in their various operations in and upon the land, in and throughout all of which they have simultaneously controlled, directed and diverted falling rain and flowing water. Similar consideration prompted the action of the public officials who extended the township road past the Parr and Eppley properties for the greater convenience of these same parties and others. These benefits and advantages they all helped create' and acquiesced in, including the accompanying artificial diversion of the pre-existing natural water flow.

The Court, therefore, deals with the existing drainage controversy among and between the parties in the same method and regard as they themselves and others before them have treated their own surface and stream water for generations — as an instrumentality of helpfulness and benefit, not to cripple or destroy, of common concern and joint usefulness, neither to be appropriated exclusively by one nor foisted entirely upon another, a neighborhood and community problem and a neighborhood and community solution, without self or selfish determination. That is the only rational principle that makes sense and that is this Court’s view of the proper and correct law that this particular situation demands, regardless and independently of the technical niceties of so-called natural drainage, which the parties by their own practices and that of their predecessors in title are in no position to invoke or impose at this late date.

The existence of unnecessary conditions created by defendant Eppley, conducing and conducive to damage to plaintiffs in each case, by “precipitous” superimposed action of the elements, seems to the Court to warrant its action without awaiting the occurrence of actual and devastating damage merely to prove that it can happen, when it is already abundantly evident from past experience with nature that it not only can but will. The natural hazard of agriculture is a sufficiently severe potential at all times without the added risk of man-made obstacles to facilitate or augment nature’s fickleness from season to season and year to end.

Briefly, the Grasley ditching was not an excessive “cleaning out” under all the facts and circumstances in evidence, and was done in good faith and within reasonable limitations. Even though it went east to accommodate the Vandenbark pond or lake and drained this water to the west, that was a proper and sensible thing to do and, furthermore, it was all Grasley water before it reached Eppley, who, in turn, is similarly benefited by his westerly release of drainage of his own and Grasley’s water. It seems obvious to this Court that Grasley has a legal right to accept and carry water from the Vandenbark property into an already created and existing stream flowing westerly and logical and neighborly to do so and to expect such stream to fulfill its function naturally and uninterruptedly throughout its course west through and beyond the Eppley property, which it is capable of doing successfully and without necessary damage to anyone. If by the time such water reaches Eppley he feels impelled to clean out his portion of the ditch periodically by deepening and widening it somewhat from its present condition so as not to overflow his property he is always privileged to do so, but he may not protect his own farm from possible overflow by rejecting the water artificially upon Grasley either by damming against it or slowing its passage. Defendant Eppley is therefore ordered to remove these two artificial obstructions.

Similarly, said defendant is ordered to remove the culvert he placed upon the south side of the township road and reinstate that portion of the right of way to the condition intended and provided in said road construction under official supervision and direction, required of the defendant trustees in case number 38750, or to pay the township expense thereof, to be taxed as costs against him in said case, and is enjoined from any interference therewith thereafter.

Said defendant is enjoined from opening passages along the North-South fence between his property and that of plaintiffs in each case and to abide by the topography of the ground as it preexisted his such acts and to perform whatever task or defray whatever expense, if any, to be taxed as costs herein against him, as may be required to so reinstate said former condition, which permitted water to follow a course over defendant’s property immediately west of said line fence to the aforesaid east-west ditch or stream.

Defendant Eppley to pay costs and entry to be drawn and submitted in accordance with the findings and determinations of this Opinion, with exceptions given said defendant in each case. Bond for appeal fixed at $1,500.00 in each case.


author: By THE COURT: By THE COURT:

text:
    MAY, Plaintiff-Appellant, v. LYONS et, Defendants-Appellees.
    Ohio Appeals, Second District, Clarke County.
    No. 505.
    Decided October 16, 1953.
    James M. Gorman, Springfield, for plaintiff-appellant.
   OPINION

By THE COURT:

Submitted on application of appellant to require the Clerk of this Court to file the transcript of original pleadings and journal entries as prepared by the Clerk of the Municipal Court of Springfield, Ohio.

It appears that the appellant within time filed his notice of appeal in the Municipal Court where the judgment was rendered indicating his purpose to appeal to this Court. The transcript was by inadvertance filed in the Common Pleas Court.

The application will be sustained.

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

James M. Gorman, Springfield, for plaintiff-appellant.

Curtner, Brenton & O’Hara, Dayton, for defendant-appellee, Frank Lyons.

Pickrel, Schaeffer & Ebeling, Dayton, for defendant-appellee, Russell Sams.

No. 505. Decided March 25, 1954.

OPINION

By THE COURT:

The matter first presented for consideration is a motion of defendantappellee, Frank Lyons, to dismiss the appeal for the reason that no bill of exceptions has been filed, and that the questions of law presented by the plaintiff-appellant can not be demonstrated in the absence of the preparation and filing of a bill of exceptions.

The question presented is clearly exemplified by the pleadings, together with the specific findings of the trial court:

“* * * that the collision between the motor vehicles of the plaintiff and the respective defendants in this cause occurred within the confines of Wright-Patterson Air Force Base, a federal military reservation.”

“The court further finds that as a result thereof this court does not have jurisdiction over the subject matter of the cause of action.”

The motion to dismiss will be overruled.

The next question presented is whether or not the court erred in dismissing plaintiff’s petition for want of jurisdiction of the subject matter of the cause of action. The cases cited by plaintiff all support his contention that the action sued upon is transitory and may be brought wherever the wrongdoer may be found and jurisdiction obtained. The defendants were served with summons from the Municipal Court of the City of Springfield, and in the light of the cases cited it appears that by the adjudications and by statute the court had jurisdiction of the subject matter. U. S. v. Rogers and Rogers, 36 Fed Supp. 79; Ormsby v. Chase, 290 U. S. 387; Mertz v. Mertz, 271 N. Y. 466, 3 N. E. (2d) 597; Kitchens v. Duffield, 83 Oh Ap 41, 44 and 45, 38 O. O. 142. Appellees cite no authorities.

The judgment will be reversed and cause remanded.

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


author: By HUNSICKER, J.

text:
    ALLSTATE INSURANCE CO., Plaintiff-Appellant, v. GLOBE AUTO PAINT SHOPS, INC., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23371.
    Decided June 8, 1955.
    Arthur J. Stern, Cleveland, for plaintiff-appellant.
    Walter I. Krewson, Cleveland, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cleveland, Ohio.

The plaintiff-appellant, Allstate Insurance Company, in its petition filed in the trial court, said it had insured one Clarence Brewster against loss by theft of á Ford Automobile which Brewster owned. It further stated that Brewster delivered his automobile to the defendant-appellee herein, Globe Auto Paint Shops, Inc., for the purpose of having them do some paint work on his automobile, but that when he called for his automobile, the Globe Auto Paint Shops, Inc., could not deliver it to him because the automobile had been stolen from their parking lot. Allstate Insurance Company says it paid Brewster a net sum of $425 pursuant to its policy of insurance and it has been subrogated, by written instrument, to the rights of Brewster against Globe Auto Paint Shops, Inc. to the extent of this payment.

Leonard S. Hirsh, vice-president and treasurer of the paint company, mailed a letter to the clerk of the Municipal Court of Cleveland, which was filed in the case and which the trial court refused to strike from the files. This letter, considered as an answer, was marked plaintiff’s exhibit 1 and a copy was attached to the narrative bill of exceptions filed in this appeal.

At the hearing of the cause in the trial court, Brewster testified that he took his automobile to the Globe Auto Paint Shops, Inc. to have it painted, and that he paid for the work done, although he told Mr. Hirsh when he returned to get the automobile that it was not painted the proper color. Mr. Hirsh then told Brewster to return it later, and he would paint the automobile the color which Brewster desired.

Brewster testified he took the automobile to the Globe Auto Paint Shops, Inc., on May 12, 1953, and was told by Mr. Hirsh to park the car, with the keys in the ignition, in a lot at the end of the building. He did as directed, and when he went to get his car later, he was told the car was stolen.

Mr. Hirsh testified that: the paint company rents parking space at the south end of his building, which lot is next to a used car lot; he denied any knowledge of the Brewster automobile being delivered to him, but did say that he had told Brewster to return the automobile for refinishing; automobiles, on which he is working, are parked in his parking lot with the ignition keys in such cars, because of lack of space in the paint shop. Mr. Hirsh also said that he had no record of this car being delivered to him at the time Brewster said he delivered it to the paint shop.

It is from a judgment thereafter entered for the Globe Auto Paint Shops, Inc., that Allstate Insurance Company appeals to this court, saying the trial court erred.

“1. In rendering judgment contrary to law.

“2. In rendering judgment not supported by the evidence.

“3. In rendering a judgment against the weight of the evidence.”

The ownership of the automobile by Brewster was admitted by Globe Auto Paint Shops, Inc., by way of the letter of Mr. Hirsh, filed as an answer and later as an exhibit in this case. We believe that such admission by the appellee conforms to the present requirement of §4505.04 R. C.

We do not have in this case a conflict in the evidence respecting the delivery of the automobile to the Globe Auto Paint Shops, Inc., by Brewster, for Mr. Hirsh stated he had no knowledge on the subject. Mr. Brewster’s testimony thereon is clear and not controverted.

The relationship of Brewster and the Globe Auto Paint Shops, Inc., was that of bailor and bailee. A bailment for hire was established by the original dealings of the parties and continued when the automobile was redelivered for the purpose of completing the painting work.

The law in Ohio, with respect to the duties of bailor and bailee in the circumstances herein presented, is found in Agricultural Ins. Co. v. Constantine, 144 Oh St 275, wherein the court said:

“2. Where a bailor delivers property to a bailee and such bailee fails to redeliver the bailed property upon legal demand therefor, a cause of action, either ex contractu or ex delicto, accrues in favor of the bailor.”

“4. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver.

“5. Where the bailee proves loss of the property by theft, but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not thereby rebut the presumption of negligence or want of due care arising from his failure to redeliver.

“6. In an action by a bailor for damage by reason of the bailee’s failure to redeliver the bailed property, the burden of proof is upon the bailor to prove that the bailee was guilty of negligence or want of due care. In determining that question, the presumption of negligence or want of due care arising from bailee’s failure to redeliver, his explanation of the circumstances surrounding such failure and any evidence offered to rebut such explanation, all should be considered and weighed by the trier of the facts. To entitle the bailor to prevail the preponderance of all the evidence must support the conclusion that the bailee was guilty of negligence or want of due care.”

The evidence herein disclosed that Brewster delivered his automobile to Globe Auto Paint Shops, Inc., placed it where they instructed him to park it with the keys in the ignition: and when he returned to get his automobile, the Globe Auto Paint Shops, Inc., could not make a delivery to him because, as it developed, the automobile had been stolen while in the possession of the paint shop. No explanation was given by the Globe Auto Paint Shops, Inc., as to the care they exercised over such automobile while it was in their possession. No evidence was presented by them relative to such automobile after Brewster delivered it to them for the refinishing of the paint work.

The trial court apparently concluded, contrary to the case of Agricultural Ins. Co. v. Constantine, supra, that no further evidence on the subject was necessary. In such conclusion the trial .court committed error prejudicial to the substantial rights of the appellant.

The judgment herein is reversed as being against the manifest weight of the evidence and contrary to law. The cause is remanded to the trial court for further proceedings.

Judgment reversed and cause remanded. Exc. O. S. J.

STEVENS, PJ, DOYLE, J, concur.


author: By GODWIN, J.

text:
    STATE, ex rel. BOARD OF EDUCATION, BELLEFONTAINE CITY SCHOOL DISTRICT, Relator, v. JONES, Clerk, Board of Education, Bellefontaine City School District, Respondent.
    Common Pleas Court, Logan County.
    No. 24513.
    Decided June 21, 1955.
    Edgar L. Miller, City Solicitor, Bellefontaine, Peck, Shaffer & Williams, Cincinnati, for relator.
    John B. Kelly, James B. West, James Rr Goslee, Belllefontaine, for respondent.
   OPINION

By GODWIN, J.

This is an action in mandamus brought by the State of Ohio, ex rel., Board of Education, Bellefontaine City School District, Bellelfontaine, Ohio, the Relator, against Joe E. Jones, Clerk of the Board of Education, Bellefontaine City School District, Bellefontaine, Ohio, the Respondent.

“Mandamus is a writ issued, in the name of the State, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, or station.”

The prayer of Relator’s petition is that a writ of mandamus issue, ordering Respondent Joe E. Jones, Clerk of the Board of Education, Bellefontaine City School District, Bellefontaine, Ohio, to sign a $25,000.00 note in anticipation of the issuance of bonds voted for by said School District on the 3d day of May, 1955.

The issue is joined by the respondent refusing to sign said note.

The ground for this refusal is that the Relator failed to comply with the statute, §§133.11 and 133.18 R. C., with reference to the publishing of notice of said election. Sec. 133.11 R. C. provides,

“Notice of the election shall be published in one or more newspapers of general circulation in the subdivision once a week for four consecutive weeks prior to the election. Such notice shall state the amount of the proposed bond issue, the purpose for which such bonds are to be issued, the maximum number of years during which such bonds shall run, and the estimated average additional tax rate, expressed in dollars and cents for each one hundred dollars of valuation as well as in mills for each one dollar of valuation, outside the limitation imposed by Section 2 of Article XII, Ohio Constitution, as certified by the county auditor.” (Emphasis by the .court.)

The issue raised here was presented to the court on the petition, the answer, the evidence, argument of counsel and memorandum brief by Relator.

The only issue in the case is whether the failure of the Logan County Board of Elections to comply strictly with §§133.11 and 133.18 R. C., with reference to publishing notice of the coming elections, renders the issuing of said bonds to be a valid obligation of the School District.

The provisions of said statute require that notice of the election be published once a week for four consecutive weeks prior to the election.

This election was held on the 3d day of May 1955. The correct dates of publication to have complied with the statute would have been April 4, 11, 18 and 25, 1955. The dates the notice actually appeared in the BELLEFONTAINE EXAMINER were April 22, 25, 27, 29 and May 2, 1955.

In order to comply with the provision to be published once a week for four consecutive weeks would have required five publications.

There really were five publications, but they failed to appear for four consecutive weeks as required by the statute.

The evidence and the record so show that every step taken by the Board of Education to make these bonds a valid and subsisting obligation against the School District have been fully complied with, the only exception being that the statute has not been fully complied with in the publication of notice of the election.

The record shows that an extensive campaign began as early as January, 1955, to publicize the fact of the election; the time and place of holding the election; and the purpose for which the bonds were to be issued. This activity was carried on down to the day of the election. This is shown by the exhibits of the newspaper publications and news items regarding the bond issue carried in the BELLEFONTAINE EXAMINER, by hand bills posted in public places throughout the School District. A Citizens Committee carried on an extensive campaign to reach every citizen in every part of the School District; letters written and mailed out to the electorate, cards mailed to reach every householder, circulation of the election ballot; the Chamber of Commerce and the Junior Chamber of Commerce, their activities in bringing the bond issue before the public; photographs taken by Thomas Hubbard carried in the BELLEFONTAINE EXAMINER with items under the photographs. This began in January, 1955, was stepped up and carried on extensively beginning about March 15, 1955. All things essential to be carried in the notice were contained in newspaper items; the distribution of literature pertaining to the election by the Citizens Committee. Broadcasts over our local Radio Station WOHP were systematically carried on by speakers and discussions as to the bond issue.

Prior to the election, April 17th to be exact, a large sign was erected in the northwest corner of the court house lawn, calling attention to the election to be held on May 3, 1955, for the issue of bonds of the Bellefontaine City School District for school purposes. This was in large letters and figures where all could see. This sign was still standing at the time of this hearing.

This, in substance, is the evidence before the court which is based on the record. The question for the court now to determine is, Was this extensive publicity campaign sufficient to place the Board of Education of the City of Bellefontaine School District in substantial compliance with §§133.11 and 133.18 R. C., regarding publication of notice.

The answer to this question will have to be found in the law governing such situations.

This court is well aware that most courts uniformly hold that statutory requirements are mandatory and must be strictly complied with.

The effect of a publication of a notice of election on a bond issue for a period less than that required by statute and the effect of irregularities in said notice of election are questions for determination by the proper court, upon consideration of all the facts.

1927 O. A. G. p. 2588.

Some courts now hold that under certain circumstances there is a substantial compliance with the Uniform Bond Law, and that unsubstantial irregularities which do not prejudice any one may be disregarded.

Where the notice of a special election was published for four times weekly, but the entire period of four weeks after the first publication did not elapse before the election was hid, the election was not invalidated.

Conley v. New Boston, 26 O. O. 71.

The terms of §§2293-15c and 2293-21 GC, now §§133.11 and 133.18 R. C., providing that the notice of an election on a proposed bond issue of a political subdivision shall be published in a newspaper of general circulation once a week for four consecutive weeks prior to the election, are sufficiently met where the notice is published once a week for four consecutive weeks but the first notice appeared slightly less than 28 days before the election.

The State, ex rel Board of Education of Springfield Local School District, Summit County, et al. v. Maxwell, 144 Oh St 565.

This decision did not hold to the strict compliance with the statute. In this decision we find on page 567 this language:

“However, where there is substantial compliance with the statutory requirements and there is nothing to indicate that the result of the election might have been different had there been full compliance, the election will not be invalidated.”

1. Failure of election officials to publish, for the full thirty days required by law, notice that at an approaching election the question of authorizing an issue of municipal bonds will be submitted, does not render the election invalid as to said bonds, where the election was held in other respects in accordance with law and there is abundant evidence that knowledge of an intention to submit said question was brought home to the great body of the electors.

The City of Cincinnati, by Charles A. Groom, its Solicitor v. George Puchta, Mayor, and William Leimann, Auditor, 25 C. C. (ns) 458.

This case was affirmed by the Supreme Court of Ohio as reported in 94 Oh St 431. On Page 432 of this opinion we find this language:

“The chief purpose of this statute is evident, to-wit: four weekly publications. And these were made. We do not hold that in all cases such would be a sufficient compliance with the law, but in the absence of any allegation here that anybody was denied the right to vote, by reason of the statute not being literally complied with for the full thirty days the regularity of the election proceedings is upheld.

“We have no doubt that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid.”

Foster v. Scarff, 15 Oh St 532, at page 537.

1. Unsubstantial irregularities in proceedings of a municipality in inaugurating an election on a bond issue for public improvement, which irregularities do not prejudice any one, will be disregarded.

2. Where the council of a municipality by resolution provides for submission to the electors of the question of issuing bonds for improving the city’s sewerage system and provides in such resolution for a tax levy outside the 10 mill limitation for retirement of such bonds over a 25-year maximum period, and where every material requirement of law in connection with such improvement proceedings was complied with, except that the ballot prepared and submitted to the electors provided for a maximum retirement period of 30 years, and the issuance of such bonds is approved by a vote in excess of the majority provided by law, such mis-statement in the ballot of the maximum maturity period of such bonds is not such departure from the statute as could mislead, deceive or confuse the electorate and does not invalidate the proceedings.

The State, ex rel. Spitler, City Solicitor, v. Beidleman, Auditor, 96 Oh Ap 210.

At 214 of this opinion the court quotes from State, ex rel. Bd. of Edn. of Springfield Local School District v. Maxwell, 144 Oh St 565:

“It has been generally held that defects, variances and irregularities in the several steps relating to the issuance of bonds should be material, harmful or both before the proceeding may be successfully attacked. See 5 McQuillen on Municipal Corporations (2 Ed) 363, 1025 and 1035, Section 2035, 2263 and 2264. It has also been held that unsubstantial irregularities in the resolution of a political subdivision inaugurating an election on a bond issue which do not prejudice any one will be disregarded, especially where the proposed bond issue as submitted was approved by considerably more than the requisite number of electors.”

The evidence shows that a total vote of 3,332 was cast on the bond issue — 2,540 voting for the issue of bonds and 792 voting against. In other words, the bond issue was approved by.76.2 per cent of the voters, an overwhelming per cent more than the law requires.

Courts are slow and very reluctant to override the clear intent and purpose of the electorate when expressed at the polls.

Effect of Omissions and Irregularities

“The rule that election laws are, as a general rule, to be construed liberally, so as to preserve, if possible, and not defeat, the choice of the people as expressed at an election, applies to omissions and irregularities with respect to giving of notice thereof. Thus in most instances, a mere irregularity in giving of notice of a special election, or the failure to give such notice for full time prescribed in the statute, is not fatal to the validity thereof where knowledge of its approach and of the question to be passed upon is general throughout the political subdivision in which it is held, where a comparatively full vote is cast, and where it does not appear that by the mere irregularity in the notice any elector was misled to his disadvantage.”

15 O. Jur., Page 373 §57.

FINDING OF COURT

The finding of the court is that by the extensive advertising campaign with reference to this election carried on beginning as far back as January, 1955; the distribution of literature; letters and cards mailed to the householders of the city; the house to house canvass by the Citizens Committee; the posting of notices in various public places; the activities carried on by the Chamber of Commerce and the Junior Chamber of Commerce; items carried on systematically by our local newspaper, photographs of the proposed school building to be erected carried in the BELLEFONTAINE EXAMINER under which were items explaining the necessity of said bond issue; meetings held where the public was invited to attend; and the use of the local radio station brought home to the voters of the School District notice of the time, and place and purpose of the election, the voters were not misled in any way, and they were fully informed and had knowledge of the coming election. This to the court is a substantial compliance as to notice.

Where the people have actually expressed themselves at the polls, courts are strongly inclined to uphold rather than defeat the will of the people.

No claims are made that the result of the election might have been different, or that any elector was induced to cast his ballot otherwise than he would have done had the notice fully complied with the statute.

The holding of the court is that the bonds to be issued are a valid and subsisting legal obligation against the Board of Education, Bellefontaine City School District, Bellefontaine, Ohio.

A writ of mandamus may issue. Exceptions noted.