author: By HORNBECK, PJ.

text:
    BLACKMAN, Appellant, v. BOARD OF LIQUOR CONTROL, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4707.
    Decided April 29, 1952.
    Simon L. Leis, Cohen & Baron, Cincinnati, for appellant.
    Aaron T. Grad, Leon L. Wolf, Cincinnati, Amicus Curiae.
    Isadore Topper, Columbus, for The Ohio Wholesale Wine Dealers Association, Amicus Curiae.
    C. William O’Neill, Atty. Genl., Brown W. Pettit, Asst. Atty. Genl., Columbus, for appellees.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from an order of the Common Pleas Court sustaining an order of appellee Board suspending the C-l and C-2 permits of appellant because of a violation of Regulation 3, Article 7 of Rules and Regulations promulgated by appellee Board. Hereafter we refer to the appellees as the Board.

Appellant was charged with violating the regulation of the Board fixing the minimum price for the sale of wine in that on two occasions he had sold wine below the established price. The sales are not disputed but it is claimed that they were made with-no purpose to violate the regulation. No claim of the invalidity of the rule was urged before the Board.

The contention of appellant here is twofold: One, that §6064-3a GC, upon which the Board bases its authority to promulgate its Regulation 3 of Article 7, is unconstitutional and void in that it delegates legislative authority to the Board and sets up no standard by which such authority may be exercised; Two, that the rule is invalid, because arbitrary and unreasonable.

Sec. 6064-3a GC in so far as applicable provides:

“The board of liquor control shall have the power to adopt, promulgate, repeal, rescind and amend rules and regulations to regulate the manner and method of dealing in and distributing and selling bottled wine within the State. The board of liquor control may require out-of-state producers, shippers, bottlers and holders of federal importers’ permits shipping bottled wine into Ohio and holders of class A-2, B-5, B-3 and B-2 permits issued by the department of liquor control engaged in distributing and selling bottled wine in Ohio, to file with the department of liquor control a schedule of prices in which minimum prices are set forth for the sale of bottled wine at wholesale or retail, or both, in Ohio.

* * *

“The board of liquor control may determine and fix the minimum mark-ups at wholesale or retail, or both, for bottled wine, and fix the minimum prices at which the various classes of bottled wine shall be distributed and sold in Ohio either at wholesale or retail, or both.”

Section 10 of Article 7 of Regulation 3 of the Board provides:

“The consent to import wine and/or the permit of any permit holder, salesman or representative who advertises, offers for sale, ships, sells or buys bottled wine at a price less than that fixed by the Board or stipulated in an approved statement or price schedule, or who violates any provision of this Regulation, may be suspended or revoked, by the Board.”

Appellant insists that §6064-3a GC expresses no legislative policy respecting the fixing of minimum prices for which wine may be sold in Ohio, but that this policy -which is strictly legislative is delegated to the Board of Liquor Control and in contravention of Section 1, Article II of the Constitution of the State of Ohio.

The legislative purpose to require the fixing of minimum prices at which wine shall be sold in Ohio is implicit in the language of the section. It is evident that those who handle wine for sale in the course of business do so for the purpose of making a profit. To make a profit there must be a mark-up, if the wine be sold either at wholesale or retail. When, then, the Legislature provided that the Board of Liquor Control may determine and fix minimum mark-ups and minimum prices, it was tantamount to declaring the legislative purpose that there should be mark-ups and that there should be minimum prices-for the sale of wine.

The next contention of the appellant is that the section of the Code under consideration did not fix standards and rules for the guidance of the Board in fixing mark-ups and minimum prices. If it is requisite to the validity of the legislation that such standards be set forth in it, it must be conceded that they are not to be found in the section and it would, therefore, be unconstitutional.

In 1936, this Court considered the case of Cody v. Leonard, et al., Franklin, unreported, and a majority of the Court held that the defendants, members of the Ohio Liquor Control Board, should be enjoined from enforcing its Regulation No. 43 relating to advertising on the outside of premises operated by permittees. This case involved the construction of subdivision (f) of §6064-3 GC. The majority held that the section did not set forth any declaration of policy by the Legislature on the subject of advertising. The section provides:

“That the Board of Liquor Control shall have power (1) to adopt and promulgate, * * * rules, regulations, * * * necessary to carry out the provisions of this act including the following:
“(f) Uniform rules and regulations governing all advertising with reference to the sale of beer and intoxicating liquor throughout the state and advertising upon and in premises licensed for the sale of beer or intoxicating liquor.”

One member of the Court dissented in a short opinion in which was cited Mutual Film Corp. v. Industrial Commission of Ohio, 236 U. S. 230; Annotation to State, ex rel. Makris v. Superior Court (Wash.) 12 A. L. R. 1453; State, ex rel. Altop v. Billings (Mont.), 54 A. L. R. 1115 and American Baseball Club v. Philadelphia (Pa.) 92 A. L. R. 418. The Supreme Court, 132 Oh St 329, in the Cody case, reversed this Court and supported the action of the Board of Liquor Control. Judge Williams writing the opinion, at pages 331, 332 of the opinion, after citing Matz, Admr., v. J. L. Curtis Cartage Co., 132 Oh St 271, with approval, said:

“It is apparent that according to the great weight of authority the Legislature may confer upon administrative boards power to adopt subordinate rules, administrative in character, where the Legislature in conferring the authority has fixed definite standards and rules of guidance. But the rule relaxes somewhat as to the necessity for such limitations and restrictions, where wide power is imperative in law enforcement; and many authorities have held that standards or criteria for guidance are not necessary in cases in which the discretion to be exercised by administrative officers relates to police regulations in the protection of the public morals, health, safety or general welfare.”

That the sale of intoxicating liquors comes within the category of a business the conduct of which if not closely regulated is inimical to good morals and the public welfare is not a debatable question. The note to State, ex rel. Makris v. Superior Court, supra, 12 A. L. R. 1453, under the heading “Discretion with respect to matters of mere privilege,” reads:

“It has been declared that where the discretion relates to a businss the carrying on of which is a mere matter of privilege because of a character tending to be injurious, rather than an ordinarily lawful business the carrying on of which creates a property right or vested interest, such, for instance, as dealing in intoxicating liquors, arbitrary discretion as to the granting of licenses may lawfully be delegated to public officials, without prescribing definite rules of action.”

Then follows a number of cases supporting the headnote to the annotation. The other cases which we have cited are continuations of the annotations in 12 A. L. R. It is upon this principle that we rest our conclusion that the legislation under review is valid against the contention that no standards are set up by which it may be effectuated. This view is not in accord with the opinion in Levine v. O’Connell, et al., 88 N. Y. Supp. (2d) 672.

Of' course, the action of the administrative body in which is reposed discretionary power is always subject to the test if it is reasonable or unreasonable. If unreasonable, the action may be invalid or it may be unconstitutional.

Appellant relies heavily upon the case, Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 A. L. R. 148, 43 So. (2d) 248, the judgment in which, as we read the opinion, was predicated mainly upon the proposition that the legislation under consideration was unreasonable under all the circumstances and that the means adopted by the Legislature in the exercise of its police power was not reasonably necessary and appropriate to the accomplishment of the object announced in the statute.

The Justice writing the opinion at page 259 thereof, says:

“From all of which we conclude that the provisions of Act 360 of 1948 which relate to the mandatory minimum mark-ups (Sections l(s), 24 and 26) do not tend, in a degree that is perceptible and clear, toward the accomplishment of the announced purpose of the statute, namely the regulation and control of the liquor traffic so that it ‘may not cause injury to the economic, social and moral well-being of the people of the State.’ They, in other words, are inappropriate for the achievement of the legitimate object described in the statute. Accordingly, we hold that such provisions are manifestly unreasonable within the contemplation of the state’s police power, and, hence, are unconstitutional in that they violate the due process clauses of our state and federal constitutions.”

The Court tested the purposes of the legislation upon the statement of appellants, strikingly similar to those asserted by the appellees in this case,

“that the minimum mark-ups are designed, in the interest of temperance, to protect the people from the temptations of cheap liquor due to cutthroat competition; to eliminate excessive consumption of strong drink that results from price wars; and to prevent certain moral abuses brought about by low liquor prices,”

and the Court resolved them as we have heretofore indicated. As a matter of legislative policy strong, moving reasons could be advanced to the effect that the removal of all price control on the sale of all intoxicating liquors and the permission to make and to sell such liquors at the lowest price which in competition could be afforded, might do more to advance the cause of temperance than minimum price fixing. However, we have always understood the law to be that Courts would not question the right of the Legislature to determine policy so long as, in its most favorable aspect, the legislation enacted bears some reasonable relation to the object to be accomplished.

With all deference to the majority opinion in the Schwegmann case which is a strong presentation of the rules controlling the valid exercise of the police power within the concept of constitutional law, we are more in accord with the conclusion reached by the dissenting opinion of McCaleb, Justice, wherein he concludes that the legislation involved in the action should be supported. Both opinions concede that the police power to be exercised by the Legislature may not infringe upon any of the inalienable constitutional rights secured by the State Constitution or by the 14th Amendment to the Constitution of the United States.

That the State may regulate rates or prices of a business affected with a public interest is held in German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. Rep. 412; Olsen v. Nebraska, 313 U. S. 236; Nebbia v. New York, 291 U. S. 502, 54 Sup. Ct. Rep. 505. In German Alliance Ins. Co. v. Lewis, supra, the Court held, 2nd syllabus:

“The business of fire insurance is so far affected with a public interest as to justify legislative regulation of its rates.”

Justice McKenna writing the majority opinion made some observations which are pertinent here. At page 620, 34 Sup. Ct.:

“What makes for the general welfare is necessarily in the first instance a matter of legislative judgment, and a judicial review of such judgment is limited.
* * * *
“Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of Judicial cognizance.” Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 540, 569, 55 L. Ed. 328, 339, 31 Sup. Ct. Rep. 259.

The statute under consideration was an act of the State of Kansas entitled, “An act relating to fire insurance,” etc. The discretion vested in the Superintendent of Insurance was unusually broad. For instance, Section 3:

“When the superintendent shall determine any rate is excessive or unreasonably high, or not adequate to the safety or soundness of the company, he is authorized to direct the company to publish and file a higher or lower rate, which shall be commensurate with the character of the risk; but in every case the rate shall be reasonable.”

Counsel for appellant also relies upon Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 71 Sup. Ct. 745. This case involved the construction of the Louisiana Fair Trade Act which was held unconstitutional in so far as it undertook to enforce price fixing not only against parties to a contract so providing but also against nonsigners. This opinion was strictly an adjudication of the validity of a fair trade act and if the instant case involved the application of the Ohio Fair Trade Act, §6402-2 to 6402-9 GC, we would have a different and a more serious question than is presented here.

We do not interpret the cited case as invading the field of the power of the State Legislatures under enabling constitutional provisions to fix prices in furtherance of the regulation of the traffc in intoxicating liquors. The cited case must be read in the light of the issue which was presented and decided.

It is finally urged that the rule of the Board here under consideration is arbitrary and unreasonable in that the minimum wholesale price established is wholly arbitrary and artificial and bears no relation whatsoever to the cost of the wholesaler, nor, does it differentiate between the varying costs of wholesalers engaged in the same business and that the minimum base cost is arbitrarily determined without consideration of vital factors incident to such costs. We do not find in the record any evidence to develop this aspect of the appeal.

The case of Serrer v. The Cigarette Service Co., 148 Oh St 519, if it could be given full application to that aspect of Rule 3 which is sought to be urged by appellant might raise a substantial question as to the reasonableness of Regulation 3 of Article 7.

Counsel for parties have filed voluminous briefs in which every aspect of this appeal is explored and developed. Many of the cases cited require no discussion because of the limit which we place upon the number of controlling questions presented. We are also mindful that, possibly, this case has but reached this Court on its way to our Supreme Court and possibly to the Federal Courts. While this development in nowise lessens the obligation of this Court to carefully consider and adjudge all determinative questions, it does argue strongly against any prolonged opinion here. Although we pass on all questions briefed we doubt if they are properly before this Court. The Village of Clarington v. Althar, 122 Oh St 608.

Indulging the presumption in favor of the validity and constitutionality of §6064-3a GC and Regulation 3, Article 7, drafted pursuant to such statute, State, ex rel. Ach v. Braden, 125 Oh St 307, and giving weight to the broad power granted to the Legislature to regulate traffic in intoxicating beverages, we affirm the judgment under review.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By STAHL, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. HALE, Defendant-Appellant.
    Common Pleas Court, Wood County.
    No. 4401.
    Decided July 28, 1952.
   OPINION

By STAHL, J.

This matter came on to be heard on an appeal from the Court of Honorable E. E. Bailey, Justice of the Peace, Plain Township, Wood County, Ohio, wherein the defendant-appellant had been tried upon an affidavit filed by State Highway Patrolman Benson. The facts as they appear from the record are as follows:

That the defendant had been brought before the Justice on an affidavit which charged him with being in violation of §6307-21a GC and that the violation happened outside of a municipal corporation.

It appears that the affidavit was originally dated the 16th day of May, 1952 and that thereafter at the trial over the objection of the defendant the Justice changed the affidavit without a new affirmation of the Patrolman to make it read on the proper day. The defendant objected to this and also the jurisdiction of the Court, he having signed a waiver of trial by jury and consent to be heard. Therefore, the Court wishes to say at this time that he feels that the Justice acted within what he thought was his right. So, the Court will take up each one of the matters one at a time.

1. The Justice of the Peace was without power to change the date on the affidavit without a new affirmation.

Now, let us go into the different sections of the code so that the Court may make the ruling herein.

Sec. 13422-2 GC defines the general jurisdiction of the Justice. The pertinent part reads as follows:

“(General jurisdiction of justices of the peace in criminal matters.)
“A Justice of the peace shall be a conservator of the peace and have jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and county wide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured or any authorized representative of a state or federal department, in the event there is no other court of concurrent jurisdiction other than the common pleas court, police court or mayor’s court, and on view or on sworn complaint, to cause a person, charged as aforesaid with the commission of a felony or misdemeanor, to be arrested and brought before himself or another justice of the peace, and, if such person is brought before him, to inquire into the complaint and either discharge or recognize him to be and appear before the proper court at the time named in such recognizance or otherwise dispose of the complaint as provided by law.” * * *

What does this section mean as to the justice? It means that he may hear criminal matters arising in his own township and county wide where the affidavit or complaint is filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured or any authorized representative of the state or federal government department. This does not mean that he has a right to final determination of a case, only that he may accept the charge made by any of those enumerated therein.

Sec. 13433-9 GC reads as follows:

“Proceedings when accused pleads guilty of a misdemeanor. When a person charged with a misdemeanor is brought before a magistrate on complaint of the party injured, and pleads guilty thereto, such magistrate shall sentence him to such punishment as he may deem proper according to law, and order the payment of costs. If the complaint is not made by the party injured and the accused pleads guilty, the magistrate shall require the accused to enter into a recognizance to appear before the proper court as provided when there is no plea of guilty.”

What does this mean? It means that if there is a plea of guilty except in those certain sections wherein the justice is granted final jurisdiction, which is not applicable to a case of violation of the traffic code, that the Justice of the Peace can do only one of two things, discharge the man or bind him to the grand jury. He can pronounce no sentence whatsoever except as noted above. However, the Court wishes to state that if the affidavit is filed by the party injured he may then, no matter what the misdemeanor is, pronounce final sentence.

Sec. 13433-10 GC reads as follows:

“Proceedings when there is no plea of guilty. When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed, and there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance with good and sufficient surety, in such amount as he deems reasonable, for his appearance at a proper time and before the proper court, otherwise, he shall discharge him from custody. If the offense charged is a misdemeanor, and the accused in a writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, he may render final judgment.”

What does this section mean? It means that his right to hear the case and fine or sentence the man is limited to those cases in which there is a fine which will exceed $50.00 or there is an imprisonment where a waiver is signed.

Sec. 6307-107 GC carries a penalty for violating §6307-1 GC. The Court will not write out this entire section, but feels that at this time that merely to operate outside of a municipality at a speed greater than 50 miles an hour is not a violation of the law that being only prima facie and the other provisions of the statute must be met as every person is presumed to be innocent until he is proven guilty bewond a reasonable doubt of all the essential elements of the crime charged.

Sec. 6307-107 GC reads as follows:

“Violation a misdemeanor; exception; penalty, (a) It is a misdemeanor for any person to violate any of the provisions of this act unless such violation is by this act or other law of this state declared to be a felony, (b) Every person convicted or found guilty of a misdemeanor for a violation of any of the provisions of this act for which another penalty is not provided shall, for a first offense thereof, be fined not more than $50.00; and for a second offense within one year thereafter, not less than $10.00 nor more than $100.00, or imprisoned in the county jail or workhouse not more than ten days, or both; and for a third or subsequent offense within one year after the first offense shall be fined not less than $25.00 nor more than $200.00 or imprisoned in the county jail or workhouse not more than thirty days, or both, provided, further, that when any person is found guilty of a first offense for a violation of section 21 (§8307-21 GC) of this act upon a finding that he operated a motor vehicle faster than thirty-five miles an hour in the business districts of a municipal corporation or faster than fifty miles an hour in other portions, or faster than thirty-five miles an hour while passing through a school zone during recess or while children are going to or leaving school during the opening or closing hours, the court may, in addition to the penalty herein provided, sentence such offender to the county jail or workhouse for not more than five days.”

It is clear from this section that the most the defendant could have been fined would have been $50.00. I feel at this time for the benefit of the parties I should interpret §6307-107 GC somewhat for the reason that it says, that when any person is found guilty of a first offense for a violation of §6307-21 GC of this act upon a finding that he operated a motor vehicle faster than thirty-five miles an hour in the business districts of a municipal corporation or faster than fifty miles an hour in other portions, or faster than thirty-five miles an hour while passing through a school zone during recess or while children are going to or leaving school during the opening or closing hours, the court may, in addition to the penalty herein provided, sentence such offender to the county jail or workhouse for not more than five days.

I am giving the interpretation of this section because that does not apply to a speed of more than fifty miles an hour outside of a municipal corporation unless it is charged that he is operating in a school zone therefore the $50.00 maximum fine would still stand.

The Court wishes to say that the case of Overholser v. Wolfe, 26 N. P. (NS) 593 is hereby approved and following therefore this ease is remanded to the Justice to either secure a new affirmation on the affidavit or if not so secured then to discharge the defendant. If said affidavit is properly secured then he may examine into the case and either discharge the defendant or bind him to the grand jury if probable cause is shown.

The Court feels constrained to again call the attention of the Justice of the Peace to the fact that mere proof of a defendant operating at sixty-five miles an hour is not sufficient to find a defendant guilty.

Exceptions saved to both parties. Journal entry will be prepared by the attorney for the defendant and approved by the Prosecuting Attorney.


author: By ZURZ, J.

text:
    BURROUGHS et, Plaintiffs, v. RAYMOND et, Defendants.
    Probate Court, Summit County.
    No. 18163.
    Decided June 29, 1951.

      Buckingham, Doolittle & Burroughs, Akron, for plaintiff.
    Ralph Burroughs, Wade DeWoody, Jay L. Mennell, Herberich, Rowley & Taylor, J. Perry Teeple, Walker, Alpeter, Reed & Diefenbach, Akron, for defendants.
   OPINION

By ZURZ, J.

This matter comes before the Court upon the petition of Rosamond Dersey Weller and Edmund Burroughs, co-executors of the estate of Mae Dersey Johnson, for instructions of the Court as to the proper distribution of the residue of said estate.

The decedent, Mae Dersey Johnson, died testate on March 23, 1949, survived by her husband, William A. Johnson and a daughter, Marilyn Rosamand Johnson, a minor of the age of 17.

The estate of the decedent, as shown by the inventory filed in this Court, consisted of personal property of the value of $2910.00 and real estate, the residence property of the decedent, of the value of $31,000.00. The appraisers set off to William A. Johnson, the widower, the sum of $2,500.00 payable in money as property exempt from administration under §10509-54 GC. Thereafter, William A. Johnson selected as exempt property under said section, the 1941 Buick Sedan automobile belonging to decedent’s estate, appraised at $500.00, reducing the amount of exemption payable to him in money to $2000.00.

By the decedent’s Will, most of her personal property was specifically bequeathed, and as to her real estate, which was comprised solely of the residence property at 169 Dorchester Road, in Akron, Ohio, one-half was devised to her daughter, Marilyn Rosamond Johnson, and all the rest and residue of her estate was devised to her husband, William A. Johnson.

In order to follow the maze of events hereinafter set forth, it might be well to state at the outset that the controversy herein does not arise by reason of any claim of creditors or indebtedness of the decedent, Mae Dersey Johnson, against her estate but arises because of claims of creditors of William A. Johnson, the surviving spouse and residuary devisee under decedent’s Will. It is here sought to be determined the respective rights of his creditors in the $2000.00 balance of property exempt from administration due William A. Johnson under §10509-54 GC, and the residue of the estate passing to him as residuary devisee.

The said William A. Johnson was indebted to Golda Stout in the amount of $2085.00, plus interest for money loaned to him during the year 1939 as evidenced by five promissory notes. On August 9,1949, William A. Johnson assigned to Golda Stout the sum of $2,693.57 with interest at 3% per annum from July 1, 1949, in settlement of said indebtedness payable “out of my interest and share in the estate of my deceased wife, Mae Dersey Johnson,” and instructed the executors of said estate to pay said amount to Ralph Burroughs as escrow agent for Golda Stout. Subsequently thereto, on November 8, 1949, William A. Johnson made an assignment specifically assigning to Golda Stout “all my interest and share in the property and estate of my deceased wife, Mae Dersey Johnson, including my share and interest by way of property exempted to me from administration,” together with instructions to the executors to pay same to Ralph Burroughs, as escrow agent. The first of these assignments was served upon Edmund Burroughs, as Executor, on August 10, 1949, and the latter assignment on November 8, 1949.

The executors of the within estate, in order to satisfy an existing mortgage on decedent’s real estate and to provide funds for payment of other debts against decedent’s estate, sold the residence property of decedent at 169 Dorchester Road, Akron, Ohio, under a power of sale in decedent’s Will, to Robert A. Breckenridge and Zella E. Breckenridge on November 25, 1949 for $27,500.00.

The above real estate was registered land evidenced by Registered Land Certificate No. 8069 in the Recorder’s Office of Summit County, Ohio, and on November 25, 1949, the above grantees commenced an action in this Probate Court for the registration of said real estate in their names as grantees, said action being Case No. 17906.

The National City Bank of Cleveland, John G. Raymond, Central National Bank of Cleveland, Oral S. Pfiug and T. J. Seibert, Inc., were parties defendant to said action to register title for the reason that said parties were judgment creditors of William A. Johnson and have caused to be recorded upon the registered title certificate in the office of the County Recorder of Summit County, Ohio, their respective judgment liens. The amounts and dates of recording said judgment liens are as follows:

The National City Bank of Cleveland, $870.80 lien recorded on title certificate July 14, 1949.

J. G. Raymond, $1373.38 lien recorded on title certificate November 8, 1949.

Central National Bank of Cleveland, $238.00 lien recorded on title certificate December 14, 1949.

Oral S. Pflug, $846.94 lien recorded on title certificate February 15, 1950.

T. J. Seibert, Inc., $118.83 lien recorded on title certificate March 25, 1950.

The Court in said action to register title did, on April 1, 1950, order the title to said real estate registered in the names of the grantee, Robert A. Breckenridge and Zella E. Breckenridge, said title not to bear thereon the lien memorials of the aforesaid judgment creditors of William A. Johnson, to-wit: The National City Bank of Cleveland, J. G. Raymond, Central National Bank, Oral S. Pflug and T.' J. Seibert, Inc., but said order was made without prejudice to their rights, if any, against the fund received from the sale of said real estate, said rights and priorities to be determined in a further proceeding, in the event funds remained for distribution to William A. Johnson.

John G. Raymond and The National City Bank of Cleveland began separate actions in the Court of Common Pleas of Summit County, Ohio, in the nature of a creditor’s bill against William A. Johnson and the executors of the within estate for the purpose of sequestering toward their judgments any assets due William A. Johnson from the estate of the decedent, Mae Dersey Johnson. The first of these suits was filed by John G. Raymond on December 1, 1949, case No. 174052, wherein service of Summons was completed upon Edmund Burroughs, executor of the within estate, on December 5, 1949. The second suit was filed by The National City Bank of Cleveland on July 1, 1950, case No. 176603, wherein the said Edmund Burroughs, as executor as aforesaid, was served with summons on July 7, 1950. Both of these actions are pending in said Court.

The first question to be determined is, should Golda Stout by virtue of her assignments from William A. Johnson prevail over his judgment lien holders as to the $2000.00, the balance due him as surviving spouse under §10509-54 GC as property exempt from administration.

Sec. 10509-54 GC provides as follows:

“When a person dies leaving a surviving spouse, * * *, the following property if selected as hereinafter provided, shall not be deemed assets or administered as such, but must be included and stated in the inventory of the estate * * * (list of items named), to be selected by such surviving spouse * * *, not exceeding in value twenty percentum of the appraised value of the property, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than twenty-five hundred' dollars, if there be a surviving spouse, * * * nor less than five hundred dollars * * * if there be so much comprised in the inventory and selected as herein provided; or, if the personal property so selected be or less value than the total amount which may be selected as herein provided, then such surviving spouse, * * * shall receive such sum of money as shall equal the difference between the value of the personal property so elected and such amount, and such sum of money shall be a charge on all property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate.”

This section of the code was enacted in 1931 and became effective on January 1, 1932. Since then it has come before the Ohio Supreme Court for judicial interpretation on several occasions. In Davidson v. Miners Savings and Trust Company, Exr., 129 Oh St 418, the widow of the decedent elected to take against the will and the question was raised therein whether the widowp’s year’s allowance and the allowance given her under §10509-54 GC were deductible before determining the widow’s share of the estate under the statute of descent and distribution. The Court in holding that these two allowances were deductible first, declared:

“Of course, the argument of plaintiff in error that the widow can take a maximum of not more than one-half of the estate inclusive of her year’s allowance and the allowance under §10509-54 GC, is without merit. These allowances, in the order mentioned are a debt and preferred claim, respectively, against her deceased husband’s entire estate, deductible therefrom before determination of the share of the estate to be taken under the ‘statute of descent and distribution.’ ”

In Stetson v. Hoyt, 139 Oh St 345, the court, relative to §10509-54 GC, said: (page 349)

“The allowance provided by the statute in question in excess of the value of the specific personal property actually selected constitutes an obligation in the nature of a debt due from the estate to the surviving spouse which has a preferred status as to payment as against all unsecured creditors of the estate of the deceased spouse.”

The Supreme Court in Raleigh v. Raleigh, 153 Oh St 160, held that the balance of the property exempt from administration payable in money under §10509-54 GC if not paid during the lifetime of the surviving spouse, passes to his estate at his death. Judge Stewart said: (page 173)

“If a widow has made a selection of only trifling property and dies, and a balance of over $2000.00 has neither been selected by her nor paid her, and that balance constitutes a debt or preferred claim to which her estate is entitled, it logically follows that the entire claim is in the nature of a debt and constitutes a preferred claim, and if the one who is entitled to make the claim is prevented from doing so by his death, his estate is entitled to an allowance of money in lieu thereof.”

All of the foregoing cases were cited with approval in the most recent pronouncement of the Supreme Court, In re Croke, 155 Oh St 434 decided May 23, 1951.

It is clear then by the foregoing decisions that the excess of the value of the specific property selected and payable in money under said §10509-54 GC constitutes a debt and a preferred claim upon all of the assets of the estate. The relationship between the estate and the surviving spouse is that of a debtor and a creditor, with a preferred status over all unsecured creditors of the estate. That portion of the exemption payable in money is in the nature of a chose in action belonging to the surviving spouse and as such it is the opinion of the Court that it is personalty rather than real estate. It is the finding of the Court that said exemption being personal property in character it is not subject to the judgment liens notated by the judgment creditors upon the registered land title certificate as aforesaid.

It is true that by the statute this preferred claim is made a charge not only on the personal property but on the real estate as well and is a lien thereon to that extent. However, the means given by the legislature to enforce the collection of this claim cannot change its character from personalty to real estate.

The argument is advanced by the judgment lienholders of the surviving spouse that their liens should attach to the $2000.00 exempt property for the reason that same must be paid from the proceeds of the sale of the real estate. The Court is not persuaded by this argument for the reason not only that this claim is personal property and not affected by the judgment liens upon the real estate title certificate but still further, William A. Johnson, as surviving spouse, is not relegated to the fund from the sale of the real estate for payment of his claim but by virtue of the statute itself has recourse against the personal property in the estate as well, which in the within instance exceeds the amount of his claim of $2000.00.

The Court finds from the evidence that the assignments from William A. Johnson to Golda Stout were made for a valuable consideration in settlement of an existing obligation. Whether or not the general assignment of August 9, 1949 would be sufficient to transfer the exempt property claim of $2000.00 it will not be necessary for this Court to decide for the assignment of November 8, 1949 assigned the said claim specifically to Golda Stout and the Court finds that said specific assignment constitutes a valid transfer of his claim for that portion of his exempt property payable in money.

The two suits filed in Common Pleas Court in the nature of creditor bills by John G. Raymond and the National City Bank of Cleveland would have been proper procedure to reach the exempt property claim of William A. Johnson had same been commenced more timely. However, these suits were not commenced until December 1,1949 and July 1,1950 respectively, both subsequent to the specific assignment to Golda Stout on November 8, 1949 of which assignment Edmund Burroughs as executor was duly notified on the same date and hence the doctrine of lis pendens would not affect the prior right of Golda Stout under her assignment of earlier date.

In accordance with the foregoing, the Court finds that Golda Stout by virtue of her specific assignment on November 8, 1949 from William A. Johnson is entitled to the $2000.00, the balance of the property exempt from administration under §10509-54 GC.

The evidence is indicative that after the payment of the balance due as exempt property, the debts and costs of administration, a small amount will remain for distribution to the residuary devisees, Marilyn Rosamond Johnson and William A. Johnson. The further question must be determined as to the respective rights and priorities of Golda Stout by virtue of her assignment and the judgment creditors of William A. Johnson whose liens have been noted upon the registered land title as aforesaid in the residuary estate passing to William A. Johnson.

In Ohio the real estate of the decedent passes directly to the heirs if decedent dies intestate, or to the devisees when disposed of by will. Unlike personalty, the personal representative has nothing to do with the real estate of decedent and cannot sell same except when the will gives the executor power of sale thereof or where the personalty is not sufficient to pay the debts of the decedent in which case statutory authority for its sale is given under §10510-2 GC.

The Supreme Court in a case decided at the turn of the century in 1901 and incidentally originating in the Summit County Probate Court, Carr, Guardian v. Hull, 65 Oh St 394 stated the rights of an administrator in this fashion: (page 397)

“In this state, as in most of the states of the Union where the principles of the common law prevail, the personalty of a decedent who dies intestate, passes to his administrator, who takes it in trust for the payment of the debts of the decedent and the distribution of the remainder among his next of kin; whilst his realty passes directly to his heirs as an estate of inheritance, subject, however, to a liability for the payment of his debts, if the personalty proves insufficient. But as the administrator has no title to the lands, the liability can only be enforced by a proper proceeding instituted by him for a sale of the lands, or so much thereof as may be necessary, for the express purpose of paying debts of the decedent.”

Upon the death of the decedent herein, Mae Dersey Johnson, the title to her real estate passed directly to the devisees named in her will of whom William A. Johnson was one. The title to decedent’s real estate vested immediately at her death in the devisees named in her will subject to a liability for the payment of decedent’s debts in the event the personal property proved insufficient. It was to this vested interest of William A. Johnson as a devisee in the real estate of the decedent herein that his judgment creditors directed their liens by causing same to be recorded upon the registered title certificates of decedent’s real estate in the office of the Summit County Recorder as aforesaid and in the opinion of this Court became a valid lien thereon subject only to the liability of decedent’s debts as aforesaid.

The executors of the estate, having determined that the personal property was insufficient to pay the debts of the estate, sold the real estate under the power of sale contained in the will. Counsel for Golda Stout contends that by the exercise of this power of sale an equitable conversion occurred changing the real estate to personalty and accordingly the judgment liens would be unavailing against the proceeds.

The power of sale is contained in the Codicil to the Will of the decedent in these words,

“* * * I do hereby nominate and appoint Rosamond D. Weller and Edmund Burroughs, or the survivor thereof, Executors of my said last Will and Testament in place and stead of Edward Weller, with full power and authority to sell and convey, lease or mortgage real estate * * *”

This is not a mandatory power of sale directing the executors to sell the real estate to accomplish a specific purpose which may occasion an equitable conversion but is an ordinary power of sale given to the executors to facilitate the prompt administration of the estate. The exercise of this power, in the' opinion of the court, did not result in an equitable conversion of the real estate to personalty.

Pence v. Pence, 11 Oh St 290 is cited by counsel for Golda Stout in support of his contention that an equitable conversion resulted from the sale. The court after a study of this case cannot agree that this decision supports counsel’s position. The decedent therein died intestate possessed of real estate leaving his widow and brothers and sisters. Thereafter a posthumous child was born who was the only lineal heir of decedent to whom the decedent’s real estate descended. The administrator petitioned the probate court for authority to sell the real estate to pay debts which was granted and the land sold. Before distribution of the proceeds of the land sale the posthumous child died. Under Ohio law as it existed at that time personal property and real estate of a decedent passed in different fashion so it became important for the court to determine the character of the proceeds belonging to the estate of the posthumous child. If personalty it would belong to the child’s mother, if real estate it would belong to the brothers and sisters of the first decedent, the child’s father. The statute at that time provided, as set forth in the opinion at page 294:

“In all cases of a sale by an executor or administrator of part or the whole of the real estate of the deceased, under an order of court, whether such executor or administrator shall have been appointed in this State or elsewhere, the surplus of the proceeds of the sale, remaining on the final settlement of the account, shall be considered as real estate and shall be disposed of accordingly.”

The court held that the surplus proceeds from the land sale passed to the heir, the posthumous child, as real estate, but upon the death of the child before distribution of same to him said proceeds were personalty in the child’s estate and passed to the mother of the child as such. In order words the effect would be the same if the child had lived to receive distribution, the distribution would have been made to the child as real estate but once in his hands it would be personalty, and since his death intervened before distribution it would be distributed to the child’s estate as real estate and would then be personalty in the child’s estate and distributed to his heirs accordingly.

The court at page 295 of its opinion said:

“And on sale of the lands the statute applied to the proceeds; and so after the assignment of dower in solido, and the payment of the debts therefrom, the surplus of the proceeds of the sale, as to the heir, was considered as real estate, and was disposed of accordingly; giving the title to the same to the child, the heir, alone the same as if it had been a residue of the land unappropriated in such settlement of the estate.”

To the same effect in Kling v. Bordner 65 Oh St 98 which held that the surplus proceeds from the sale of real estate to pay debts is real estate and not personal property and goes by descent to the heirs.

Sec. 10510-46 GC relating to the distribution of money received from the sale of real estate provides as follows:

“*'* * 3. (c) whether such executor or administrator was appointed in this state or elsewhere, the surplus of the proceeds of sale must be considered as real estate and be disposed of accordingly. * * *”

It would be an anomalous situation, indeed, if a different result than that indicated by the above statute would occur where instead of a land sale proceeding in probate court a sale of land is made by virtue of a power of sale contained in the will. To give legal sanction to such a result would give the executor an election whereby the method he selected would bring about two different results. If he chose to bring a land sale by petition in probate court the surplus proceeds would be real estate but if he chose to exercise the power of sale in the will, the surplus proceeds, according to the contention of Golda Stout, would be personalty. Such a position is untenable.

A further observation may be made to the effect that had the assets of the within estate been such that a sale of the real estate would not have been necessary to pay debts, there is no question that the liens of the judgment creditors would have attached to said real estate by virtue of the recording of their memorials upon the registered land title. Certainly the fact that it became necessary to exercise the power of sale to pay debts of the decedent should not bring about a result that would defeat the rights of the lienholders to any residue that the judgment debtor .William A. Johnson might be entitled to.

It has been contended by Golda Stout, assignee, that the judgment creditors have failed in certain respects to fully comply with the statutory requirements as to filing liens upon the registered land title certificate. The court finds that there has been a substantial compliance with the statutory requirements as to all of the lienholders and finds that such judgment lienholders have a prior right to any residue payable to William A. Johnson as residuary devisee under the will of the decedent herein by virtue of their recorded liens upon the registered land title as against the unrecorded assignments of Golda Stout.

Accordingly it is the finding of this court that any surplus proceeds resulting from the land sale proceedings payable to William A. Johnson as residuary devisee shall be applied toward payment of the liens of the judgment creditors in the following order of priority, to-wit:

First, The National Bank of Cleveland, Ohio
Second, John G. Raymond
Third, Central National Bank of Cleveland
Fourth, Oral S. Pflug
Fifth, R. J. Seibert, Inc.

In the event there is sufficient proceeds to pay the foregoing in their respective order, any surplus thereafter shall be applied toward the payment of the balance due upon the assignments of Golda Stout.

An order may be drawn accordingly.


author: By SKEEL, PJ.

text:
    CREAMER, Plaintiff-Appellee, v. PAYER, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22454.
    Decided June 9, 1952.

      Roudebush, Adrion, Sanborn, Brown & Corlett, Myron W. Ulrich, of counsel, Cleveland, for plaintiff-appellee.
    Orgill, Maschke, Wickham & Loux, H. Frank VanLill, of counsel, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for the plaintiff upon a verdict of a jury in the Common Pleas Court of Cuyahoga County, Ohio. The action is one seeking to recover of the defendant the value of necessaries furnished the defendant’s wife, the action being founded upon what was then known as §8003 GC (Now §8002-3 GC, eft. 8/23/51). The wife of the defendant was the daughter of the plaintiff.

The defendant and Lida Creamer Payer, daughter of the plaintiff, were married in California April 3, 1929. There were three children born of said marriage.

The plaintiff’s petition alleges that the defendant placed his wife in a sanitorium at a time when she was mentally sick and unable to provide for herself and thereafter abandoned her, failing to provide her with any support whatsoever, and that the plaintiff (mother of Lida Creamer Payer) was compelled to furnish all necessary support and that the defendant as the husband of Lida Creamer Payer is indebted to her to the reasonable value of the support furnished, which is alleged to be $28,806.06.

The answer of the defendant admits Lida Creamer Payer to be his wife, and alleges affirmatively that from the earliest date of the alleged expenditures made by the plaintiff, he has been living apart from his wife by reason of her aggression against their marital relationship and her extreme cruelty and gross neglect of duty and for that reason he has refused to support and maintain his said wife.

The plaintiff’s reply is a general denial of the affirmative allegations and new matter contained in defendant’s answer.

The bill of exceptions does not contain all of the evidence introduced upon the trial of the case. There is a stipulation that certain testimony of plaintiff and Lida Creamer Payer with respect to proof of damages is reduced to “the following stipulation.” The stipulation then describes what was offered but the part setting forth amounts was stricken by the trial court before settling the bill of exceptions.

The evidence discloses that the defendant and Lida Creamer Payer were married in California in April, 1929, and that there were three children born of said marriage. They first lived in Los Angeles, then moved to Cleveland, Ohio, in June, 1930, then to Hastings-on-the-Hudson, N. Y., in 1934; to Dareen, Conn., in 1935, and in the early part of 1937, to what was known as the “Wrenn Cottage at Wilson’s Point, Conn.” The plaintiff’s testimony is that she and Mr. Payer’s father were compelled to give financial help almost continuously and that in 1933 the defendant and his wife were separated for a short time due to defendant’s conduct. In 1937, she visited the home of her daughter at Wilson’s Point, and testified to certain strange conduct on her part. In September, 1938, she received from her daughter a letter dated Sept. 27th which was introduced into the record. A reading of the letter shows it to have been written by one with a confused mind. The letter is irrational and incoherent. The plaintiff upon the receipt of this letter, called her daughter by long distance telephone to see if. everything was all right, offering to come east but the offer was refused. The plaintiff next saw her daughter in Los Angeles, Calif., where she was taken by the defendant and hospitalized. She was then examined by a specialist in mental diseases, the diagnosis being “Schizophrenic reaction.”

The evidence of the defendant in support of his claim of his wife’s disloyalty to the marital relation, is based on two letters admittedly in the handwriting of defendant’s wife and the testimony of a maid employed by the Payer family July 5, 1938, and the testimony of the defendant himself. The two letters, the maid testified were given her by Mrs. Payer to read and then were to be given to Mrs. Daughterty who would pick them up for a Mr. Lydgate with whom it is claimed Mrs. Payer had had improper relations. No one ever called for the letters and the maid put them in the kitchen where all the household bills were kept, where they remained from their delivery to her in August, or the early part of September, until just before Thanksgiving. Mrs. Daugherty, described as Mrs. Payer’s best friend, and who testified in her behalf at the trial, said she knew nothing of the letters and the maid testified that Mrs. Payer did not inquire about them at any time after their delivery. The contents of the letters indicate mental instability.

The maid further testified to the effect that about 2 o’clock A. M. on a night in the middle of August, the exact date of which she could not remember, Mrs. Payer came into her room, awakened her out of her sleep and told her of having illicit relations with a Mr. Lydgate and that she loved him more than her husband. She further testified that on the afternoon of the Saturday before Thanksgiving, Mrs. Payer gave her two letters and a set of keys. The letters were to be given to Mrs. Daugherty. Mrs. Payer said she was leaving Mr. Payer to go to Lydgate and she, the maid, was to take care of the children. About this time Mr. Payer came in, and the maid gave him all the letters and the keys and told him what Mrs. Payer had said. Mr. and Mrs. Payer then went to another part of the house and the maid testified that she did not see Mrs. Payer again until Monday morning when Mrs. Daugherty took her to New York City.

The defendant’s testimony as to what took place the Saturday before Thanksgiving, 1938, was as follows:

“Q. Now, things were going along normally at your home, weren’t they, until about the Saturday before Thanksgiving, ’38?
“A. Quite.
“Q. And something happened on that day?
"A. Yes, sir.
“Q. What happened?
“A. Why, Pearl DeFeo, the maid, handed me some letters and told me that Mrs. Payer had decided she was going to go away with Bill Lydgate. And I was quite upset about it. And in the ensuing two or three days there was a lot of unpleasant conversation and . . .
“Q. What did Mrs. Payer say about it, if anything?
“A. She said that she wanted to go away with him. and she wanted to take Dennis with her but didn’t want the other two children.
“Q. Was Dennis your daughter?
“A. Yes, sir.
“Q. And the other two children were sons?
“A. That is right, yes, sir.
“Q. What did you say to that?
“A. I said that I would, under no circumstances, permit the family to be broken up, that if she wanted to go off with Mr. Lydgate that was up ’to her.
“Q% Well, now, I think — was that Saturday on which you got those letters, or not?
“A. I-think it was. I wouldn’t be positive.
“Q: How soon after you found those letters and found out about the situation that those communications indicated, plus what the maid told you, — Pearl,—what did you next do about it besides talking to Mrs. Payer about it? I have in mind going away somewhere. What happened then? Let us get' to it quickly.
“A. Well, I don’t remember particularly anything I did. Except that the following Monday I took the train to New York to my place of business as I ordinarily did.”

Defendant further testified that he did not know Mrs. Payer was taken to a New York doctor until Mrs. Daugherty called him at his office and said she had become hysterical. Mrs. Daugherty, however, testified that she got a telephone call from Mr. Payer saying Mrs. Payer was not well and requested her to take Mrs. Payer to a New York doctor because he felt the situation was urgent. On the trip to New York Mrs. Daugherty described Mrs. Payer as suffering a nervous breakdown which was also the diagnosis of the New York doctor.

Mr. Payer, as soon as he got Mrs. Daugherty’s call, came to the doctor’s office and from there he took his wife by airplane to Cleveland and then to California where he placed her in a sanitorium, under the care of a mental specialist and contracted to pay the hospital and medical bills up to $1,000.00'. He then left California and some time in February refused any further care or support and admits he has paid nothing further, justifying such refusal on the ground of her alleged infidelity.

From a judgment entered for the plaintiff, this appeal is taken in which the defendant claims the following errors:

“1. In overruling defendant’s motion for directed verdict for the reason that there was no claim of insanity set up in the reply of the plaintiff, the undisputed evidence showing the adultery of defendant’s wife causing the separation.
“2. In overruling defendant’s motion for a directed verdict for the reason that there is no evidence in the case which in the slightest degree shows that at the time of the claimed adultery the plaintiff’s daughter, Mrs. Payer, could not distinguish between right and wrong.
“3. In entering final judgment in this case not sustained by sufficient evidence and against the weight of the evidence.
“4i. The verdict is contrary to law.
“5; In its charge to the jury on weight of the evidence required to sustain plaintiff’s case.
! “6..-In its charge to the jury as to burden of proof with respe.ct to aggression causing separation from wife.
“7. In restricting jury’s consideration to adultery of defendant’s wife when answer of defendant charged her with extreme cruelty and gross neglect of duty.
“8. In sustaining the objection to the question put to Dr. Burns by defendant on cross-examination and his answer thereto.”

It must be assumed that the first assignment of error is directed toward the defendant’s motion for a directed verdict at the conclusion of the taking of all the evidence in the case. In considering this claim of error the court must consider the issues as presented by the pleadings. The plaintiff’s claim is for necessaries furnished defendant’s wife as a result of and because he failed to provide for her (§8003 GC). It is admitted that the plaintiff furnished necessaries to defendant’s wife and that subsequent to January, 1939, he refused to give her any support whatsoever claiming the right to refuse because of her aggressions to-wit, adultery. The plaintiff therefore made out a prima facie case as to the right to recover the reasonable value of necessaries furnished, the relationship and the refusal to support her daughter being in effect admitted. The defense of the wife’s aggression against the sanctity of the marital relationship is an affirmative defense which the defendant must sustain by the preponderance of the evidence. The defendant assumes that such aggression (adultery) is uncontradicted. Such assumption cannot be supported. The only evidence comes from the mouth of Mrs. Payer as related by a servant. As above indicated the servant was aroused out of a deep sleep at 2 A. M. by her employer of less than six weeks duration and as shown by the direct testimony.

“She came into my room about 2 o’clock in the morning and told me she was out and she was very thrilled and that she had had sexual intercourse with Mr. Lydgate.”

On cross-examination she said:

“She got talking about the play when she came in she started talking about how the play was progressing and ail of a sudden she came out with it.”

In the consideration of this evidence, which together with the letters is the only evidence of infidelity, in the light of all the surrounding circumstances, the incoherent letter written to her mother, the finding of her mental condition by the mental specialist, and the opinion evidence as to the time it would take such mental instability to develop and the evidence of Mrs. Daugherty about Mrs. Payer’s nervous state in April when she took her on a short vacation, in the hope that a trip might be of some help, together with Mrs. Payer's evidence that she has no recollection of anything during that time, and other supporting evidence, without even a suggestion of other misconduct or indiscretion of any kind, it must be evident that reasonable minds might come to different conclusions as to whether infidelity was in fact established by the proper degree of proof. It might, under all the circumstances, be concluded that the statement was the illusion of a troubled mind. In all events the question was one for the jury and under no circumstances could infidelity be said to be an admitted fact.

It is also claimed that because the plaintiff did not plead the insanity of her daughter to excuse adultery, if and when shown in her reply, such defense was not available to her. From the very beginning of the trial and even before that, when depositions were taken of the doctors in' California, it was perfectly evident that, if adultery was shown, which the plaintiff denied, the plaintiff was asserting the affirmative defense of insanity. It is true that much of the evidence on that subject was necessary to fix the need and value of necessaries furnished. But that cannot be said for such evidence as Mrs. Payer’s letter to her mother of Sept. 2?, 1938, — Mrs. Daugherty’s testimony of the vacation trip, and other testimony of a similar nature. And evidence, no matter for what purpose it was received, is competent to be considered on all issues.

The defendant entered no objection to the issue of insanity being presented to the jury. The court’s charge was clear and unequivocal and without objection. Upon the record, the plaintiff by motion could have amended her reply to include the affirmative defense of insanity at any time before or after judgment and the granting of such motion would have in no way been held as a surprise defense. While it might be said that it was error not to require such defense to be pleaded, yet no prejudice has resulted to defendant because of the deficiency of the reply. In all events, the first time the objection to such defense is presented is before this court and we hold that it is too late to urge such defense for the first time in the Appellate Court. The first assignment of error is therefore overruled.

The appellant’s second and third claims of error must be overruled for the reason that they are based on the assumption that infidelity on the part of Mrs. Payer is not in dispute. As set forth in considering the first claim of error, this question upon the face of the record must be submitted to the jury. There is also considerable evidencce of mental incapacity which is related to the-time of the alleged misconduct. '

The fifth claim of error is based upon the charge of the court as to the quantum of proof required to sustain plaintiff’s case, it being contended that the defendant’s abandonment of his wife must be shown by clear and convincing proof. The defendant cites Hardy v. Smith, 13 Oh Ap 399, in support of his claim. That case, however, is not in point upon the undisputed facts in this case. Here there is no dispute but that the defendant abandoned his wife. His amended answer and his amended answer to the supplemental petition, pleaded the facts as follows:

“* * * having left Lida Creamer Payer by reason of the aggression of his said wife against the marital relationship * *

No issue is therefore raised as to whether she has been abandoned. Here the defendant has assumed an affirmative defense justifying his refusal to support his wife, which defense was made known to the plaintiff before she expended the monies which she now seeks to recover. The court’s charge was therefore correct on the issues as presented by the pleadings.

The sixth claim of error is as.follows:

“* * * in its charge to the jury as to the burden of proof with respect to the aggression causing the separation of his wife.”

The defendant’s claim seems to be that after the defendant introduced sufficient evidence to counter-balance the plaintiff 's prima facie case of abandonment by evidence tending to show the wife’s aggression as excusing the defendant from the duties of supporting his wife, the burden of proceeding then shifted to the plaintiff to show by the preponderance of the evidence that the wife was not guilty of the claimed aggression. Such claim is contrary to the general rules fixing the burden of proof. He who asserts the affirmative of an issue must sustain his claim by the greater weight of the evidence. The rule is so universally established that the citation of authorities is unnecessary.

The authorities cited by the defendant are cases where the wife abandons the husband. Under such circumstances a plaintiff seeking to recover for necessaries furnished the wife cannot make out a case without establishing that the abandonment of the husband by the wife was justified. In the case at bar, the husband defendant is trying to justify his abandonment of his wife. No case is cited, nor have we been able to find one, supporting this claim of error. It is therefore overruled.

The seventh claim of error is without merit. It is true that gross neglect of duty and extreme cruelty are alleged in the answer. The record discloses that this was done to avoid, if possible, placing the charge of adultery of record with full knowledge on the part of the plaintiff that this would be the defendant’s defense. A reading of the record shows that there is no testimony in the record to support a claim of gross neglect of duty or of extreme cruelty, unless it could be said that the two undelivered love letters would support such allegation. The defendant’s testimony quoted above clearly demonstrates that he made no claim of failure of his wife to perform her marital duties.

The failure to charge on extreme cruelty was in all events an omission which, if the defendant felt himself entitled thereto, should have been requested when he was asked by the court if there were any further suggestions at the conclusion of the general charge. Having failed to request such additional instruction, whatever error was committed for failure to instruct on extreme cruelty was waived. 2 O. Jur., Part I, Pg. 352. We therefore overrule the seventh claim of error.

The final claim of the defendant concerns an exclusion of evidence. One of the mental specialists was being cross-examined and was asked the question whether or not Mrs. Payer had ever told him about an episode which took place, “referring to a love affair outside of her home.” The answer was, “Well, her mother did,” to which answer an objection was sustained.

In the first place, the answer was not responsive to the question and for that reason the objection was properly sustained. It is also true that the answer was based on hearsay, and for that reason was inadmissible.

The defendant had the plaintiff (mother) on the stand and could have inquired of her revelations to the specialist. We find that the court ruled correctly on the objection and no error was committed.

From an examination of the entire record, the defendant was afforded a fair trial and he has been accorded substantial justice.

For the reasons stated, the judgment of the Common Pleas Court is affirmed. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By GRAM, J.

text:
    REED, Estate of, In re.
    Probate Court, Clark County.
    No. 31241.
    Decided November 12, 1952.
   OPINION

By GRAM, J.

Florence B. Reed, a resident of the Village of Donnelsville, Clark County, Ohio, died testate on the 22nd day of December, 1951, leaving her husband and a daughter by a previous marriage surviving her. The will of said decedent was duly probated on December 29th, 1951, and the surviving spouse, Andrew Reed, was appointed Executor of said will on January 2nd, 1952. The Inventory in said estate discloses that the only estate possessed by decendant was real estate located in the Village of Donnelsville, Clark County, Ohio, of the appraised value of $12,000.00. An exemption of $2,400.00 was set off to the surviving spouse. It also appears from the Schedule of Debts that at the time of her death, there were claims against her estate aggregating $5,602.94, which included a claim of the surviving spouse of $812.22 covering funeral and cemetery expenses paid by the surviving' spouse and approved by the Probate Court.

After providing in Item First of her will for the payment of her just debts, funeral expenses, expenses of last sickness, costs and expenses of administration, Item Second of her will made the following provision:

“I give and devise all real estate located in the Village of Donnelsville, Clark County, Ohio, that I may own at the time of my decease to my beloved husband, Andrew Reed, for and during the period of his natural lifetime, and at his death, to my daughter, Delia C. Adams, the same to be hers absolutely and in fee simple.”

Item Third of decedent’s will is as follows:

“All the rest and residue of my estate at the time of my decease, of whatsoever kind or nature and wheresoever the same may be situated, I give, devise and bequeath to my said husband, Andrew Reed, and to my said daughter, Delia C. Adams, share and share alike, the same to be theirs absolutely.”

By Item Fourth, in the event her daughter should not survive her, she gave, devised and bequeathed all property herein given, devised and bequeathed to her, to her granddaughter, Lynn Adams, the same to be hers absolutely.

On the 8th day of February, 1952, the surviving spouse and Executor, Andrew Reed, rejected the provisions of said will and elected to take under the statute of descent and distribution.

On February 13th, 1952, the said Andrew Reed, by his attorney, filed a petition to purchase, at the appraised value, the real estate involved in the estate. In said petition he alleged that he was the duly appointed, qualified and acting Executor of the Last Will and Testament of Florence B. Reed, and as such was a defendant; that he and defendant, Delia C. Adams, daughter of said decedent, were all the persons entitled to the next estate of inheritance from the decedent in said real estate under the will of said decedent and his election to take under the statute of descent and distribution; also that there was a mortgage in the approximate amount of $3,500.00 which was a lien upon the premises and payable to Jacob M. Harner, Trustee of Clarence M. Stewart.

Subsequently on April 21st, 1952, said Andrew Reed, by his attorney, filed an amended petition setting forth that Florence B. Reed died seized of certain specifically described real estate in the Village of Donnelsville, Ohio; that said parcel of land, together with the mansion house or dwelling thereon, constituted the home of decedent and himself as plaintiff at the time of decedent’s death; that the real estate had been appraised under an order of the Court in the sum of $12,000.00 and said appraisement was approved by the Court within one month of the filing of the petition; that said real estate was not specifically devised; that plaintiff desired to acquire said property as provided by law; that as surviving spouse of decedent, prior to the filing of this amended petition, plaintiff had duly elected to take under the statute of descent and distribution and not under the terms of the will. Similar allegations were made as to his qualification as Executor of the Last Will and Testament of his wife and as a defendant in this action; also that he and Delia C. Adams, daughter of deceased, were all the persons entitled to the next estate of inheritance from the decedent in said real estate under the will of decedent and plaintiff’s election to take under the statute of descent and distribution; followed by an allegation as to the mortgage referred to above.

Plaintiff repeats the prayer of his petition that he be permitted to purchase said real estate at the appraised value thereof in accordance with the statute made and provided, and that the Court authorize and direct that a Commissioner be appointed by the Court to execute a proper deed conveying to him such real estate on such terms and conditions as the Court may direct under the law.

On May 2nd, 1952, counsel for the daughter, Delia C. Adams, filed a demurrer to the amended petition alleging that the allegations contained in the amended petition do not state a cause of action.

Briefs were submitted to the Court on August 12th and August 26th, 1952, by counsel for decedent’s daughter and for the surviving spouse and Executor, respectively.

In his brief supporting the demurrer counsel for decedent’s daughter emphasizes the fact that at the time of the execution of the will on July 1, 1950, §10509-89 GC was in full force and effect, and within the knowledge of testatrix; also that Item II, noted above, specifically disposed of the real estate located in the Village of Donnelsville, Ohio, and owned by decedent at the time of her death; that Item III of the will disposed of the balance of her estate “of whatever kind or nature and wheresoever the same may be situated,” clearly evidencing her desire that any other real estate should be governed by said Item III. Counsel urges that by the usual rule of looking at the will of testatrix to determine her intention there can be no doubt that she specifically desired that the specific real estate located in the Village of Donnelsville, Ohio, should pass in the way set forth in said Item II and that she specifically devised same in a specific manner. He points out that to say that the legislators, in the enactment of the above mentioned statute, intended that real estate must be described by metes and bounds or by lot numbers to meet the requirement of the statute would be to read into the statute an intention completely at variance with the seemingly clear intention of the Legislature when the statute was adopted before testatrix drew her will. He also urges that when the Legislature used the word “specifically” in §10509-89 GC it meant “in a specific manner” and that means having a specific aim and object in view.

In summarizing his contention, counsel insists that the testatrix, with full knowledge of the statute, devised her completely identifiable real estate without any uncertainty in a certain manner to certain people, and the rest and residue of her estate in another way; that her surviving spouse elected to take under the law, rather than the will, thereby acquiring an undivided one-half interest in her real estate rather than a life estate in the whole and now seeks to avoid the limitation contained in §10509-89 GC by purchasing the remaining one-half of the real estate at the appraised value. He concludes with the plea that the demurrer be sustained.

Counsel for the surviving spouse and executor, in his brief; argues at great length as to the proper construction of §10509-89 GC where the right of the surviving spouse to take at the appraised value is qualified by the words: “if not specifically devised or bequeathed.” He concedes that the surviving spouse elected to take under the law, with the result that he and the daughter each own an undivided half of the mansion house in fee simple, and that at the time of death decedent owned no real estate other than the home property. The burden of his argument is that the language contained in Item II of the will is not such definite, precise, explicit and particular language as it should be to meet the legislative intent of the phrase “if not specifically devised and bequeathed” appearing in the statute. He points out that the language: “all real estate located in the Village of Donnelsville” could obviously apply to one property or twenty properties and could apply to property which testatrix did not even contemplate acquiring at the time she executed her will.

Counsel cites, in support of his contentions, a number of authorities covering analogous situations but concedes he could find no cases bearing directly on the questions in this particular case. He does call our attention to the case of Passoni v. Breehl, 29 O. O. 220, in which Judge Lamneck said:

“A specific devise of realty is a gift of a specific parcel of land so described in the will as to distinguish it from the other land or property. Under this definition a devise of all of a testator’s realty is general and not specific.”

and suggests that Judge Lamneck agrees with him on the meaning of “specific” and refuses to follow some extreme and artificial authority to the contrary appearing in Section 1400 of Vol. 4 of Page on Wills.

Counsel then suggests the question that in the event the Court should decide that the devise in Item II is “Specific,” what is the effect of electing to take against the will upon the surviving spouse’s rights?

Counsel then cites the following and other authorities in support of his contention that a testator is without power to make a will which will embarrass or diminish his spouse’s right to take as though he had died intestate — the form of the devise becoming immaterial so far as the spouse is concerned;

4 Page on Wills, Section 1383; Doyle v. Doyle, 50 Oh St 330; Geiger v. Bitzer, 80 Oh St 65; Barlow v. Winters National Bank & c., 145 Oh St 270.

Counsel admits that none of the authorities cited pertain to the spouse’s right to take at the appraised value but he contends that the principles enunciated in them, if carried through to a logical conclusion, would justify a holding that the purpose of §10504-55 GC is to protect a surviving spouse against an unfair will.

Counsel’s brief also admits that the will of decedent operates on what is left after the spouse’s intestate interest is carved out, but it is contended that the statutes allowing the surviving spouse to buy certain property from the estate at its appraised value (at no loss to the estate) and to take against the will are intended to restrict the testatrix from the depriving of the spouse of his rights by cleverness in drawing the will and that such rights are to be liberally construed in favor of the spouse, as the Ohio cases have held. Counsel concludes with the claim that the devise in Item II is not specific, and, even if it were, that it would not be effective as against an election to take under the law, and, therefore, the spouse has the right to take the premises under §10509-89, GC.

The Court has given the questions involved in this case long and very serious consideration. Like counsel, the Court has been unable to find any cases bearing directly on the controversy, even after lengthy research. As we pointed out above, the only asset in Florence B. Reed’s estate was the real estate comprising her home in Donnelsville, Clark County, Ohio, which was appraised at $12,000.00. The appraisers set off $2400.00 as the exemption of the surviving spouse and there were debts of decedent amounting to $5602.94. By virtue of his election to reject the will and take under the statute of descent and distribution said spouse became the owner of an undivided one-half interest in said real estate, subject to the payment of one-half of the debts and costs of administration, the remaining one-half interest in the real estate passing to the step-daughter in fee simple, subject to the same obligations as to payment of debts and costs of administration.

Holdren v. Holdren, 78 Oh St 276.

The all-important question in this case is whether the language contained in Item II of decedent’s will constitutes such a specific devise of the real estate in question as would prevent the surviving spouse from purchasing the undivided half of the real estate remaining after his election to take under §10504-55 GC.

Sec. 10509-89 GC very clearly gives to the surviving spouse the right to purchase at the appraised value “the mansion house, including the parcel of land on which the same is situated” & c. “if not specifically devised or bequeathed.”

The record in this case discloses that the only asset in Florence B. Reed’s estate was the home and the land on which it was located in the Village of Donnelsville, Clark County, Ohio. In Item II of her will testatrix stated:

“I give and devise all real estate located in the Village of Donnelsville, Clark County, Ohio, that I may own at the time of my decease to my beloved husband, Andrew Reed, for and during the period of his natural lifetime, and at his death to my daughter, Delia C. Adams, the same to be hers absolutely, and in fee simple.”

Having given due consideration to all of the arguments and authorities cited by counsel for the surviving spouse in resisting the demurrer, the Court is of the opinion and adjudges that the testatrix did specifically devise her home real estate to her husband for and during his lifetime, with a remainder in fee simple to her daughter.

In view of the Court’s decision that there was a specific devise of this real estate and if the surviving spouse had elected to take under the will, he obviously could not purchase the real estate at the appraised value under §10509-89 GC, because the whole property was specifically devised (the life use to the husband and the remainder to the daughter). Having elected to renounce the will and take under the statute does not, in the opinion of the court, alter the situation and give to the surviving spouse the right to purchase at the appraised value the remaining half of the real estate which was specifically devised to the daughter. The remainder still exists as a remainder, even though the life estate has been diverted from it by the spouse’s election. There has been an accretion or acceleration to the remainderman to compensate her for the loss of the one-half which the husband took by his election. The law is well settled in Ohio that the rejection of a will by a surviving spouse does not thereby nullify and invalidate the plain intention of a testator as expressed in his will. The law of Ohio does protect the rights of such a person against unjust efforts to defeat those rights but does not go to the extent of increasing benefits to the spouse electing to take under the law which are not his by right.

It is the judgment of the Court that the demurrer in this case should be and it is sustained.


author: By THE COURT:

text:
    REED, Plaintiff-Appellant, v. REED, Exr., Defendants-Appellees.
    Ohio Appeals, Second District, Clark County.
    No. 499.
    Decided March 25, 1953.
    John R. Harner, Springfield, for plaintiff-appellant.
    Aaron J. Halloran, Springfield, for defendant-appellee, Delia C. Adams.
   OPINION

By THE COURT:

We have carefully examined the record in this case together with the briefs of counsel and are of the same opinion as the trial court. Judge Gram, in a lengthy and well considered opinion, properly analyzes the legal questions presented and the laws applicable thereto. It would serve no useful purpose for us to write another opinion; hence we will adopt that of the trial court as our own. The Court of Appeals for Highland County similarly defined “specific legacy” in the case of Hood v. Garrett, 53 Oh Ap 464, at page 468.

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

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


text:
    ZACKEY, Plaintiff-Appellee, v. BOARD OF LIQUOR CONTROL, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4665.
    Decided November 13, 1951.
    A. G. Lancione, Bellaire, Nelson Lancione, Columbus, for plaintiff-appellee.
    C. William O’Neill, Atty. Genl., Leander P. Zwick, Jr., Robert B. Krupansky, Asst. Attys., Genl., Columbus, for defendant-appellant.
   OPINION

By HORNBECK, PJ.

This is an appeal from a judgment of the Common Pleas Court of Franklin County reversing an order of the Board of Liquor Control sustaining an order of the Director of the Department of Liquor Control revoking C-2, D-2 and D-3 permits of plaintiff-appellee.

The charge against the permit holder was:

“That on September 4, 1950, at or about 11 P. M., you and/or your agents or employees, did sell, furnish and serve intoxicating beverages, to wit, sloe gin, whiskey, wine and beer to a person who was then and there intoxicated, to wit, one William Cecil Kinney, said intoxicating beverages contributing directly to the death at 1:00 A. M., September 5, 1950, of the said William Cecil Kinney — in violation of the provisions of the Liquor Control Act, and the regulations of the Board of Liquor Control.”

The appeal is on questions of law. Five errors are assigned. They may all be stated as, error in reversing the order of the Board of Liquor Control in holding that there was insufficient evidence to sustain the findings of the Board. The judgment of reversal was based upon the propositions that there is no competent evidence to support the finding and order of the Board of Liquor Control and that the order is contrary to the weight of the evidence and is contrary to law.

We have read the opinion of Judge Reynolds in the Common Pleas Court and are in accord with his conclusions that the record upon the competent evidence adduced did not support the finding of the Director and the Board that the charge was proven against the permittee.

The record is replete with testimony made up of reputed statements of persons who did not testify and opinions and conclusions of some of the witnesses who did testify.

Much of the testimony accepted by the Board on the appeal, which otherwise would have been objectionable, was properly received because not objected to by counsel for the permittee. There was enough competent evidence in this record to have convinced the Board that this permittee was conducting his place of business in a manner that was obnoxious and, in probability, against the regulations of the Board. However, the permittee was required to answer and the Director to prove a specific charge, the material elements of which were that he sold or furnished intoxicating liquors to Kinney while he was in an intoxicated condition.

Although there is dispute in the record whether or not permittee furnished Kinney any liquor, the Board was well within its province in concluding that he had furnished him a considerable amount of intoxicating liquor. This conclusion may have been properly reached from the testimony of the investigator for the Department, Mr. Hildebrand, who said that the permittee told him that he had served Kinney with four drinks, three whiskies and some beer, and it appears also that a Mr. Coss, in the presence of the permittee, stated’:

“He (Kinney) had a load on. We got five big glasses of sloe gin with a lot of whiskey in him.”

No denial of this observation was made by the permittee. There is also proof from which it could be inferred that Kinney was in probability intoxicated when he went out in front of permittee’s place of business at about 11:00 P. M. on the night of his death. The complaint set up a charge that the furnishing of the liquor to Kinney contributed directly to his death; it was not vital to the establishment of the charge. If it were, it could be inferred from the testimony of the Coroner, that the drinking of the intoxicating liquor directly contributed to Kinney’s death, even though the death certificate stated the cause of death to be coronary occlusion. However, the essential material element which is not established by the proof is that when the permittee furnished Kinney with the intoxicating liquor he, Kinney, was then intoxicated. This element is lacking upon the most favorable consideration to appellant of all of the probative evidence on the subject.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.