author: By ALLEN, Circuit Judge.

text:
    KNOLLMAN et v. UNITED STATES.
    United States Court of Appeals Sixth Circuit.
    No. 11969.
    Decided June 11, 1954.

      Lucien G. Strauss, Eugene P. Ruehlmann, Orville A. Troy, Strauss, Troy & Ruehlmann, Cincinnati, on brief, for appellants.
    John C. Harrington, Perry W. Morton, Roger P. Marquis, Washington, D. C., Ewing E. Wright, Osgood, Ind., for appellee.
    Before ALLEN, Circuit Judge, GOURLEY and STARR, District Judges.
   OPINION

By ALLEN, Circuit Judge.

In these consolidated cases three contiguous parcels of land aggregating over 450 acres situated in Crosby Township, Hamilton County, Ohio, some eight miles northwest of the corporation line of Cincinnati, were sought to be taken in condemnation by the government. The following sums estimated to be due as just compensation were deposited in court by the government: $53,250 to defendants Fuchs; $65,000 to defendants Irwin; and $72,000 to defendant Knollman. The jury in separate verdicts awarded $39,448 to defendants Fuchs, $60,643 to defendants Irwin, and $51,993 to defendant Knollman. Under authority of the District-Court the defendants prior to trial had drawn and received from the government’s deposits in court, sums in excess of the verdicts awarded, and deficiency judgments for such excess withdrawals were entered after the trial, against defendants Fuchs ($12,687.27), against defendants Irwin ($3,967.84), and against defendant Knollman ($18,812.05).

The principal issue in the case was whether this land, which had been used in operating three successful farms, had an enhanced value because of a reasonable probable demand for such land for industrial purposes. Olson v. United States, 292 U. S. 246, 255, 54 S. Ct. 704, 78 L. Ed. 1236; United States ex rel. Tennessee Valley Authority v. Powelson, 319 U. S. 266, 63 S. Ct. 1047, 87 L. Ed. 1390; McCandless v. United States, 298 U. S. 342, 56 S. Ct. 764, 80 L. Ed. 1205; Boom Co v. Patterson, 8 Otto 403, 98 U. S. 403, 25 L. Ed. 206. Defendants endeavored to show that, while 12,000 acres remained available in Hamilton County, it was mostly in small tracts unsuitable for industrial use because of lack of proper water supply or some other physical characteristic. In the Little Miami Valley, for instance, there were gravel pits, which would have to be filled before the land could be so used. These facts were sought to be shown as evidence that the property was “needed or likely to be needed in the reasonably near future” for industrial purposes. Olson v. United States, supra [292 U. S. 246, 54 S. Ct. 708.] The court restricted defendants to the small area of Crosby Township and would not permit them to show the claimed lack of available industrial land in Hamilton County, or other circumstances within the economic unit of the Greater Cincinnati area tending to show that the prospect of demand for industrial use had increased the market value of these tracts. The court sharply limited proffers to show such facts. It would not permit a proffer on this point after sustaining an objection to a question as to whether defendants’ expert knew of other industrial purchases in the area near Crosby Township in a time generally close to the taking. When counsel said “May I proffer?” the court said, “We have got enough proffers in there to last a long time. Next question.” The court would not permit a proffer showing the qualifications of defendants’ expert witness as to water problems. These proffers related to material and relevant evidence. It was error to exclude them. 64 C. J., Note 97 and cases cited.

On this phase of the case prejudicial error existed. The Greater Cincinnati area is the economic unit of Hamilton County within which operates the law of supply and demand so important on the question of market value. This law does not cease operating at the boundary of a township. We take judicial notice of the rapid industrial development within Hamilton County during and since the Second World War. It is the center of the national machine tool industry and recent extension of industry into the northwest areas of the county is a matter of common knowledge. The evidence with reference to lack of land in the area suitable for industrial purposes is directly relevant upon the crucial issue of probable demand for land such as that of defendants within the reasonably near future.

For the same reason it was reversible error to exclude evidence of recent sales of comparable land within the Greater Cincinnati area but outside Crosby Township. This is the established method of proving demand for such land for industrial purposes in the reasonably near future. Lewis on Eminent Domain, Third Edition, Vol. II, §662; 18 Am. Jur. 994, 995. The error was prejudicial and was strongly emphasized when the court admitted evidence offered by the government of two recent sales of land not only outside Crosby Township but outside Hamilton County. One of these was a sale of 31 acres at less than $300 per acre; the other of a 68 acre tract at less than $200 per acre. Testimony as to such prices paid for land at about the time and in the vicinity was plainly prejudicial to the defendants, who made repeated objection. They had had no opportunity to prove other recent sales of similar land made in the vicinity at much higher prices.

In view of the exclusion of defendants’ offered testimony with reference to sales of the same kind upon the ground that they were not within Crosby Township, the admission of this testimony on behalf of the government was discriminatory. It was not only reversible error but also an abuse of discretion. Moreover, it is a fair inference that the court recognized, when it admitted testimony of these sales outside Crosby Township on behalf of the government, that the proper test of admissibility in such cases is not the political dividing line, be it township or county. The distinction made by the court was unrealistic and unworkable, and in fact the court so held when it allowed testimony as to the sale of the Ervan property on the ground that it was 1,000 feet from Crosby Township although in a different township and county. The proper test is the similarity in character and locality of the land sold, together with the fact that the sale was not so far removed in point of time from the appropriation as to make a comparison inaccurate or impossible. The sale must have been not compulsory and made on a free and open market. 18 Am. Jur. 994, 995. These features will vary as the particular situation varies. On the point of similarity in character and locality, obviously if part of an allottment is condemned, sales, in order to be evidence of market value, should be of lots either within the immediate vicinity or very close. But when large areas of open country are involved, similarity of character and locality depends not upon mere propinquity. Benham v. Dunbar, 103 Mass. 365, 369. The character of such land situated several miles from land condemned may well be more comparable than that within a few hundred feet. This is a question to be decided in the first instance and in his discretion by the trial court. Jones v. United States, 258 U. S. 40, 48 — 49, 42 S. Ct. 218, 66 L. Ed. 453; Fain v. United States, 6 Cir., 145 P. 2d 956, 958. But here we think discretion was not exercised. Defendants should have been permitted to prove the case presented in their proffers without being restricted to Crosby Township. Whether the land which defendants sought to compare was within 2,000 feet or 8 miles from the tracts in controversy went to the weight rather than to the competency of the evidence. The trial court, when it admitted evidence on behalf of the government as to sales outside Crosby Township, should have reopened the case and permitted defendants to present evidence along the lines previously excluded. This should have included the evidence proffered as to subsequent connected sales of comparable land in Harrison and Whitewater Townships adjacent to Crosby Township about one year after the taking if shown to have no increment of value due to the project. The court excluded this testimony because the land was not in Crosby Township.

A careful reading and rereading of the record force us to conclude that the trial was not fair to the defendants.

No error is assigned to the charge. Other assignments of error have been considered but we deem it unnecessary to discuss them. As to certain claimed errors defendants did not properly preserve their record

The judgment of the District Court is reversed and the case is remanded for new trial in accordance with this opinion.

       The landowners will be denominated defendants throughout this opinion.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    STATE, ex rel. NEVINS, Petitioner, v. ECKLE, Warden, Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 200.
    Decided November 8, 1955.
    Cecile J. Shapiro, Columbus, for petitioner.
    Hon. C. William O’Neill, Atty. Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus wherein the petitioner alleges that he is being unlawfully restrained of his liberty in the London Prison Farm by the respondent herein, who is Warden of said institution.

The record reveals that the petitioner was indicted by the Franklin County grand jury at the January Term, 1939 for the offense of defrauding an innkeeper; that on January 25, 1939, he was sentenced to the Ohio Penitentiary and ordered to stand committed until discharged according to law; that he was received in said institution on January 28, 1939, where he remained until November 22, 1939, when he was transferred to the London Prison Farm; that on February 15, 1940 he was released on parole and on April 4, 1941, he was declared to be a parole violator; that on July 30, 1941, he was being held in Atlanta, Georgia, pursuant to a warrant filed by the State of Ohio; that on said date he was released upon receipt of the following letter from the Division of Probation and Parole:

“Mr. J. M. Mount

“Chief Deputy Sheriff

“Sheriff’s Office, Fulton County

“Atlanta, Georgia

Re: A. J. Nevins

No. 75,063-8039 LPF

“Dear Sir:

“I have your letter of July 25, 1941 in regard to the above named subject and wish to state that since writing you we find that our funds for returning parole violators are at a very low ebb at this time, and even though he was to be apprehended and held for us, we would not be able to send for him just now.

“We, therefore, feel it would be best to give you this information and to ask you not to apprehend him at this time. We feel that since subject has relatives here in Ohio that eventually he will be coming back this way.

“Thanking you for your very fine cooperation and assuring you of ours at all times, I am

Very truly yours,

DIVISION OF PROBATION AND PAROLE

(Signed) William K. Mackey, Chief.”

It appears further that on November 13, 1941, the petitioner was restored to parole while still at large; that on May 21, 1954, he was again declared to be a parole violator and returned to the London Prison Farm on April 28, 1955.

The question presented is whether the petitioner has served the maximum term of five years in accordance with the provisions of §13131 GC. The answer to the same appears to depend on whether the prisoner’s time began to run again when he was arrested in Atlanta, Georgia, on July 30, 1941, and if so, he was entitled to credit for time served until he was again declared a parole violator on May 21, 1954. It is apparent that if he is entitled to this credit he has served more than the maximum term of five years and would therefore be entitled to a discharge. The law controlling this factual situation is found in §2209-20 GC (now §2965.21 R. C.), which became effective on May 3, 1939 and was re-enacted on November 1, 1953. The pertinent part of this section provides:

,<* * * jn case 0f an escaped prisoner, or a convict, prisoner or other person who has been declared a violator, the time from the date of his escape or of the declared violation of his pardon or parole to the date of his arrest or return shall not be counted as a part of time or sentence served.”

It will be noted that under this section the prisoner is not entitled to credit for time served from the day he was declared to be a parole violator, to wit, April 4, 1941, to the time of his arrest for being a parole violator in Atlanta, Georgia, on July 30, 1941. We are of the opinion that under the statute his time began to run again on the latter date.

In the case of Weber v. Alvis, Warden, 89 Oh Ap 533, this Court held that the time did not run from the date of the declared violation of parole until the return of the prisoner, but this case was decided upon a prior statute, §2211-9 GC, which provided,

“In the case of an escaped prisoner or a prisoner who has been declared a parole violator, the time from the date of his escape or his declared violation of parole or pardon to the date of his return shall not be counted as a part of the time or sentence served.” (Emphasis ours.)

It will be observed that in this section no mention is made concerning the date of arrest upon the violation charge as is found in §2965.21 R. C. The petitioner has cited the case of Colin v. Bannon, 337 Mich. 491, 60 N. W. 2d, 491, which supports our conclusion but the facts differed in that in the cited case there was no statute involved similar to §2209-20 GC.

It is our conclusion that the petitioner has served the maximum sentence under §13131 GC and should be discharged. The writ is allowed.

HORNBECK, J, concurs.

WISEMAN, J, not participating.


author: By LOVE, J:

text:
    EDGETER, Plaintiff, v. KEMPER, Exr., Defendant.
    Probate Court, Montgomery County.
    No. 126833.
    Decided November 9, 1955.

      Altick & McDaniel, for plaintiff.
    Fred E. Hershey, for executor.
    Hugh K. Martin, United States Atty., James E. Rambo, Asst. United States Atty.
    C. William O’Neill, Atty Geni., Ralph Klapp, Asst. Atty. Geni.
   OPINION

By LOVE, J:

This matter is before the Court on a petition filed by Helen J. Edgeter for the construction of the will of George C. Edgeter, deceased, the intervening petition of the United States of America, the entries of appearance to said intervening petition, the answer and entry of appearance of the Attorney General of Ohio, the evidence, and briefs of counsel.

The petition filed on the 4th day of September, 1953, recites that the action is brought in accordance with the provisions of §10504-67 GO (§2107.46 R. C.), for the reason that the Executor was requested to bring said action and failed for more than thirty days to do so. Frank G Kemper, Executor of the estate of George C. Edegter, deceased, is named a defendant. Subsequently the United States of America, by direction of the Attorney General and authorization of the Secretary of Interior, filed a motion for leave to intervene which was granted; and the intervening petition was thereupon filed and service duly given or waived. Thereafter, at the suggestion of the Court and with the consent of counsel, the Attorney General of the State of Ohio was made a party defendant and filed an answer in the cause submitting himself to the jurisdiction of this Court.

George C. Edgeter died on the 21st day of December, 1950, leaving the Plaintiff, Helen J. Edgeter, his sister and his sole heir-at-law. In Items 5, 6, and 8 of his last will and testament the testator provided as follows:

“Item 5. I will devise and bequeath all of the remainder of my property both real and personal, wheresoever situate, to The United States of America for a permanent fund, the interest of said fund to be used for the relief of the various Tribes of Indigent American Indians of the United States of America. I suggest that the amount realized from my property, as herein provided, be invested in United States Government Securities.
“Item 6. In the event that the United States of America should refuse to accept my gift as herein provided, I direct and empower the Executor of this my will, to turn over the remainder of my property to a responsible Institution, preferably a National Bank, with an agreement and instructions, that the remainder of my property as herein provided, will be invested in United States Government Bonds and the interest from said gift be applied for the sole benefit of indigent American Indians and as provided in Item 5.
“Item 8. I will and direct that the sister Helen J. Edgeter, shall not receive one cent from my estate, on account of having made my life miserable for the past 25 years, interfering with my personal affairs and insisting on living in my house contrary to my wishes and therefore is not entitled to any consideration from me.”

The Plaintiff by her petition and in her brief contends:

1. That the United States of America does not have the power to act as trustee under a trust such as the Testator attempted to create.

2. That the Court in exercising its sound discretion should refuse to appoint the United States of America as trustee.

3. That the trust attempted to be created by the Testator is inexpedient, impracticable, and invalid and, since the residue is otherwise undisposed of, it descends to the heir-at-law, Helen J. Edgeter.

4. That Tribes of indigent Indians named as beneficiaries under the will are non-existent.

5. That there is no general charitable intent in the will upon which can be based the doctrine of cy pres.

The United States of America, by its intervening petition, alleges that it has a legal right to accept and administer the gift set forth in Items 5 and 6 of said will and signifies its willingness to accept said gift. In a brief filed in support thereof the Government contends:

1. That the will creates an outright testamentary gift to the United States of an absolute fee of the residuary estate.

2. That in the event the Court determines that a trust exists, the United States of America has the power to act as a trustee.

3. That the Court in exercising its discretion should not refuse to appoint the United States of America as trustee and should relinquish its “investigative jurisdiction” as to said trust.

4. That if a trust exists, it is not impracticable, inexpedient, or uncertain in view of the use of said estate, the purpose to be accomplished, and the class to be benefited.

5. That the will of the testator evidences a general charitable intent and therefore the doctrine of cy pres is applicable.

The Attorney General of the State of Ohio in his brief contends:

1. That the testator devised and bequeathed his residuary estate to the United States of America in trust.

2. That the will creates a valid charitable trust for the benefit of indigent American Indians of the various tribes of the United States.

3. That the United States of America may act as a trustee under the powers of 25 U. S. C. 451 and administer said trust in accordance with the directions of the testator.

4. That in the event the United States of America may not act as a trustee, then an alternative trustee is provided in said will to carry out the direction of the testator.

5. That the trust created is not impossible, impracticable, or illegal and that in the event the trust cannot be carried out as stated, the doctrine of cy pres is applicable.

First, it is necessary to determine whether the testator intended to create a trust or whether he intended to make an unconditional gift to the United States of America free of a trust relationship.

In examining Items 5 and 6 of testator’s will, it is to be noted that testator did not once use the terms “trust” or “trustee.” In Item 6 he did use the words “my gift” in connection with the Government’s refusal to accept it, but both Items must be closely scrutinized to discover what kind of legal relationship testator intended by the language he employed. He provided that the remainder of his property should be given to the United States of America to become a permanent fund, the interest from which should be used for the relief of various tribes of indigent American Indians of the United States of America, and then he made a precatory suggestion as to how the fund should be invested.

The fact that he did not use the formal and technical language usually used to, create a trust relationship, i. e., “trust,” “trustees,” “corpus,” or other similar language, is not controlling. Scott on Trusts, Volume 1, Section 24, page 147, reads in part as follows:

“No particular form of words or conduct is necessary for the manifestation of intention to create a trust. It is possible to create a trust without using the word ‘trust’ or ‘trustee.’ Conversely, the mere fact that these words are used does not necessarily indicate an intention to create a trust.
“The question in each case is whether the settlor manifested an intention to create the kind of relationship which to lawyers is known as a trust. The question is whether the settlor manifested an intention to impose upon himself or upon a transferee of the property equitable duties to deal with the property for the benefit of another person.”

See also Bogert, Trusts and Trustees, Volume 1, Section 45, pages 293, 294.

A trust is defined in Restatement, Trusts, Volume 1, Chapter 1, Section 2, page 6, as follows:

“A trust, as the term is used in the Restatement of this Subject, when not qualified by the word ‘charitable,’ ‘resulting’ or ‘constructive,’ is a fiduciary relationship with respect to property, subjecting the person by whom the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.”

A fundamental essential of any trust is the separation of the legal estate from the equitable estate and the beneficial enjoyment. 54 Am. Jur., Trusts, Section 35, at pages 46 and 47; 10 Am. Jur., Charities, Section 4, at page 587.

The Court is of the opinion, therefore, that testator intended to create a trust.

Second, it is also necessary to determine whether the testator created a charitable or private trust. It seems obvious that this testator attempted to set up a gift which, if valid, would be for a charitable purpose. Gifts for the relief of poverty, for assistance to the aged, the infirm, the poor, the indigent, and the afflicted are uniformly held to be charitable. 10 Am. Jur., Charities, Sections 5, 28 and 68; Trustees McIntire Poor School v. Zanesville Canal & Mfg. Co., 9 Ohio 203 (1839); Palmer v. Oiler, Exrx., 102 Oh St 271, 272 (1921); Gearhart v. Richardson, 109 Oh St 418, 429 (1924). Also see Restatement, Trusts, Vol. II, Sections 348 and 369; Scott on Trusts, Volume 3, Section 369, page 1976.

In Item 5 testator left his residuary estate “for the relief of the various Tribes of Indigent American Indians of the United States of America.” In Item 6 he directed that the interest be applied “for the sole benefit of indigent American Indians and as provided in Item 5.” “Indigent” has been defined in Webster’s Unabridged New International Dictionary, Second Edition, as follows;

“1. Wanting; lacking; also, void; free; destitute.
“2. Destitute of property or means of comfortable subsistence; needy; poor; in want; necessitous.”

In Restatement, Trusts, Volume 2, Section 348, page 1095, a charitable trust is defined as follows:

“A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.”

In 10 Am. Jur., Charities, Section 4, page 587, charitable trust is defined as:

“Any trust coming within the definition of a legal charity for the benefit of an indefinite class of persons sufficiently designated to indicate the intention of the donor and constituting some portion or class of the public is a charitable trust.”

Also see 10 Am. Jur., Charities, Sections 5, 9, and 10.

It is the opinion of this Court that testator intended to create a charitable trust.

Third, while testator may have intended to create a charitable trust, has he in fact created a valid charitable trust, having in mind the purpose for which the trust was created and the beneficiaries which were the ultimate objects of his bounty?

In analyzing the will, it must always be kept in mind that the legal principles applicable to charitable trusts differ in some respects from the legal principles applicable to private trusts. For example, gifts for charitable purposes have always been favored in equity and trusts created for such purposes are carried into effect upon liberal principles of equity jurisprudence under circumstances where a purely private trust might fail. Gearhart v. Richardson, supra, Syllabus 2. One of the characteristics of a charitable trust is the generality or indefiniteness of the beneficiaries. There cannot be a private trust unless there is a beneficiary who is definitely ascertainable at the creation of the trust or definitely ascertainable within the period of the rule against perpetuities. See Restatement, Trusts, Sections 112 and 364. On the other hand, a charitable trust can be created although there is no definite or definitely ascertainable beneficiary designated. Restatement, Trusts, Section 364. In fact, when the number of recipients becomes too limited, the character of the trust becomes less charitable. Restatement, Trusts, Section' 375. Furthermore, while the purposes of the trust may be charitable, a trust will not be upheld as charitable unless the accomplishment of the purposes of the trust is of benefit to the public at large. 10 Am. Jur., Charities, Section 5, page 588; Scott on Trusts, Volume III, Section 374.8, page 2012.

Perhaps no field in the law of trusts is so fruitful of litigation as that where an attack is made on the validity of the trust by those who contend that either the purpose or the beneficiaries are so uncertain and so vaguely defined that the trust is invalid.

According to the editors of Am. Jur., there are two views: (1) There are those who maintain that the instrument creating a charitable trust must point out both the purpose of the trust and the beneficiaries with the same certainty as would be required in an instrument creating a private trust. (2) The better view holds that it is sufficient if the instrument states the purposes of the charity in general terms and designates the beneficiaries who may enjoy the benefits as those of a certain designated class leaving to the trustee the duty of selecting the individuals of the class who will actually receive the benefits. 10 Am. Jur., Charities, Section 82, page 643.

An examination of the Ohio authorities hereinafter set forth leads this Court to believe that Ohio follows what the editors of American Jurisprudence call the better view. It would appear from the analysis of all authorities on the subject that with respect to certainty as to the beneficiaries, the instrument need go no further than reasonable certainty as to the class itself which may be great or small, particular or general, from which the trustee may select the persons to receive the benefits of testator’s gift. The rule does not mean that the recipients of the gift must be pointed out. See 10 Am. Jur., Charities, Section 88. page 647. In this regard at Section 93 of 10 Am. Jur., Charities, it is pointed out that if the bequest is for the benefit of the poor as a class and the only thing remaining uncertain is the selection of the beneficiaries, it is not so uncertain as to render the bequest invalid. It also appears that a charitable gift is good where there is no limit of space expressed in the instrument. See 10 Am. Jur., Charities, Section 91.650.

With respect to subject matter in the same work, Section 86, the editors state that so long as the amount which is to be devoted to the charity is capable of definite ascertainment although the exact amount is not fixed by the instrument, there is no uncertainty as to subject matter. With respect to execution it is stated that indefiniteness as to the mode of execution in carrying out a particular purpose which may be indicated in general language does not make a charitable trust invalid. The testator need not say how the charity is to be carried out. He may leave the details to a trustee under the supervision of a court of equity. See Section 87. There is ample authority to the effect that a gift of property in trust wherein the income is to be applied to charitable purposes generally without any specification as to the particular charity is sufficiently definite to be enforced by a court of equity. Of course, the object must be made sufficiently certain to enable the court tq enforce the execution of the trust, See 10 Am. Jur., Charities, Sections 96 and 97. To a greater or lesser degree the doctrines set forth herein have been recognized by the Supreme Court of this State on several occasions.

Thus, in the case of Collings v. Davis, 17 O. C. C. (NS) 221, 24 O. C. C. 84 (1911), affirmed by the Supreme Court without opinion, 87 Oh St 504, 102 N. E. 1122 (1912), it was held that a direction that the executor “apply $10. a month during the winter months to buy flour and coal for the worthy poor” was invalid and incapable of execution. In the case of Rogers v. Rea, Trustee, 98 Oh St 315 (1918), the Supreme Court in a per curiam opinion held invalid a charitable trust which directed that certain moneys be paid to such charitable purposes as the trustee deems proper. The execution of this trust had become impossible of execution since the trustee’s discretion was essential to the execution of the trust. In the case of Dirlam, Exr. v. Morrow, 192 Oh Sf 279, 131 N. E. 385 (1921), the Supreme Court, in a per curiam opinion with one judge dissenting, held invalid a trust imposed on the residuum of the estate which provided that the income was to be used . . for religious and philanthropic work in Mansfield . . and then provided for certain stringent requirements for selection of a board to administer the income from the trust. The Court on page 281 states:

"... trust imposed upon the residuum of the estate is so vaguely defined, the method of creating the administrative board or agency so uncertain and indefinite, and the method of execution of the charities named so ambiguous, that the court is compelled to hold that dispositive paragraph void for uncertainty.”

The courts of this State have on several other occasions passed upon the validity of trust provisions and in the following cases held that the attempted testamentary gifts were valid: Landis v. Wooden, 1 Oh St 160 (1853), “. . . to the poor and needy, fatherless, etc., of Jefferson and Madison townships, ... as are not able to support themselves, . . ” Miller v. Teachout, 24 Oh St 525 (1874), . . for the advancement and benefit of the Christian religion, . . Sowers v. Cyrenius, 39 Oh St 29 (1883), “. . . for the preaching of the gospel of the blessed Son of God, . . Palmer v. Oiler, Exrx., supra, “. . . to be devoted to the needy & poor women.”; Gearhart v. Richardson, supra, . . the aged and destitute people of said Township . . . who by reason of sickness or unavoidable misfortune are unable to provide for themselves.”

The foregoing cases clearly indicate the liberal interpretation given to charitable bequests and a predisposition to construe the trust provisions as certain and valid rather than uncertain and invalid. It should be noted that the case of Palmer v. Oiler, supra, was decided on the same day as the case of Dirlam v. Morrow, supra. The former opinion was written by Marshall, C. J., who wrote the dissent in the Dirlam case.

It is apparent from the foregoing cases that the purposes of the trusts and the beneficiaries must be sufficiently certain that the court can enforce the execution of the trust. Each case inevitably must be determined upon the peculiar facts applicable thereto. Why then do these authorities and principles apply in the case at bar?

The Plaintiff contends that there are no tribes of Indians to be benefited by testator’s gift; and, since no such tribes are in existence, there is uncertainty as to beneficiaries and for that reason the trust is void. The Attorney General of the United States states that, “We are advised by the Bureau of Indian Affairs that there exist tribes which meet either or both designations and that an expert will be made available to so testify at the order of the Court.”

The Attorney General of the State of Ohio states, “It would be foolhardy for the Attorney General to state flatly that there are tribes of indigent American Indians in the United States, assuming for the moment that the testator intended that the tribe must be indigent. Surely it is just as difficult for the petitioner to assert that there are no such beneficiaries. In any event indigence must be a matter of degree; it would be very difficult to conceive of an economic level where there would be no tribes of Indians in this country who are in need, and more difficult yet to imagine that there are no individual Indians of the various tribes who are in need of financial assistance to remove them from want and need.”

By reason of the contentions of the parties, it now seems necessary for the Court to determine whom the testator actually intended to be the beneficiaries of his gift.

In further search of clarification the Court has consulted the Smithsonian Institution’s Bureau of Ethnology’s voluminous Bulletin 145, “Indian Tribes of North America” by John R. Swamp, United States Government Printing Office, Washington, D. C., 1953. It is evident that the word “tribe” has many and varied meanings. Numerically, it is used interchangeably with “nation” and with “sub-tribe”; geographically, it is used to designate those persons living in a certain locality, be that locality large or small; language-wise, the word is used to designate the root or stock from which the tribal language evolved. Suffice to say that tribes of American Indians are almost infinite in number, depending upon the classification which is applied.

The Court has also examined many laws by which Congress has given the Department of Interior and the Commission of Indian Affairs broad powers in the supervision of Indian affairs. It is quite evident from this reading that, from an administrative point of view, the Department of Interior is well aware of the identity of those tribes or nations of Indians in the United States over which it has some control, irrespective of how they are classified.

From this extraneous reading and a common-sense interpretation of testator’s intention as expressed in Items 5 and 6, the Court has concluded that testator meant that the interest from the permanent fund should be used for the benefit of indigent individual American Indians who are members of various tribes recognized by the United States Government as distinguished from indigent American Indians who are not members of any of such tribes. He did not mean that the interest from the permanent fund should be used' for the benefit of indigent tribes of American Indians as organizations or for the benefit of tribes whose members are all indigent American Indians. For emphasis it should be pointed out that the language in Item 6 reads that “said gift be applied for the sole benefit of indigent American Indians and as provided in item 5.”

Having the above in mind as the only reasonable interpretation of testator’s intention, it seems clear that the beneficiaries of the trust are not so vague and indefinite that the trust is invalid and unenforceable and, furthermore, that the purpose of the trust is sufficiently defined that the Court could enforce its execution, if required to do so.

Fourth, may the United States government act as a trustee of a charitable trust? If so, should the Court in the exercise of its sound discretion permit the United States government to act as such trustee under all the facts and circumstances of this case? The Court adopts the excellent brief of the Attorney General of Ohio on this point. It would appear from an examination of the authorities that, in the absence of a statute otherwise providing, personal property may be bequeathed to the United States in trust for charitable purposes, providing the purposes are within the powers conferred upon the federal government by the Constitution of the United States, expressly or otherwise. Scott on Trusts, Volume I, Section 95, beginning at page 505; Scott on Trusts, Volume II, Section 378, pages 2040 and 2041; Bogert, Trusts and Trustees, Section 128, pages 546 and 547; 10 A. L. R. 1387.

The Court adopts the view expressed in the case of Dickson v. United States, 125 Mass. 311, 28 Am. Rep. 230 (1878), wherein the court held that the United States was capable of taking a gift by devise. On page 314 the court quoted the reasoning of Chief Justice Marshall in the case of United States v. Maurice, 2 Brock, 96, 109, in which he is defining the powers of the United States government:

“Its powers are unquestionably limited; but, while within those limits, it is a perfect government as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely, in order to accomplish the objects of its institution.”

The United States of America through the Department of Interior and the Commissioner of Indian Affairs has, by virtue of Title 25, U. S. C., broad powers in the supervision of Indian affairs as has already been indicated. Among those items over which this supervision is exercised are contracts relating to tribal funds or property (Section 85); payment of annuities and distribution of goods (Section 111), payment of tribal funds to helpless Indians (Section 121), moneys or annuities of hostile Indians (Section 127), the rights of children born of the marriages between white men and Indian women (Section 184); and Section 306A gives the Secretary of Interior discretion “to make advances to old, disabled, or indigent Indian allottees, for their support . . Also see 31 U. S. C. 725s wherein Congress has made provision for the deposit of certain Indian funds. See Items (20), (66), and (67). Since the Secretary of Interior has an express grant of powers to accept donations for the benefit of Indians, it would appear that the gift made by Mr. Edgeter is germane to the duties which are to be discharged by the Commissioner of Indian Affairs.

In 27 Am. Jur., Indians, Section 5, page 545, it is said:

“In a general way it may be said that the recognized relation between the Federal Government and the Indians is that of a superior and an inferior, whereby the latter is placed under the care and control of the former. The condition of the Indians and of Indian tribes within the limits of the .United States is anomalous. The tribes, though in certain respects regarded as possessing the attributes of nationality, are held to be not foreign, but domestic dependent nations or communities. Indeed, from the beginning of the government Indians and their tribes have been treated as ‘wards of the nation,’ and ‘in a state of pupilage.’ ”

And at Section 42, page 568, it is said:

“Not only does the Federal Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long-continued legislative and executive usage and an unbroken current of .judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection of all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired and whether within or outside the limits of a state. The power must exist in the Federal Government because it never has existed anywhere else, the theater of its exercise is within the geographical limits of the United States, it has never been denied, and it alone can enforce its laws on all tribes. Accordingly, plenary authority has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”

Congress has provided the machinery by which such a trusteeship as that contemplated by the testator could be effectively administered. 25 U. S. C. 451, which vests such pov/er in the Secretary of the Interior, reads as follows:

“The Secretary of the Interior is authorized in his discretion to accept contributions or donations of funds or other property, real, personal, or mixed, which may be tendered to, or for the benefit of, Federal Indian schools, hospitals, or other institutions conducted for the benefit of Indians, or for the advancement of the Indian race, and to apply or dispose of such donations for the use and benefit of such school, hospital, or other institution or for the benefit of individual Indians ”

Since the Nation’s inception, it has been the Federal Government which has regulated Indian affairs almost exclusively.

For the foregoing reasons the Court is of the opinion that the administration of a gift in trust for the benefit of indigent American Indians is within the authorized powers of the Federal Government and it has a perfect right to act as trustee for this purpose.

While the Court is of the opinion that the United States government in this case may act as trustee of the charitable trust, it is nevertheless cognizant that the textwriters and cases are quite emphatic that such trusts are not enforceable in the courts of the United States unless, of course, the Government consents to be sued. It has been pointed out that, .while the United States as trustee cannot be sued, this is merely an impediment to the enforcement of the cestui’s rights, but is no bar to the creation of the trust. Bogert, Trusts and Trustees, Volume II, Section 328, pages 485 and 486. Also see Bogert, Trusts and Trustees, Volume I, Section 128, pages 546 and 547; Scott on Trusts, Volume III, Section 378, pages 2040 and 2041.

Since no trust will fail for the want of a trustee, the Court must face squarely the question whether or not in exercising sound discretion it may refuse to appoint the United States government as trustee. The determination of this question must turn on a fundamental principle of law, the jurisdiction of this Court. The Probate Court has jurisdiction over testamentary trusts, guardians, etc., who are encompassed by the general definition of “fiduciary.” “Fiduciary” is defined in §2109.01 R. C. (§10506-1 GO as follows:

“ ‘Fiduciary’ as used in Chapters 2101. to 2131., inclusive, R. C., means any person, association, or corporation, . . . appointed by and accountable to the probate court . . .” (Emphasis supplied.)

Having regard for the fact that the United States of America is the sovereign and bearing in mind the doctrines of separation of powers between the federal government and the state governments, it would appear that the federal government is not included in the terms of the statute as a “person, association, or corporation, . . . accountable to the probate court.” To reach a contrary conclusion would attribute to the General Assembly an intention that the federal government should be subject to the direction of the Probate Court, a principle that rejects itself upon statement. Whether or not the United States government has the power to act as a trustee is not a matter which can be controlled by the statutes of any of the States, Its power to act as a trustee must be independent of the actions of the courts of any state and independent of a grant of authority by appointment of this Court. It is questionable whether or not this Court has any discretion to appoint or refuse to appoint the United States government as trustee, once having determined that the objects to be accomplished by the trust are within the purposes and powers of the federal government.

In Item 8 of his will the testator made a strong statement of his intention that his sister, the Plaintiff in this action, should not receive “one cent from my estate.” Undoubtedly from the words expressed in his will he had full and complete faith that the United States government would carry out his charitable purpose. The Court is of the opinion that he cannot have selected anyone more qualified for dealing with a gift for the benefit of indigent American Indians for the reasons as heretofore set out.

Since the United States government is not a fiduciary over which this court has jurisdiction or supervision under the provisions of §2109.02 R. C. (§10506-2 GC), there is no statutory requirement that this trustee must receive letters of appointment from this Court prior to embarking upon the administration of the trust; and the executor, after the estate is completely administered, may, in the opinion of this Court, deliver the residuary estate to the United States government as trustee, through the Department of Interior, and be discharged as provided by law of any further responsibility over said fund.

By reason of the foregoing opinion it does not seem to this Court necessary to discuss, analyze, or apply the equitable doctrine of cy pres or the equitable doctrine of deviation which have been so carefully analyzed by the Court of Appeals of this District in the case of Craft v. Shroyer, 49 Abs 385 (1947).

Counsel may submit an appropriate entry to this Court for approval.

Costs to the estate.


author: By LYNCH, J.:

text:
    NORWALK TRUCK LINE COMPANY, Plaintiff, v. VINY et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 648764.
    Decided March 24, 1955.
    Harold O. Ziegler, J. Otis Ford, Cleveland, for plaintiff-appellant.
    Halle, Haber, Berick & McNulty, Cleveland, for defendants-appellants.
    (LYNCH, J, of Monroe County, sitting by designation in Cuyahoga County.)
   OPINION

By LYNCH, J.:

Facts of the Case.

The pleadings filed in the ease, the trial brief of plaintiff, the brief of plaintiff, the brief for defendants and the reply brief of plaintiff give the facts of the case, so, for that reason, the Court will not repeat all the facts in the case but only so much as are necessary for the purpose of this Opinion.

The property involved in this case was originally owned by the Union Salt Company, which was for many years engaged in the business of mining salt through deep wells drilled down to the salt beds under the lands in the general area. The Union Salt Company owned this property prior to 1936. In 1936, the City of Cleveland was preparing to construct a roadway along the lake front and the proposed roadway was to be a memorial shore way, and this proposed roadway along the shore way, particularly from East 55th Street East, was to be constructed over ground artificially created by filling into the shallow water of Lake Erie, immediately in front of the property then owned by the Union Salt Company and other adjacent properties. This proposed boulevard would interfere with and cut off direct access by the property owners to the waters of Lake Erie.

On October 26, 1937, a Petition was filed by S. H. Squire, Superintendent of Banks of the State of Ohio, as Liquidator of the Union Trust Company. The action was against the City of Cleveland and other defendants, seeking to enjoin the construction of such high speed boulevard unless compensation was paid for the damage sustained by the littoral owners to their property, including the littoral rights appurtenant thereto. In the Squire case, No. 469,182 in the Common Pleas Court, Cuyahoga County now reported in 150 Oh St 303, by supplemental pleadings the action primarily became one in which they were seeking a declaration by the Court as to littoral rights as appurtenant to the upland bordering Lake Erie.

In view of the statements to follow, the Court is of the opinion that the successors in title to the property involved in this action should be briefly stated. The Union Salt Company sold this property to Morton Salt Company of Chicago. The Morton Salt Company of Chicago sold this property to My-Ton Corporation, which was a corporation owned by the defendants, Louis and Lenore Viny. Louis and Lenore Viny sold this property to the plaintiff in this action. My-Ton Corporation executed a lease to Norwalk Truck Line Company on June 6, 1950 (Plaintiff’s Exhibit No. 7). This contained an option to purchase.

The Union Salt Company, in 1943, became a party to the Squire case and then, after a change of name to the Lake Erie Salt Company, filed an Answer and Cross-Petition in the Squire case.

The high speed boulevard over this filled in land was constructed during 1936 and 1937 as a four-lane highway, passing in front of the property of the Union Salt Company, on made land north of the 1914 natural shore line. The Union Salt Company (the Lake Erie Salt Company) sought damages for the interference with the littoral rights appurtenant to its upland property (the present land owned by plaintiff herein). The Union Salt Company sold the property to Morton Salt Company in 1944 and, by an Entry of the Court in the Squire case, had reserved to itself all claims to damages to the company and its property which had accrued up to May 31, 1944, the Journal Entry in the Squire case, on September 19, 1944, being in part as follows:

“(E) That the Lake Erie Salt Company retains and now owns each and every cause of action for monetary damages accrued on May 31, 1944 for the loss of property rights, if any, or deprivation of the use and benefit of property rights, if any, connected in any way with the construction of the lake front highway.”

The Morton Salt Company sold the property of to the My-Ton Corporation by Warranty Deed dated February 11, 1949 (Defendants’ Exhibit A in this case), so the Union Salt Company (Lake Erie Salt Company) had rights for damages accrued up to May 31, 1944, and My-Ton Corporation had claims for any damages after May 31, 1944.

During the trial of the case, there was nothing offered to show any recent interference with the taking of rights for the proposed boulevard, so as far as the Court knows, from what was presented, the taking of rights had been accomplished during the time the land was owned by the now Lake Erie Salt Company and that company is still in the Squire case, seeking compensation for its damages, the claims for which it reserved as hereinbefore set forth,-up to and including May 31, 1944.

Plaintiff’s Exhibits 9A and 9B show that a motion was filed in the Squire case for substitution of Louis Viny and Lenore Viny as parties defendant in place of the Union Salt Company on February 3, 1953, and that by Journal Entry, Louis Viny and Lenore Viny are now substituted as the owners of each and every cause of action heretofore asserted in the Cross-Petition of the Union Salt Company.

It was brought out in the trial of the case that the lessee in the Lease Agreement (Plaintiff’s Exhibit No. 7) had exercised its option to purchase and that there was an action for specific performance but that parties did not proceed to trial but worked out whereby a deed of conveyance was made by Louis Viny and Lenore Viny to Norwalk Truck Line Company, the plaintiff herein (Plaintiff’s Exhibit No. 1). Plaintiff herein became the owner of this property by deed dated February 16, 1953, which was recorded in Volume 7686, Pages 439-40-41 of the Deed Records of Cuyahoga County. There are certain reservations in this deed (Plaintiff’s Exhibit No. 1) upon which a declaratory judgment is asked and which the Court will discuss later in this Opinion.

Plaintiff’s Exhibit 2A and 2B are photostatic copies of a letter and envelope in which the law firm representing the defendants in this action notified the plaintiff herein, by said letter dated May 7, 1953, in effect, that after thirty days from the date of receipt of this notice Myron S. and Norton H. Viny will commence grading their lot next abutting the property to the north and fronting on Cleveland lake front highway to the established grade of said highway. These defendants, by this notice, were giving notice to the plaintiff that they were contemplating grading and excavating on filled in land north of the 1914 shore line. Myron S. Viny and Norton H. Viny are sons of Louis and Lenore Viny and they are the grantees in a deed marked Defendants’ Exhibit E. This deéd attempted to convey certain property, together with all the riparian and littoral rights appurtenant to the same.

The Court is of the opinion that the defendants have failed to prove that they have any land as between the 1914 shore line and the property of the plaintiff herein, and under the decision in the Squire case the location of the 1914 shore line was fixed and there is no ownership north of the same.

After receipt of the letter, of which Plaintiff’s Exhibit No. 2A is a photostatic copy, the plaintiff filed its Petition in case No. 648,764 in the Common Pleas Court of Cuyahoga County, seeking a declaratory judgment and for injunction, etc.

The evidence in this case does not disclose that any of the parties to this action or their predecessors in title in any way caused any fill to be placed in the waters of Lake Erie, nor have they, in any artificial manner, extended the shore line. The evidence disclosed that the plaintiff, Norwalk Truck Line Company, purchased the property as described in Plaintiff’s Exhibit No. 1, being the Warranty Deed which was executed on February 16, 1953. The evidence disclosed there was some friction between the parties regarding the exercise of the option and that matters were straightened out between the plaintiff and Louis Viny and wife, before said case came to trial, by the execution and delivery of the Warranty Deed known as Plaintiff’s Exhibit No. 1.

On March 5, 1953, by Quit-Claim Deed (Defendants’ Exhibit No. 3), Louis Viny and Lenore Viny conveyed to their two sons certain property which they claimed to have, together with riparian and littoral rights.

On May 7, 1953, Myron S. and Norton H. Viny, sons of Louis and Lenore Viny, notified Norwalk Truck Line Company of their grading plans on property abutting Norwalk Truck Line Company, and from said photostatic copy (Plaintiff’s Exhibit No. 2), it would indicate that the grading would be on the filled in land north of the upland.

Statement of the Law.

The plaintiff filed its Petition under authority of §2721.03 R. C. Annotation 15, under above Section, provides in substance as follows:

“In order that court will have jurisdiction in a proceeding for a declaratory judgment, it is essential

(1) a justiciable controversy exists concerning the declaration in question

(2) parties seeking such relief must plead facts to justify a declaration by the court as to their rights which would terminate the controversy

(3) the party seeking such relief must show that he has a legal interest in the controversy.”

Littoral Rights.

The leading cases in the State of Ohio are State v. Cleveland and Pittsburgh Rd. Company (94 Oh St 61) and State, ex rel. v. City of Cleveland (150 Oh St 303).

The first six paragraphs of the syllabus to the case in 150 Oh St 303 appear applicable to this case. The following are references to State, ex rel. v. Cleveland (150 Oh St 303):

Page 317: “The land of the plaintiff and the upland owners is located on the east basin of the Cleveland Harbor as upland property. The owners of these properties have title which extends to the natural shore line of Lake Erie, which is the 1914 shore line as determined by a survey

All land in front of the upland of the plaintiff and upland owners and to the north of the natural shore line has been made by an artificial fill, and the determination of the rights of the city, the plaintiff and the upland owners in this made land is a crucial question in this case.”

Page 323: “6. The ownership of the waters of Lake Erie and of the land under them within the state is a matter of public concern. The trust with which they are held is governmental, and the state, as trustee for the people, cannot, by acquiescene or otherwise, abandon the trust property or permit a diversion of it to private uses different from the object for which the trust was created. The littoral owner is charged with knowledge that nothing can be done by him that will destroy the rights of the people in the trust estate.”

Page 325 (littoral owner): “It must be remembered that his right, pending appropriate legislation, is one that can be exercised only in aid of navigation and commerce and for no other purpose. What he does is, therefore, in furtherance of the object of the trust and is permitted solely on that account.”

Page 337: “The littoral owners of the upland have no title beyond the natural shore line. They have only the right of access and wharfing out to navigable waters. That right is a property right, although not a tangible one, and is subject to the superior right of the state, as the owner of title in trust for the people of the state, and of the United States with the authority accruing to it by virtue of its exclusive power over interstate commerce.”

Page 342: “For we again repeat that the littoral rights of the upland owners are not titles to land, and though they are property rights, they are restricted and limited and entirely subservient to the power and authority of the state and federal governments in whatever either of them do in aid of navigation, water commerce or fishery.”

Opinion and Decision.

The Court, upon a consideration of the evidence and the law applicable thereto, is of the opinion that plaintiff has sustained the proof necessary for the Court to make a declaratory judgment on the issues presented in this case.

The Court is of the opinion that Plaintiff’s Exhibit No. 1 definitely shows in the first paragraph that the northeastern boundary of the property of plaintiff is the last natural shore line of the waters of Lake Erie. The Court is of the opinion that the shore line is the 1914 shore line as mentioned in the Squire case (150 Oh St 303). The Court is of the opinion that neither the plaintiff nor the defendants have any title to the filled in lands north of the 1914 shore line of Lake Erie as it pertains to the properties involved in this action.

The Court is of the opinion that littoral rights, as defined by our Supreme Court, are as follows: a right appurtenant to the upland, giving the owner of the upland the right to wharf out to navigable water for purposes of navigation, water commerce and fisheries.

The Court is of the opinion that the Union Salt Company (the Lake Erie Salt Company) retained and now owns each and every cause of action for monetary damages accrued on May 31, 1944 for the loss of property rights, if any, or deprivation of the use and benefit of property rights, if any, connected in any way with the construction of the lake front highway. The Court is of the opinion that Louis Viny and Lenore Viny, defendants herein, retained'and now own each and every cause of action for monetary damages, which accrued from and after May 31, 1944 to February 16,1953, for the loss of property rights, if any, or deprivation of the use and benefit of property rights, if any, connected in any way with the construction of the lake front highway, and they have a right to assert said claims for damages against the City of Cleveland during the period from and after May 31, 1944 to February 16, 1953. The Court is of the opinion that in the reservation clause of the Warranty Deed, known as Plaintiff’s Exhibit No. 1, mention was made of riparian and littoral rights as that was and is the theory of Louis and Lenore Viny who became party defendants in Case No. 469,182, being State of Ohio, ex rel. v. The City of Cleveland et al. Louis and Lenore Viny were seeking, as defendants in that case, to secure damages for injuries to their riparian and littoral rights and the reservation in their deed to the plaintiff in this case, which was made thirteen days later (February 16, 1953), was for the protection of their claim for damages against the City of Cleveland.

Paragraph 1 of the syllabus, 150 Oh St 303, provides:

“A littoral proprietor has an incorporeal property right to wharf out to navigable waters for purposes of navigation.”

The Court is of the opinion, under the decisions in Ohio, this incorporeal property right is in the one having Fee Simple title to the land and runs with the land.

The Court makes this decision or declaration of rights as regarding the issues in this case. The plaintiff is the owner of the property described in its Petition. The plaintiff’s northerly boundary is the 1914 shore line. The defendants in this action cannot remove earth or fill material lying northerly of the 1914 shore line and thereby or otherwise interfere with plaintiff’s right of ownership, including the right to have support for its land at the grade elevation existing at the time the property was transferred to plaintiff by Louis and Lenore Viny, or any other grade elevation; nor can defendants impair or interfere with plaintiff’s right to full and complete access to the roadways lying northerly of the 1914 shore line, and no alterations or changes can be made by the defendants or anyone other than plaintiff in the physical conditions there existing; that plaintiff has complete and full rights to the full use and enjoyment of the unrestricted right of access to and from the roadways, and particularly for vehicles of all kinds, including the heavy trucks, heavy-duty equipment, motor vehicles of all kinds incident to the use and enjoyment of plaintiff’s property for any and all uses including the uses and needs applicable to the conduct and operation of a motor freight business and the motor freight terminal located upon the property of plaintiff, all being the use to which said property was adapted by the defendants and their predecessors in title prior to the entering into of the lease with option-to-purchase agreement with the Norwalk Truck Line Company and the subsequent transfer of title to it in accordance with the exercise of said option and the payment of the purchase price; that plaintiff’s rights are rights running with the land owned by plaintiff, appurtenant thereto and applicable to any and all uses to which said property now or hereafter may be desired to be put by the owners thereof.

It, therefore, follows that the Norwalk Truck Line Company has the unrestricted right to construct and maintain appropriate roadways, ramps and driveways constructed with such materials and with appropriate grades, to enable it to have and maintain at all times appropriate means of ingress and egress for the trucks, conveyances and equipment to and from the service roadway presently located and constructed northerly of the 1914 shore line by the State Highway Department for the benefit of plaintiff’s property, and to such roadways as may hereafter be available and built to serve said property; that defendants should be enjoined from in any way directly or indirectly interfering with the rights of plaintiff.

The Court, in making the above decision, is not changing the concept of the declaration of the State’s title as found in the case of State v. Cleveland and Pittsburgh Ed. Company (94 Oh St 61), which is as follows:

“The littoral owners of the upland have no title beyond the natural shore line; they have only the right of access and wharfing out to navigable waters. That right is a property right, although not a tangible one, and is subject to the superior right of the State as the owner of title in trust for the people of the State and of the United States, with the authority accruing to it by virtue of its exclusive power of interstate commerce.” (150 Oh St 337.)

The defendants, Louis and Lenore Viny, have the right to assert and prosecute any claim for monetary damages from and after May 31, 1944 to February 16, 1953 for any loss or damage to their riparian or littoral property rights in the land now owned by plaintiff and described in plaintiff’s Petition.

The Court is of the opinion that the Union Salt Company (the Lake Erie Salt Company) retained and now owns each and every cause of action for monetary damages accrued on May 31, 1944 for any loss or damage to the riparian or littoral property rights in the land formerly owned by them and now owned by the plaintiff. The Court recognizes the claims of Louis Viny and Lenore Viny as set out in the Journal Entry in Case No. 469,182 (Plaintiff’s Exhibit 9B). The Court is not determining in this decision whether Union Salt Company or Louis and Lenore Viny are the owners of the claim for monetary damages accrued on May 31, 1944 for the loss of property rights or loss or damage to their riparian or littoral property rights, as there is no assignment of claims introduced here as an exhibit. The ownership of that claim for damages for loss to riparian or littoral rights, as above stated, is left to the determination of the Court in State of Ohio, ex rel., etc. v. The City of Cleveland et al, Case No. 469,182, in the Common Pleas Court, Cuyahoga County, Ohio.

It is the decision of the Court that judgment should be entered for the plaintiff on the Cross-Petition filed herein, and that the defendants pay the costs of this proceeding.

Counsel for the plaintiff will prepare Journal Entry in Conformity to this Opinion and Decision.


text:
    NORWALK TRUCK LINE COMPANY, Plaintiff, v. VINY et, Defendants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23544.
   ENTRY IN COURT OF APPEALS

Decree for the plaintiff on petition and cross-petition as in Common Pleas Court. We hold that the provision in the warranty deed granting the plaintiff “full rights of ingress and egress to and from the above described lands over any part of said entire riparian and littoral rights, to the extent said grantors have the power to grant such rights, to all highways now or hereafter lying northerly of the above described land,” in effect, grants rights, which, in degree and quality, are tantamount, so far as territory described above is concerned, to giving the plaintiff a paramount right to the use of land which is inconsistent with the claimed littoral rights reserved by the grantors, since littoral rights, in the main, are rights of access to the navigable water, in this case Lake Erie. (State v. Cleveland & Pittsburgh Rd. Co., 94 Oh St 61, paragraph five of syllabus.) The planned removal and leveling of land, in our opinion, is an interference with rights clearly granted to plaintiff by defendants. Exceptions. O. S. J.


author: By GRIFFITH, J.:

text:
    WARRENSVILLE HEIGHTS, (Village), Plaintiff-Appellee, v. CLEVELAND RACEWAYS, INC., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22933.
    Decided January 11, 1954.
    Thomas O. Matia, Myron, Myron W. Ulrich, for plaintiff-appellee.
    Gottfried, Ginsberg & Guren, S'immons, Metzner, McNelly, Torbet & Vilas, for defendant-appellant.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, GRIFFITH, J, of the Seventh District; sitting by designation in the Eighth District.)
   OPINION

By GRIFFITH, J.:

The judgment, finding, and decree of this Court is in accord with that of the trial court upon the reasoning set forth in its opinion with the further added reasoning:

The right or authority of the solicitor to bring this action is challenged. Sec. 4311 GC provides:

“The solicitor shall apply in the name of the corporation to a Court of competent jurisdiction for an order of injunction to restrain * * * the abuse of its corporate power.”

The motion of January 28, 1953, was not passed in conformity to the statutory provisions. Sec. 4224 GC, provides:

“No by-law, ordinance, or resolution of a general or permanent nature * * * or creating a right * * * shall be passed unless it has been fully and distinctly read on three different days, and with respect to any such by-law, ordinance, or resolution, there shall be no authority to dispense with this rule except by a three-fourths vote of all members elected thereto taken by ayes and nays on each by-law, resolution, or ordinance, and entered upon the journal.”

This motion was not read on three different days. It was a motion “creating a right.” Hence, the motion was not a valid legislative enactment, and the permit granted thereunder was invalid and of no legal effect.

Council in so acting, abused its corporate power. Any unlawful exercise of power by council, or the assuming of power by council which is not conferred by the constitution or the statutes, is an abuse of corporate power, and the solicitor shall apply for an order of injunction to restrain the same. The Elyria Gas and Water Company v. The City of Elyria, 57 Oh St 374.

See. 4311 GC, imposes a duty upon the solicitor in the interest of the public to apply for a restraining order as was done in the instant case.

For the reasons embodied in the trial court’s opinion coupled with this further observation that the solicitor does have full authority to commence and maintain this action, the injunction heretofore granted restraining the defendant from proceeding with the construction of the barns pursuant to building permit No. 2962, is hereby made permanent, and the permit ordered cancelled. Judgment for the village. Exceptions noted. O. S. J.

DOYLE, PJ, HUNSICKER, J, concur.


author: By THE COURT.

text:
    STATE, Plaintiff-Appellee, v. GARDNER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5058.
    Decided October 1, 1954.

      Chalmers P. Wylie, City Atty., Malcolm M. Prine, Senior Asst. City Atty. City Pros., Columbus, for plaintiff-appellee.
    Isadore L. Margulis, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the Municipal Court of Columbus, in a criminal action in which the defendant was convicted of violation of §13064-1 GC.

The defendant-appellant contends that possession of “numbers slips” is not an offense under §13064-1 GC, and cites State v. Jerals, 32 O. O. 502, which holds that possession of lottery slips is not mentioned as an offense in §13064-1 GC. We agree. However, in this case more was charged in the affidavit than possession. In the affidavit it is charged that defendant “did then and there as an agent did unlawfully set on foot, carry on a scheme of chance, numbers game by picking up, having in his possession slips of paper with numbers thereon to be used in carrying on and promoting said numbers game in violation of §13064-1 GC.”

An offense was charged under the statute. The testimony shows more than possession. “Numbers slips” and money were brought to defendant while the police officers were at defendant’s place of business. These slips and money were presented in evidence. The defendant admitted picking up slips in the “numbers game” and turned over to the police numbers slips left by other persons before the police arrived. The police officer testified how the numbers game was operated, how the slips introduced into evidence were used in the game, and that the defendant “carried on” a numbers game.

No assignment of error is well made. Finding no error in the record prejudicial to rights of appellant, judgment is affirmed.

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


text:
    SHARKEY, Plaintiff-Appellee, v. SHARKEY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2352.
    Decided December 8, 1955.

      Horace W. Baggott, Orel J. Myers, Dayton, for plaintiff-appellee.
    Estabrook, Finn & McKee, Dayton, by Chester E. Finn, of Counsel, for defendant-appellant.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court awarding a decree of divorce and alimony to the plaintiff-appellee, Thomas P. Sharkey. The defendant-appellant is the wife. Mary Eugenia Sharkey, and for convenience we shall refer to the parties hereafter as plaintiff and defendant.

The record reveals that the case came on for hearing on the petition, the amended answer and cross-petition, and reply to the same. The grounds for the divorce were based upon gross neglect of duty and extreme cruelty.

The amended answer was a general denial, and for a second defense condonation was pleaded. By way of cross-petition the defendant alleged that at all times she conducted herself as a dutiful wife, but that the plaintiff has been guilty of gross neglect of duty and extreme c-ruelty in certain particulars. She asked that she be awarded alimony and such other relief to which she may be entitled by law.

The reply was a general denial to the' new matter set forth in the answer and also to the cross-petition.

A request for a separate finding of facts and conclusions of law was seasonably filed, and this request was granted by the court. It not only stated its conclusions of fact, but also included in its findings the facts upon which it based its conclusions; hence it is of considerable length, covering some eight pages. A sufficient summary of the same is contained in the court’s conclusions of law in order for us to determine the correctness of the divorce decree, as well as the alimony award. These questions are raised in the fourth and fifth assignments of error. We shall therefore quote the court’s legal conclusions with reference to the same.

“The petition of the plaintiff asks for divorce upon the grounds of gross neglect of duty and extreme cruelty.

“The amended answer and cross-petition of the defendant contains two defenses; (1) a general denial and (21 condonation. The cross petition asks for alimony alone, upon two grounds, (1) gross neglect of duty and (2) extreme cruelty. As to the latter ground for alimony, there is no such ground set forth in §3195.17 R. C., but the Court considers this pleading to mean ‘A separation in consequence of the ill treatment of the adverse party,’ since it is not necessary to plead in the exact words of the Code.

“To this amended answer and cross petition, the plaintiff filed a reply, denying the allegations respecting condonation and generally denying the allegations of the cross petition.

“Upon the issues joined by these pleadings, the Court finds that the jurisdictional requirements of residence, and service, have been admitted or proved.

“There are certain legal questions involved herein. Taking the plaintiff’s petition, we must determine:

“FIRST: The grounds for divorce are extreme cruelty and gross neglect of duty.

“There was a time when extreme cruelty was considered to mean personal physical violence inflicted by one upon another, but for many years it has been understood to include any act, which ‘is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony.’ 27 Corpus Juris Secundum, 552, Section 28.

“This definition has been adopted by the Courts of Ohio.

“ ‘The term “extreme cruelty,” as used in §11979 GC, is not limited in scope to acts of physical violence or the reasonable apprehension thereof, but is sufficiently broad to encompass acts and conduct, the effect of which is calculated to permanently destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital union intolerable.’ Buess v. Buess, 89 Oh Ap 37; 45 O. O. 331.

“The Court finds that defendant has committed acts of aggression against plaintiff by nagging and accusing the plaintiff of improper interest in another woman, of speaking falsely of her to their mutual acquaintances and friends, which accusations of the defendant and the denials of the plaintiff often continued until very late hours of the night and early morning, causing the plaintiff to lose sleep, which directly affected his ability to work. The Court finds that this course of conduct, and the hostility of the defendant toward the plaintiff was very much aggravated when she was under the influence of intoxicants and that its deleterious effect upon the plaintiff after he became ill in 1953 and 1954, was such as to affect directly the health and peace of mind of the plaintiff, to such an extent as to ‘permanently destroy the peace of mind,’ the happiness and the health of the plaintiff. The plaintiff has established this ground by a preponderance of evidence.

“SECOND: We pass now to a consideration of the ground for divorce, gross neglect of duty.

“This ground for divorce has been said to be ‘elusive of concrete definition.’ Among the duties and obligations of married people and, perhaps the guiding star to a proper relation, stands the duty of mutual fidelity and respect, see §3103.01 R. C.:

“ ‘The term “any gross neglect of duty” made one of the causes for divorce under §11979 GC is elusive of definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular case.’ Porter v. Lerch, 129 Oh St 47; 1 O. O. 356.

“The Court in determining the circumstances of each case and determining whether they amount to ‘gross neglect of duty’ in any given case, must use its sound discretion.

“ T. In a divorce action what constitutes gross neglect of duty or extreme cruelty in any given case must be left to the sound discretion of the Court.’ Coleman v. Coleman, 68 Abs 410.

“The Buess case has stated it in the following words:

“ ‘1. The term “gross neglect of duty,” one of the grounds named in §11979 GC, is not possible of precise definition, and where such ground is asserted the trial court has broad discretion in interpreting the term.’ Buess v. Buess, 89 Oh Ap 37; 45 O. O. 331.

“In this case the evidence of the plaintiff that the defendant quarreled with him without just cause, that she cursed and vilified him in the presence of mutual friends and domestic help, that she also called his daughter, by a former marriage, an improper name and spoke disparagingly of her, is certain and clear to the point that it shows a lack of respect, amounting to a disregard of the plaintiff’s feelings toward the defendant and toward his only daughter.

“The evidence of the defendant’s excessive drinking, corroborated again by the testimony of mutual friends, domestics and admitted by the defendant to Dr. Goldman, her phychiatrist, who appeared as a witness for the defendant, seems to place this fact beyond serious doubt.

“The plaintiff supplied the defendant with domestic help, adequate housing, prepared his own breakfasts, purchased many of their evening meals in restaurants, so that there were few of the normal household duties for the defendant to perform. Generally, however, the defendant made the household purchases, handled the finances and kept the accounts of the parties and in this aspect of the marriage manifested interest, however upon the trial of the case only a partial accounting of her stewardship of the finances was given; the accounting for the cash accumulated in the safety deposit box up to June 23, 1953, although under her complete control, was not given except for the memo of cash, Plaintiff’s Exhibit ‘A,’ showing $12,378.00 on or about the 1st day of January, 1953.

“From all of these facts in the case, the Court concludes that the plaintiff has established the ground gross neglect of duty by a preponderance of the evidence.

“The Court, therefore, finds in favor of the plaintiff upon both causes of action and against the defendant upon her first defense.”

* * * * *

“SIXTH: Coming now to consider the prayer of the petition for alimony, the Statute provides:

“ ‘The Court of Common Pleas may allow alimony as it deems reason-. able to either party, having due regard to property, which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property or both by decreeing money payable either in gross or by installments, as the court deems equitable.’ Sec. 3105.18 R. C.

“The recent amendments to our law culminating in the adoption of the above section have liberalized the meaning of the word alimony and greatly broadened the discretion of the Court in awarding it.”

The court found that the plaintiff, at the time of his marriage on November 4, 1950, possessed the following property:

Savings Associations deposits, cash values in life insurance, U. S. Bonds, automobile, house in Dayton, Ohio, mortgage on another property, cabin cruiser, household furniture, and office furniture and equipment, totaling approximately $39,453.20, together with his retirement pension, U. S. Navy, $235.18 monthly.

The court found that the defendant, at the time of her marriage, possessed an Oldsmoboile, 1950 model, and jewelry of the value of $8000.00, all of which were presents from the plaintiff.

The parties now have the following property:

Property of the plaintiff, amounting to $48,700.07; property of defendant, $10,520.00, together with an Oldsmobile; property held jointly. $34,700.00.

The jointly held property consisted of the home located at 2500 Ridge-way Road, valued at $25,000.00; United States Savings Bonds, valued at $7000.00; and 150 shares of Winters Bank stock, valued at $2700.00. The court decreed that each of the parties shall retain the property they now possess, and in addition thereto the plaintiff was awarded the defendant’s one-half interest in the Ridgeway Road home, together with the furnishings, and each of the parties was to retain their one-half interest in the United States Savings Bonds, valued at $7000.00, and the 150 shares of Winters Bank stock, valued at $2700.00. Thus, of the jointly held property, the defendant was awarded the sum of $4850.00, while the plaintiff was awarded a like sum, plus the defendant’s one-half interest in the home, valued at $12,500.00. In making these awards the court no doubt took into consideration the fact that it found under special finding of fact No. 19 that the defendant, some time prior to June 22, 1953, had removed from their jointly held lock box the sum of $17,000.00 and placed it in her own private box. Therefore, she really gets the total sum of $21,850.00 out of the jointly held property, to-wit: $17,000 plus $4850.00, while out of the same property the plaintiff was decreed the sum of $17,350.00, which consisted of the $12,500.00 interest in the home, plus stocks and bonds valued at $4850.00.

In determining the reasonableness of the property settlement it should be noted that the Court found no facts which would constitute grounds for awarding alimony to the defendant under §3105.17 R. C.; hence she was not entitled to such an award.

It should be further noted that under §3105.18 R. C., the plaintiff was entitled to a reasonable alimony award. This section provides:

“The court of common pleas may award alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of the decree.”

In determining what constituted a reasonable alimony award to the husband, it was proper that the court give consideration to its special findings of fact Nos. 28 and 29, wherein the court found that the defendant was a trained and skilled registered nurse, in a good state of health, and of the age of twenty-nine years, while the plaintiff was of the age of fifty-one years, in ill health, and may not be able to resume his medical practice for quite some period of time, if ever.

It was also proper that the court take into consideration the fact that the marriage of these parties was of only approximately three and one-half years duration.

The grounds for awarding alimony to the husband were clearly established in the factual findings, and we cannot say that the court abused its discretion in making the award. We may not substitute our judgment for that of the trial court. Henry v. Henry, 157 Oh St 319; Trickey v. Trickey, 158 Oh St 9.

The first assignment of error charges that the defendant was denied a fair trial by reason of the court’s bias and prejudice in the following particulars:

1. Requiring the defendant to proceed with her defense prior to the conclusion of the plaintiff’s case in chief.

2. Refusing to permit the defendant to amend her cross-petition at the conclusion of the plaintiff’s case, it appearing that the defendant desired to also petition for a divorce.

3. That the court accepted the hospitality of the plaintiff in his apartment.

4. By journalizing the entry overruling the defendant’s motion for a new trial while the defendant sought a delay.

5. By refusing counsel for the defendant permission to cross-examine George Lane, a rebuttal witness, on certain matters in order to test his credibility.

Specifications 1, 2, 4 and 5, supra, all pertain to matters which were discretionary with the trial court, and the court’s ruling on each of them does not indicate to us any acts of bias or prejudice.

As to the first specification under this heading, it appears that the plaintiff was too ill to be in court when his case was concluded in all respects with the exception of his further cross-examination by the defendant. With this reservation, the court ordered the trial to proceed, giving the defendant the right to complete the cross-examination at a later time. This order was not prejudicial, for the reason that the order of introducing evidence in the progress of a trial rests in the sound discretion of the court. Sec. 2315.01 R. C.; Shahan v. Swan, 48 Oh St 25; Bean v. Green, 33 Oh St 444; In re Estate of Decker, 83 Oh Ap 169; Cook v. Williams, 92 Oh Ap 277.

The matter of permitting the defendant to file a cross-petition for a divorce after the plaintiff had rested his case was also a discretionary matter. If granted, it would have caused a delay in the trial for at least six weeks in order to acquire service and comply with the period of waiting time required by statute. We therefore cannot say that the court acted arbitrarily in denying the defendant this privilege.

With reference to the premature filing of the entry overruling the defendant’s motion for new trial, the record reveals that the motion was filed on February 15, 1955, that the same was heard on February 24, 1955, and the entry was not filed until June 24, 1955. We are not able to find any irregularity in this procedure, even though the defendant desired a further delay. Counsel for the defendant urges that counsel for the plaintiff must have appeared personally before the court and in his absence secured the court’s approval. However, we find nothing in the record to support such a conclusion. We find no merit in the charge that the court accepted the hospitality of the plaintiff after the conclusion of the plaintiff’s cross-examination, in his own apartment, the plaintiff being too ill to appear in court at that time.

The second and third assignments of error relate to findings of fact which it is claimed are not supported by any evidence in the record, and also error in not finding other pertinent facts which were undisputed and uncontradicted. As to these specifications it must be noted that the court is the sole trier of the facts, and this Court is not permitted to make further factual findings. The judgment can stand only on the facts found by the trial court, and facts not found by it are presumed not to exist. Urner v. State, 51 Oh Ap 97. The bill of exceptions in this case contains 1359 pages of testimony, which we have carefully examined and find much of the testimony in direct conflict; hence it became the duty of the trial court to resolve wherein the truth lay. if a witness wilfully testifies falsely to a material fact, it so far throws suspicion on his entire testimony that if he is not corroborated, his entire testimony may be rejected as not-worthy of credence. Dye v. Scott, 35 Oh St 194. When he testifies falsely about any material matter the court or jury may assume that he has testified falsely about all matters concerning which he has given testimony. Holmes v. Holland, 11 O. Dec. Rep. 768, 29 Ball 115. See also 42 O. Jur. 476, Sec. 470.

We find substantial evidence in the record supporting all of the findings of fact material to the issues presented and if credence is given to the same it may not be said that they are not supported by the proper degree of proof.

We find no prejudicial error in the record and the judgment will be affirmed.

HORNBECK and COLLIER, JJ, concur.


author: By GARY, J.

text:
    REITLER, Estate of, In re.
    Probate Court, Muskingum County.
    No. 42157.
    Decided March 3, 1956.
    Karl D. Schmid, for complainant.
    Ralph G. Marshall, for administrator.
   OPINION

By GARY, J.

This action was brought under §§2109.50 and 2109.52 R. C. A complaint was filed in the following form:

The undersigned respectfully represents that she is a daughter and heir-at-law of Chris Reitler, deceased; that she has good reason to and does suspect that Argyle Smoke, as Administrator of said estate, and Lillie Reitler Welker, as the widow and an heir-at-law of said deceased, have concealed, embezzled or conveyed away moneys, goods, chattels, things in action, or effects of said Chris Reitler, deceased.

Wherefore, she asks that a writ of citation may issue against the said Argyle Smoke and Lillie Reitler Welker requiring them forthwith to appear before said court, then and there to be examined, on oath, touching the matter of this complaint, and that such proceedings may be had in the premises as are authorized by law.

s/ Violet Reitler Carter

The record in this case shows that Chris Reitler died on June 24, 1943 and that letters of administration were issued to Argyle Smoke on July 2, 1943. The inventory and appraisement was filed on August 6, 1943. The first and final account was filed on February 7, 1945 and was approved on March 12, 1945. The account was accompanied by the proper vouchers, including a receipt purportedly signed by Violet Keith, daughter of deceased, now Violet Carter, the complainant herein, for the amount of her distributive share of the estate in the sum of $3192.56.

The complainant is now claiming that her signature on the receipt, as well as her signature on the Waiver of Notice to the Inventory and Appraisement, are forgeries, and that in fact she never received her distributive share, but that it was withheld by her mother, Lillie Reitler. Considerable evidence has been offered in support of this contention.

The first point to be decided is whether or not it is possible to render judgment on a complaint filed in this manner. The section under which the complaint is filed specifically refers to “moneys, chattels or choses in action of such estate.” In other words, the property must have been concealed, embezzled or conveyed away from the estate. If the person accused is found to be guilty, a judgment may be rendered in favor of the fiduciary, except that if the fiduciary is guilty, the judgment is rendered in favor of the state and a successor fiduciary is appointed.

In the instant case, there is no claim that the assets have been concealed from the estate, but rather, that complainant’s distributive share has been withheld from her. However, the final account of the Administrator was filed and approved in 1945, and no exceptions were filed to the account, or motion filed to vacate the order of settlement of the account. Sec. 2109.35 R. C., provides that such order of settlement shall have the effect of a judgment, and shall only be vacated as set out in such section. A motion to vacate such an order on the ground of fraud must be made within one year after discovery of the fraud. Whether the account in this estate could now be vacated, we are not required to say at this time. Even if it were to be vacated, there is considerable doubt whether any finding against the administrator could be made, on the basis of the evidence submitted in this case.

Since it is the finding of this court that no judgment can be rendered in favor of the complainant herself, no judgment can be rendered in favor of the estate so long as the order of settlement of the final account stands, it is not necessary to determine whether the purported signature of Violet Keith is a forgery. The complaint will be dismissed.

Exceptions noted for Complainant.


author: By GRIFFITH, J.

text:
    WILLIAM BROOKS SHOE COMPANY, Appellee, v. BUREAU OF UNEMPLOYMENT COMPENSATION, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5287.
    Decided November 4, 1955.
    Schwenker, Teaford, Brothers & Solsberry, Columbus, for appellee.
    Hon. C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for appellant.
    (NICHOLS, PJ, GRIFFITH, J, of the Seventh District, FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

We hold that §1346-4 GC as amended in 1949 not only required notice to the employer of Rose Marie Martin of the order of disallowance as made on October 5, 1950, but also required that notice be sent to the employer of the allowance of claim for benefits as made by the administrator on October 8, 1950. To hold otherwise would be to hold that property of the employer, William Brooks Shoe Company, can be taken without due process of law, which would be violative of the Constitution. There is a presumption of the Constitutionality of the Act. In addition, the employer having no notice of the lifting of this order of dis-allowance and the granting of the allowance on October 8th, had only ten days in which to appeal from this order on the merits. The employer was denied this substantial right, especially in the face of the fact that in an appeal from the charge-back order of November 30th the employer could not go into the merits of the order of allowance made on October 8th. The charge made against the employer was therefore improper and there was no error on the part of the trial court in so holding.

Judgment affirmed.

NICHOLS, PJ, FESS, J, concur.