author: By BACON, J.

text:
    GARDNER, Estate of, In re.
    Common Pleas Court, Meigs County.
    No. 18096.
    Decided July 6, 1959.
   OPINION

By BACON, J.

Exceptions to inventory filed in the estate oí Frank Gardner, deceased, certified to the common pleas court under the provisions of §2101,38 R. C. Stipulated by counsel that the court rule upon exceptions numbers 7 and 9, namely, whether or not the widow, Barbara Gardner, is now entitled to widow’s year’s allowance and property exempt from administration.

Frank Gardner died intestate November 10, 1950, leaving his widow, Barbara Gardner, and five children his next of kin and heirs at law. No administration was applied for until his widow made ex parte application March 18, 1959. She was appointed and letters issued the same day. An inventory was returned March 26, 1959, which included personal property at $403.00 (consisting of horse-drawn farm machinery, a steer, a cow and an old gray mare), cash in sum of $700 00, and an undivided one-half interest in 2 parcels of real estate appraised at $1,000.00 and $2.000.00 respectively. From this total of $4,103.00 the appraisers set the sum of $820.60 as exempt from administration, and in this schedule recited that the widow selected the steer and a hay rope to the value of $120.00, leaving money required for property exempt in the sum of $700.60. The appraisers further fixed the sum of $1,500.00 as money necessary for the support of the widow for one year.

Exceptions were filed to this inventory. (1) That decedent had $900.00 cash at the time of his death. (2) That 5 head of cattle were omitted. (3) That a brood sow was omitted. (4) That grain and hay was omitted. (5) That the widow had disposed of the personal property as set forth so that the appraisers did not appraise same on actual view. (6) That the value fixed for the real estate was inadequate. (7) That the widow is not now entitled to a year’s allowance. (8) The amount fixed by the appraisers is excessive. (9) That the widow is not now entitled to property exempt from administration.

Settlement of the questions raised by Exceptions Nos. 7 and 9 is the key resolving the controversy between the parties. If by more than eight years delay Barbara Gardner has lost the benefits §§19509-54, 10509-74, 10509-75 GC, bestowed upon widows, pursuance of administration with another appraisal and attendant procedure might not be warranted. There are no other debts or claims against the estate requiring administration. There was a funeral bill paid by the widow January 20, 1951. There is authority that the statute of limitations does not run against a’funeral bill during the interval between the death of the deceased and the appointment of an administrator. Estate of Miller, deceased, 12 Ohio Decisions 562, a common pleas opinion on the tenuous theory that there being no one in existence against whom an action could be brought the statute of limitations should not run. In order now to assert any claim on the funeral bill the equitable principle of subrogation must be invoked, which would be denied upon two eauitable maxims — “Equity will not aid a volunteer” and “Equity aids the vigiliant and not those who slumber upon their rights.”

Examination of the authorities upon the question discloses most of the eases involve the widow’s year’s allowance. The authorities have explained the nature of the rights which it is claimed the widow has lost by more than eight years’ delay.

Judge Ranney, referring to the widow’s year’s allowance, in the case of Collier v. Collier’s Executors, 3 Oh St 369, said:

“The allowance is designed for the support of herself and children during the year that the executor may retain all the assets of the estate, awaiting the .presentation of debts against it, and while she has no power to compel him to pay over any legacy to her, however ample it may be.” In the estate of Metzger, 140 Oh St 50, 23 O. O. 257, 42 N. E. 2d 443, Judge Zimmerman said:
“The purpose of the year’s allowance is to feed, clothe, and otherwise support a widow or' a widow and minor children, if any there be, for the stated period of twelve months following the death of the husband and father, and the allowances under §10509-54 GC, are by way of additional benefits and compensation to the widow or minor children. Under their wording, both §§10509-74 and 10509-54 GC, would appear primarily to contemplate the usual situation where a widow and minor children live for a considerable time following the death of the decedent, and the allowances made are essentially for their use, comfort and enjoyment.”

Judge Middleton, in his able dissent concurred in by Judge Zimmerman, in Estate of Croke, 155 Oh St 434, 44 O. O. 411, 99 N. E. 2d 483, at page 452 of 155 Oh St said:

“It is manifest that these two sections (§§10509-74 and 10509-75 GC), were intended to provide the widow, and children, if any, with the necessities of life for twelve months after the death of the husband and father. In determining the amount reasonably required by the widow during the twelve months, in the way of ‘provisions’ ‘other property’ or money, the appraisers must consider many elements, such as, for example, her age, condition of health and previous standard of living. Reason and common sense dictate that if she dies approximately three months after the death of her husband, as was true in this case, and before the decision of the appraisers, she will not require ‘provisions’ ‘other property’ or money for the last nine months of the twelve. In my opinion it is the duty of the appraisers to consider the widow’s death as a fact having a direct bearing upon the amount of ‘provisions’ ‘other property’ or money needed for her support during the twelve months. To ignore the fact of her death would be unrealistic. To undertake to justify allowance of ‘provisions’ ‘other property’ or money for the support of a wife for nine months after her funeral on the theory that the husband would have had to pay her funeral expenses had he survived, would read into the statute a purpose nowhere indicated by its language.”

Study of the cases reveals our courts today regard the widow’s year’s allowance as a sacred cow. Their interpretation all too often achieves the result which was justly decried by Judge Middleton in his dissent, Estate of Croke, supra.

“Such- allowance in this case had the inexcusable effect of transferring $4,250 from the estate of the husband to the estate of the wife so that her heirs will enjoy that amount of inheritance which rightfully belongs to the heirs of the husband. I do not believe such result was intended when §§10509-74 and 10509-75 GC, were enacted.”

The first Ohio case enriching the widow’s residuary legatees at the expense of the heirs of the husband is Bane v. Wick, 14 Oh St 505, the leading case relied upon by Judge Hart in his majority opinion in Estate of Croke, supra. Bane v. Wick is a poor case indeed upon which to found any basic, profound principles of law. In the first place it involved a will which the Ohio Supreme Court in another opinion commented upon as follows, 6 Oh St 14:

“The testator, evidently, drew the will himself, and seems to have been an illiterate man, unqualified to draft legal instruments requiring precisement of expression, and wholly unaccustomed to a clear or systematic arrangement of his ideas on paper. Prom these causes there is so much indistinctness, ambiguity and obscurity of expression in the instrument, that, after much and careful consideration, we have found it almost, if not quite, impossible to give it an interpretation satisfactory to our minds.”

The Wick will required judicial construction, finally determined in the report at page 328, Vol. 19, Ohio Reports. The three reports fail to disclose these important dates: Admission to probate, appointment of executors, widow’s election, return of the appraisal and decease of the widow. We learn she filed an answer in the will construction case but was deceased before it was determined.

Nay, Bane v. Wick, supra, miseth the point and ignores the gist of its principal authority, Dorah’s Administrator v. Dorah’s Executor, 3 Oh St 293. There the appraisers made the year’s allowance prior to her decease to a widow who survived her husband for 24 days. Judge Ranney said that it was the action of the appraisers, or the court in review of the allowance, that had all the force and effect of an adjudication and effectually withdrew it from the balance of the estate. He expressly reserved the question whether the court might upon a petition for review take into consideration circumstances transpiring after the action of the appraisers. Judge Ranney, having been of counsel, did not participate in Bane v. Wick. Present Ohio law contemplates the probate court may take into consideration such circumstances.

Sec. 2117.22 R. C., provides that “On the petition of an interested person, the probate court may review the allowance made to the widow .... increase or diminish it, and make such order in the premises as it <ieems right.” Sec. 10509-77 GC, also so provided.

In ignoring (1) the purpose of the allowance, and (2) just what it is that vests at the decedent’s death, we arrive at unjust results as in the Croke case, supra.

As the law now stands the heirs of the husband must' stand aside to see the widow, and even her friends, entertained at their expense, for the appraisers and probate court are directed to consider her “social position” and standard of living in fixing the allowance. In re Estate of Croke, supra, In re Estate of Clark, 99 Oh Ap 458, 59 O. O. 244, 125 N. E. 2d 917.

The rights Barbara Gardner claims under §10599-54 GC, this court will not research. There all that is required is the application of arithmetic by the appraisers when they have made their valuations.

Now that we understand what it is that the widow of Frank Gardner would assert at this 11th hour, this court determines that the exceptions numbers 7 and 9 are well taken. The statute of limitations, §2305.07 R. C., has run against the claims of Barbara Gardner under §§10509-54, 10509-74, 10509-75 GC. Further, the widow by her delay in seeking administration for more than 8 years has by such laches lost her right to a year’s allowance. Even Bane v. Wick, supra, indicates the year’s allowance may be waived or relinquished, but would imply none under the facts of that case.

How long a delay will constitute a waiver? Certainly 40 years delay will. Evans, Administrator v. Evans, 90 ONP (NS) 589, 13 OCC (NS) 62, 21 OCD 635, affirmed 83 Oh St 482, 94 N. E. 1106. According to In re Estate of Crouse, 44 Oh Ap 31, 13 Abs 652, 184 N. E. 253, 12 years’ delay and no demand during her lifetime will not. Crouse’s will was probated shortly after he died in 1916 but no executor was appointed until administration of his widow’s estate was sought after her death in 1928. With that case we cannot agree.

Counsel for Barbara Gardner advances the case of Hoiles v. Riddle, 16 OCD 363, 4 OCC (NS) 449, reversed 74 Oh St 173, 78 N. E. 219, 113 Am. St. Rep. 946, 4 O. L. R. 38, as authority that the statute of limitations does not commence to run against the widow’s rights in her husband’s estate until appointment of an administrator. Hoiles v. Riddle was a desperate case and should not be cited as authority for any proposition. An 1863 contract not in writing was sought to be enforced in 1904. On the tenuous theory that in the case of a decedent, as to obligations coming into existence at the death or after the death, there being no person in existence to sue, the statute does not begin to run until appointment of an executor or administrator.

Perhaps if Judge Cook, when the Hoiles case was considered in the Circuit Court of Appeals (4 OCC [NS] p. 452), had been content to apply simply the principle he approved in Judge Gray’s opinion in Rauserman v. Blunt, 147 U. S. 647, 37 L. ed. 316, that:

“Second: the bar of the statute cannot be postponed by the failure of the creditor to prosecute or preserve his claim.” (4 years delay in procurement of appointment of an administrator.) and concluded his opinion after he had commented as to Hoiles,
“. . . it was her privilege to have had letters issued to any suitable. person, and if she wished to preserve her claim, it was her duty to have an administrator appointed and commence her action before the time elapsed to bar her claim.”’

then the dissenting circuit judge and the supreme court would not have become confused about “judicial amendment.” A fictional “judicial amendment,” verily a “man of straw,” is created upon which to base the court’s opinion in the Hoiles case, 74 Oh St 173, supra.

This court regards with disfavor the “no one in existence” theory. Its operation opens the door to stale claims as in the Hoiles case, a 40 year old oral contract with delay of 18 years before procuring administration. This court approves Judge Wright’s averment in Granger’s Administrator v. Granger, a much cited opinion, reported in Vol. 6, Ohio Reports, page 35:

“If a creditor would save his debt from the Statute bar, he should take out administration himself.”

Exceptions numbers 7 and 9 are sustained and exceptions to this ruling are saved to the administratrix and surviving spouse.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    EVANS, A Minor, Plaintiff-Appellant, v. EVANS, A Minor, Defendant-Appellee.
    Ohio Appeals, Fourth District, Ross County.
    No. 462.
    Decided April 22, 1959.
    Tom Reed, for plaintiff-appellant.
    David M. Phillips, for defendant-appellee.
   OPINION

By THE COURT.

Plaintiff-appellant, a minor eighteen years of age, by her mother and next friend, Ruby Ogle, brought an action in the Court of Common Pleas of Ross County, Ohio, seeking a divorce, custody of a minor child and other equitable relief. Defendant-Appellee, also a miner, and his father were both duly served with process as required by the provisions of §2703.13 R. C. The parties will be hereinafter referred to as plaintiff and defendant.

Defendant, by his father and next friend, filed an answer and cross-petition praying for a decree of divorce, custody of the minor child and equitable relief. Plaintiff and her mother were both served with process as required by law.

Prior to any further proceedings in the case, the following entry appears of record:

“Now comes the plaintiff, by her attorney, and respectfully moves the court to withdraw her petition hereinbefore filed and, upon agreement of counsel of the respective parties, said motion is hereby sustained and said Petition is ordered withdrawn instanter.”

Thereupon, defendant filed an amended cross-petition praying for a divorce, custody of the minor child and equitable relief. Upon application of counsel for defendant, the father, Seth Evans, was appointed Guardian Ad Litem for said minor defendant. The plaintiff, Bonnie Evans, and her mother and next friend were both served with summons on the amended cross-petition.

Defendant, Ernest Evans, was granted a decree of divorce from plaintiff, Bonnie Evans, awarded custody of the minor child, three years of age, and given all the household goods and furnishings belonging to the parties.

The judgment entry recites that plaintiff was in default for answer or demurrer, thereby confessing the allegations thereof to be true. No Guardian Ad Litem was appointed to represent the plaintiff. Counsel for plaintiff, thereafter, filed a motion requesting the court to vacate and set aside the entry, judgment and/or decree of divorce for the reason that no Guardian Ad Litem was appointed by the court to answer to and defend against the cross-petition of the defendant. This motion was overruled.

The cause is here on an appeal on questions of law.

Sec. 2307.16 R. C., provides:

“In an action against an infant, his defense must be by a guardian for the suit, who may be appointed by the court in which it is being prosecuted or by a probate judge.”

In the case of Bennett v. Fleming et al, 105 Oh St 325, the court said:

“In all suits in which infants are parties defendant it is the duty of the court to carefully safeguard the rights and interest of such infants, and it is also the duty of a guardian ad litem to ascertain the legal and equitable rights of his ward and to bring those rights to the attention of the court for consideration and decision.”

Sec. 2307.17 R. C., provides:

“If an infant, who is fourteen years of age or over, applies for a guardian within twenty days after the summons in an action is returned, or a service by publication, the appointment may be made upon his application. When he is under that age, or neglects so to apply, on application by a friend of his, or of the plaintiff, it may be made, but not until after service as provided in this section.”

. In the case at bar, plaintiff’s petition was dismissed and the amended cross-petition of defendant was tantamount to an original action in divorce. Secs. 2307.16 and 2307.17 R. C., herein quoted, required the appointment of a guardian ad litem to represent plaintiff. Failure to appoint such guardian constituted prejudicial error. See Combs v. Combs, 94 Oh Ap 509. The judgment in the court below is, therefore, vacated and held for naught and the cause remanded for a new trial.

GILLEN, PJ, RADCLIFF and COLLIER, JJ, concur.


author: By AMMER, J.

text:
    MONTELIOUS, Plaintiffs, v. ELSEA, Defendant.
    Common Pleas Court, Pickaway County.
    No. 22227.
    Decided June 27, 1959.
    Lemuel B. Weldon, Robert H. Huffer, for plaintiffs.
    Tom A. Renick, for defendant.
   OPINION

By AMMER, J.

This action is one seeking a permanent injunction against the defendant irrigating his land by diverting the water of Scippo Creek. To the petition the defendant has filed an answer admitting certain facts and a general denial as to all other allegations. The facts as developed at the hearing indicate that the plaintiffs are the owners of 320 acres of farm land in Pickaway Township, Pickaway County, Ohio, and to the northeast of said farm is the farm of the defendant of 80 acres. The defendant is the upper riparian owner and the plaintiffs are the lower riparian owners on Scippo Creek which runs in a southwesterly direction through the lands of the defendant and the plaintiffs. Scippo Creek is underlain with gravel so that the water in the creek will rise and fall quickly depending upon the rainfall. It appears that in 1956 the creek did go dry during extreme dry spells of some two to four weeks, but that the creek has not been dry since that time.

Plaintiffs in their farming operation had in June 1958, some 60 head of livestock consisting of hogs and cattle which were watered from Scippo Creek. At the time of hearing in this case on June 5, 1959, the plaintiffs testified they had 333 head of livestock consisting of 26 head of beef cattle, 26 calves, 26 yearlings, 8 milk cows, 35 ewes and 52 lambs, 20 sows and approximately 140 pigs. Plaintiffs testified that the livestock were dependent upon Scippo Creek for their water but that they do have two wells on the farm which are situated as to be inaccessible and impractical to use for watering the livestock.

It further appears that the defendant raises various crops on his farm including an area of approximately two acres of strawberries. The defendant further testified that he also watered certain livestock in Scippo Creek. Another witness, Mr. Kelson Bowers, the upper riparian owner from the defendant’s land testified relative to the nature of the creek and also the fact that he used the creek to water livestock.

The testimony of one Harry Styers, weatherman of Circleville, was to the effect of rainfall readings in Circleville which is some five miles from the area involved here during a three and a half year period. His testimony was to the effect that the rainfall in May, 1956, was 5.15, May, 1957, 3.43, May, 1958, 3.20 and May, 1959, 3.50.

It appears following the filing of this injunction suit on June 5, 1958, that there was considerable rainfall during the summer months.

The defendant testified that approximately four to five years ago he purchased a portable irrigation pump which he had used in the dry season during the strawberry bearing period to water the two acres of strawberries. He testified that the use of this portable system was during the strawberry bearing period season only which would be for about a two week period. This portable system is connected to 8 to 10 nozzles into an aluminum pipe and the water is then pumped from Scippo Creek to irrigate the strawberries during that time. Defendant’s exhibit No. 1 indicates that the portable irrigation pump will produce 80 gallons per minute at 80 pounds pressure or 175 gallons per minute at 40 pounds pressure. The defendant testified that he used the irrigation system during the dry period in 1958 during the bearing season of strawberries but that he has not used it at all in 1959. In view of the information contained in defendant’s exhibit No. 1 it appears that at the maximum pressure this unit will pump 10,500 gallons per hour. The defendant testified that he would use the system when necessary during the two week period on an average maximum of 7 hours per day and for a maximum period of 7 days during any one season, thus, there being a maximum amount of water that would be pumped during said two week period of 514,500 gallons. The defendant testified that he did not use the irrigation system in connection with raising of other crops on the farm.

It appears that in May 1958, there was a dry period and the creek was very low. Testimony of Ruth Montelious, plaintiffs’ daughter and Evelyn Montelious, one of the plaintiffs is to the effect that they noticed the water going down on May 28, 1958, and at the same time noticed that the defendant was operating his irrigation pump. They further testified that they went over to talk to the defendant about such irrigation to the effect that this would dry up the creek but he indicated to them he felt that he had a right to pump the water for irrigation of the strawberries. They testified that evening they placed stakes at the water line of the creek and within a 24 hour period they again viewed the creek and noticed that it had fallen approximately 6 inches. There was no direct testimony to indicate that this drop of 6 inches was due entirely or considerably by the irrigation of the defendant.

The testimony of plaintiff’s witnesses was also to the effect at the time of the irrigation by the defendant that this would roily up the water and make it less desirable for use of watering the livestock. Other testimony indicated that the water became roily on many occasions when the irrigation pump was not being used and there was testimony to the effect that this irrigation system would not roily up the water. The defendant’s testimony was also to the effect that any excess water after the irrigation of the strawberries would go back into the creek as the land in question sloped towards the creek and is underlain with gravel and therefore the water pumped out of the creek would eventually find its way back to the stream.

Mr. Donald Archer, Soil Conservationist for Pickaway County, testified to the effect that on May 21, 1958, the defendant contacted him to determine his rights as to the irrigation question and at that time he proceeded to measure the amount of water that flowed past the defendant’s farm. On that date he determined the amount to be 4,050 gallons per minute or 243,000 gallons per hour or 5,832,000 gallons in a 24 hour period or 40,824,000 gallons in a 7 day period. On May 21, 1959, Mr. Archer made the same test again at the same place and found the flow to be 4,275 gallons per minute or 256,500 gallons per hour or 6,156,000 gallons for a 24 hour period or 43,092,000 gallons for a 7 day period. He further testified that the excess water from the land irrigated would flow back into the creek as the ground was underlain within 30 to 36 inches of the surface.

Mr. Archer further testified as to the amount of water that the various livestock would need daily and that the water needed for the 333 head of livestock of the plaintiffs was 1,024 gallons per day for each 24 hour period. He further testified that the pump using 10,500 gallons per hour would pump approximately 73,500 gallons per day of 7 hours pumping and considering the amount of water flowing past this particular place as of May 21, 1959, there would be an excess flow after the use by irrigation to the excess of 6,082,500 gallons per day that would flow on down to the lower riparian owners, the plaintiffs herein. Mr. Archer further testified that the water at the time the irrigation system was operating was clear and not roily. It was his further opinion that the pump being used at its maximum could not be the means of drying up the creek. On cross examination Mr. Archer testified that there may be a 1% difference in grade of the creek at the plaintiff’s farm from the defendant’s farm but that the effect of that causing the water to flow at a faster pace would be of no consequence.

LAW APPLICABLE TO THE CASE.

The general rule as to irrigation rights of riparian owners is set forth in 30 Am. Jur., p. 856, to the effect “that riparian owner has a right to make a reasonable use of a stream for purpose of irrigation and that such is a propery right and entitled to protection where it exists.” In 94 C. J. S. at page 251 it is stated: every riparian owner on a stream has a limited right to use the water to irrigate his riparian lands ” in 30 Am. Jur. at page 859 it is further stated: “that so long as a riparian owner takes only his reasonable share of water for irrigation, and uses it upon his land without unreasonable waste, other-owners below have no right to inquire how, or by what means, or at what place he manages to divert his share from the stream.” At page 860 it is stated: “that the use of water for irrigation purposes must be reasonable, an upper riparian owner, in using the water of a stream for that purpose, must not waste, needlessly diminish, or wholly consume it, so as to injure other like owners or prevent a reasonable use of it by them also.” At page 861 it is stated: “The amount of water which may be used for irrigation ordinarily cannot be ascertained or determined definitely, and no arbitrary or abstract rule can be stated. While what constitutes a reasonable use of the water of a stream for irrigation is a question largely dependent on the facts and circumstances of each case, it is generally held that where the water of a stream does not supply more than sufficient water to answer the natural wants of the different proprietors, which include the use of as much as is necessary for strictly domestic purposes and to furnish drink for man and beast, none of the proprietors is entitled to use the water for irrigation.” At page 862 it is stated: “The right of irrigation can be exercised by an upper owner only by returning the water not wanted for that purpose to its accustomed channel at the upper boundary line or above the land of a lower owner.”

The general rule applicable herein is set forth in 56 Am. Jur. at page 501 as follows: “It is a general principle of the law of waters, subject to certain exceptions and modifications hereinafter noted, that a riparian proprietor has the right to have the water of the stream flow by or through his premises in its natural mode, course, and volume. This right is not, however, an absolute right to the flow of all the water in its natural state, but is subject to the right of the upper owners to make a reasonable use of such waters, the rights of riparian proprietors in this as in other respects being to a great extent mutual, common, or correlative, or, as stated in some cases, in the nature of a tenancy in common.”

In 93 C. J. S. at page 608 the general rule is set forth as follows: “In the absence of any modification of relative rights, at common law every riparian owner is entitled to the natural flow of the water of a running stream through or along his land, in its accustomed channel, undiminished in quantity or impaired in quality. Generally, every riparian owner has the right to make any use of the water, beneficial to himself, on the riparian land; but he must exercise his right in a reasonable manner and to a reasonable extent so as not to interfere unnecessarily with the corresponding rights of others. The use of water by a riparian owner must be reasonable when considered with reference to the needs or rights of other such owners on the same stream. Generally, the riparian owner, may use the water in a reasonable manner and extent to satisfy his natural wants, or for any beneficial purpose.”

The general rule is set forth in 41 O. Jur. page 19 as follows: “The right to the use of water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself. It therefore follows and is a well settled rule of law that a riparian owner is privileged and has the right to make use of the waters of the stream for any necessary and proper purpose incident to the land itself and essential to its enjoyment. However, he must so use it as not to injure an adjoining proprietor, either above or below him. It is well settled that the right of the riparian owner to the use of the waters of a stream is a qualified and not an absolute, right of property, and that as between different riparian owners, each one is limited to a reasonable use of such waters, with due regard to the rights and necessities of all others interested. The question seems to be rather as to the reasonableness of the use under all the circumstances of the case. It has been held, however, that the limit of the upper proprietor’s right in the reasonable use of the stream on his own land is that he shall not injure the lower proprietor. The right of the riparian proprietor to the natural flow of the stream through his premises is subject to qualification, since streams of water are intended for the use and comfort of man, and it would be unreasonable, and contrary to the universal consent of mankind, to debar riparian proprietors from the application of the water to domestic, agricultural, and manufacturing purposes, in a proper manner, even though such qualification does, to some extent, interfere with the natural flow of the water. The use of streams of water for domestic, agricultural, and manufacturing purposes is, to some extent, publici juris. The primary use of water in a stream is for domestic purposes. Since the amount of water which an individual living on the banks of a stream will use for domestic purposes is comparatively trifling, such use may be tolerated upon the principle of de minimis non curat lex.”

In 41 O. Jur., page 23, it is stated: “as to what is a reasonable use, is a question of degree and is dependent upon the facts in each particular case.” That the watering of livestock is a domestic use see Rancho Santa Margrita v. Vail, 81 Pac. (2d), 533.

The Ohio rule is clearly set forth in the case of City of Canton v. Shock et al, 66 Oh St 19, the fourth and fifth syllabus reads as follows: “Where there are upper and lower proprietors upon a natural running stream, both having manufactories propelled by the water of the stream, and the water is insufficient to fully supply the needs of both, each one has a right to the reasonable use of the water, considering all the circumstances. In such cases the water of the stream should be so divided and used that each proprietor shall bear his fair proportion of the loss caused by the shortage of water, considering all the circumstances of the case.” The court in that case stated that “this being so, the city of Canton, in supplying water to its inhabitants for power purposes, had the right to use the water of the stream to a reasonable extent only, and so as to do as little injury as might be, under all the circumstances, to the lower proprietor, each party bearing an equitable share of the loss caused by the shortage of water. Dry seasons are not caused by either party, but are the act of God, and each party must bear the losses resulting to him therefrom. From the earliest dawn of history to the present time, the primary use of water has been for domestic purposes, and its secondary use for the purposes of power. People on the upper streams have the right to quench their thirst, and the thirst of their flocks and herds, even though by so doing the wheels of every mill on the lower stream should stand still. And the same right in the use of water as to quenching thirst, extends to all uses for domestic purposes; and the rights of a lower proprietor to the use of the waters of a stream for power purposes, is subject to the superior right of all upper proprietors for domestic purposes, and must yield thereto. All water powers on a stream are established subject to the superior right of all upper proprietors to use water out of the stream for domestic purposes, and if the upper proprietors have grown so large, or become so numerous as to consume most, or all of the water, the lower proprietors have no cause of complaint, because it is only what they should have reasonably expected in the growth and development of the country, and subject to which contingency they established their water powers.” The court in that case further stated, that: “the general rule is well stated by Paxson, J., in Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, 41, as follows: “The principle established by a long line of decisions is that the upper riparian owner has the right to the use of the stream on his land for any legal purpose, provided he returns it to its channel uncorrupted and without any essential diminution; that in all such cases the size and capacity of the stream is to be considered, and that any interruption of, or interference with, the rights of the lower riparian owner is an injury for which an action will lie, unless too trifling for the law to notice.” The same general principle was stated in the case of Akron Canal and Hydraulic Co. v. Fontaine, 72 Oh Ap 93 at 99, the court stated the following: “It is ancient learning that the right to flowing water is incident to the title to land and that there is no right of property in such water in the sense that it is the subject of exclusive appropriation and dominion. The property interest is usufructuary. And each riparian owner has the right to have the natural flow of the stream come to his land and to make a reasonable use thereof, however subject to a like right of each upper proprietor, and further to an obligation to lower proprietors to permit the water to pass on from his estate unaffected except by such consequences as follow from a reasonable and just use of the water.”

From a review of the authorities and the facts herein the question before the Court is whether or not the defendant by using the irrigation pump for a two week period during the strawberry bearing .season made a reasonable or unreasonable use of the water flowing by his land as a riparian owner. The Court feels that the testimony herein does not establish that the defendant’s operation during this two week period when necessary would be such as to cause the creek to dry up. On other occasions and of significance is the fact that during the dry spell in May 1958. when the irrigation pump was used that the creek did not dry up at that time. The nature of the creek is such that it goes up and down quite rapidly and this being caused by many natural reasons and it further appears that the effect of the water becoming roily was due to many factors other than irrigation, principally the watering of livestock by several farmers up stream.

The fact that this was a reasonable use is clearly shown by the testimony of Mr.' Donald Archer to the effect that some six million gallons flow past the defendant’s land daily according to his measurement of the volume of water whereas the irrigation system according to undisputed evidence would use at the most during the 7 hour period which is the maximum used during any one day of 70,000 gallons. These figures viewed with the fact that plaintiffs’ livestock needed according to undisputed evidence approximately only 1,024 gallons per day it is therefore the opinion of the Court that the use by the irrigation pump by the defendant was a reasonable use and was not such as to deprive the plaintiffs of the water needed for their livestock.

It will therefore be the order of the Court that the request for a permanent injunction be denied, that the temporary restraining order be dissolved and that final judgment be entered for the defendant with costs to be assessed to the plaintiffs. A journal entry consistent with the above ruling will be prepared saving exceptions to the plaintiffs.


author: By PETREE, PJ.

text:
    CRETA, Plaintiff-Appellant, v. RIDGEWAY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5856.
    Decided March 18, 1958.
    Blaine B. Hunkins, Columbus, for plaintiff-appellant.
    Walter W. Grelle, Jr., Columbus, for defendant-appellee.
   OPINION

By PETREE, PJ.

This is a law appeal from a judgment of the Common Pleas Court reversing the judgment of the Municipal Court, which latter court had given judgment for $500.00 for real estate commission to plaintiff, appellant fierein.

The Ridgeway property was in the name of Raymond R. Ridgeway, who signed an exclusive listing contract to sell the property at 1729 South Fifth Street for $10,000.00 cash. His wife, Marie Ridgeway, also signed said exclusive listing contract.

The property was never sold for $10,000.00 cash by the appellant, Creta However, appellant did bring an offer by two people to purchase the property for $10,000.00, payable $800.00 cash and $70.00 a month; and said offer contained the following condition:

“This contract subject to Seller getting a $4500 loan on said property.”

This offer was presented to Mr. Raymond R. Ridgeway and signed by him.

Appellant, in his statement of facts on Page 3 of his brief, makes the following statement:

“The plaintiff found a Building and Loan Association that was ready, willing and able to make the loan to the defendant in the amount of $4,500.00, as required by the contract.
“The wife of the defendant then refused to sign the note, mortgage and land contract. The purchasers, Charles R. Siders and Margaret Siders were at all times ready, willing and able to purchase said real estate, as provided by the written contract.”

While the offer accepted by Defendant Ridgeway, appellee herein, contained a provision for him to furnish abstract of title and that the title was to be conveyed by a general warranty deed with release of dower rights, with the record as it is here, the loan which was granted required Mrs. Ridgeway to sign the mortgage and note. This she did not desire to do; and without her signature, Mr. Ridgeway could not get the loan. Therefore, we feel that the Court of Common Pleas was correct in holding that the conditions precedent to a binding contract were not fulñlled. and Exhibit B never became operative as a contract. That being the case, Ridgeway was not liable for the commission.

The judgment of the Common Pleas Court will, therefore, be affirmed.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: By MILLER, J.

text:
    SLADKY, Adoption, In re: SLADKY et, Plaintiffs-Appellants, v. OHIO CHILDREN’S SOCIETY, a Corporation, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5938.
    Decided November 18, 1958.

      Elliott, Hilliard & Martin, Paul W. Martin, of Counsel, Columbus, for plaintiffs-appellants.
    Edwin M. Tuttle, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Probate Court of Franklin County, sustaining the motion of The Ohio Children’s Society, a Corporation, to quash the service of summons made upon it on March 8, 1957.

The record reveals that on June 13, 1955, Richard J. Sladky and Katherine Sladky, the appellants herein, filed their petition in the Probate Court, entitled “In the Matter of the Adoption of Robert Alan Sladky,” and being case No. 165622, seeking the adoption of said child; that on January 30, 1956, a final decree of adoption was duly entered. Now the adopting parents are seeking to have the decree of adoption vacated and set aside on the ground that the court appointed next friend of the child in the adopting proceedings, to wit, The Ohio Children’s Society, knowingly made untrue and misleading reports to the court prior to the final decree.

The petition alleges further

“* * * that said child at birth was afflicted with the congenital malformation known as mongoliam; that said affllietion is incurable: that said malformation was recognized and known by the defendant and the persons in interest referred to in the interlocutory decree filed in said case July 14, 1955; that said child was not of adoptive caliber; that said persons were aware of the fact that said child was not of adoptive caliber; and that in spite of such awareness the adoption was recommended to the Court.
“Plaintiffs further state that they had no notice or knowledge of said malformation prior to or at the time of said final decree; that they were so advised by physicians on or about January 16, 1957, regarding the infant’s affliction.
“Plaintiffs further state that this action is brought pursuant to §§2101.24 and 2101.33 R. C., and pursuant to the provisions of Chapter 2325 R. C., in so far as said provisions are applicable.
“WHEREFORE, plaintiffs pray that said final decree be vacated and set aside; that disposition of said child be made pursuant to §3107.12 R. C.; and for such other and further relief as may be just and equitable under the circumstances.”

We have looked to the opinion of the court for the reason for its action and find that the court recognized its general equitable powers as set forth in §2101.24 R. C.; also, that the Probate Court has the same power as the Court of Common Pleas to vacate or modify its judgment, citing §2101.03 R. C.

In considering the power of the Common Pleas Court to vacate its judgment under §2325.01 et seq, R. C., the court was of the opinion that the only part of §2325.01 R. C., which could have application to the facts alleged in the petition would be under Section (D), which makes fraud practiced by the successful party in obtaining the judgment a ground for its vacation after term. This section was held not to apply for the following reasons:

(1) There is no adverse party in an adoption proceeding.

(2) The only party who could be said to be successful in such a proceeding would be the adopting parents whose petition had been granted.

(3) That, since the defendant could in no sense of the word be termed a “successful” party, it could not be a party at all.

We are in accord with these conclusions and, therefore, are of the opinion that the court properly sustained the motion to quash. However, does this terminate the action and prevent a judgment so as to make the order appealable under §2505.02 R. C.?

The judgment entry reads as follows:

“This day this cause came on to be heard upon the motion of The Ohio Children’s Society, a Corporation, such corporation having filed a motion herein without having entered its appearance, and the Court finds that said motion is well taken, and the same ought to be and ■ hereby is sustained.
/s/ Roscoe R. Walcutt
Judge”

We are of the opinion that this entry does not terminate the action in its entirety but only terminates the action as to The Children’s Society. The court still has jurisdiction under its equitable powers to determine whether or not a fraud has been perpetrated upon it to such an extent that the petitioners are entitled to equitable relief.

In the case of Jelm v. Jelm, 155 Oh St 226, the court discusses its equitable powers in vacating judgments. Judge Middleton says, at page 240:

“There is another basis for our conclusion that the Common Pleas Court had authority to entertain this action to vacate its former judgment. That court possesses inherent authority and the power to vacate its own judgments for fraud. Independent of and without the sanction of legislative enactment, a court of general jurisdiction such as the Common Pleas Court of Ohio has the inherent right and power to protect itself against the perpetration of a fraud. Without such right and power the courts would become impotent as the judicial branch of government. A corollary to the possession of such right and power is the duty to exercise such power. The procurement of a judgment by fraud is a fraud upon the court as well as upon the opposing litigant. A judgment so procured can be vacated by exercise of the inherent power of the court.”

In support of this statement, he cites 49 Corpus Juris Secundum 486, Section 269; 1 Freeman on Judgments (5 Ed.), 458, Section 232; 1 Black on Judgments (2 Ed.), 489, Sections 320 and 321.

The appeal will, therefore, be dismissed for the reason that the order to which it is directed is not a final one under §2505.02 R. C.

The cause is ordered remanded to the Probate Court for further proceeding according to law.

PETREE, PJ, BRYANT, J, concur.


author: By BRYANT, PJ. By DUFFY, J.

text:
    SAVAGE, Petitioner-Appellee, v. ALVIS, Warden, Respondent-Appellant.
    Ohio Appeals, Tenth District. Franklin County.
    No. 6150.
    Decided June 2, 1959.
    Cordell Savage, Columbus, for himself.
    Mark McElroy, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

By BRYANT, PJ.

Cordell Savage, appellee herein, filed a petition for writ of habeas corpus in the Court of Common Pleas in Franklin County, Ohio seeking his release from the Ohio Penitentiary and from the custody of Ralph W. Alvis, Warden of the Ohio Penitentiary, appellant herein.

Savage was sentenced to the Ohio Penitentiary by the Common Pleas Court of Montgomery County, Ohio for a term of one to five years under the provision of §2901.11 R. C. It was after his third escape from the Dayton Correction Farm that the case was taken before the Montgomery County Grand Jury and an indictment returned charging him with escaping from confinement, imposed as a result of a criminal proceeding. Sec. 2901.11 supra, R. C., provides in part as follows:

«* * * No person shall escape, attempt to escape * * * from any confinement or restraint imposed as a result of a criminal * * * proceeding, * * * »

This section in its present form was enacted effective October 2, 1953, in ASHB No. 88 passed by the 100th General Assembly of Ohio. It was formerly known as §12408 GC. Among the changes made in 1953 we note that whereas it previously applied to attempts to escape under the new form it applied to both escapes and attempts to escape. There were numerous other changes made at the same time.

It is also noted that ASHB No. 88, supra, amended another section of the law, §2917.14 R. C., penalizing conveying articles or things into places of confinement to aid an escape. Among the places of confinement added to §2917.14 supra, R. C., by the amendment, were county jails, workhouses or city jails.

What is now §2901.11 supra, R. C., was originally enacted in 1908 being 98 Ohio taws, p. 177 at p. 180, which provided in substance that convicts or prisoners employed “at any work or at any place” should be “deemed guilty of a felony” if they “attempt to escape from custody of such guard or guards; or from any stockade or jail in which said convict or prisoner may be imprisoned or housed; * * * ”

Thus from 1906 to 1953 this section dealt with attempts to escape and in the sweeping amendments of 1953 was made to apply to escapes as well as attempts to escape. The record discloses that after the indictment of Savage for his third escape from the Dayton Correction Farm, he entered a plea of guilty and received the sentence here under attack.

It appears that on January 28, 1952, Savage was given a one-year sentence in the Dayton Correction Farm on a charge of assault and battery and that he escaped on June 12, 1952. While at large he was convicted in Kentucky on a burglary charge and sentenced to a Kentucky reformatory for one year. Upon his release by the Kentucky authorities on November 4, 1953, Savage was brought back to the Dayton Correction Farm and a one-year penalty was added to his sentence. However, the following June 15, 1954, he against escaped and while at large was convicted of violating the Dyer Act being sentenced to the United States Penitentiary at Atlanta, Georgia, where he served from February 10, 1955, to December 8, 1957.

Savage was again returned to the Dayton Correction Farm but on July 28, 1958, he made his third escape and next was heard from in Indianapolis from whence he was returned to Dayton Correction Farm on August 5, 1958.

In his petition of writ of habeas corpus, Savage contended that he was wrongfully indicted under §2901.11 R. c., and that he should have been charged under §2917.23 R. C., which section provides as follows:

“No person, having been committed to a workhouse, shall escape or attempt to escape therefrom.
“Whoever violates this section shall be imprisoned in such workhouse not more than double the term for which he had been originally sentenced.
“Unless the former sentence has expired, such sentence shall commence at the expiration of the former sentence. In the enforcement of this section, the court which originally sentenced such person has jurisdiction concurrently with the court of common pleas in the county in which such workhouse is situated.”

The Court of Common Pleas of Franklin County, Ohio upheld Savage’s objection and ordered his release. We have not been furnished with a copy of the opinion of the trial court and hence have no means of knowing the reasoning applied or the authorities relied upon by the trial court. The journal entry in this case, filed on March 20, 1959, reads as follows:

“This cause came on to be heard on the petition of Cordell Savage and the return of R. S. Alvis, Warden of the Ohio Penitentiary, respondent, to the Writ of Habeas Corpus issued herein, said respondent having brought the body of petitioner into court.
“Upon consideration of the pleadings, the evidence, and the arguments of counsel, the court finds that the petitioner has sustained the allegations of his petition; that he is in the custody of the respondent as the result of conviction on a charge of escape from a workhouse; that the indictment under which said conviction was had was brought under §2901.11 R. C., and sentence was imposed under said section of imprisonment in the penitentiary not less than one nor more than five years; that sentence should have been imposed under and the indictment drawn under §2917.23 R. C.
“It is therefore ordered that the Writ of Habeas Corpus be allowed and the petitioner released from custody forthwith.
“Exceptions saved to respondent.”

It is from this order that the appeal was taken. It should be pointed out that §2917.23 supra, R. C., appears first to have been enacted as part of the Municipal Code in 731 sections on May 7, 1869; 66 Ohio Laws, p. 145 at p. 196, being Section 279, Chapter XX — Workhouses. So far as we can learn this section, which formerly was §12840 GC, previously §2103 R. S., has since its enactment been unchanged except as modified in the several code revisions since.

At the outset, two differences appear between the two statutory provisions dealing with escapes. Sec. 2901.11 supra, R. C., under which Savage was indicted can be invoked only after an indictment has been voted by the grand jury. This is because by its terms it provides for imprisonment in the penitentiary from one to five years as a possible penalty. The other section, §2917.23 supra, R. C., may be enforced by affidavit in the form usually applicable in misdemeanor cases. Thus there is an important difference between these two sections. We note also that if there is any conflict between the two, the section under which Savage was indicted is the later expression of the will of the General Assembly of Ohio.

Having determined that the section under which Savage was indicted represents the most recent expression of the will of the Ohio General Assembly, we wish to point out that in our opinion it is unnecessary to inquire into whether or not there is a conflict between §2901.11 supra, and §2917.23 supra, E. C., and on this question we express no opinion whatsoever. No action whatever has been instituted against Savage under §2917.23 supra, E. C., and the question simply is not before us.

Likewise we do not feel it is necessary to consider or determine whether or not there has. been any repeal by implication and on this question we express no opinion. In our judgment, this question, too, is not in the case.

Reference has been made to the title of the two sections as indicating the applicability of one or the other but the clear answer to this is that the Ohio Legislature does not enact the titles.

The authority of the legislative body to enact more than one penal statute covering substantially the same offense was upheld in the case of People v. Malavasse, 289 New York Supp. 163, 248 App. Div. 784, in which the syllabus was as follows:

“Pact that an act is a crime under two or more sections of the Penal Code does not bar prosecution under either section, duty being on Grand Jury and the district attorney to determine under which of the applicable. sections of the Code an indictment should be found.
“Penal statutes covering substantially the same offenses may stand together and one may be prosecuted under any one of those provisions making the act or acts an offense.”

It is well established that the legislative authority may make several crimes out of a single transaction. In the case of the State of Ohio v. Benjamin, 132 N. E. (2d), 761, decided by the Cuyahoga County Court of Appeals, the first branch of the syllabus is as follows:

“The Legislature may carve out of a single act or transaction several crimes or offenses, so that an individual may at the same time, and in the same transaction, commit several separate or distinct crimes, and may be prosecuted for all the crimes committed, without the prosecution for one crime being a bar to the prosecution or prosecutions for other crimes.”

See also State of Ohio v. Trunzo, 137 N. E. (2d) 511, which was decided by the Cuyahoga County Court of Appeals, in which the fifth and sixth branches of the syllabus are as follows:

“Pour consecutive sentences, as distinguished from concurrent sentences, could be imposed on defendant who was convicted of burglary, larceny, forcing entry into a safe where money was kept, and having possession of burglar tools, though the four convictions each resulted from the same transaction.
“Where one engages in a purposeful act or transaction, the doing of which violates all of the elements of several crimes, he may be tried and, if found guilty on each or more than one of the counts, may be punished separately for each of the crimes of which his guilt had been established as required by law.”

See also State v. Meadows, 105 Oh Ap 86, decided by the Summit County Court of Appeals in which the cutting or stabbing of a victim by the defendant was made the subject of two counts in the indictment, one for cutting with intent to wound, and the other for cutting with intent to kill and the convictions under both were upheld. The syllabus thereof provides as follows:

“M. cut and stabbed B. many times. Some of the wounds were superficial; others pierced the skin and flesh. M. was indicted on two counts; one count charged him with unlawfully and maliciously cutting and/or stabbing with intent to wound; the other count charged M. with unlawfully and maliciously cutting and/or stabbing with intent to kill. The jury found M. guilty on both counts. M. appealed, saying the jury erred in finding him ‘guilty of two separate crimes on the proof of but one delictum/
“Held: A defendant who, by means of a knife, cuts and stabs another may be convicted on each of two counts of an indictment which charges in one count cutting and/or stabbing with intent to wound, and, in the other count, cutting and/or stabbing with intent to kill; for each count defines a separate offense, although both offenses are defined in a single statute.”

See also Allen v. State of Ohio, 24 Oh Ap 85 and Foss v. State of Ohio, 36 Oh Ap 417. For a case holding that where there are two acts on the same subject the rule is to give effect to both, if possible, and only where they are repugnant, will one cancel the other; see State v. Shoopman, 94 A. (2d) 493, 11 N. J. 333.

For the reasons above set forth the judgment of the court below is reversed and set aside.

Coming now to render the judgment which the trial court should have rendered, the petition for a writ of habeas corpus is dismissed and the petitioner-appellee remanded to the custody of the Warden of the Ohio Penitentiary.

MILLER, J, concurs.

DUFFY, J, dissents.

DISSENTING OPINION

By DUFFY, J.

The Court of Common Pleas of Franklin County, Ohio, upheld petitioner’s objection and ordered that the writ of habeas corpus be allowed and that the petitioner be released from custody. An appeal was taken from that order to this court. The Attorney General states in his brief that the appeal on questions of law is brought in order to clarify for the law-enforcement authorities the statutory construction of §§2901.11 and 2917.23 R. C.

It is clear that more- than one penal statute may be enacted covering the same offense, but a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. See Andrianos v. Community Traction Co., 155 Oh St 47, 97 N. E. (2d), 549; and State, ex rel. Kearns, Pros. Atty., v. Rindsfoos et al, 161 Oh St 60.

Sec. 2901.11 R. C., makes the escape from coflnement a charge carrying a possible penitentiary sentence; and, therefore, it designates such a crime as a felony. (McKelvy v. State of Ohio, 87 Oh St 1; and City of Cleveland v. Betts, 168 Oh St 386, 154 N. E. [2d], 917.)

Sec. 2917.23 R. C., designates escape from the workhouse as a misdemeanor, since the penalty provided does not call for confinement in the penitentiary.

In the case of In re Cooper, 134 Oh St 40, the Ohio Supreme Court, in construing two statutes dealing with child support, held as follows:

“Different statutes providing different penalties for offenses against minors will not be deemed inconsistent or in conflict with each other where the principal elements thereof are similar but are accompanied by varying circumstances aggravating or affecting the degree of such offenses.”

Since the only element of the offenses to be considered under either of these sections is the escape, we do not have “varying circumstances aggravating or affecting the degree of such offenses.”

We do not believe that an offense can be both a felony and a misdemeanor, and we do not believe that the laws should be written so as to permit prosecutions under general provisions of a penal code where the Legislature has made special laws available to cover the specific offenses. Here it is apparent that these two criminal statutes are repugnant as to the punishment that may be inflicted for an escape from the workhouse; and, unless they can be reconciled, they should not be permitted to stand.

Cities have been given the power to establish workhouses under §715.16 R. C., and Chapter 753 R. C., leaves the control and supervision of the workhouses, erected by the city, with the municipal government. Sec. 2917.23 R. C., in providing for the enforcement of that section prohibiting escapes from the workhouses, states that “the court which originally sentenced such person has jurisdiction concurrently with the court of common pleas in the county in which such workhouse is situated.” A municipal court could not have final jurisdiction over the case if the offense of escape from the workhouse is a felony.

Sec. 2901.11 R. C., is a general statute and refers to escapes from confinement imposed as a result of a criminal, contempt, or probate proceeding and is, therefore, not limited to escapes from penal institutions. Sec. 2917.23 R. C., is specific and refers only to escapes or attempts to escape from the workhouse, as does §2917.24 R. C. Chapter 753, dealing with workhouses, leaves the management of the workhouses and the discharge and parole of their inmates in the hands of city officials where the workhouses are erected by the city and treats them differently from State penal institutions.

While we are not dealing specifically with a municipal ordinance prohibiting escape from the workhouse, the effect of the ruling on such ordinances is clear; and if an escape from the workhouse is a felony, a municipality could not by ordinance make such an escape a misdemeanor. (City of Cleveland v. Betts, 168 Oh St 386.) Since §2901.11 R. C., did not specifically repeal §2917.23 R. C., and the latter section applies specifically and only to escapes from a workhouse and §2901.11 R. C., applies generally to escapes from all institutions, it would appear that the Legislature intended to keep escapes from the workhouses in a special category where they have been since first enacted into law in 1869.

It therefore follows that escapes from the workhouse should be chargeable under §2917.23 R. C., that the charge in this case was brought under the wrong section, and that the Court of Common Pleas was correct in allowing the writ and ordering the release of the petitioner.


author: By WISEMAN, J.

text:
    JOSEPH, d. b. a. CLUB HOUSE CAFE, Appellants, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6039.
    Decided April 21, 1959.
    Charles T. Kaps, Columbus, for appellants.
    Mark McElroy, Atty. Geni., John A. Hoskins, Asst. Atty. Geni., Columbus, for appellee.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County affirming the order of the Board of Liquor Control which sustained an order of the Department of Liquor Control rejecting an application for the renewal of Classes D-l, D-2 and D-3 permits.

The only error assigned by appellant is: The Common Pleas Court erred in finding that the order of the Board of Liquor control was in accordance with law, in that said Court of Common Pleas found that the Board of Liquor Control had properly overruled the motion of the appellants before the Board of Liquor Control to make definite and certain the order of the Director of Liquor Control respecting appellants' application for renewal of the D-l, D-2 and D-3 permits.

The question appearing on the face of the record, resort to the evidence is not required.

Under date of February 8, 1957, the Department of Liquor Control rejected renewal of the permits on the ground that the appellants were not proper persons to hold said permits, in view of the disorderly and unlawful operation at subject premises, to-wit:

“The permitting of the premises to be used for solicitation for immoral purposes contrary to Regulation 52 of the Board of Liquor Control.
“The permitting of immoral conduct, and vulgar language on the permit premises contrary to the provisions of Regulation 52 of the Board of Liquor Control.
“The selling of intoxicating beverages to intoxicated persons contrary to §4301.22 R. C.
“The selling of intoxicating beverages on Sunday contrary to the provisions of §4301.22 R. C.
“The possession of, and sale of diluted whiskey contrary to the provisions of §4301.68 R. C.
“The sale of chances on a thing of value for profit contrary to the provisions of Regulation 52 (B) of the Board of Liquor Control.
“The aiding and encouragement of solicitations for immoral purposes contrary to Regulation 52 of the Board of Liquor Control.
“The permitting of the premises to be used as a refuge for lawless persons.
“The department finds that Guy Dahar will have an interest, direct or indirect, in subject permit premises, and will be carrying on said business without being a permit holder of record, contrary to the provisions of §§4303.13, 4303.14, 4303.15, 4303.25 and 4303.27 R. C.
“The department further finds that the applicants made a false material statement in the Oath contained at the bottom of the Renewal Form, wherein the subject applicants stated they were,
“the sole and true owners of the business mentioned in the foregoing application.”

The appellants duly filed an appeal to the Board of Liquor Control, and also filed with the Board a motion as follows:

“Now come the appellants herein and move the Board of Liquor Control for an order requiring the Department of Liquor Control to make definite and certain its order rejecting appellants' application for renewal of their D-l, D-2, and D-3 Permits by setting forth the dates of the alleged offenses and the names of the persons alleged to have participated in or committing the offenses upon the premises, and such other information as would enable these appellants to properly prepare their defense to the charges set forth in the letter of rejection.”

In overruling the motion the Board made the following order:

“This cause came on to be heard on the motion of the appellants for an order requiring the Department of Liquor Control to make definite and certain its rejection order on the appellants’ application for renewal of the within Classes D-l, D-2, and D-3 permits, and on consideration thereof the Board of Liquor Control finds it is without jurisdiction in the premises and therefore denies said motion.”

The appellants complain that they were required to proceed with the hearing before the Board without knowledge of the specific charges against them.

The findings contained in a notice of rejection of an application for renewal of a permit are controlled by Regulation 65, Section 2, which provides as follows:

“When the Director refuses to issue, renew or transfer any permit he shall, by registered mail, return receipt requested, send to the person so refused, notice of such order at the address stated in such person’s application and a copy of such notice to the attorney of record of the applicant. The notice shall set forth the reasons for his action, refer to the law or rule directly involved, and state that the party will be afforded a hearing by the Board if requested within thirty days from the time of mailing the notice.”

The appellants contend that the findings are vague and do not meet the requirements of the applicable regulation. We do not agree. In our opinion the findings of the Department meet the requirements of the regulation in every respect. The reasons for the action of the Department were cited, together with a reference to the statute or rule directly involved, as required. The regulation was promulgated in pursuance to §4301.03 R. C., and its provisions respecting notice were in accord with §119.07 R. C., of the Administrative Procedure Act.

It is claimed by appellants that the notice should set out evidentiary material with the same particularity as is done in citations to show cause why a permit should not be suspended or revoked. Such proceedings are controlled by §§4301.25 to 4301.28 R. C. Sec. 4301.25 R. C., in part provides:

“The board of liquor control may suspend or revoke any permit issued pursuant to Chapters 4301. and 4303. R. C., for the violation of any of the applicable restrictions of such chapters or of any lawful rule or regulation of the board or other sufficient cause, and for the following-causes: * * (Here are listed five distinct causes.)

In issuing a citation to show cause why a permit should not be suspended or revoked it is necessary that the citation set forth with some particularity a statutory ground for suspension or revocation, which is the established practice of the Department. However, this provision has no application to a notice of the rejection of an application for renewal of a permit: it is sufficient that the notice rejecting an application for a renewal of a permit be in accord with the requirements of the Regulation.

The Board dismissed the motion for an order requiring the Department to make definite and certain the rejection order on the ground that the Board was “without jurisdiction in the premises.” We have examined the sections of the Liquor Control Act and §4301.04 R. C., which prescribes the powers of the Board, and find no authority conferred on the Board to issue the order requested. Neither is such power conferred by §119.09 R. C., of the Administrative Procedure Act. in our opinion the action of the Board was proper.

The judgment of the Common Pleas Court was “in accordance with law.” Sec. 119.12 R. C. The assignment of error is not well made.

Judgment affirmed.

BRYANT, PJ, DUFFY, J, concur.


text:
    NEALE, d. b. a HOWLAND TAVERN, Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5956.
    Decided March 10, 1959.
    John T. Feighan, Jr., Joseph Cracium, Cleveland, for plaintiff-appellant.
    Mark McElroy, Atty. Geni., John W. Leibold, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court, affirming an order of the Board of Liquor Control rejecting the appellant’s application for a new D-5 permit. This order of rejection .found that:

“* * * the appellant is not the owner and operator of a night club at the proposed location, in that she does not, in connection with the conduct of this business, furnish one or more forms of amusement for a consideration, and that by reason thereof is not entitled to a Class D-5 permit.”

The Common Pleas Court found that the order of the Board was supported by reliable, probative and substantial evidence and affirmed the order rejecting the application. The Board based its finding, that the appellant was not the operator of the night club, on the fact that she did not furnish the type of entertainment as required of a night club as the term is defined in §4301.01 (B) (15) R. C. This section reads as follows:

“ ‘Night Club’ means a place habitually operated for profit after the hour of midnight, where food is served for consumption on the premises and one or more forms of amusement are provided or permitted for a consideration which may be in the form of a cover charge or may be included in the price of the food and beverages, or both, purchased by the patrons thereof.”

In its judgment entry, the Common Pleas Court did not state its reason for finding that the judgment was supported by the proper degree of proof but, in its opinion, stated that the appellant was not the owner and operator of a night club for the reason that:

“The evidence conclusively disclosed that appellant, although operating or attempting to operate for over a year, had not done so at a profit and that there was at best but an occasional serving of food on the premises.”

This observation of the trial judge was based upon the appellant’s own testimony and is not refuted anywhere in the record.

Counsel for the appellant urges that the appeal to the Common Pleas Court was upon questions of law, and that the court was limited in its factual findings to those found by the Board. We agree that the appeal was on questions of law only as the case was tried upon the record made before the Board and without the offering of any additional reference. See Andrews v. Board of Liquor Control, 164 Oh St 275. But, certainly facts admitted in the record even though not mentioned by the Board in its finding that the defendant was not the operator of a night club may be considered by the court in determining whether or not the appellant was the owner and operator of a night club, as defined in §4301.01 (B) (15) R. C.

In the case of Henry v. Henry, 157 Oh St 319, it is said in paragraph 3 of the syllabus:

“1. Where a judgment of the Common Pleas Court depends upon the evidence and inferences to be drawn therefrom, then on an appeal on questions of law only the Court of Appeals is ordinarily authorized to modify that judgment only where the evidence is such as to require such modification as a matter of law.”

If a judgment may be modified on a law. appeal where the evidence is such as to require a modification of the judgment, it appears to this court that a judgment may be affirmed if based upon conclusive facts found in the record and is in accordance with law.

We have examined the well-considered opinion of Judge Reynolds and are in accord with the legal pronouncement and reasoning applicable thereto as announced in the same.

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

DUFFY, J, concurs.

BRYANT, PJ, not participating.


text:
    WILLIAMS, Admr., Plaintiff-Appellant, v. MURRAY, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5912.
    Decided September 30, 1958.
    Donald S McNamara, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, Harry Wright III, of Counsel, for defendant-appellee.
   OPINION

By PETREE, PJ.

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

Plaintiff, appellant herein, brought suit as administrator of the estate of his late wife, Pauline Williams, against Marion Ruth Williams, driver of the automobile in which the deceased was riding at the time of the accident, and John Arnold Murray, driver of an automobile proceeding in the opposite direction. Marion Ruth Williams was taken out of the case by a settlement and a covenant not to sue, leaving John Arnold Murray as the lone defendant at the time the case went to jury trial.

At the time of the accident, Highway 33 consisted of three lanes, each approximately twelve feet in width, and it was so marked by lines.

Appellant sets forth four errors in the index of his brief on Page iii and discusses them beginning on Pages 12, 14, 17, and 20 of his brief. Only three assignments of error are listed on Page i under the title “ASSIGNMENT OP ERRORS,” but it was agreed that the court should consider all four assignments of error. Said assignments of error are as follows:

“1. The Trial Court Errored in Allowing Evidence over the Objection of Plaintiff and in Denying Evidence Sought by Plaintiff.
“2. The Court Erroneously Refused to Permit the Plaintiff to Include a Specification of Negligence Warranted by the Evidence.
“3. The Court Errored in Commenting on the Special Instructions.
“4. The Court Errored in Withdrawing from the Jury’s Consideration Plaintiff’s Specification of negligence as to Defendant’s Speed.”

Assignment of error No. 1 is not prejudicial. The court might have permitted the answer as discretionary, but the record does not contain facts which would require a court to permit his examination on whether he had used notes or statements to refresh his memory. The instant case is distinguishable from State v. Taylor, 50 Abs 175. Headnote 5 in that case indicates that a paper was being used on the stand and the opposing attorney was not permitted to inspect the paper or memorandum. It is apparent that in the instant case, no paper was present in the courtroom.

■ Assignment of error No. 2 is not well taken. Under the state of the record in this case, the court did not abuse its discretion in refusing to permit the amendment.

Assignment of error No. 3 is not prejudicial. While it is undesirable for the trial judge to disclose which party composed and requested the special instructions, yet when we consider the two statements of the trial judge in the insatnt case, we conclude that the error was not prejudicial. At Page 155 of the record, the court said:

“THE COURT: Now, members of the jury, counsel for the plaintiff have requested certain instruction to be given before the argument, and it is the law that such instructions as properly state the law applicable to the case in question must be given by the Court. These instructions which I give you now and read to you now are to be considered along with my general charge, at the close of the arguments, as the law which you are to follow in reaching your verdict in this case.”

At Page 159 the court also said:

“THE COURT: Now, members of the jury, the Court will instruct you as to the law which, in addition to the special instructions, which have been read, and which will go with you to your jury room, you are to consider and apply in reaching your verdict in this case.”

Assignment of error No. 4 is not well taken. The court is not bound to submit to the jury every claim of negligence set out in the petition. In fact, it is error to charge upon matters and confuse the minds of a jury unless the facts in the record warrant some statement by the trial judge as to the law relating to claims of negligence. The record in this case makes such a charge unnecessary.

The judgment of the trial court will be affirmed.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


text:
    STATE, Plaintiff, v. KARR, Defendant.
    Common Pleas Court, Pickaway County.
    No. 6628.
    Decided June 8, 1959.
    Ray W. Davis, Pros. Atty., for plaintiff.
    Tom A. Renick, for defendant.
   OPINION

By AMMER, J.

The defendant, Dale C. Karr was indicted by the October 1957, Grand Jury for the offense of operating a motor vehicle while under the influence of intoxicating liquor. To this indictment a motion was filed by the defendant moving the Court to quash the indictment for the reason that there is another action pending in the Municipal Court of the city of Circleville for precisely the same charge on which he was indicted and that in the Municipal Court the defendant entered a plea of not guilty and in writing demanded a jury trial. No memorandum accompanied this motion nor was any memorandum submitted contra tp this motion.

The question before the Court is the matter as to whether or not the indictment should be quashed in as much as another charge for the same offense is pending in the Municipal Court of the city of Circleville.

Sec. 2939.08 R. C., reads as follows:

“After the charge of the court of common pleas, the grand jury shall retire with the officer appointed to attend it, and proceed to inquire of and present all offenses committed within the county.”

In 26 O. Jur. (2), p. 275, it is stated that “the scope of grand jury’s investigation is not only to consider the cases of those persons bound over by magistrates, but to take in charge matters presented by the court or the prosecuting attorney, and other matters disclosed and brought to light in the jury room during the investigations. It is the exclusive function of the grand jury to conduct investigations of matters which may be given it in charge or may come to its knowledge * * * A great deal of power is thus conferred upon the grand jury. In other words, the grand jury is comparatively without limit in the scope of its investigation, the bills that it may return, and the general findings that it make make. * * * As to matters within the personal knowledge of its members, it has been held that the grand jury acts according to its own discretion. It may return indictments based wholly upon facts within its own knowledge, without the support of the testimony of a single witness. It may properly indict upon any sufficient, competent evidence and such evidence need not emanate from the one upon whom the offense is alleged to have been committed. It may indict originally without a charge having been made in an inferior court; and when a case comes before the grand jury upon a charge preferred in an inferior court, it has the power to return an indictment according to the facts in evidence, even though it differs from the original charge. Furthermore, a grand jury, in the exercise of the authority conferred by statute, may return an indictment against a person even though such person has been charged with the same offenses in a Municipal Court and has requested a preliminary hearing which has not been held at the time the indictment is returned.”

It is to be noted that in the case of State v. Miller, 96 Oh Ap 216, that the Court held that grand juries in the exercise of the authority conferred by statute could return an indictment against a person even though such person had been charged with the same offense in the Municipal Court and had requested a preliminary hearing which had not been had at the time the indictment was returned against him.

The fact that the defendant requested a jury trial in the Municipal Court alone would not deprive the grand jury of the right to return an indictment as §2939.08 R. C., gives the grand jury broad powers in which to inquire and present all offenses committed within the county. This does not eliminate any particular type of offense or the fact that the matter may be pending in a lower court. The grand jury in this case did see fit to return an indictment upon the facts when presented to it and the fact that a charge for the same offense was pending in Municipal Court is of no consequence.

If the defendant in this case wanted to pursue his rights in the Municipal Court to trial by jury he could have done so by means of mandamus. In the case of State v. Titak, 75 Abs 430, the Court stated that if a defendant accused of driving a motor vehicle while under the influence of intoxicating liquor believed that the Judge of the Municipal Court should have heard and determined the charges against him, he should, where the Judge refused so to do and bound him over to the grand jury, have brought an action in mandamus to compel the Judge to hear and determine his case. A similar holding is in the case of State v. Wheelock, 64 Abs 129, and also the case of Sprague v. State, ex rel., 34 Oh Ap 354. In both cases it was held that mandamus lies to compel the Municipal Judge to finally hear and dispose of a criminal charge of one charged with a misdemeanor. The case of State v. Sprague was decided by the Court of Appeals of this District.

Attention is also directed to a case decided in this Court on February % 1955, State of Ohio, ex rel. Chester Christy v. Lamb, No. 21359 praying for a writ of mandamus for the Judge to proceed to hear the cause which was filed in the Municipal Court of Circleville where a jury trial was demanded for the offense of driving a motor vehicle while under the influence of intoxicating liquor. That mandamus action however was not filed until after the indictment had been returned by the Grand Jury. The Court in that opinion stated that the jurisdiction of the Common Pleas Court had attached to the case by having the indictment returned prior to the filing of the writ of mandamus and therefore the alternative writ was denied, however, in the dicta of the case the Court cited the case of Sprague v. State, 34 Oh Ap 354, and further stated that it was the opinion of the Court that said decision was the law which applied in the case.

The Court is therefore of the opinion that the Grand Jury was within its authority to return an indictment in this case even though a charge for the same offense was pending in the Municipal Court and that the motion to quash the indictment is not well taken and therefore will be overruled. A journal entry will be prepared by the Prosecuting Attorney consistent with the above ruling and the defendant is hereby ordered to appear for arraignment on said indictment on Monday, June 22, 1959, at 10:00 o’clock A. M.


text:
    STATE, Plaintiff-Appellee, v. ALBERT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5890.
    Decided October 21, 1958.

      Samuel L. Devine, Pros. Atty., Fred L. Newsom, Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    George E. Tyack, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of the jury, finding the defendant guilty upon two counts, to-wit:

(1) Burglary in the night season of Bond Clothing Store, and

(2) Possession of burglary tools.

The record reveals that, at the close of all the evidence, and before argument, counsel for the defendant requested the court to give certain written instructions to the jury. The request was denied, but they were included in the court’s general charge.

The first assignment of error is directed to the court’s refusal to give the special charges before argument. In the case of State v. Hobbs, 134 Oh St 56, a similar error was charged, and the court clearly stated the law applicable, saying at page 57:

“At the threshhold of this discussion it must be observed that in the trial of a criminal case the giving of requested instructions before argument is merely discretionary and not mandatory as in a civil trial. Thus in the instant case neither the state nor the defendant was entitled to such an instruction as a matter of right.”

See also State v. Petro, 148 Oh St 473; Wertenberger v. State, 99 Oh St 53: Ohio v. Jones, 80 Oh Ap 269; State v. Menke, 59 N. E. (2d) 393, 42 Abs 71. We, therefore, are of the opinion that this assignment of error is not well taken.

The second assignment charges that the verdict of the jury is contrary to the evidence. The substance of this charge is that the evidence was insufficient to establish that the breaking and entering occurred in the night season.

On this issue, Henry Carroll, one of the participants in the burglary, testified that it was night time when he entered the Bond Store. In addition to this evidence, the record reveals that the defendant and two others were discovered in the Bond Store at about 10:00 P. M., while it was stipulated that on the night in question, the sun set at 7:52 P. M. The exact time of the entry is not definitely fixed, but whether or not it was in the night season was the factual question for the determination of the jury under the instructions which were properly given by the trial court.

Counsel for the defendant also charges that the court erred in its general charge in directing the jury’s attention to §2907.12 R. C., which makes it a felony to, either by day or night, maliciously and forcibly blow, or attempt to .blow, an entrance into a safe. The charge on this section was a proper one in order that the jury might determine whether or not the purpose of the entry to the building was to commit a felony. We have examined the court’s charge on the cited section and can find nothing therein which was prejudicial to this defendant.

We have carefully examined all of the errors assigned, none of which appear to be well taken, and will be overruled without further comment

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

PETREE, PJ, BRYANT, J, concur.


author: By BAYNES, J.

text:
    SHELDON, Plaintiff, v. LEWIS, Trustee, etc., Defendant.
    Common Pleas Court, Madison County.
    No. 20902.
    Decided April 8, 1959.

      Kincaid, Palmer & Randall, Columbus, for plaintiff.
    Jackman, Nichols & Grubbs, London, for defendant.
   OPINION

By BAYNES, J.

Plaintiff filed a petition for declaratory judgment asking the Court to determine whether plaintiff and defendant each own an undivided one-half interest or if plaintiff owns a five-sixths and defendant a one-sixth interest in a certain parcel of real estate.

Both plaintiff and defendant have moved for judgment on the pleadings. The facts admitted are these: Plaintiff’s interest is derived from the Will of Blanche E. Wildman (a. k. a. Blanche E. Carmichael) which provided, “I give and devise my home ... to Winifred Sheldon in fee simple.” Defendant’s interest is derived from the Will of Bernard F. Wildman (brother of Blanche), which gave Blanche a life estate in all of his property and the remainder to defendant, as Trustee, to pay certain legacies and then to pay the net income of the trust, as directed.

The interests in “my home” were acquired under the Will of M. C. Wildman, who died in 1926. His Will provided:

“SECOND: I give, Devise and Bequeath to Bernard F. Wildman, Mrs. Ella McClain and Mrs. Blanche Carmichael each one third of all my real and personal property subject however to the following conditions that they shall pay to Myrtle Clark, Burt Clark and Herman McClean each the sum of Two Hundred Dollars. That is the three of them shall pay only Six Hundred Dollars, and no more.
“THIRD: At the death of either Bernard F. Wildman or Mrs. Blanche Carmichael, the interest of the one so dying shall revert to my other two surviving sisters or brother and sister herein named in this Will.” (Emphasis added.)

The legacies totalling $600.00 were paid. Mrs. Ella McClain (McClean) died intestate in 1931, survived by Herman McClean, her sole heir at law. Herman McClean died intestate in 1952, survived by Bernard and Blanche Wildman. McClean’s one-third interest in “my home” descended one-sixth each to Bernard and Blanche Wildman.

Bernard Wildman died in 1955. Blanche Wildman died in 1957. Bruce D. Lewis, Trustee, was also the Executor of the estate of Blanche Wild-man. He filed an application with the Probate Court, and a certificate of transfer was issued transferring one-half of “my home” to plaintiff, Winifred Sheldon, and one-half to himself as Trustee.

Plaintiff’s theory is that Blanche Wildman died seized of five-sixths of the fee of “my home,” one-sixth from Herman McClean’s estate, two-sixths under Item Two and two-sixths under Item Three of M. C. Wildman’s Will. The latter by reason of the fact Bernard Wildman predeceased Blanche Wildman, plaintiff’s devisor.

Defendant’s theory is Bernard Wildman died seized of three-sixths of the fee of “my home,” one-sixth from Herman McClean’s estate and two-sixths under Item Two of M. C. Wildman’s Will.

In legal contemplation, plaintiff claims that Items Two and Three construed together gave only a life estate to Bernard or Blanche Wild-man depending on which one predeceased the other. On the other hand, defendant claims Item Three to be repugnant to the fee simple grant, as he claims, of Item Two.

At the outset, it may be well to recall Judge Wiseman’s comment in De Wolf v. Frazier, 80 Oh Ap 150, 160, 73 N. E. 2d 212, 35 O. O. 485, 49 Abs 244:

“An examination of the authorities is cogent proof of the truth of the oft-repeated statement that there are no precedents to follow in a will construction suit.”

As intimated in defendant’s brief, the problem of the case is not so much a construction of what M. C. Wildman intended by Item Three of his Will, but was it effective for any conceivable intention, that he had or may have had.

.In support of their respective contentions, reliance is given in plaintiff’s brief to Baxter v. Boyer, 19 Oh St 490; Tax Commission v. Oswald, 109 Oh St 36, 141 N. E. 678; Johnson v. Johnson, 51 Oh St 446, 38 N. E. 61; De Wolf v. Frazier (supra cit.); Smith v. Rugg, 28 N. P. n. s. 262; and propositions from 20 O. Jur. 2d 300-306, Secs. 69-70. Defendant’s brief relies upon the Baxter and De Wolf cases; Krumm v. Cuneo, 71 Oh Ap 521, 47 N. E. 2d 1003, 26 O. O. 468, 38 Abs 599.

There is nothing in M. C. Wildman’s Will expressly or by implication relating to a restriction of the devisee’s right to use or consume, during their lifetime, the real and personal property devised and bequeathed and a consequent gift over. In this aspect and in this regard the Baxter, Johnson, Tax Commission and De Wolf cases are not pertinent or helpful. This also applies to the 20 O. Jur. citation, 300-306. The Smith case is clearly distinguishable and not helpful.

It is not to be questioned that a devise of (as provided in Item Two of M. C. Wildman’s Will) “All my real and personal property,” is sufficient to create a fee simple estate; 41 O. Jur. 733, Sec. 618, citing Birney v. Wilson, 11 Oh St 426, 429, 432. Therefore, Item Two is absolute and not merely prima facie absolute and would, or could, not be called into question but for Item Three.

In Perdue v. Morris, 93 Oh Ap 538, 114 N. E. 2d 286, ,51 O. O. 232, the following rule of proof, often referred to, is stated (Syllabus 2):

“Courts favor the creation of a fee simple estate and cast the burden of proving that a lesser estate was created on the one asserting that a devise is of such lesser estate.”

Even if the devise in Item Two of M. C. Wildman’s Will is, or could be considered, undefined or only prima facie absolute, Courts do. and should, give especial significance where a devise is charged with a legacy (s) as here, in construing the devise to be in fee simple.

“As a general rule where a devisee whose estate is undefined is directed to pay the testator’s debts or legacies or a specific sum in gross, he takes an estate in fee simple . . . disparity in the amount of the sum charged, relating to the value of the land, does not prevent the enlargement of the estate.” 41 O. Jur. 736, Sec. 622; see also Page on Wills, L. T. ed. v. 3, 303, Sec. 1089.

It is not disclosed by the pleadings how many parcels of real estate other than “my home” were devised by the Will of M. C. Wildman. Nor to what extent personal property was bequeathed, if any. It is to be fairly assumed that other real property and personal property is also involved and that plaintiff has failed or omitted to bring it within the declaration sought. It may well be that the declaration here sought would not preclude a relitigation of the same question later on.

We think, in the absence of a “use or consume” clause, together with an unconsumed remainder over clause, the rule is correctly stated in 20 O. Jur. 2d 437, Sec. 181, and is controlling under the facts of this case:

“A fee simple estate cannot be made defeasible even under §2131.07 R. C. (§10512-7 GC), unless the words of the instrument devising such estate indicate the specific real property upon which the limitation is intended.” (Citing Sweigart v. Sweigart, 55 Abs 442, 89 N. E. 2d 686, citing Gill v. Leach, 81 Oh Ap 480, 485-487 , 80 N. E. 2d 256, 37 O. O. 311.)

Great reliance is placed on the holding of Krumm v. Cuneo, (supra cit.), by defendant and properly so. The construction there sought was as to the following provision:

“I give and bequeath to my wife ... all my personal property . . . , but in case she should die and leave any part . . . unconsumed, or undisposed of, then in that event, the part so remaining shall be divided equally between . . .”

The Second District Court of Appeals held that the attempted disposition of any undisposed of portion, being repugnant to the original bequest, is void. It is to be observed in the instant case that testator made no reference to the undisposed portion. His was a naked attempt to control future disposition of unidentified property. This case is more conclusive on the facts than the Krumm case.

It might also here be observed that:

“Where the testator’s intention to give a fee clearly appears upon the will, his attempt to direct the course of descent upon the death of the first taker is repugnant to the nature of the estate, or it is an attempt to create a new kind of estate, without power of disposition by will, and descending in some manner other than that fixed by statute. Whichever explanation is adopted, the gift over is void.” Page on Wills, L. T. ed. v. 3, 399 Sec. 1134.

Testator in the instant case in Item Three chose to use the word “revert,” not “remainder” or words of similar import. Technically, the word “revert” is synonymously used with the word “reversion,” which in Wills means a residue left in the heirs of testator after a particular estate is ended. There can be no estate left in testator after the devise of an absolute estate.

It is tersely put in Stophlet v. Stophlet, 22 Oh Ap 327, 329, 153 N. E. 867, where testator, as did M. C. Wildman, used the word “revert” after the grant of an absolute estate. The court said the inconsistent provision must fail. Further, that where two provisions are irreconcilable the rule preventing the ingrafting of a remainder on a fee must control. Also see 20 O. Jur. 2d 435, Sec. 180 and 19 Am, Jur. 576, Sec. 120.

In the final analysis, this Court cannot apply Item Three for any purpose, and its irreconcilability and inapplicability is graphically demonstrated by the order of death of the devisees as actually happened. Item Three expressly assumed that either Bernard or Blanche Wildman would predecease Ella McClain. It will be noted that it did not expressly make survival a condition of taking, nor can it be said impliedly to require it. The fact is that Ella McClain predeceased both Bernard and Blanche Wildman. Moreover, her son, Herman McClain, and her only heir also in fact predeceased both Bernard and Blanche Wildman, who were his only heirs at law.

In order to give this Item effect, it would require the Court to hold that Ella McClain died seized of a contingent remainder in an alternative of either Bernard’s interest or Blanche’s interest in “my home” and any other property of which M. C. Wildman died seized. This in turn would have been a contingent remainder in Herman McClain’s estate which would, in the alternative, have descended to Bernard or Blanche Wildman depending on which of them died first.

Nor did Item Three provide that if Ella McClain predeceased Bernard and Blanche Wildman, then, in that event, the survivor of Bernard or Blanche would take the interest of the one who predeceased the other.

Whatever comment might, could or should be made as to such attempted constructions, we forbear to say and consider it sufficient to re-emphasize the quotation from Page on Wills, L. T. ed. v. 3, 399, Section 1134, at Pages 4 & 5 of this decision.

It should, and will, therefore, be the declaration of the Court that Item Two of the Will of M. C. Wildman created a fee charged with three legacies (which were paid), in an undivided one-third interest in the real and personal property of which he died seized, including the real estate referred to in the Will of Blanche E. Wildman as “my home,” in the persons named in said Item.

Further, that Item Three of the Will of M. C. Wildman is repugnant to Item Two of said Will and that said Item Three is therefore void and of no force, substance or effect whatsoever.

From these declarations it follows that Bernard F. Wildman died seized of an undivided one-half of In Lot Ninety-Four (94) in the City of London, County of Madison, State of Ohio, and that Blanche E. Wildman died seized of an undivided one-half interest in the same, and that defendant and plaintiff, respectively, succeeded to said interests by virtue of the Wills of said decedents.

Defendant’s counsel is directed to submit an Entry in accordance with this opinion to plaintiff’s counsel and to the Court for approval noting plaintiff’s exceptions, if any. Costs are to be taxed not less than one-half to the defendant Trustee or otherwise as the parties may agreeably determine.