author: By HUNSICKER, PJ.

text:
    FIRESTONE TIRE & RUBBER CO., Plaintiff-Appellant, v. CENTRAL NATIONAL BANK OF CLEVELAND, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22220.
    Decided February 25, 1952.

      Jones, Day, Cockley & Reavis, Cleveland, for plaintiif-appellant.
    Arter, Hadden, Wykoff & VanDuzer, Cleveland, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE, J, of 9th District and NICHOLS, PJ, of 7th District sitting by designation in 8th District.)
   OPINION

By HUNSICKER, PJ.

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

In June, 1946, the Firestone Tire & Rubber Company, herein called Firestone, entered into a contract with Stan Wood Products Inc., herein called Stan Wood, whereby Stan Wood agreed to manufacture sleds for Firestone, and, upon instructions from Firestone, ship the sleds to the various warehouses of Firestone.

Stan Wood had a loan agreement with Central National Bank of Cleveland, herein called Bank, whereby Stan Wood, by assigning its accounts receivable to the Bank as security was able to borrow money from the Bank. This loan agreement was executed, and all modifications thereof were consummated prior to any transactions between the Bank and Firestone.

On November 5, 1946, Stan Wood borrowed from the Bank $10,377.60 and assigned to the Bank, as security therefor, invoice No. 1867, dated November 4, 1946, billing Firestone for 1100 sleds allegedly shipped by Stan Wood to Firestone, and invoice No. 1868, dated November 4, 1946, billing Firestone for 1250 sleds allegedly shipped to Firestone. Each of these invoices were accompanied by a uniform straight bill of lading, showing a claimed shipment of the sleds to Firestone.

These bills of lading and copies of the invoices covering the alleged shipments were then sent by Stan Wood to Firestone.

On November 21, 1946, Firestone paid, by check issued direct to Stan Wood, the amount of $6831, allegedly due upon invoice No. 1868. Stan Wood delivered this check, properly endorsed, to the Bank, and the Bank credited $5520 to the loans of Stan Wood, which loans were not secured by invoices to Firestone, and the balance was deposited to Stan Wood’s checking account and then withdrawn by Stan Wood.

The Bank, by letter dated November 18, 1946, notified Firestone of the assignment to it of the Firestone accounts. Thereafter, by an exchange of correspondence between the Bank, Firestone, and Stan Wood, the fact that the Firestone accounts were assigned to the Bank was acknowledged.

On November 29, 1946, Firestone, by its check in the amount of $19,148.66, paid the Bank for the Stan Wood invoices Nos. 1867 and 1876. Of this amount so paid $15,473.66 was credited against Stan Wood loans, not all of which were secured by invoices to Firestone. The balance of $3,675 was deposited to the Stan Wood checking account and later withdrawn by Stan Wood.

All of the loans to Stan Wood which were based on invoices to Firestone, were made prior to the receipt by the Bank of any payments made by Firestone in reliance upon such invoices and alleged uniform straight bills of lading.

The Stan Wood invoices Nos. 1867, 1868 and 1876 were false, fraudulent and fictitious. The bills of lading covering alleged shipments of the sleds covered by those invoices were false, fraudulent and fictitious. The signature of the contract carrier appearing on each of such bills of lading was either a forged signature or the purported signature of a person who did not exist.

Neither the Bank nor Firestone knew of the false, fraudulent and fictitious character of the invoices or the bills of lading. No sleds were received by Firestone from Stan Wood, nor did Stan Wood ever ship to Firestone any sleds, under these invoices.

On November 23, 1946, Stan Wood shipped to Firestone 800 sleds which were received by Firestone on December 3, 1946. Firestone received no invoice nor made any payment for these 800 sleds.

On February 7, 1947 Stan Wood was adjudicated a bankrupt. Firestone filed a proof of claim in such bankruptcy proceedings, setting out, in such proof of claim, the amount paid for merchandise not received, but giving credit to Stan Wood for the 8Ú0 sleds received by Firestone on December 3, 1946. The claim of Firestone against Stan Wood, bankrupt, was allowed, but Firestone received no payments from the bankrupt’s estate.

On May 12, 1948, Firestone filed an action in the Common Pleas Court of Cuyahoga County, Ohio, against the Bank, alleging that the payment of the amounts due under the false, fraudulent and fictitious invoices Nos. 1867, 1868 and 1876 were made by Firestone to the Bank “under a mistake of fact induced by the fraudulent and false representations of Stan Wood, the assignor of the defendant (Bank) and that the defendant (Bank) has been unjustly enriched by reason thereof.”

Firestone, in such action, prayed for judgment against the Bank in the “amount of $25,979.66 together with interest thereon from the 21st day of November, 1946 * * The trial court rendered a judgment in favor of the Bank, and it is from such judgment that an appeal on questions of law is before this Court.

Firestone, the appellant herein, says that the trial court committed error prejudicial to the substantial rights of Firestone as follows:

“1. The Court of Common Pleas erred in not admitting evidence offered by plaintiff.
“2. The judgment of the Court of Common Pleas is contrary to law.
“3. The judgment of the Court of Common Pleas is manifestly against the weight of the evidence and is not sustained by any evidence.
“4. The Court of Common Pleas erred in not entering a final judgment for the plaintiff as prayed for by it in its petition herein.
“5. The judgment of the Court of Common Pleas should have been against the defendant and for the plaintiff.
“6. The Court of Common Pleas erred in not admitting evidence offered by the plaintiff.
“7. The Court of Common Pleas erred in overruling the plaintiff’s motion for a new trial.
“8. Other errors apparent on the face of the record.”

The first question which should be considered in this appeal is: Did Firestone, by filing its claim in the Stan Wood bankruptcy proceedings, elect the remedy it wished to pursue, so as to preclude any future action against the Bank?

The Supreme Court of Ohio, in the case of Norwood v. McDonald, 142 Oh St 299, at p. 315, said:

“The doctrine of election of remedies is applicable only where, at the time of election, there are available to the litigant for the assertion of a single right, two or more coexisting remedies which are repugnant to and inconsistent with each other.”

The leading case in Ohio, and the one most frequently cited on the doctrine of election of remedies, is Frederickson v. Nye, 110 Oh St 459. The court there said, at pages 466 and 467:

“An election of remedies or forms of action or procedure does not necessarily involve a choice as between two existing substantive rights. A form of action or remedy is but a means of administering justice rather than an end in itself. There is, therefore, a marked distinction between an election between remedies or forms of action and an election of remedial rights. One goes to the substance and the other to the form. Where the remedies afforded are inconsistent, it is the election of one that bars the other; where they are consistent, it is the satisfaction which operates as a bar. It is the inconsistency of the demands that makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.
“Now, a remedy based on the theory of an affirmance of the contract, or other transaction, is inconsistent with a remedy arising out of the same facts based on the theory of its disaffirmance or rescission, so that the election of either must be an abandonment of the other.”

At the time Stan Wood was adjudicated a bankrupt, the Bank, so far as the debt arising out of the assigned Firestone invoices was concerned, was paid. Certainly at that time the Bank was not ready to concede that it had obtained any money to which it was not rightfully entitled. The Bank could not and would not file a claim against the bankrupt’s estate — it did not then have any such claim, arising out of the transactions herein, to present.

Firestone, on the other hand, had a claim for non-delivery of sleds, which sleds had already been paid for. If it failed to file its claim, and a dividend to general creditors had been paid, the Bank, in the instant case, could rightfully demand a credit for the amount which Firestone would have received.

Firestone would have been derelict in its duty if it had failed to pursue the bankrupt estate, for, under the circumstances of this case, it, and it alone could file the claim in bankruptcy court.

Under the facts of this case, there was no election of an inconsistent remedy, and hence no such election of remedies, as would preclude the action thereafter taken against the Bank.

The next question which we must consider is: Is the Bank a holder in due course of the two checks received from Firestone?

The first check which Firestone issued in payment of a false, fraudulent and fictitious invoice was in response to invoice No. 1868. On November 21, 1946, Firestone issued direct to Stan Wood its check in the amount of $6831.00 in payment of such invoice. Eighty percent of the amount of this check, or $5520.00 was credited against loans to Stan Wood, which loans were not secured by invoices to Firestone, and the balance, or $1311.00 was deposited in Stan Wood’s account. The amount so deposited was withdrawn by Stan Wood on November 30, 1946.

It must be remembered that, prior to the time when the check in payment of such invoice No. 1868 was issued by Firestone to Stan Wood, the Bank had notified Firestone that such invoice No. 186-8 had been assigned to it, but Firestone had not received from Stan Wood a notice of the assignment of this invoice to the Bank.

Under such circumstances as are thus set out, is the Bank a holder in due course of the check given to Stan Wood in payment of invoice No. 1868?

Sec. 8157 GC, defines a holder in due course, and subsection 4 therein says:

“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

It certainly is conceded that, at the time Stan Wood indorsed this check and gave it to the Bank, there was no notice to the Bank of “any infirmity in the instrument or defect in the title of the person negotiating it.”

Sec. 8160 GC defines the conditions under which the title is defective, and §8161 GC says:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual notice of the defect or knowledge of such facts that his action in taking the instrument amounted to bad faith.” (Emphasis ours.)

Sec. 8135 GC defines “negotiation.”

We therefore conclude that, as to the check issued to Stan Wood, in payment of invoice No. 1868 in the amount of $6831.00 the Bank is a holder in due course, and Firestone cannot assert that such check was a defective negotiable instrument in the hands of the Bank.

The next question which must be considered is: Is the Bank, as payee of the check issued in payment of invoices numbered 1867 and 1876 a holder in due course?

This latter check, in the amount of $19,148.66 was issued direct to the Bank after proper notices of the assignment of invoices had been exchanged between, the parties.

The authorities in the United States are in conflict as to whether a payee of a negotiable instrument may be a holder in due course. 169 A. L. R. 1455, and authorities there cited.

While Ohio has never, so far as we have been able to discover in the reported cases, taken a definite stand on this question, the tenor of the few reported cases which do discuss the subject lean toward the view that such payee cannot be a holder in due course. 29 O. Jur. Negotiable Instruments, Sec. 180, pg 955, and cases there cited.

In the instant case, the Firestone check, in payment of invoices numbered 1867 and 1876, was issued to the Bank, not “negotiated” to it. We therefore determine that, since the Bank did not receive the check here in question by negotiation as defined by the negotiable instruments law of Ohio, it was not, as to such check, a “holder in due course.”

The next question which we consider is: Is Firestone entitled to recover money paid to the Bank by the check issued to the Bank in payment of invoices numbered 1867 and 1876?

The appellant says that the instant case comes within the general rule that money paid upon a mistake of fact, and without consideration, may be recovered by the one making such payment.

Neither the Bank nor Firestone knew of the false, fraudulent and fictitious character of the invoices and bills of lading until some time after Firestone had made the' payments here in question. It is also a conceded fact that the Bank advanced its money on the assigned false invoices prior to the payment by Firestone to the Bank.

It is thus to be seen that the security the Bank had by way of assignment of invoices Nos. 1867 and 1876 was predicated upon fraud perpetrated upon it by Stan Wood. The Bank thus had only the promise of Stan Wood to pay its loan and no valuable security.

Ohio has consistently followed the general rule that money paid upon a mistake of fact, and without consideration, may be recovered back.

Ellis & Morton v. Ohio Life Ins & Trust Co., 4 Oh St 628; Wooley v. Staley, Treas., 39 Oh St 354; Village of Indian Hill v. Atkins et al., 153 Oh St 562 at p. 566; Union Trust Co. v. Severhoff, 3 Abs 210.

A collation of the authorities on the specific question involved in the ease now before us, is found in 159 A. L. R. 487. From an examination of these authorities, we discover a considerable conflict in the reported cases on this subject.

Should the general rule be followed in the instant case? The facts herein may be simply stated as follows:

The Bank, when it called upon Firestone to pay to it the money the Bank advanced on the false invoices, said in effect:

“We have in our possession certain accounts receivable assigned to us by our customer, Stan Wood, to whom we have advanced money on the strength of such assigned accounts; you (Firestone) owe such accounts for goods shipped to you by Stan Wood; you will therefore pay us and not Stan Wood.”

Firestone as is the custom in such business transactions, replied in effect, “we herewith pay, as requested by you, these accounts for the goods which Stan Wood has shipped to us.” There were no goods shipped, a fraud had been perpetrated by Stan Wood upon both the Bank and Firestone. In such a situation, who should bear the loss?

The Bank did not have any valid pledged security for the loan it made to Stan Wood, although it did not at the time it made such loan know that fact. Firestone paid the loan only because it thought the Bank had a valid pledged security. The Bank, by requesting that payment of these invoices be made to it, impliedly, although innocently, represented to Firestone that it held, by assignment from Stan Wood, a valid obligation of Firestone, whereas in truth, and in fact, such obligation was false, fictitious and fraudulent. The Bank lost no rights against Stan Wood, for all it had was the promise of Stan Wood to pay the loan.

The money received by the Bank in payment of assigned invoices 1867 and 1876 was made for and in behalf of Firestone, under an honest mistake as to a material fact, upon which fact both parties were innocently but mistakenly acting.

Under such circumstances, the general rule should be applied — which, so far as the facts of the instant case are concerned, may be stated as follows:

Where money is loaned by a bank to a manufacturer who secured such loan by an assignment of false accounts receivable, purporting to represent claims for goods sold and delivered by such manufacturer to a buyer (which goods in truth and fact were not delivered) and the buyer upon the request of the manufacturer and the bank, gives money to the bank in payment of the assigned false and fraudulent invoices, such buyer may recover from the bank the money so paid on the theory of unjust enrichment. As between two innocent parties, where the evidence indicates that payment was made by one to the other upon the innocent implied representation of the one that he holds a valid assignment of a valid claim against the other, the one who impliedly represents the validity of an invalid claim cannot retain payment made by another who acts upon such implied representation.

We therefore determine that:

1. Firestone, by filing its claim in bankruptcy, is not precluded from pursuing its present action against the Bank.

2. The Bank is a holder in due course of the Firestone check in the amount of $6831.00 given to Stan Wood in payment of invoice No. 1868.

3. Firestone is entitled to recover from the Bank the sum of $19,148.66 received by the Bank in payment of assigned accounts numbered 1867 and 1876.

We have examined all other claimed errors and find none prejudicial.

The judgment is affirmed in part and reversed in part and as modified in accord with this opinion, final judgment is awarded the appellant Firestone.

DOYLE, J, NICHOLS, J, concur.


source: Caselaw Access Project

author: By BEERY, J.

license: Public Domain

text:
    KENDER v. FARKAS, a. k. a. BALOG.
    Common Pleas Court, Montgomery County.
    No. 101243.
    Decided March 13, 1951.
    Walter P. Reese, Dayton, for plaintiff.
    Julius Herchig, Dayton, for defendant.

      (BEERY, J., of the Shelby County Common Pleas Court sitting by assignment in Montgomery County.)
   OPINION

By BEERY, J.

This cause came on to be heard upon plaintiff’s petition praying that a judgment rendered against plaintiff herein on August 8, 1945, be vacated and held for naught, and that the defendant, Eva Farkas, in whose favor said judgment was rendered, be permanently restrained from enforcing the terms of said cognovit note upon which said judgment was taken.

The evidence reflects that on August 8th, 1945, a cognovit judgment in the sum of Two Thousand Eight Hundred Thirty Five Dollars ($2,835.00) was taken by the defendant, Eva Farkas, against plaintiff, Elizabeth Kender. The judgment was taken upon the following note:

“1500.00 Dayton, Ohio
September 10, 1929
One year after date, for value received, Andy and Elizabeth Kender promise to pay to the order of Eva Farkas, FIFTEEN HUNDRED DOLLARS, with interest at the rate of - per centum, per annum, after date, payable at the CITY NATIONAL BANK OF DAYTON, OHIO.
And -hereby authorize any Attorney at Law to appear in any Court of Record in the State of Ohio, or in any other State in the United States after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against-in favor of the holder hereof for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.
/s/ Andy Kender
/s/ Elizabeth Kender
No.-
Address: R. R. 4, Dayton, Ohio
No endorsements.”

Counsel for plaintiff, Elizabeth Kender, contends that the power of attorney involved in the above note did not, in express language, authorize a confession of judgment against anyone, and further, that since the note stipulated no rate of interest, said judgment was excessive because judgment taken was for Fifteen Hundred Dollars ($1500.00) plus six per cent interest or a total of Two Thousand Eight Hundred and Thirty Five Dollars ($2835.00).

With respect to counsel for plaintiff’s contention that judgment was taken in an amount in excess of that authorized to be taken, this question can easily be disposed of under the provisions of §8305 GC, which provides as follows:

“Rate when no stipulation, and in other cases. In cases other than those provided for in the next two preceding sections, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, or settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract, or other transaction, the creditor shall be entitled to interest at the rate of six per ccent per annum, and no more.”

In the instant case, it is to be noted that the note was due on September 10th, 1930, and interest at the rate of six per cent (6%) was computed from September 10, 1930, the date on which the note became due.

Under §8305 GC, supra, the defendant herein was authorized to compute interest from the due date of the note at the rate of six per cent (6 %). This was done, and therefore, the amount of the judgment was not in excess of the amount due plaintiff herein under the terms of the note.

The second issue herein involved concerns the right of the defendant, Eva Farkas, to take a several judgment against the defendant, Elizabeth Kender.

It is clearly settled in Ohio that one joint obligor can insist upon joinder of the other joint obligors when the obligation is joint. If the obligation is joint and several, then this cannot be insisted upon by a joint and several obligor. (See McArthur v. Ladd, 5 Ohio 514, §11256 GC, and Columbia Graphophone Company v. Slawson, 100 Oh St, 473.)

The most recent case decided by our Supreme Court is that of Haggard v. Shick, 151 Oh St, 535, 39 O. O. 336. The facts in the Haggard case and in the instant case are similar pxcept that in the Haggard case there was a transfer by the original payee to Shick, the holder of the said note, whereas, in the instant case, the original payee was the plaintiff taking the judgment.

In the Haggard case there were four makers, one of whom was deceased at the time the judgment was taken by confession, whereas, in the instant case, there were two makers, one of whom was deceased at the time of taking judgment, Andy Kender having passed away on February 13th, 1931.

In the Haggard case, the form of the note was identical with the note in the instant case, and the blanks were not filled in, the same as in the instant case, with the exception that in the Haggard case, the blank specifying the rate of interest was filled in, and the words “I promise to pay” were used in the Haggard case, whereas, in the instant case, the words “Andy and Elizabeth Kender promise to pay” were used-

The court, in the Haggard case, seems to follow the ruling as set forth in Wallace v. Jewell, 21 Oh St, 163, and as provided by §8122 GC, paragraph 7, which reads as follows:

“When an instrument containing the words T promise to pay’ is signed by two or more persons, they are deemed to be jointly and severally liable thereon.”

The court, in the Haggard case, seems to have distinguished its reasoning therein upon the facts in that case as distinguished from the facts in the case of the First National Bank of Findlay v. Trout, 58 Oh St, 347.

The court, in the Haggard case, held that a warrant of attorney to confess judgment must be strictly construed and the authority thereby conferred cannot be exceeded beyond the limits expressed in the instrument.

The court held, in effect, that under the power of attorney attached to the note in both the Trout and Haggard cases, the court may be presumed to have authorized an attorney to confess a judgment against the makers jointly.

Although the authority to confess a joint judgment against the parties who sign such note may be implied under the rule of strict interpretation, that implication will not be extended so as to authorize confession of a several judgment against any of such parties.

It is a general rule in Ohio and other States that when a promissory note is made by several persons and states that “we promise to pay,” it is a joint note solely. (See 3 Ruling Case Law, page 1139.)

The facts in the instant case, in this court’s opinion, do not as strongly indicate a joint and several obligation as do the facts in the Haggard case. This court can easily assume that if the words “Andy and Elizabeth Kender” were to be substituted by the use of some pronoun, it could more easily assume that the pronoun “We” would be substituted rather than the pronoun “I”. If the pronoun “we” were then used, the note would then become joint.

To follow the further reasoning of the Supreme Court as in the Haggard case, whether the words “Andy” and Elizabeth Kender promise to pay” be left in the note or the most logical pronoun “we” be substituted for these words, the language actually employed in the power suggest “we” and “us” as the only words which could, with propriety, be inserted in the blanks of the warrant to confess judgment.

The Supreme Court, in Frey v. Cleveland Trust Company, 143 Oh St, 319, 28 O. O. 291, stated as follows:

“The plaintiff relies upon the decision of this court in the case of Hoffmaster v. G. M. McKelvey Co., 88 Oh St, 552, 106 N. E., 1061. However, in that case the particular language of the note in marked contrast provided merely for the confession of a judgment ‘against us,’ thus making the liability joint rather than joint and several.”

The court therefore, is of the opinion that a warrant of attorney in the instant case can not be so construed as to authorize either expressly or by implication, the confession of a several judgment against either Andy or Elizabeth Kender.

This court, therefore, is of the opinion that the judgment should be vacated in Case No. 95700.

Counsel for plaintiff may prepare an entry accordingly.


author: By HORNBECK, PJ:

text:
    BADER, Plaintiff-Appellee, v. CORBIN, d. b. a. THELMA'S BEAUTY SHOP, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2210.
    Decided November 20, 1952.

      Nolan, Boesch & Wolff, Dayton, Milton L. Sprowl, for plaintiff-appellee.
    Otterbein Creager, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

The appeal is from a judgment for plaintiff entered on a general verdict of a jury in her favor against the defendant in the sum of $528.73. The action was for damages for personal injuries suffered by plaintiff by reason of treatment to her hair by Thelma Daubenmeyer, an operator in a beauty, shop, known as Thelma’s Beauty Shop. The issue between the parties, particularly under consideration on this appeal, was whether or not the defendant operated the beauty shop, if so, was Thelma Daubenmeyer his agent and acting for him when she administered the treatment to plaintiff.

Defendant admitted that he owned the building in which the shop was operated and the equipment used in such operation but denied that he operated the beauty shop and denied that Thelma Daubenmeyer was his agent. Defendant and Miss Daubenmeyer agreed in their testimony as to the terms upon which the business was carried on. Defendant provided the building and the equipment. That of the proceeds Thelma took 50% of the gross, from the other 50% she paid all bills for supplies and operating expenses, any sum remaining was turned over each week to the defendant. This sum, so received by defendant, it is contended by him and Thelma was rental to him for the store room and equipment. It is contended by plaintiff that the arrangement was the basis for return to defendant as owner and operator of the business; that the sum paid to Thelma was wages to her as an employee and agent of defendant.

Plaintiff was permitted, over objection, to state that three days after the treatment upon which her action is predicated, Thelma said to her that she (Thelma) was running the shop for Mr. Corbin, the defendant. The Court received the testimony upon promise of plaintiff “to connect it up.” It developed that the defendant had a license from the State Board of Cosmetology. Thelma also had a license to operate and a license to manage a beauty shop.

After verdict, defendant moved for judgment notwithstanding the verdict and for a new trial both of which motions were overruled.

The following errors are assigned:

1. In permitting the testimony of plaintiff as to statement of Thelma that she was working for Mr. Corbin to go to the jury.

2. The Court erred, as a matter of law, in submitting the case to the jury on the evidence adduced because it was wholly insufficient to prove the agency.of Thelma.

3. The verdict and judgment are against the manifest weight of the evidence.

4. Failure of the trial judge to grant a new trial upon a showing that the verdict returned by the jury was a quotient verdict.

The first three assignments are so related that they may be considered together.

Manifestly, the statement of Thelma that she was working 'for the defendant, if made, which she denied, would not, standing alone, prove nor tend to prove the relation of principal and agent. However, if there is other evidence direct or circumstantial tending to establish the agency relationship the declaration of the agent may be considered. Holmes v. Holland, 11 O. D. Re. 768. Sessions v. Isabel, 2 O. N. P. N. S. 288.

It is also contended that plaintiff, by her own admission, dealt with Thelma as the individual who was operating the beauty shop and that plaintiff may not be heard to maintain otherwise. It is evident that when plaintiff was treated by Thelma she did not know that she was in the employ of defendant. If there was the relation of principal and agent between defendant and Thelma it was an undisclosed relation. In such situation the party who dealt with the undisclosed agent may, upon discovery, elect to sue either the principal or the individual with whom he dealt. Thayer v. Luce, 22 Oh St 62.

The agreement under which Thelma and the defendant conducted the beauty shop and the division of the proceeds of the business is susceptible of the construction placed upon it by each party. The most significant evidence in behalf of the plaintiff, as to the status of defendant, is the admission that he held a certificate and a renewal of certificate from the Board of Cosmetology. His testimony is quite meager as to the nature of this certificate and it is contended by his counsel that it was such a certificate as is required to be held by the owner of a building in which a beauty parlor is conducted. We cannot so interpret the purpose or import of the only certificate that the defendant could have been issued. The certificate must have been issued by authority of §1082-16 GC, which, in so far as applicable, reads:

“Within 60 days after the appointment of the board * * *, and annually thereafter during the month of June, every person, * * * conducting or operating or desiring to operate a beauty parlor, in which any one, or any combination, of the occupations of a cosmetologist are practiced; * * * shall apply to the board for a license, through the owner, manager or person in charge, in writing upon blanks prepared and furnished by the board.” (Emphasis ours.)

The quoted part of this section, in our judgment, connotes that the person to whom a license, therein provided, is issued, is either conducting or operating or desires to operate a beauty parlor. The fact then, that the defendant at the time of the act alleged held a certificate under the foregoing section was probative evidence that he was operating the beauty shop. The possession of the certificate together with other facts appearing in the record supports the trial judge in permitting the statement as to the agency of Thelma to go to the jury and in submitting the other questions of agency to the jury for determination.

Nor can we hold that the verdict is manifestly against the weight of the evidence. All of the facts surrounding the operation of the beauty shop and the relation of the defendant and Thelma in its conduct were properly before the jury for resolution and the contention of the defendant that he had nothing whatever to do with its operation and no control over the operator therein likewise was clearly set forth in the evidence. In all, there was an issue of fact which was properly presented to the jury for determination.

Without extended discussion, we may not hold with the appellant on the fourth assignment of error, viz; that the verdict should not have been received because it was a quotient verdict. This Court in a case somewhat more favorable to the appellant than here, Lund v. Kline, 24 Abs 387, adopted the theory of appellant. However, the Supreme Court reversed, 133 Oh St 317. The language of Judge Day, who wrote the opinion at page 319, 320 is especially pertinent:

“The ballots and slips of paper retrieved from the jury room were offered in evidence aliunde. These, however, merely show that the quotient result and the amount of the verdict are the same, but do not show the existence of a prior agreement on the part of the acquiescing jurors to be bound by the quotient result.* * *.
“Proof of a prior agreement to be bound by the quotient re-suit cannot be furnished by'affidavits or testimony of the jurors themselves, but must be by evidence aliunde.”

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT:

text:
    RICKMAN, Plaintiff-Appellee, v. OHIO YELLOW CAB COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2193.
    Decided November 20, 1952.
    Mason Douglass, Dayton, for plaintiff-appellee.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff. The action was tried before a jury and involved a collision between the plaintiff pedestrian and the defendant taxi cab at a point on Riverview Avenue at the intersection of Central Avenue. Riverview Avenue, extends approximately east and west and Central Avenue north and south Central Avenue intersects Riverview Avenue but does not cross River-view Avenue, with side walks on both the east and west sides of Central Avenue. There is no marked cross walk from the side-walks of Central Avenue to the curbs of Riverview Avenue. There was a street light overhanging the northeast corner of the intersection of the sidewalks of Riverview and Central Avenues.

Plaintiff was crossing Riverview Avenue on the west cross walk from the curb of the south side of Riverview Avenue to the north side, when he was struck by defendant’s taxi cab.

The evidence indicates that plaintiff, Rickman, looked both ways before he started across the unmarked cross walk and had proceeded across the center of Riverview Avenue almost to the north curb of Riverview Avenue when he was struck. Defendant’s taxi driver testified when he was proceeding across the intersection of the cross walk in which Rickman was proceeding he was driving in the second lane of a three traffic lane westwardly on Riverview Avenue; that he could see with his headlights twenty to thirty feet, maybe more. The plaintiff was evidently struck by the right side of the taxi cab and thrown over against the north curb of Riverview Avenue with his head up against the curb and his feet almost parallel with the curb, and injured.

The jury rendered a general verdict for the plaintiff and against the defendant in the sum of $3800.00, plaintiff having received a fractured skull together with other injuries.

The court charged the jury on §6307-2 GC, intersection and cross walk, and charged the jury that Riverview and Central Avenues is an intersection and across Riverview to Central are cross walks, whether or not they are indicated by lines or by markings. The court further charged the jury, whether or not plaintiff, at the time of the injury was or was not in the cross walk was a question of fact for the jury to determine from all the evidence in the case.

The following interrogatories were submitted to the jury by counsel for defendant:

Interrogatory No. 1:

“Was the plaintiff, Charles Rickman, crossing Riverview Avenue other than at a cross walk?”

The jury answered this interrogatory “no.” In other words, the jury found when Charles Rickman was struck he was within the cross walk.

The second interrogatory was as follows:

“Could the plaintiff, Charles Rickman, in the exercise of ordinary care for his own safety have seen the defendant’s taxi cab approaching in time in the exercise of ordinary care to have avoided being struck by it?”

The jury answered this interrogatory “yes.”

The record reveals a number of interrogatories were submitted to the jury, but only numbers one and two quoted, supra, are pertinent to this appeal. A motion for a judgment notwithstanding the verdict was filed by the defendant, relying upon the answer to the second interrogatory, which was claimed to be inconsistent with the general verdict. This motion was overruled and to which the first assignment of error is directed. Sec. 11420-18 GC clearly provides that when a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.

The appellant cites the case of Riley v. City Railway Company, 16 Abs 292, urging that a like motion was sustained in response to a similar interrogatory. Judge Mills in a well considered opinion distinguishes this case from the Riley case as well as several others cited by the appellant, pointing out that in the cited case the interrogatories set out the specific thing the plaintiff could have done to avoid the accident, but in this case there was nothing specific contained in the interrogatory defining what this plaintiff could have done or failed to do to prevent his injuries.

The trial court’s reasoning is so well set forth in his opinion and so exhaustive that it would serve no useful purpose for us to supplement the same by restating the reasons assigned by Judge Mills.

It is next urged that the court erred in overruling the defendant’s motion for instructed verdicts at the close of plaintiff’s case and again at the close of all of the testimony. There was clearly sufficient evidence to establish the defendant’s negligence, and whether the plaintiff was guilty of contributory negligence which was the proximate cause of his own injuries, was a question for consideration by the jury. See Glasco v. Mendelman, 143 Oh St 649.

We find no error in the record and the judgment is affirmed.

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


author: By SKEEL, PJ.

text:
    STATE, Plaintiff-Appellee, v. BEARD, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 10067.
    Decided March 10, 1952.
    Frank T. Cullitan, County Pros., Gertrude Bauer, Asst. County Pros., Cleveland, for plaintiff-appellee.
    Clarence Beard, for defendantr-appellant.
   OPINION

By SKEEL, PJ.

This application seeking leave to file an appeal is presented on the affidavit of the defendant, now confined in the Ohio Penitentiary. The application is founded on §13459-4 GC which provides:

“Such appeal unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment, such appeal may be filed only by leave of court or two of the judges thereof.”

In passing on a motion seeking the right to appeal eighteen years after the judgment appealed from was entered on the journal of the trial court, such motion will be granted under the provisions of the foregoing section only when the refusal to grant such motion will result in a miscarriage of justice. State v. McGahan, 86 Oh Ap 283.

The record, as disclosed by defendant’s motion for leave to file an appeal, shows that he was indicted on a charge of murder in the first degree on October 2, 1928. That during the preliminary proceedings on such indictment the question of whether or not he was then insane was suggested to the court as provided by §13577, §13608 and §13614 GC (Now §13441-1 and §13441-2 GC) and upon the trial of that question the defendant was found insane and committed to Lima State Hospital.

The defendant was' returned to Cuyahoga County as restored to reason on April 16, 1934. A trial was then had on the indictment for murder in the first degree which resulted in a verdict of guilty without recommendation of mercy. A motion for new trial was granted, whereupon the defendant withdrew his plea of not guilty and entered a plea of guilty to unlawful homicide. The court then proceeded to determine the degree of guilt. Upon trial the trial judge found the defendant guilty of murder in the first degree, recommended mercy and sentenced the defendant to life imprisonment in the penitentiary. The determination of the defendant’s degree of guilt was heard by the trial judge under the provisions of §13692 GC, which was in effect at the time this prosecution was commenced.

It is the contention of defendant that under the provisions of §13442-6 and 13448-2 GC, upon a plea of guilty or confession of guilt in open court to a charge in which a death penalty may be imposed, the degree of guilt must be submitted to a court of three judges. (In re: Knight, 73 Oh Ap 547.)

This would be true if the cause of action arose after the effective date of §13442-5 GC as amended effective Oct. 17, 1933. Prior to that time, §13442-5 GC dealt only with the duty of the court to try a cause where trial by jury had been waived in writing as provided by §13442-4 GC.

Sec. 13692 GC (now §13448-2 GC) in effect Oct. 2, 1928, when defendant was indicted for murder, in part provides:

«* * * j-f offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime and pronounce the sentence accordingly.”

The record shows that the court followed, without deviation, the provisions of this section.

Sec. 26 GC provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall, in no manner, affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The rules of procedure which are applicable to the cause of action here presented, are those that were in effect at the time the defendant was indicted for first degree murder and served with process. State v. Morrow, 90 Oh St 202. In the case of Palmer v. State, 42 Oh St 596, in dealing with this question, the court said in the fifth paragraph of the syllabus:

“5. Under Section 79 Rev. Stat. (Now §26 GC) a repeal or amended statute relating to the remedy, is to govern in the trial of a prosecution pending at the time of the repeal or amendment, unless otherwise expressed in the repealing or amending statute.” See also Campbell v. State, 35 Oh St 70. In re Estate of Lamberton, et al v. Murray, Admr., 142 Oh St 417.

Under the procedure that was used in the trial of this defendant, he was spared the imposition of the extreme penalty as found by the verdict of the jury, and the court extended to him the benefit of mercy. The face of the record does not disclose that the defendant was denied any of his constitutional or statutory rights. He has been afforded full and complete justice under the law in effect at the time this action was commenced against him.

The motion for leave to appeal must, therefore, be denied. Exceptions noted.

HURD, J, THOMPSON, J, concur.


author: By BARTLETT, J.

text:
    ELLIOTT, Plaintiff, v. JERMAN et, Defendants.
    Common Pleas Court, Franklin County.
    No. 183770.
    Decided March 23, 1953.

      Phülip V. Stout, Columbus, for plaintiffs.
    Collis Gundy Lane, Joseph B. DeVennish, Columbus, for defendants.
   OPINION

By BARTLETT, J.

MOTION OF PLAINTIFF TO AMEND CASE NUMBER OF AN ENTRY OF CONFIRMATION AND DISTRIBUTION FILED MARCH 27, 1952, IN CASE NO. 179,721 TO CASE NO. 183,770, BEING THE INSTANT CASE — OVERRULED.

THE MOTION OF PLAINTIFF TO STRIKE FROM THE FILES THE PETITION OF EVELYN JERMAN AND OLIVE JERMAN TO VACATE JUDGMENT, AND THE TENDERED ANSWER AND CROSS-PETITION OF OLIVE JERMAN, IS OVERRULED.

THE PETITION TO VACATE THE JUDGMENT IS HEREBY SUSTAINED AND SAID ANSWER AND CROSS-PETITION TENDERED ARE ORDERED FILED.

THE MOTION OP OLIVE JERMAN THAT SHE AND LOLA E. JERMAN BE MADE' PARTIES DEPENDANT IS SUSTAINED AND THEY ARE HEREBY GRANTED LEAVE TO PLEAD WITHIN THE RULE DAY.

The petition of plaintiff sets up that the plaintiff, Nettie E. Elliott, had an undivided one-third interest in the real estate described, 'the defendants, Evelyn Jerman a one-third, Beatrice Weishaup a one-third, and Harold Jerman a one-third interest. The defendants, being in default for answer, a decree of the court was entered finding the interests of the parties to be those set up in the petition. The Writ of Partition issued to the Sheriff, the commissioners appointed by the Court, being of the opinion said premises could not be divided without manifest injury, appraised said real estate at $9000.00. Thereafter, none of the parties having elected to take said premises at the appraised value, the Court confirmed the report of the commissioners and ordered the Sheriff to sell said premises at public sale at not less than two-thirds of the appraised value for cash on the day of the sale. Proof of publication of the notices of sale was filed, showing date of sale was to be March 15, 1952.

On December 30, 1952, a petition was filed by the defendants Evelyn Jerman and Olive Jerman, duly verified by them, to set aside the Court’s decree of January 4, 1952, fixing the interests of the parties in accordance with plaintiff’s petition, and to set aside the Writ of Partition issued to the Sheriff, in accordance with said decree. The petition of said defendants, Evelyn Jerman and Olive Jerman, set forth that said premises had been sold by the Sheriff at public sale to said Evelyn Jerman; that no report had been made of said sale and no confirmation of said sale had been made; that it had been determined in Case No. 170,725, on the dockets of this court, that under the will of Thomas Jerman, deceased, the real estate in question passed to Ruth Harrison for life with the remainder, vested in Nettie Elliott, Richard Jerman, William Jerman and Charles Jerman, each an undivided one-fourth interest in fee simple, subject to being divested upon the death of Ruth Harrison leaving children; that said Ruth Harrison died leaving no children; that Charles Jerman died intestate May 22, 1941, leaving his one-fourth interest in said premises to his surviving spouse, Olive Jerman and his only heir, Evelyn Jerman his daughter, each a one-eighth interest therein; that Richard Jerman died testate, May 17, 1949, leaving his one-fourth interest in said premises, by his will, to his surviving spouse, Lola E. Jerman; and that the plaintiff, Nettie Elliott, was seized of an undivided one-fourth interest in said premises,

On December 30, 1952, Olive Jerman filed a motion that she and Lola E. Jerman be made parties defendant in the instant case, and on said date said Olive Jerman tendered her answer and cross-petition, duly verified, setting upon substantially the same facts contained in the aforesaid petition to vacate the judgment heretofore set forth herein.

The plaintiff does not contravert any of the sworn facts set forth in the aforesaid petition to vacate the judgment heretofore rendered herein.

It seems to be admitted by all the parties concerned that the purchase price has not been paid to the Sheriff and that the Sheri® has not delivered a deed to the purchaser for said premises.

On February 7, 1953, the plaintiff- filed a motion to strike from the files of this case the aforesaid petition to vacate the judgment -heretofore rendered herein, the tendered answer, cross-petition and motion of Olive Jerman to be made a party herein. Also on February 7, 1953, the plaintiff filed a motion to amend the entry of confirmation and distribution, filed March 27, 1952, in case No. 179,721, to show that said entry was filed in Case No. 183,770, being the instant case.

In other words, plaintiff seeks to be relieved of her mistake in filing the Entry of Confirmation and Distribution in the wrong case on the dockets of this Court, while at the same time retaining the benefits of the previous judgment entered in the instant case based upon a mistaken set of facts set up in plaintiff’s petition.

The judgment finds plaintiff seized of an undivided one-third interest in the premises; but the uncontroverted facts set forth in the petition to vacate the judgment, show plaintiff has an undivided one-fourth interest instead.

It is now well settled in Ohio that a partition proceeding is equitable in nature, even under the statutes. Wagner v. Armstrong, 93 Oh St 443.

“It may be regarded as a universal rule governing courts of equity in the administration of its remedies that, whatever may be the nature of the relief sought by the plaintiff, the equitable rights of the defendant growing out of or intimately connected with the subject of the controversy in question will be protected; and for this purpose the plaintiff will be required as a condition to his obtaining the relief which he asks, to acknowledge, admit, provide for, secure, or allow whatever equitable rights (if any) the defendant may have, and to that end the court will, by its affirmative decree, award to the defendant whatever reliefs may be necessary in order to protect and enforce those rights.”

J. Day in McEntire v. McEntire, 107 Oh St 510, 524, quoting from Pomeroy’s Equity Jurisprudence, 4th Ed. Section 388.

“The maxim which declares this important and far reaching policy, ‘he who seeks equity must do equity,’ * * * expresses a cardinal principle, and is one of the oldest in equity jurisprudence. It is of most extensive application, being applicable to all classes of cases whenever necessary to promote justice.”

McEntire v. McEntire, supra, 524; 16 O. Jur. p. 128.

“A party appealing to a court of equity must make a case which can commend itself to the conscience of the Court.” Kellog v. Ely, 15 Oh St 64, 66.
“A more legal right in the plaintiff will hot move the chancellor.”

Parsons v. Ohio Pail Co., 6 C. C. (n. s.) 116, 120, affirmed 74 Oh St 464, without opinion.

The judgment declares that the defendant, Evelyn Jerman, has an undivided one-third interest in the premises while the uncontroverted facts disclose that she has an undivided three-eights interest therein. It would be harsh treatment to cheat this defendant out of part of her just rights, while relieving the plaintiff of her mistakes.

“A court of equity sits as a court of conscience and will never grant ‘relief’ when it is unconscionable to do so, even though the plaintiff may show a legal right thereto.”

Parsons v. Ohio Pail Co., supra.

The defendant, Evelyn Jerman, was also the purchaser, and certainly, under the present state of the record, the Sheriff’s deed would not convey a marketable title.

“The doctrine of caveat emptor applies to judicial sales of property in partition proceedings,”

30 O. Jur., Section 105, p. 926.

“this does not mean that, before confirmation, a purchaser may not be relieved from taking real estate purchased by him at such sale, if there be a question of the marketability of the title.”

30 O. Jur., Section 106, p. 926; Osterfield v. Grimminger, 12 N. P. (N. S.) 332; Mechanics S., B. & L. Ass’n v. O’Connor, 29 Oh St 651; The Gale Realty Co. v. Cook, 32 Oh Ap 22.

Furthermore, the judgment recognizes an undivided one-eighth interest in each of the defendants, Beatrice Weishaup and Harold Jerman, while the undisputed facts indicate they have no interest in the premises, and to their credit, neither of them has asserted any claim thereto. Surely, a Court of Equity has the duty of protecting the proceeds of the sale from being dissipated by paying any part thereof to persons not entitled thereto.

The undisputed facts show that Olive Jerman has an undivided one-eighth interest and Lolo E. Jerman an undivided one-fourth interest in the premises, yet neither of them were made parties to the suit and each of them is ignored in the judgment. It is not enough to distribute to them their pro rata share of the proceeds of the alleged sale already made.

“The right to elect (to take at appraised value when property cannot be divided) does not abide alone in one co-tenant, but any one or more of the cotenants has the same right. They stand as equals in relation to that right, * *

30 O. Jur., Sec. 83, p. 908.

All persons interested in a partition must be made parties. Stout v. Stout, 82 Oh St 358.

“Equity delights in equality.”—Durbin v. Barber, 14 Ohio 311, 315; Hartwell v. Smith, 15 Oh St 300.

Olive Jerman and Lola E. Jerman, due to the fault of the plaintiff, have been denied the equal opportunity and right with other cotenants, to elect to take said premises at its appraised value, due to the failure of the plaintiff to make them parties to said partition suit.

“The disposition to avoid curcuity of action and multiplicity of suits induces a court of equity which has once assumed jurisdiction of a cause on any equitable ground to take cognizance of and determine all phases of the subject matter in controversy, and to retain jurisdiction until these are completely disposed of, though this may involve the determination of legal issues and the granting of legal remedies. On this principle, often expressed in the maxim ‘equity delights to do justice, and not by halves,’ the ultimate equitable relief indicated by the facts pleaded and found will be awarded, though primary relief of another character may be the principal object of the suit.”

16 O. Jur., Sec. 34, p. 88; 30 O. Jur., Partition, Sec. 56, p. 887. Stout v. Stout, 82 Oh St 358; Southward v. Jamison, 66 Oh St 290.

It is, therefore, the order of the Court that the decree filed January 4, 1952, fixing the interest of the parties; the writ of Partition and all action thereunder; the decree of the Court filed February 7, 1952, confirming the report of the commissioners and ordering the sale of said real estate; and the alleged sale of said real estate-share, each and all, be set aside and held for naught.

It is the further order of the Court, that Olive Jerman and Lola E. Jerman be made parties defendant herein, that summons issue and be served upon said Lola E. Jerman with leave to answer herein, that the tendered answer and cross-petition of Olive Jerman be deemed filed herein, that the petition by defendant, Evelyn Jerman and Olive Jerman, dated December 30, 1952, be deemed filed.

It is further ordered by the Court tjaat the motion of plaintiff, filed February 7, 1953, to strike certain papers from the files, be overruled; and the Court further orders that the motion of plaintiff, filed February 7, 1953, to amend the entry of confirmation and distribution filed March 27, 1952, in case No. 179,721, to show that said entry was filed in case No. 183770, being the instant case, be and the same is hereby overruled.

Entry to be drawn accordingly.

Plaintiff may have her exceptions.


author: By SKEEL, J.: By HURD, PJ,

text:
    BOWLES, Estate of, In re, Plaintiff-Appellee, v. HEIRS OF SUSAN HARKNESS BOWLES et al, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22564.
    Decided August 24, 1953.

      T. G. Thompson, Baker, Hostetler & Patterson, Cleveland, Amerman, McHenry, Jones & Morgan, Canton, for plaintiffs-appellants.
    Pickrel, Schaeffer & Ebeling, Dayton, Sayre, Vail & Steele, Klein, Diehm & Farber, Cleveland, William A. Finn, Toledo, for defendants-appellees.
   OPINION

By SKEEL, J.:

This appeal comes to this court on questions of law from a judgment or final order of the probate court of Cuyahoga Ceunty, refusing to admit to probate the alleged lost last will and testament and the original codicil of Susan Harkness Bowles. The application signed by Charles A. Morgan sets forth in part that Susan Harkness Bowles, a resident of Cuyahoga County, died November 17,1951. At the time of her death, she was a ward of the probate court, this applicant having been appointed guardian of her person and estate on September 15, 1950, it being found by the court that $he was then an incompetent person. It is further alleged that on November 9, 1946, the deceased then being of sound mind and memory executed and published her last will and testament in the manner provided by law; that on August 17, 1948, the .deceased executed a codicil to her last will and testament in which she, except for one change made by the codicil, ratified and confirmed all of the provisions of her said will executed November 9, 1946. That before her death said will, without her knowledge and without any desire or intent on her part to revoke the same, was lost and cannot now be found. A conformed copy of said will and also a copy of the codicil is attached to the application.

It is further alleged that there is no surviving spouse and that the applicant is an interested person, being a legatee under the will. The application then sets forth the names of persons known to the applicant who might be entitled to some interest in the estate, if the deceased died intestate. Thirteen names are set forth, all designated as being cousins of the deceased, it being further alleged that there may be others of which the applicant has no knowledge. The applicant then requested that the provisions of the conformed copy and the codicil be entered for probate as the last will and testament of the deceased.

There are three principal beneficiaries under the will and codicil; Western Reserve University which is to receive under said will the greatest share of the estate, that is the income from the residuum held in trust to establish or support a professorship in the name of John Reynolds Harkness, uncle of the deceased (in whose family Miss Bowles was raised), in the College of Arts & Sciences of the University; Mr. Charles A. Morgan (applicant herein) a bequest of $100,000.00, and Miss Rose Tulley, housekeeper and companion, $100.00 for each year of service while in deceased’s employ, and by the terms of the" codicil an annuity of $400.00 per month during life. There were six other annuities provided for, totalling $1050 per month, as well as a bequest of an amount equal to $100.00 per year for each year of service to the other employees of the testator.

Miss Bowles, during the greater part of her adult life, was the trusted companion of Mrs. Laura Price Briggs, a woman of great wealth. Upon the death of Mrs. Briggs, Miss Bowles became the executrix and trustee under her benefactor’s will and was the recipient of a generous share in the estate. In fact, the greater part of Miss Bowles’ estate came from Mrs. Briggs, that is a legacy of $100,000.00 and the income of the residuary estate amounting to approximately $150,000.00 per year and such income as was derived for her services as executrix and trustee.

Miss Bowles became acquainted with Charles A. Morgan in 1923 in connection with the administration of the Ira A. Price estate (brother of Mrs. Briggs) Mr. Morgan then being an officer in the trust department of the Union Trust Company. After the Union Trust Company closed, Mr. Morgan became a trust officer and assistant vice president of the National City Bank of Cleveland, where he continued his business relations with Miss Bowles in connection with his work for Mrs. Briggs, and, upon the death of Mrs. Briggs in 1941, gave assistance to Miss Bowles in carrying our her duties as executrix and trustee of the Briggs estate. Miss Rose Tulley was employed as housekeeper and personal companion for Miss Bowles in February, 1944, and continued (except for about three months at the beginning of 1945) in that capacity until Miss Bowles’ death in November, 1951.

Mr. T. G. Thompson, a lawyer at the Cuyahoga Bar, represented Miss Bowles in her personal matters and as executrix and trustee of the Briggs estate from 1940 until her death in 1951. In 1946 he was employed to draw her will. Much care was expended in developing a plan for thus disposing of her property. After two or three drafts of a proposed will were gone over with great care, the final draft was then prepared and explained to her and was then executed in Mr. Morgan’s office at the National City Bank.

The will, after being executed as provided by law, with three attesting witnesses, was delivered to Miss Bowles. She also received a conformed copy in an envelope on which Mr. Morgan wrote “Miss Susan H. Bowles, 13515 Shaker Boulevard.” Miss Bowles was instructed that it would be best to put the will in her safe deposit box in the Union Bank of Commerce.

• In August, 1948, Miss Bowles engaged Mr. Thompson to draft a codicil to her will, providing for an annuity to Rose Tulley of $400.00 per month. Miss Tulley had then been in her services for over four years. The codicil ratified and affirmed all of the other provisions of her last will and testament as executed November 6, 1946.

During May, 1950, Miss Bowles became seriously ill. Her physical and mental condition thereafter is said to have deteriorated gradually so that upon an application being filed to put her under guardianship, the court found her to be an incompetent person and appointed Charles A. Morgan guardian of her estate and person in September, 1950.

Upon appointment as guardian Mr. Morgan, together with Miss Tulley, made a search for the will but could not find it. However, the codicil was found among some of her papers in her apartment at 13515 Shaker Boulevard. When Mr. Morgan got access to the safe deposit box there were no papers of value therein but he discovered the envelope which was given to Miss Bowles by Mr. Morgan and Mr. Thompson the day the will was executed. In the envelope was found the conformed copy of the will as she received it on November 9, 1946 and Miss Bowles had written on the envelope above her name (as written by Mr. Morgan) the words “Last Will” which was underscored by two lines and below her name were the words in her handwriting “Last Will Nov. 9th, 1946.” Upon the death of Miss Bowles a further search was made for the will but it could not then and has not since been found.

Upon trial of the application to probate the last will and testament of Susan Harkness Bowles, dated November 9, 1946, as a last will, it being claimed by the proponents of the will that it was lost during the lifetime of the deceased without her knowledge, the court found that the provisions of said will had been satisfactorily established and that it had been executed as provided by law. The only other justiciable question to be decided on such application was whether or not the deceased before her death had knowledge that the will had been lost, the statute providing that such last will if lost during the lifetime of the deceased, shall be probated if * * * “lack of knowledge of such loss * * * can be proved by clear and convincing testimony. * * *” The court in refusing probate and overruling the application of Western Reserve University to intervene said in part:

“It is presumed that the will which was lost was destroyed by the testator with intention of revoking it and that testimony can be overcome, that presumption can be overcome only by the best kind of evidence. The court didn’t feel that that was presented and I am prepared now to refuse your application to intervene for the reasons that I have indicated.” (Emphasis added.)

The trial of this proceeding began on February 14, 1952. The opponents of the will moved for an exclusion of witness. Miss Tulley (one of the persons interested in having the will probated) was in the court room and when Mr. Morgan, Jr., was asked if he expected to use her as a witness and when he answered that he would, over his objection she was excluded by the court until called to testify.

On the 8th day of April, 1952, after the applicant had submitted his case and briefs were filed both by the applicant and the opponents, Western Reserve University filed a motion seeking the right to intervene and produce additional evidence. After argument the motion to intervene was overruled and the court entered its order refusing to admit the said last will to probate.

Motions for new trial were filed April 18, 1952 by Western Reserve University, Rose Tulley, Charles A. Morgan and Geraldine Hart Brooks and her sister, Dorothy E. Hart (both residents of Warren, Ohio who had not been served with'notice of the proceeding as provided by law) and who were daughters of Helen Reynolds Hart, one of the relatives who was to receive an annuity under the will and in case of her death then her above mentioned daughters were to divide such annuity. Helen Reynolds Hart was a cousin (the record casts doubt as to whether she was a first or second cousin) of Susan Harkness Bowles. Affidavits were filed with these motions, setting forth additional evidence which would be produced to support the contentions of the proponents of the will. Without further hearing, these motions were overruled.

The appellants herein claim the following errors:

1. In refusing to admit to probate the last will and testament of Susan Harkness Bowles.

2. In refusing to admit to probate the original codicil together with a copy of the lost will, incorporated by reference in the codicil.

3. In refusing to admit the original codicil to probate.

4. In excluding Rose Tulley from the hearing Feb. 14, 1952 although she was an interested person in the proceeding.

5. In overruling the serveral motions for new trial.

6. In the rejection of evidence offered on behalf of the proponents of the last will and original codicil.

7. The judgment is against the manifest weight of the evidence.

From the foregoing recital of the facts it is made to appear that there is but one issue of fact to be decided, that is the testator’s lack of knowledge that her will was lost and that the principal legal question is with regard to quantum of proof required to establish such question of fact to permit and require the probate judge to admit the alleged “lost” will (that is lost during the lifetime of the testator) to probate. There is no dispute presented with regard to the provisions of the will or that it was properly executed. Many of the cases cited by the opponents appellees herein are concerned with establishing the contents of an alleged lost or destroyed will, and whether such will was properly executed. They are also concerned with the question of whether the loss occurred before or after the death of the testator.

The case of Cole v. McClure, 88 Oh St 1, 102 N. E. 264, was a will contest case beginning in the common pleas court. The deceased left a surviving spouse (there were no children) who under the claimed will (which was admitted to probate by the probate court) was to receive a life estate in her husband’s property (all land acquired by purchase) and upon her death such property was to pass to the brothers and sisters of the deceased. The only question decided by the court had to do with the degree of proof required to establish the contents of the will and whether such will was still in existence after the testator was declared insane. On these two questions the court said:

2. “To establish a lost or destroyed will the evidence of its execution and its contents must be clear, strong, positive, free from bias and convincing beyond a reasonable doubt.”
3. “Where a will has been lost or destroyed before the death of the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became ‘incapable by reason of insanity to make a will.’ ” (Emphasis added.)

The case of Behrens v. Behrens, 47 Oh St 323, 25 N. E. 209, was also a will contest case. Here again the existence of the alleged lost will after the death of the testator was the question involved. The court stated the issues tried as follows on page 328:

“After his decease, it was discovered that his will had been lost or destroyed, and the question arose, whether the will was lost or destroyed prior or subsequent to the death of the testator, and if before his death, whether or not it was destroyed by the testator himself, with the intention of revoking the same. On the application of George Behrens, the probate court found that the will was not revoked by the testator, but that it had been lost or destroyed subsequent to his death and thereupon established its contents to be as in the alleged copy produced in court and admitted the same to probate.”

The court held: (syllabus)

“1. Where the probate court has found and established the contents of a lost, spoliated or destroyed will, in a future proceeding to contest the validity of such will, the order of probate court will be prima facie evidence of the due attestation, execution, validity and contents of the will, and the burden of proof will be on the contestants to invalidate such will.
“2. When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.
“3. To strengthen such presumption, it is competent to prove the declarations of the testator after making the will, that he had destroyed or intended to destroy the same.” (Emphasis added.)

These cases, and others upon the same subject, do not deal with the question here presented. The statute, as amended in 1932, provides the only way that a will, shown to have been lost during the lifetime of the testator, can, upon satisfactory proof of its contents and that it was properly executed, be probated. Here the court is not concerned with the presumption of revocation. It should be observed that if the deceased did not know of the loss of her will, there could be no presumption of revocation. What the statute provides is that the proponent of a will lost during the lifetime of the testator must show the testator’s lack of knowledge of such loss, by clear and convincing evidence. The degree of proof is therefore fixed by the statute and not the case law dealing with a different subject.

McWilliams v. Central Trust Co., 51 Oh Ap 246, at page 248, 200 N. E. 532.

The lack of knowledge of the loss of a will is, of necessity, a negative fact. The means of proving lack of knowledge must involve the acts and words of the testator and all the surrounding circumstances. It is not to the detriment of the proponent’s case that all or a great part of his evidence is in character circumstantial. The plan of the will, in remembering the persons who, or charities that would be the natural objects of the testator’s bounty, the care with which the will was drawn, the remarks of the testator thereafter that show a continuation of the state of mind of the testator at the time the will was drawn or small changes made in the general plan of the will, by codicils, in which all are relevant in support of the testator’s lack of knowledge of the loss of the will.

The probate court erroneously rejected evidence offered to establish the state of mind of the testator and her regard for those she had remembered in her will. The court also refused to hear evidence tendered by Western Reserve University as shown by the affidavits attached to its motion to intervene, as was equally true of the motions for new trial of Dorothy Hart and Geraldine Hart Brooks. This is an ex parte proceeding. The witnesses must, of necessity, be those called by the proponents of the will. It is just as serious a mistake to take away the right of a person to distribute his property after death by will, which right is provided by law, as it is to attempt to fix the terms of a will differently than those intended by a decedent.

In considering the rejection of competent evidence it is necessary to allude to one of the appellee’s theories (not supported by any evidence) argued as a reason why the will cannot now be found and why the court should invoke the presumption that the testator destroyed it with intent to revoke its provisions. It is argued that after mature reflection, the testator must have concluded that her relatives should be considered as entitled to her estate as against strangers. This contention makes the proffered testimony absolutely relevant. The appellees are not of the immediate family of the deceased. Their relationship is at best in the fourth degree and if we are to take the evidence of the attitude of the deceased to the opponents and the opponents’ attitude toward the deceased at face value, they and the deceased were not compatible, while the evidence which was admitted as to testator’s relationship (both business and social) with the persons remembered in the will, it tended to establish very close friendly relationships. The evidence excluded therefore was directly competent on a vital question to be established in this ex parte proceeding.

As indicated above, the statutory rule is that the lack of knowledge on the part of the testator during her life that her will had been lost, where the claim of the proponents is that such is the fact, is that the proponents must establish such lack of knowledge “by clear and convincing testimony.” The court, at the conclusion of hearing the motion to intervene and in refusing to admit the will and codicil to probate, said as above quoted, that the proponents must establish the testator’s lack of knowledge that the will had been lost, by “the best evidence.” By this, the court unquestionably meant, as contended for by the appellees, that the proponent’s case must be established beyond a reasonable doubt. This is a greater degree of proof than is provided for by statute, and in so holding the court committed prejudicial error against the claims of the proponents.

In the case of Goodale v. Murray, 289 N. W. 450 (Sup. Ct. Iowa, 1940) the 17th headnote provides:

“Although one who seeks to establish lost will should be required to produce evidence that is clear, convincing and satisfactory, yet burden put upon him should not be prohibitive and it is not necessary that presumption of revocation be overcome by evidence that is free from doubt.”

For the foregoing reasons, we must sustain claims of error numbers 4, 5 and 6, that is in overruling the several motions for new trial, in rejecting competent evidence.

One other question must be considered with respect to the motions for new trial of Dorothy Hart and Geraldine Hart Brooks. The record discloses that they were not served with notice of the hearing.

Sec. 10504-36 GC provides:

“When application is made to the probate court to admit to probate a will duly executed and lost, spoliated or destroyed, the party seeking to prove it shall give a written notice to the surviving spouse, and to the next of kin of the testator, if any, known to be resident of the state, and to all persons whose interest it may be to resist the probate, known to reside in the county where the tetator resided at the time of his death, not less than five days before the day on which such proof is to be made, or give notice, by publication in a newspaper printed in the county, not less than thirty days before the day set for hearing such proof.”

Except for the last part of the section providing for either notice or service of publication as to those who are residents of the county and might be interested in resisting the probate of the will, it reads exactly like §10504-17 GC which provides for notice of probate in will cases generally. Prior to the amendment of the Probate Code in 1932, §10504-17 GC was known as §10507 GC and before amended, read:

“No will shall be admitted to probate without notice to the widow or husband and next of kin of the testator, if any, resident in the state in such manner and for such time as the probate court directs.”

In the case of Scholl v. Scholl, 123 Oh St 1, 173 N. E. 305, the court in considering §10507 GC said:

“1. The requirement of §10507 GC, that upon an application for the probate of a will notice shall be given’ to the widow or husband and next of kin of the testator resident of the state, is mandatory and juridictional.
“2. An order of probate of a will without notice to persons entitled to notice under the provisions of §10507 GC, and without waiver by such persons, is void and is subject to direct attack by those who neither received notice nor waived service of notice.
“3. Mere knowledge of the death of the decedent and subsequent information of the order of probate will not estop such next of kin from attacking the order of probate, where it is not shown that the proponents of the will were misled by silence or delay, or that they were prejudiced thereby.”

See also, Young v. Guella, et al, 67 Oh Ap 11, 35 N. E, 997, where the court said:

“1. An order of the probate court admitting a will to probate made without the service of notice upon the next of kin resident in this state, as required by §10504-17 GC, and without waiver thereof, is void.
“2. The fact that a person aggrieved by such order could obtain relief in the probate court by virtue of statutory provisions, does not preclude such person from recourse to a court of general equity jurisdiction by original action, to have such order declared to be void.
“3. The grant of a limited equity jurisdiction to the probate court, under the provisions of §10501-53 and 10501-17 GC does not oust the court of common pleas from its original equity jurisdiction to declare void the judgments and orders of the probate court for lack of jurisdiction.”

We hold that the amendment of the statute by adding the words “known to be” before the words, “resident of the state” did not relieve the court from requiring notice to the next of kin of the testator, who were then residents oí the state of Ohio. Whether the Hart sisters were, in fact, next of kin, was a question of fact which when presented to the court on the motions for new trial, should have been determined or a new trial granted so that such question could have been thus judicially determined. If they were next of kin and not served with notice, the court would have been without jurisdiction. In any event, they were interested parties and should have been brought into the case as was equally true of Western Reserve University.

The circumstance that the judgment of the court refusing to probate the alleged lost last will and testament of Susan Harkness Bowles, upon the application of Charles A. Morgan, would not preclude other interested parties who were not made parties to such proceeding and were without notice, from themselves and on their behalf, presenting the same will for probate.

In the case of Feuchter v. Keyl, 48 Oh St 357, 27 N. E. 860, the court said in paragraph 2 of the syllabus:

“2. Where admission of a will to probate has been refused by the probate court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the court of common pleas from the order of refusal are not concluded thereby and may repropound the will notwithstanding the former order of refusal has not been vacated.”

The statute giving the right to appeal to the common pleas court has been repealed but the rule of the case still stands and therefore it would serve both the ends of justice and prevent a multiplicity of lawsuits, to let all interested parties into the original action.

At the beginning of the trial, Rose Tulley, who was an interested party, as was self-evident both by the will and the codicil then before the court, was excluded from the court room by order of the court. She was not then represented by counsel. To thus exclude an interested party constituted error for which the judgment entered must be reversed.

Claim of error No. 2, has to do with the refusal of the court to probate the conformed copy of the will, and the original codicil, on the theory that the codicil brought into its provisions by reference the provisions of the original will. A reading of the codicil does not support this contention. What the codicil provides for is an annuity for Rose Tulley as an item not contained in but to be in addition to the provisions of the will as executed Nov. 9, 1946, the annuity to be paid out of the income from a trust fund created by the will. The operation of the only donative provision of the codicil is solely and totally dependent upon the effectiveness of the will. There is clearly no intent on the part of the testator to create a new will as of the date of the codicil. She believed her will was then in existence. The appellees agree that this is so. There could be no purpose, therefore, to create a new will by drawing into the codicil by reference the conformed copy of the will found in her safe deposit box. The executing of the codicil is almost irrefutable evidence that on the date of its execution, the testator believed the original will to be in existence and if it had been lost the testator did not know it. To attempt to show that the execution of the codicil created a new will by reaffirming the old, would be inconsistent. This claim of error must be overruled.

The facts as above set forth disclose that while the will could not be found upon search either at the time of the appointment of the guardian September 15, 1950, or after the death of the testator, November 17, 1951, the codicil executed as provided by law was found among the papers of the deceased shortly after the guardian was appointed. It is therefore claimed that since the will which was in existence when the codicil was executed and such codicil republished the will in its entirety, if the will was destroyed' thereafter with intent to revoke it without a destruction of the codicil, the provisions of §10504-47 GC which does not permit a partial revocation of a will would be applicable. It is upon this basis that it is contended that the destruction of a will without the destruction of the codicil would not constitute a revocation of the will.

Appellants rely on the case of Coghlin v. Coghlin, 79 Oh St 71. There the testator tore out one page of the original will which was recovered by a son and pasted together by the testator’s wife and replaced in the will. The testator then took the will to his lawyer with the restored page and talked to him about executors and their compensation. One of the items on the torn page dealt with the appointment of the executor, with which subject he was not fully satisfied. A codicil changing this term of the will was drawn but not signed. The court held:

“1. In the contest of the validity of a will which has been admitted to probate, the ground of contest being that the testator in his life time had destroyed the will with the intention of revoking it, the allegation that the will was revoked is not sustained by evidence showing that the testator removed from the instrument and tore one of its several pages leaving the will otherwise intact and evincing an intention to preserve it.
“2. In such case, for the purpose of showing the intent with which the page had been removed, it is competent to show that after it has been restored the testator regarded the instrument as his will. Behrens v. Behrens, 47 Oh St 323, approved and followed.”

On page 76 the court says:

“We recognize fully that there can be no partial revocation. And if a portion only of a will be erased or canceled with intent to revoke that part only but not with intent to revoke the whole will, the act will be ineffective, and if the canceled part can be restored or is legible the will should be admitted, including the canceled portion, as a valid part of the will. ‘The ultimate question therefore is, — Did Dennis Coghlin intend to revoke only that part of the will which he tore up and threw in the wastebasket? Or did he intend to revoke the will as a whole? But in considering the pertinency of Mr. Waite’s testimony, it becomes necessary to consider the relation of the part torn out to the balance of the will.’ ”

The facts of the Coghlin case are to be distinguished from the facts of the case now being considered, in this that in the Coghlin case only one page of the will was disturbed which fact was immediately known, it being clear from the evidence that there was no intention on the part of the testator to revoke his will in its entirety. All he wanted to do was to take out one provision. In the case before us, the original will in its entirety is missing. All that can now be found is a codicil, the provisions of which cannot be carried out without the help of the provisions of the will creating the trust from which the annuity provided for there is to be paid. If it could be said, which claim the appellants deny in the basic part of this appeal, that the testatrix did dipose of the will with intent to revoke it, such act would also be conclusive as to the codicil which is completely dependent upon the will for its effectiveness. We must conclude, therefore, that this claim of error is not well taken.

The majority of the court also find that, upon a full and complete consideration of all of the evidence, a finding that the proponents of the will have not shown the testator’s lack of knowledge that her will had been lost during her lifetime by clear and convincing proof is erroneous and prejudicial to their rights and the claim of error that the judgment of the court refusing to probate the will is against the manifest weight of the evidence is sustained.

The last claim of error is that even though the trial court correctly held that the original will should not be probated for failure of the proponents to establish the testatrix’s- lack of knowledge of the loss of her will by clear and convincing proof, yet the court should have probated the properly executed codicil as a partial testamentary disposition of the deceased’s property. Here again, we must conclude that the codicil is so dependent on the will that it cannot be probated separate and apart from the will for the reasons above set forth.

For the reasons above set forth, the order of the probate court refusing to probate the alleged lost last will and testament and original codicil of Susan Harkness Bowles, is reversed and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

KOVACHY, J, concurs.

HURD, PJ, concurs in part — Dissents in part.

CONCURRING AND DISSENTING OPINION

By HURD, PJ,

concurring in part and dissenting in part:

I dissent from the opinion and judgment of the majority of the court in their reversal of the judgment of Probate Court on the asserted ground that said judgment is contrary to the manifest weight of the evidence.

Since a majority of the court may reverse on the weight of the evidence in a case tried to the court without the intervention of a jury thus requiring a new trial of the issues of fact, I see no advantage in a detailed discussion of the evidence at this time. However, as I am not in accord with the majority with respect to the principles of law applicable to this issue, I deem it appropriate to express briefly my views referring only to. so much of the evidence as may be necessary to point up the issue of law involved.

I cannot concur in the view expressed in the majority opinion that we are not here concerned with the presumption of revocation, and that the 1932 amendments of §§10504-35 and 10504-38 GC had the effect of changing the rule of law with respect to the presumption of destruction of the will by the testatrix animo revocandi as applied to the facts and circumstances of the present ease.

The statute law of Ohio relating to the probate of lost, destroyed of spoliated wills is contained in §§10504-35 to 10504-40 inclusive, GC, all as amended effective January 1, 1932.

Secs. 10504-35 and 10504-38 GC, which are particularly pertinent to the issues in the present case read as follows:

“Sec. 10504-35 GC. Lost, Spoliated or Destroyed Wills May Be Admitted To Probate. The probate court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of such testator if testator’s lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate.” (Emphasis added.)
“Sec. 10504-38 GC. Lost or Spoliated Wills May Be Probated, How. If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid, or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony'taken in the case to be recorded in such court.”

These sections are similar to former §§10543 and 10546 GC, respectively. The new portion which is identical in each section reads, “or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony.” These quoted words of the sections as amended are tantamount to saying that clear and convincing evidence is required to show that the testator did not lose or destroy the will with the intention of revoking it,i but the legal presumption that he did so is not thereby destroyed, but remains until overcome by proof to the contrary. It may be argued that the prevailing presumption and the applicable statutes place a great burden upon the proponents of lost, destroyed, or spoliated wills, but in this connection it is well to observe that prior to the amendments of 1932 there was no provision at all in Ohio, statutory or otherwise, for the probate of a will that had been lost, destroyed or spoliated during the life of the testator.

Considering the evidence pertinent to this issue, it is undisputed that, following the execution of her will by the testatrix on November 9, 1946, it was taken by her into her sole custody and control and so remained for some period of time, the length thereof being uncertain. But, at her death November 17, 1951, the will could not be found. In fact, so far as the record before us discloses, it was never again seen by any person other than the testatrix. The evidence further shows that a guardian was appointed for the testatrix on or about September 15, 1950, and continued to act in that capacity until her death. But, neither the guardian nor any other person has been able to discover the original duly executed will although an unsigned copy thereof has been found.

It is well settled in Ohio that when a will once known to exist and to be in the custody of the testator cannot be found after his decease, a legal presumption arises that it was destroyed by the testator with the intention of revoking it. See second- syllabus, of Behrens v. Behrens, 47 Oh St 323, 25 N. E. 209, 21 Am. St. Rep. 820. See also, Cole v. McClure, 88 Oh St 1, 102 N. E. 264 and the recent case of In re Estate of Tyler, 159 Oh St 492. See also, 41 O. Jur. Wills, Section 256, pages 425-426, and other Ohio cases there cited.

This presumption of law is not only well settled in Ohio, but is in accord with the overwhelming weight of authority in other jurisdictions. See 57 Am. Jur. Wills, Section 549, pages 377-378, and supporting authorities there listed too numerous to cite here at length.

In the case of In re Estate of Tyler, 159 Oh St 492, decided May 27, 1953, our Supreme Court once again had occasion to construe the sections of the General Code relating to the probate of lost, spoliated or destroyed wills. It should be emphasized, I think, that the Tyler case was decided some twenty-one years after the 1932 amendments to the code sections here cited and quoted. Nevertheless, the Supreme Court in that case reaffirmed the doctrine of presumptive revocation enunciated in Behrens v. Behrens and Cole v. McClure, supra. (See pages 497-498 and 502 of In re Estate of Tyler.) In the Tyler case, Judge Stewart, in an opinion speaking for a unanimous court, quoted verbatim §§10504-35, 10504-36, 10504-37 and 10504-38 GC, all as amended effective January 1, 1932, after which, as shown at pages 497 and 498, he quoted the entire syllabus of Cole v. McClure, supra. For the purposes of this discussion, I quote only paragraph 3 of the syllabus which reads as follows:

“3. Where a will has been lost or destroyed before the death of the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became ‘incapable by reason of insanity to make a will.’ ” (Emphasis added.)

Judge Stewart then declared at page 498 as follows:

“The same rule applies with reference to a will which has not been lost or destroyed but has been mutilated, even though it is proved, as it was in this case, that decedent properly executed it.”

The opinion also quotes with approval from 57 Am. Juris. 378, Sec. 550. I quote only a part thereof as follows:

“It would be inconsistent to hold that a total absence of the instrument sought to be probated raises a presumption that the testator destroyed it with intent to revoke it, and to refuse to hold that the production of a mutilated instruction, shown to have been in the possession of the testator, cannot raise a presumption that the mutilation was done by the testator with intent to revoke the will.” (Emphasis added.)

From these authoritative decisions, I conclude that, since the original will was in the sole custody and control of the testatrix from the time of its execution and could not be found at her death, there is a legal presumption that she destroyed it with the intention of revoking it.- This presumption of revocation is, of coure, not conclusive, but may be overcome by circumstantial or other proof to the contrary. Behrens v. Behrens (supra). See also, Hutson v. Hartley, 72 Oh St 262. Therefore, under the issues of this case, the burden is cast upon the proponents to produce evidence sufficient to overcome the presumption of destruction by the testatrix animo revocandi and to show by clear and convincing testimony that the original will was lost or destroyed before her death without her knowledge.

I need not here discuss the jurisdictional limitations imposed by law upon the Courts of Appeals of Ohio in reversing judgments of trial courts upon the weight of the evidence. Suffice it to state that a judgment of the trial court must be manifestly against the weight of the evidence to justify a reversal on that ground. This is particularly true where the law requires a higher quality and quantity of evidence than is sufficient in ordinary cases to support a judgment by the preponderance of evidence. (See Cole v. McClure, supra, syllabus one, approving Ford v. Osborne, 45 Oh St 1.)

Considering the prevailing presumption and the applicable statutes and the evidence now before us for review, I cannot find that the judgment of Probate Court should be reversed on the ground that it is contrary to the manifest weight of the evidence, and, for this reason, must register my dissent.

I concur in the judgment of reversal in respect to the following assignments of error:

“IV. The Probate Court erred in excluding Rose Tulley from the hearing of February 14, 1952 on the application to probate the will and codicil. Being an interested party and a proponent, she was entitled to be present as a matter of right.
“V. The Probate Court erred in denying the motion of the appellant, Western Reserve University, to intervene and present additional evidence. In view of the interest of the appellant as a principal beneficiary and the fact that the application was made prior to the entry of the court’s decision, the motion should have been granted and the appellant allowed to present additional evidence as a proponent of the will.
“VIII. It appears from the evidence that the appellants, Geraldine Hart Brooks and Dorothy E. Hart, sisters, are cousins of decedent, who were not served with notice or summons as were thirteen other cousins as shown on the face of the record. The issue of whether they were next of kin should have been determined by the court.
“VI, VII and IX. In consideration of all of the foregoing, the motions of the several appellants for a new trial should have been granted for the reasons generally and more fully set forth in the majority opinion.”


author: By THE COURT.

text:
    PATTON, Plaintiff-Appellant, v. HAGANS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4575.
    Decided May 9, 1951.
    John M. Scott, Columbus, for appellant.
    Lucas & Lucas, Columbus, for appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal on questions of law and fact for the reason that it is not a chancery case, being an action for services rendered. The motion will be sustained, but the cause will be retained for determination on questions of law only. Leave is granted to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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


text:
    LAYMON (Mae), Plaintiff-Appellant, v. HAGANS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4576.
    Decided May 9, 1951.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal on questions of law and fact for the reason that it is not a chancery case, being an action for services rendered. The motion will be sustained, but the cause will be retained for determination on questions of law only. Leave is granted to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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