author: By McClelland, j.

text:
    FOERSTER et, Plaintiffs, v. FOERSTER et, Defendants.
    Probate Court, Franklin County.
    No. 156573.
    Decided October 1, 1954.

      Chalmers M. Parker, Columbus, for plaintiff.
   OPINION

By McClelland, j.

This is an action for a declaratory judgment brought by Dorothy Foerster and Florence F. Stowell, as Executrices of the will of George B.-Foerster, deceased. The decedent left a simple will in which he left his business, known as “Foerster’s Restaurant” to his widow, Dorothy Foerster, and the residue of his estate to his widow and to his sister, Florence F. Stowell, share and share alike. His total gross estate for federal' estate tax purposes amounts to four hundred thousand dollars, the restaurant business being appraised at thirty thousand dollars. The widow has elected to take under the will. The petition asks the court to determine the manner in which the federal estate tax shall be paid and charged as between the widow and the sister. The will is silent as to the payment of any taxes.

In addition to the probate assets the gross estate includes the following non-.probate assets: -

Insurance $ 13,800.00 payable to widow

Jointly, owned property 8,149.52 payable to widow

Transfers during lifetime 4.875.00 payable to widow

Total $ 26,824.52 payable to widow

Insurance $ 10,978.41 payable to sister

Jointly owned property 1.960.00 payable to sister

Total $ 12,938.41 payable to sister

Upon distribution of the decedent’s estate, the widow will receive more than may be allowed as the marital deduction.

The question is: “How is the burden of the federal estate tax to be distributed between the widow and the sister?”

Our determination of this question calls for an analysis of the opinion of our Supreme Court in the case of Miller v. Hammond, 156 Oh St 475, de.cided January 20, 1952, which is the first and only case involving the marital deduction that has been decided by the supreme court. That case arose in this court, our opinion having been reported in 42 O O 325. Our decision was affirmed by the court of. appeals but was reversed by the supreme court. In that case the widow elected to take under the statute of descent and distribution and against the will. In so doing she became entitled to one-third of the net estate. The supreme court held that the marital deduction was more than a deduction from the value of the gross estate; that it'was-an exemption in favor of the widow from the burden of the federal estate tax. Even though the marital deduction is in the same category under the federal statute as a charitable deduction, yet the supreme court distinguished the case of Y. M. C. A. v. Davis, 106 Oh St 366 (affirmed in 264 U. S. 47), as being a will construction case and as haying been decided before the marital deduc» tion was inserted in the federal estate tax statute providing for deductions (Section 812, Title 26).

The supreme court prefaces its opinion with the admonition that “The construction of the statutes of this state relating to the descent and distribution of the estate of a decedent is the quesion primarily presented. (Sec. 10503-4 et seq., GC.)”, and in support of this statement quotes from the leading case of Riggs, Gdn., v. Del Drago, 317 U. S., 95, 98. The court also states that “This court is necessarily relegated to an examination of the pertinent statutes of Ohio under which the distribution to the widow of her share of her husband’s estate must be determined”. However, the supreme court, after citing 10504-55 GC (2107.39 R. C.) and 10503-4 GC (2105.06 R. C.) (which we think are the only pertinent statutes) and other statutes, comes to the .conclusion that there is an “absence of any specific legislative provision controlling or affecting the determination of the question presented”.

Finding no specific legislative provision affecting the question at issue, the supreme court resorted to the equity power of the court as it is spelled out by the General Assembly for the Probate Court in the last paragraph of §10501-53 GC (§2101.24 R. C.), to-wit:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

We quote from the supreme court:

“The application of fundamental principles of equity in the situation here presented would be in accordance with the established legislative policy.”

Accordingly the court rules “that the Probate Court, in the exercise of its equity power conferred upon the court by §10501-53 GC, in the distribution of intestate property should award such widow her statutory share of such estate”, and that “no federal estate tax is deductible from her portion of the estate.”

The supreme court also resorted to precedents of other states for the manner in which it apportioned the federal estate tax, citing Industrial Trust Co. v. Budlong (R. I. 1950), 76 A. (2d) 600; Gaede, Exr. and Trustee, v. Carroll, 114 N. J. Eq., 524; and Lincoln Bank and Trust Co. v Huber (Ky. 1951), 240 S. W. (2d) 89. These cases, however, with the exception of the last one, are cases involving non-probate and probate assets. The controversy in those cases was between the recipients of probate and non-probate assets as to how the burden of the federal estate tax was to be determined. The courts in those cases did not have before them the question of interpretation of a statute of decent and distribution. No statute was involved, so they applied the doctrine of equitable apportionment of the federal estate tax as was done in this state in the case of McDougall v. Bank, 157 Oh St 45. In the Miller Case, however, an entirely different question was raised. The controversy was between the surviving spouse and the two children as to whether the intestate share of the probate assets of the surviving spouse should bea) a part of the burden of the federal estate tax, or whether the whole burden of the tax should be borne by the children who were the recipient: of the other two thirds of the probate assets. It was a question of wha was the distributive share of the surviving spouse under our statute of descent and distribution.

The last case, Lincoln Bank and Trust Co. v. Huber (Ky. 1951), 240 S. W. (2d) 89, involved probate assets. However, in that case the parties seem to have been in accord with the lower court’s decision and it would appear that an appeal was prosecuted to the Court of Appeal of Kentucky merely for the purpose of obtaining a final determination of the matter. Furthermore, the Court of Appeals rested its decision on the authority of In re Peters’ Will, Sur., 88 N. Y. S. (2d) 142. We quote from the court’s decision:

“Under the authority of In re Peters above, we conclude that if the marital allotment is a deductible item before arriving at the net taxable estate, and since that item does not add to the tax, it cannot be burdened with any portion of the federal estate tax. The surviving spouse, therefore, should receive her share undiminished by any federal estate tax.”

We pointed out in our original, decision in the Miller Case (42 O O 325) that the Peters’ case involved the construction of a New York apportionment of federal estate taxes statute, whereas Ohio has no such apportionment statute, and that consequently the Peters’ case could not be considered as authoritative upon the question before us.

For additional authority on the' question of the apportionment of the tax the supreme court quotes extensively from Montgomery’s Federal Taxes, Estates, Trusts and Gifts (1950-1951), 763, and then comes to the conclusion that it is “clear” from the quotation from Montgomery “that the plan of federal taxation which created-the marital deduction purports to place a surviving spouse in common law states on a taxable basis comparable to that of a surviving spouse in states in which the property of married people is considered as community property.” (Emphasis ours.) What we get from reading the quotation from Montgomery is, (using the words of the author himself) that “The amendments to the estate tax law appear to achieve at least substantial equality between community property and separate property so far as the federal estate tax is concerned.” (Emphasis ours.) In, other words there is the same federal tax saving so far as the estate- pf the decedent is concerned. Montgomery was not discussing the tax from the standpoint of the surviving spouse. We cannot agree, however, with the statement of Montgomery that the Revenue Act of 1948 made drastic changes in the theory of taxation of estates. As we stated in our' opinion in the Miller Case, the marital deduction was made merely a deduction from the gross estate, not an exemption in favor of the surviving spouse, and was in the same category as the charitable deduction.

The supreme court finds further reason for the apportionment of the tax from the federal estate tax law itself. It calls attention to the non-probate-assets mentioned in Section 81-1 (f) and (g) (insurance and property received under a power of appointment) as having to bear their share of the burden of the tax. This is provided for in Section 826 (e) and (d). It is very significant to note, however, that the latter section also provides, in case such non-probate assets are received by the surviving snouse for which the marital deduction can be allowed, that the surviving spouse is exempt from the burden of the federal estate tax so far as those assets are concerned. This exemption in favor of the surviving spouse was inserted in section 826 (e) and (d) at the same time the marital deduction amendment was enacted. It is true that the federal estate tax law authorizes apportionment of the tax as to some non-probate assets, but it is also true that it specifically exempts the surviving spouse from the burden of the federal estate tax as to such non-probate assets up to the amount of the marital deduction. This is the first time that an exemption in favor of any beneficiary has been written into the federal estate tax law since its adoption in the year 1916.

If Congress intended the other assets of the estate (probate assets) up to the amount of the marital deduction to be exempt from the burden of the tax, would it not have so amended the law, as it did in Section 826 (c) and (d), to provide for such exemption? The fact that it exempted the surviving spouse in one instance and not in the other is indeed quite significant.

The supreme court, however, seems to rely mostly upon what it considers the equitable power of the probate court, under §10501-53 GC (2101.24 R. C.), to determine the distributive share of the surviving spouse under the statute of descent and distribution. Incidentally, 10501-53 GC (2101.24 R. C.), adds nothing to the equity power of the probate court because this plenary power is conferred upon the probate court by Article 4, Section 8, of the Ohio Constitution. See In re Estate of Miller, 95 Oh Ap 457 (affirmed in 160 Oh St 529), which case covers a different phase of this same Miller estate.

The employment of the equity power of the probate court in determining the distributive share of an heir under the statute of descent and distribution is entirely without precedent in Ohio. Our statute of descent and distribution is definite and certain and not subject to variation by a court sitting in equity. The law of descent and distribution is one of the most important and most frequently used statutes of the state. Of necessity it must be definite and certain in its terms. If it were open to interpretation on equitable principles, our courts would be flooded with suits for a determination of the distributive shares of the heirs of estates. Being a definite rule of law defined by statute, “Equity follows the law.”

Concerning the construction of the statute of descent and distribution, we refer to 14 O. Jur., page 104 and quote the following:

“The Statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law. Courts cannot, by reason of any real or imaginary equities, qualify or annul rights granted by legislative enactment. In other words, the general assembly must be held to have intended to express its entire meaning by the impact of the words used.

“The laws of descent are mere arbitrary rules for the transmission of property, enacted by the .legislature, and cannot be modified by courts by reason of equitable considerations * *

One of the authorities cited in support of the above text is Patterson v. Lamson, 45 Oh St 77, which case has been cited and followed numerous times. See also Drake v. Rogers, 13 Oh St 21. In the case of In re Estate of Dickey, 87 Oh Ap 255, the -claim was made that the probate court, under 10501-53 GC (2101.24 R. C.), should have exercised its equity powers in apportioning among all'the beneficiaries under the will counsel fees charged the executor for defending a will contest. The court in rejecting the claim of equitable .apportionment and charging the whole fee against the residuary estate, said: “Equity follows the law, and cannot be invoked to destroy or. supplant a legal right.”

Equity follows the' law even though' by'following the law the federal government is entitled to a larger amount of taxes from the estate. The amount of taxes due is not controlled by equitable principles but by statutory .law. If the burden of the tax appears to be inequitable relief must be sought from the legislative body which imposed the burden and not from the courts.

In deciding the Miller case in the first instance this court took it for granted that the insertion of the marital deduction in the federal statute did not change the accepted construction-of the pertinent statutes of Ohio under which distribution to the widow of her share of her husband’s estate must be determined. From the time the case of Tax Commission v. Lampreeht, 107 Oh St 535, was decided in 1923 (the case arose in 1920), it has always been the practice in Ohio, in intestate estates, to deduct the amount of the federal estate taxes from the amount of the estate, the same as debts and charges .are 'deducted, and to consider the balance as the net estate for distribution in accordance with the statute of descent and distribution. ’ Thousands and thousands of estates have been administered by the probate courts of Ohio in this manner and in all these years no question has ever before been raised as to this method of distribution of an estate to the heirs. While it is true, and in our opinion in the Miller Case we did not argue the point, that there is no specific statute in Ohio regulating the payment of the federal estate tax (the federal law does that),.like there is for the payment of debts, yet it has always been the practice in Ohio to administer an estate which is subject to the federal estate tax in the manner above set forth. (For example, see the case of Davidson v. Savings and Trust Co., 129 Oh St at page 430.) If there is no further Ohio case law involving the federal estate tax in an intestate estate, can it not be said that the federal estate tax law in Ohio has been so uniformly administered that it has been considered so firmly grounded as to warrant no court interpretation? Is that not precedent enough for us to hold as we did in the Miller Case? *■

We devoted most of our opinion in the Miller Case in an attempt to analyze the marital deduction amendment to the federal estate tax law. We examined it carefully to see whether the amendment changed the nature of the tax from that of an estate tax on the right to transmit an inheritance to that of a tax on the right of the recipients to receive an inheritance. We came to the conclusion that the nature of the tax had not been changed so far as probate assets are concerned. And the supreme court found in the federal estate tax law as amended no specific legislative provision controlling or affecting the determination of the question presented.

Before the enactment of the federal estate tax law, we had a federal inheritance tax which was a charge upon the receipt of property, based on different rates according to the relationships of the recipients to a decedent. The federal estate tax law in 1916 changed the nature of that tax to a tax upon the transmission of an estate by a decedent. As Justice Murphy said in Riggs, Gdn. v. Del Drago, 317 U. S. 95, 98:

“It did not undertake in any manner to specify who was to bear the burden of the tax. Its legislative history indicates clearly that Congress did not contemplate that the Government would be interested in the distribution of the estate after the tax was paid, and that Congress intended that state law should determine the ultimate thrust of the tax.”

In the leading case of Re Hamlin, 226 N. Y. 407 (1919), annotated in 7 A. L. R. 701, the court, in explaining the nature of the estate tax law of 1916 as compared with the former federal inheritance tax law, quotes from a very significant statement made by Mr. Ketchin, chairman of the ways and means committee of the House of Representatives, as follows:

«* * # We ieVy an entirely different system of inheritance taxes. We levy the tax on the transfer of the flat or whole net estate. We do not follow the beneficiaries and see how much this one gets and that one gets, and what rate should be levied on lineal and what on collateral relations, but we simply levy on the net estate. This also prevents the Federal government, through the Treasury Department, going into the courts contesting and construing wills and Statutes of Distribution.”

From the above we can see the reason why the federal government established an estate tax as distinguished from an inheritance tax. As stated before, we cannot see how, by the insertion of the marital deduction amendment, Congress intended to change the nature of the tax as far as probate assets are concerned. We have read the reports of the congressional committees that had the U. S. Revenue Act of 1948 under consideration and we find nothing in those reports to indicate a change in policy or that Congress contemplated that the government would now be interested in the distribution of the probate assets of an estate after the tax was paid. We copy a significant paragraph from the report of the Senate Committee, as follows:

“Under the estate-tax provision of your committee’s bill a decedent spouse is allowed a marital deduction from his gross estate in the amount of the value of all interests in property passing outright from the decedent to the surviving spouse by way of bequest, devise, transfer, right of survivorship in jointly held property, etc. The deduction is limited to an amount not in excess of 50 percent of the adjusted gross estate.” (U. S. Code Congressional Service for 1948, Vol. 2 at page 1189.) (Emphasis ours.)

From the above it is apparent that the committee was considering the marital deduction from the standpoint of the “decedent spouse” and not from the standpoint of the decedent’s spouse. Nevertheless, the Surrogate Judge in the case of In re Peter’s Will, 88 N. Y. Sup. (2d) 142, which seems to be the first reported case on the subject, looked at the marital deduction from the standpoint of the surviving spouse when he stated that, “Its purpose is to allow a surviving spouse to take a certain portion of the estate free of Federal Estate Taxes.” It appears now that many courts in other jurisdictions have fallen in line with the Surrogate Judge’s conception of the purpose of the marital deduction.

The whole purpose Congress had" in the enactment of the marital deduction amendment, was, as stated in the Senate Committee’s report:

“Equalization is provided for the tax burden of married couples in common-law and community-property states. The bill corrects existing inequalities under the estate and gift taxes, as well as the individual income tax.” (U. S. Code Congressional Service, Second Session, 1948, Vol. 2, page 1163.)

“It is recognized that complete equalization of the estate and gift taxes cannot be achieved because of the inherent differences between community property and non-community property. However, the new provision will result in equality in important’’ situations.” (U. S. Code Congressional Service, Second Session, 1948, Vol. 2, page 1189.)

And as stated by Montgomery:

“The amendments to the estate tax law- appear to achieve at least substantial equality between community property and separate property so far as the federal estate tax is concerned.”

Equalization, as far as possible, is further indicated by certain provisions of the marital deduction law. The interest in property must pass outright to the surviving spouse to qualify for the marital deduction. “This”, says the Senate Committee’s Report on page 1190, “will equate the decedent in the common-law State with the decedent in the community-property State who cannot by his will effect in any wáy the surviving spouse’s interest in the community property.” (Emphasis ours.) It is also provided in Section 812e(l) (E) that, in determining the amount of property which will qualify for the marital deduction, there shall be taken into account the effect which the amount of the federal estate tax and inheritance tax has upon the net value to the surviving spouse of such property. In other words, if the amount passing to the surviving spouse is reduced by federal estate or inheritance tax charges, only the amount as so reduced will be taken into consideration in determining what will be the máximum amount of property passing to the surviving spouse for which a marital deduction may be claimed. The Senate Committee’s Report on page 1227 explains this provision, as follows:

“This provision is designed to prevent any implication that such taxes should not be taken into account where such taxes and the marital deduction are mutually inter dependent This provision is substantially the same as that provided in -section 812(d) of the code, relating to bequests, etc., to charity. The rule applies where the burden of a death tax falls upon the surviving spouse or the property in which an interest passess to the surviving spouse ”

Congress was intent on equalizing the tax burden on the estate by (providing for a deduction equal, as far as possible, to the outright one-half retained by the surviving spouse in community-property states. That is why itpvas stipulated by Congress that the interest in property must pass outright to the surviving spouse to qualify for the marital deduction, and that in determining the total amount of property allowable for the marital deduction there shall be taken into account the effect which any federal estate and inheritance taxes might have upon the amount of property allowable for that purpose.

Congress was considering the equalization of the tax from the standpoint of the federal estate tax chargeable against the estate of the decedent as a whole, and not from the standpoint of any special tax saving for the surviving spouse alone. The marital deduction greatly lessens the federal estate tax chargeable against a decedent’s estate and inures to the benefit of all the receipients of the estate.

The federal estate tax law and the Reports of the Congressional Committees are silent as to the burden of the tax as far as probate assets are concerned. This is left to the law of the individual states and to the last will and testament of the decedent, Riggs v. DelDrago, 317 U. S. 95.

It is, therefore, still our opinion that, under the law of Ohio, the marital deduction should be considered as a deduction from the adjusted gross estate to be taken advantage of by, and for the benefit of, all the heirs of a decedent, and not as an exemption in favor of the- surviving spouse alone.

However, it matters not what our opinion may be as to the nature of the marital deduction, for, under the rule of stare decisis, we are bound by the authority of the Miller Case as far as it may be applied to the questions presented in this case. Since the decision in the Miller Case, there has been quite a “rash” of elections by surviving spouses to take under the statute of descent and distribution and not under the will so that the surviving spouses might reap the benefit of the decision in that case. There has been a hesitancy on the part of lawyers to have their clients elect to take under wills for fear that the tax advantage to the surviving spouse, under the Miller Case, would not apply, since the court limited its decision to the particular facts of that case.

In the case at bar, however, the widow elected to take under the will. This being the case it will be necessary for us to determine how much of the burden of the federal estate tax will be borne by the widow as specific legatee of the restaurant business and as residuary legatee of half of the residue under the will of the decedent, and also as beneficiary of non-probate assets; and how the burden will be borne by the sister as residuary legatee of half of the residue and also as beneficiary of non-probate assets.

We will first consider the non-probate assets payable to the widow. The widow has claimed these assets as part of the marital deduction. Since these assets are payable to the widow outright and do not pass under the will, there is no question in our mind but that they should be placed in the same category as inestate property, so far as the burden of the federal estate tax is concerned. It therefore follows that these assets payable to the widow should be considered as free from the burden of the federal estate tax under the decision of the supreme court in the Miller Case. As to the insurance payable to the widow, the widow should receive that free of the burden of the tax in accordance with U. S. Code, Title 26, section 826(c).

However, if the widow is not required to pay the proportionate share of the federal estate tax on these non-probate assets, who is going to bear the burden of the tax? The executrices are responsible for the payment of the tax (Section 822[b]), but out of what assets are the executrices to pay this proportionate share of the tax? The only remaining assets of the estate out of which the tax may be paid are those included in the residuary estate. The residuary estate is what is left of the estate after paying the debts, charges, prior legacies and costs of administration. The federal estate taxes that are chargeable against the residue must also be deducted before the amount of the residue for distribution may be determined. Under the terms of the will the sister is entitled to one-half of the residue just the same as the widow. Therefore, even though, under the Miller Case, the widow is exempt from bearing the proportionate share of'the tax on the non-probate assets payable to her, yet the tax must be deducted from the residue before she receives her half of the remaining residue. This is in accordance with holding of the court in the case of Y. M. C. A. v. Davis, 106 Oh St 366 264 U. S. 47, where, even though the share of the estate devised to the charity was deductible before the - tax was determined, yet the charity, as residuary legatee, was required to pay the tax chargeable against the entire estate. It is our opinion that the Y. M. C. A. case is still the law of Ohio and is equally applicable to 'the marital deduction as well as to the charitable deduction, where the residuary estate under a will is involved. We consider the marital deduction as enjoying no greater preferment than the charitable deduction.

The same reasoning applies with reference to the widow’s specific legacy of the restaurant business. The proportionate share of the tax on this legacy must be borne by the residuary estate.

Since the federal estate tax chargeable against the probate-assets must be paid before the residuary estate may be determined, the widow’s one-half of the residue as well as the sister’s one-half is subject to the federal estate tax chargeable against the residuary estate.

However, with reference to the non-probate assets payable to the sister, the sister will be required to pay . the proportionate, share of the federal estate tax attributable to the $10,978.41 of insurance, in accordance with U. S. Code, Title 26, section 826(c). The same rule will apply to the $1960.00 of jointly owned property payable to the sister, under the decision of the supreme court in the ease of McDougall v. Bank, 157 Oh St 45. The latter case prescribes the formula to be used in determining the share of the federal estate tax which., should be allocated to the non-probate assets payable to the sister, totalling $12,938.41, which share of the tax is the individual obligation of the sister. The formula appears on page 59 of the court’s opinion and reads as follows:

“Thus, in the instant case, the trust estate will be required to pay such portion of the total tax paid as the value of the trust assets, for estate tax purposes, bears to the sum of (a) the net estate, for estate tax purposes, and (b) the exemption allowed in computing that net estate, determined under Section 935(c), Title 26, U. S. Code.”


source: Caselaw Access Project

author: By McBRIDE, J.:

license: Public Domain

text:
    BARTLETT, Etc., Plaintiff, v. BOARD OF EDUCATION of Miamisburg City School District, Defendant.
    Common Pleas Court, Montgomery County.
    No. 108502.
    Decided July 21, 1955.
    Peck, Shaffer & Williams, Cincinnati, by Frank H. Shaffer, Jr., for plaintiff.
    Mathias H. Heck, Dayton, Prosecuting Attorney, by John P. McHugh, for defendant.
   OPINION

By McBRIDE, J.:

This case was submitted to the Court on a petition for a declaratory judgment, an answer and testimony supporting the decision of the Board of Education to construct two elementary schools rather than one, and to make additions to existing buildings.

The answer filed by the Board of Education admitted every allegation of the petition. Because the petition is admitted and was supported by evidence it is included in this decision. The petition alleges:

“Plaintiff brings this action under authority of §2721.02 R. C. for a determination of his rights and obligations in the matter of the issuance of bonds by the defendant. Plaintiff is the Clerk-Treasurer of the defendant Board of Education and is charged with the disbursement of the proceeds of the sale of said bonds.

“Plaintiff states that at the. general election held on November 2, 1954, there was submitted to the electors of the Miamisburg City School District the question of the issuance of bonds of the defendant Board of Education in the principal amount of $695,000 for the purpose of ‘acquiring a site and constructing and equipping an elementary school building and additions to existing school buildings.’

“That at said election 1684 electors voted in favor of said bond issue and 1014 against said bond issue, the requisite legal majority being 55%, and subsequently, upon a resolution duly adopted by the plaintiff at a meeting held on January 10, 1955, which authorized the issuance of said bonds for the purpose set forth above., said bonds were advertised and sold according to law and are now outstanding; having been fully paid for by the purchasers.

“That a question has arisen as to the use of the proceeds, in that it has been considered and determined by the defendant and the superintendent of schools that it would be more practical and economical and better serve the public interest to acquire a site and construct and equip two elementary school buildings instead of acquiring a site and constructing and equipping one elementary school building; that two elementary school buildings should be located in centers of greatest population, thereby providing greater convenience to the public and reducing pupil transportation costs; that two, elementary school buildings should .be so constructed as to permit future additions thereto, whereas, if a single elementary school building were- built any future expansion would require new site acquisition and construction at an increased cost.

“That the question involved is a construction of a section of the Uniform Bond Law which controls the issuance of bonds by boards of education, namely, §133.36 R. C., which provides in part;

“ ‘The money from the principal, or sale of such bonds or notes, shall be credited to the fund on account of which the bonds are issued or sold and used only for the purpose set out in the resolution or ordinance, of the taxing authority a' * *’ and its application to the present bond issue, in that plaintiff desires the direction of the cburt to him and to the defendant as to whether the proceeds of said bond issue may be used to acquire a site and construct and equip two elementary school buildings, as proposed above. ■ ■

“That the main and overall purpose of the defendant in submitting said bond issue to the electors was to provide adequate and modern school facilities of proper constrution and location for the accomodation of the pupils of the school district, and that it has been determined that it would be for the best interests and better serve the main purpose and intent of the said bond issue and the electors in approving the same to acquire a site and construct and equip two elementary school buildings instead of acquiring k site and constructing and equipping one elementary school building and that in so doing the provisions of the statute, §133.29 R. C., would be substantially complied with, and that said statute should not be so construed and applied as to prevent the use of said proceeds as proposed by the defendant.

“Therefore, plaintiff prays for the -judgment of this court construing said statute and declaring the rights of the plaintiff and defendant thereunder with, respect to the use of the proceeds of said issue of $695,000 of bonds, and to such other relief to. which he may be entitled.”

The bonds authorized by the levy were sold on April 6, 1955. After the election and within a period of - approximately six months, construction and contemplated construction of new homes in another section of the city school district reached such proportions that the Board determined, if possible, to use part of the proceeds of the bond issue to construct an elementary school building in that area, rather than attempt to meet the needs by additions to existing buildings. This change in plans would locate school facilities closer to the elementary age population and would result in substantial savings in transportation costs to the Board. Construction of the one new building, as announced in the levy, remains unchanged from the original plans and some additions to existing buildings will also be made. The Board plans sub-, stantial buildings, but without non-essentials, so as to obtain further use of the tax fund to better meet the expanding enrollment.

Sec. 133.36 R. C., a section of the Uniform Bond Law, provides in part:

“The money from the principal, or sale of such bonds or notes, shall be credited to the fund on account of which the bonds are issued or sold and used only for the purpose set out in the resolution or ordinance of the taxing authority * * *.”

Section 133.10 of the Uniform Bond Law requires that “the resolution * * * shall relate to only one purpose.” And, further, that “in the case of a school district, any number of school buildings may be included in a single resolution.”

An almost identical factual situation was presented to the Supreme Court of Ohio in State, ex Van Harlingen, v. Board of Education, 104 Oh St 360 (1922). Under the statutory bond authority then in effect, bonds had been voted for the purpose, among others, of erecting a single school building; by resolution, the board proposed to erect two school buildings and had acquired options for two sites. The court affirmed Court of Appeals action in dismissing a petition seeking a writ of mandamus directing the board to construct one and not two buildings, and asking that the board be enjoined from spending the bond proceeds other than for the literal purposes of the bond issue.

Syllabus 2 of that case reads:

“Boards of education are by the provisions of §7625 GC, vested with authority to determine the needs of school districts for the proper accommodation of the schools, and the approval by the electors at an election called for that purpose of a bond issue to raise funds for the erection of a schoolhouse does not withdraw from the board the discretion and authority conferred upon it by law, nor require the board to proceed with the erection of a particular school building.”

Judge Johnson’s opinion elaborates on that paragraph of the syllabus:

“The manifest purpose of the legislature was to secure to the electors of the district the final determination of the matter of the issuing of bonds to be paid by the taxpayers of the district. There is nothing in the section which indicates that the legislature intended to withdraw from the board of education the discretion conferred upon it by that and other sections of the Code with reference to the control and managment of the schools of the district, or with reference to the consolidation of rural districts. All of those matters are left within the discretion of the board precisely as if the question of the bond issue had not been submitted to the electors.”

There is a substantial difference in the procedure and nature of issues which may be determined in mandamus, as distinguished from an action in declaratory judgment. It must be observed, however, that the facts in the Van Harlingen case were peculiar to a consolidation program in spite of which the board was not restrained from constructing two schools. The resolution in the instant case is broad and otherwise limited only to use for elementary school construction. The levy was designed to meet a need which practically doubled from the time of the resolution to the time the money was actually available. These factors slightly distinguish the Van Harlingen case. The distinctions support the authority and discretion of the board to determine and meet the requirements of the school district to best serve the purpose for which the construction was authorized.

Other cases to the same general effect are: State, ex Clarke, v. Board of Education, 11 Oh Ap 146 (1919); Sheffield Lake v. Holley, 152 Oh St 374 (see Editor’s note in 40 O O 444).

In conclusion, the court finds as a matter of law that the authority and discretion of a board of education over'the location, number and nature of elementary school buildings is not restricted by a bond levy, the express purpose of which was to acquire a site and construct “an elementary school building and additions to existing school buildings.”

An entry may be prepared accordingly, approving the proposed action of the school board to construct two elementary school buildings.


author: By WALCUTT, J.

text:
    MARKIEWICZ, Estate of, In re. (Two cases.)
    Probate Court, Franklin County.
    Nos. 162783, 163179.
    Decided August 22, 1955.
    Robert M. Draper, Columbus, for estate of Henry Markiewicz.
    Kenneth L. Sater, Columbus, for estate of Josephine Markiewicz.
   OPINION

By WALCUTT, J.

The estates of both decedents, Henry V. Markiewicz and Josephine Markiewicz, are being administered in this Court. In the inventory and appraisement filed in each case there are listed four bank and savings accounts under Schedule D, Accounts and Debts Receivable, as follows:

Columbus Savings Bank Company, checking account, $6,657.81;

Clintonville Federal Savings and Loan Assn., savings account, $3,822.08;

Central Savings & Loan Company, savings account, $9,768.58;

State Savings & Loan Company, savings account, $7,000.00.

The fiduciary in each estate has filed exceptions to the inventory and appraisement of the other, alleging that the items of personal property above set forth are the property of his estate.

By agreement of the parties the two matters are heard together, and are submitted to the Court upon the statements of counsel, the evidence and the briefs.

The account in the Columbus Savings Bank is a commercial or checking account opened on October 17th, 1940, in the name of “Henry or Josephine Markiewicz.” The signature card, signed by both parties, contains the provision:

JOINT ACCOUNT — Payable to Either or Survivor. We agree and declare that all funds now, or hereafter, deposited in this account are, and shall be, our joint property and owned by us, as joint tenants, with right of survivorship and not as tenants in common; and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account, or any part thereof, may be withdrawn by, or upon the order of, either of us, or the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives.

The bank statements, containing the record of many deposits and withdrawals, each bear the notation, “Joint Account — Payable to Either or Survivor.” The Vice President of the Bank testified that this represented all of the contract between the depositors and the Bank, that the Bank would honor the signature of either party, and that there has been no revocation of the joint and survivorship features of the account.

The account in the Clintonville Federal Savings and Loan Association is a savings account opened on December 29, 1949, in the name of Josephine Markiewicz or Henry Markiewicz or the survivor. The signature card shows, the signatures of each party and contains the following:

The undersigned hereby apply for membership and for a savings share account in the CLINTONVILLE FEDERAL SAVINGS AND LOAN ASSOCIATION OF COLUMBUS and for the issuance of evidence of membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common. Receipt is hereby acknowledged of a copy of the charter and bylaws of said association. Specimens of the signatures of the undersigned are shown below and the association is hereby authorized to act without further inquiry in accordance with writings bearing any such signature; it being understood and agreed that any one of the undersigned who shall first act shall have power to act in all matters related to the membership and any share account in said association held by the undersigned, whether the other person or persons named in the certificate be living or not. The reproduced or redemption value of any such share account or other rights relating thereto may be paid or delivered in whole or in part to anyone of the undersigned, who shall first act, and such payment or delivery or a receipt or acquittance signed by any one of the undersigned shall be valid and sufficient release and discharge of said association.

The records of the account, showing deposits, dividend accounts and withddrawals, bear the denomination, “Josephine Markiewicz or Henry Markiewicz or Survivor.” The “Joint Membership Certificate” reads as follows:

Joint Membership Certificate

No. 6539

This certifies that Josephine Markiewicz or Henry Markiewicz or Survivor as joint tenants with the right of survivorship and not as tenants in common, is a member of the Clintonville Federal Savings and Loan Association of Columbus and holds a Savings Share Account of said Association, subject to its Charter and By-laws and to the laws of the United States of America.

The president of the company testified that there had been no revocation of the joint and survivorship features.

The savings account in the Central Savings and Loan Company was opened on December 31st, 1953, in the name of “Mrs. Josephine Markiewicz, or Henry Markiewicz,” and the record shows the following on the signature card, which bears both signatures: Henry or Josephine Markiewicz

This card is signed to ratify my or our agreement to conform to and abide by the by-laws, rules, and regulations and to any amendments thereof of the Central Building Loan & Savings Co., Columbus, Ohio.

JOINT ACCOUNT — Payable to either or survivor. We agree and declare that .all funds now, or hereafter deposited in this account are, and shall be our joint property, and owned by us as joint tenants, with right of survivorship and not as tenants, in common, and upon the death of either of us, any balance in said account shall become the absolute property of the survivor. The entire account, or any part thereof, may be withdrawn by, or upon the order of, either of us, or the survivor.

It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives.

The statement of the account shows deposits, interest accruals, and withdrawals, and is headed, “Mrs. Josephine Markiewicz, or Henry Markiewicz, Joint Account — Payable to Either or Survivor.” There has been no revocation.

The State Savings and. Loan Company account was opened on December 19, 1951, in the name of “Markiewicz, Henry or Josephine or Survivor,” and the signature card, which bears both their signatures, contains this provision:

Joint and Survivorship Agreement

We hereby contract and agree that the subject item is the joint property of the undersigned and authorize and instruct you to pay or transfer all or any part of said item, including any additions thereto, to or on the order of any one or more of us before, after and notwithstanding the death or other incapacity of one or more of us. Such payment or transfer shall be a valid discharge to your Company to the extent of such payment or transfer as against us, either of us, or anyone claiming under or through us.

The account sheet bears the name, “Markiewicz, Henry or Josephine or Survivor,” and there is no revocation.

It is conceded by counsel that Henry V. Markiewicz and Josephine Markiewicz and their children were instantly killed in an aeroplane accident near the City of Warsaw, Indiana, on November 28th, 1954, and that there are no lineal descendants. Counsel for the Estate of Henry V. Markiewicz says in his brief, “In the case at bar the evidence .shows that said parties died simultaneously”; and counsel for the Estate of Josephine Markiewicz quotes as stating the fact the report of the coroner, that “it is my opinion that all members of the Henry Markiewicz family died instantly and simultaneously, because they all had broken necks, which would have been caused when the plane hit the ground.”

In the case at bar under the circumstances the conclusion must be that the deaths were simultaneous, because no evidence can be produced to show and there are no presumptions to dictate otherwise. The law will not presume that all died at the same instant, nor does it presume that one survived the other, and this is true regardless of the age or sex of the victims. 13 O. Jur., 376.

Quoting from 29 O. C. A., 353 at page 355, Ware v. Kinch, which seems to express the law of Ohio:

While there is no presumption that two persons who perish in a common disaster die at the same time, still if there is no evidence which establishes by the degree of proof required that one or the other died first, then the fact of survivorship can not be ascertained and the law is applied as if they both died at the same time. In other words, the impossibility of proving which died first, so far as the question of burden of proof is concerned, leads to the same conclusion as a presumption that they both died at the same time.

To the same effect in a case involving the payment of the proceeds of a life insurance policy in In re Estate of Helen V. Francis, Deceased, 29 O. O. 502:

A husband and wife being killed in a common accident, and it being impossible to determine that either one survived the other, the presumption must be that their deaths were simultaneous, and that neither one survived the other.

There being no survivor, the question then is to whom do the funds hereinbefore enumerated belong?

Sec. 2105.21 R. C., which provides in part as follows, has -been cited:

When there is no evidence of the order in which the death of two or more persons occurred, no one of such persons shall be presumed to have died first and the estate of each shall pass and descend as though he had survived the others. When the surviving spouse or other heir at law, legatee or devisee dies within thirty days after the death of the decedent, the estate of such first decedent shall pass and descend as though he had survived such surviving, spouse, or other heir at law, legatee or devisee.

This is a statute governing descent and distribution and has no application at this stage of the case to the question of ownership.

Sec. 1105.09 R. C., has been referred to.- It says:

When a deposit is made, in any bank or trust company transacting business in this state, in the name of two or more persons, payable to either or the survivor, such deposit or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other is living or not, and the receipt or acquittance of the person paid is a sufficient release and discharge of the bank for any payments so made.

This section can not have application here as it relates to the protection of the bank in its payments to a party or the survivor.

This relates only to payments when there is a survivor, which is not this case.

There are also produced in evidence copies of the joint income tax returns of Henry and Josephine Markiewicz from 1949, which the accountant who prepared them says carries only income realized from investments and personal salary of Henry Markiewicz.

Counsel for the husband’s estate also introduces stock certificates and other evidence to show the investments of the husband in various companies and partnerships in which he was interested.

The testimony of the deceased husband’s brother shows that the financial situation of the Markiewicz family in Chicago before coming to Columbus in 1945 was not too good, and that the wife worked for several - years after their marriage in 1937, at least until the birth of their first child, and also in Columbus in a grill which the husband had purchased. This is corroborated by the', mother and a brother of the wife. The husband’s brother says that the wife received no compensation for the work in the Columbus grill.

The evidence further shows that while in Chicago a partnership called Dalmar Tool and Engineering was formed, which ceased to exist at about the time the decedents moved to Columbus. The partners were Henry Markiewicz, Josephine Markiewicz1, Delbert Palmer and Louis Palmer. _Each partner was entitled to a drawing account of $50.00 per week, and they were to share equally the profits and losses. Henry. Markiewicz and Delbert Palmer were the managing partners with full and complete control of the partnership affairs.

This testimony was presented by counsel for the Henry Markiewicz estate on the theory that resort must be had to the individual contributions to the account by the contracting parties.

The accounts in this case are joint and survivorship accounts. The law in Ohio is that joint accounts do not exist as a matter of common law, and that, where created, survivorship is not a necessary incident thereto. But it is uniformly held that joint and survivorship accounts may legally be created by the contract of the parties. Most of the adjudicated cases in this state have to do with the right of the survivor to the fund. 137 Oh St 297.

In the present case the rights to be determined are to the fund without respect to the matter of survivorship. The deaths were simultaneous and there was no survivor.

In the annotations under this subject in Moskowitz v. Marrow, 66, A. L. R., 870, at page 382, the New York Court of Appeals calls attention to the fact that the courts in passing upon the rights of survivorship have not always distinguished clearly as to whether they base their decisions upon the theory of gift .or of trust, and 22 Oh Ap 213, and 114 Oh St 241, are cited as failing to make the distinction. We believe, however, that under these circumstances in this state the rights of the parties are based on contract.

The discussion referred to by counsel for the deceased husband in 7 Am. Jur., page 302, section 428, refers to the situation where only the fact of deposit to joint account appears, which is the situation in this case except for the evidence that in later years, since the parties came to Columbus, the income of the parties was wholly represented, except perhaps for the time the wife was working at the Main Street Tavern, by earnings of the husband:

The intention of the owner of money in depositing in a joint account is, of course, a question of fact where there is evidence as to the intention. In many cases, however, there is no such evidence, and then it is necessary to determine the rights of the survivor from the fact of a deposit in this form. The rule sustained by the majority of cases is that the mere fact that money is deposited to the account of the owner and another or of the owner or another does not show an intention to make a gift. According to the view just taken it is deemed that such a form of deposit is entirely consistent with a desire on the part of the owner to give his co-depositor authority to withdraw money for the owner. The absence of the delivery of the passbook is to be considered in this connection as bearing upon the intent with which the deposit is made; but the possession of the passbook is not conclusive of the existence or nonexistence of a gift. Other cases, however, hold that the mere fact that a joint account is opened or is changed into such form by the donor without any further explanation indicates an intention to make a gift. Before the prima facie case can be destroyed there must be a finding that the opening or changing of the account was for some other purpose. In other words, there is a presumption of a gift in such case. Some cases limit this presumption of a gift to cases in which the joint tenants are husband and wife or parent and child.

In some states this has been changed by statute to make such opening or changing of account presumptive or conclusive evidence of intention to make a gift.

Re Estate of Kessler, 85 Oh Ap 240, is cited. In that case there was no question of a joint and survivorship account. 'The Court held that by reason of the contract the survivor took the entire fund. In its opinion the Court discussed the unreported case of Hitchcock v. Semple, decided April 8th, 1934, by the Court Of Appeals of Ashland County, in which a motion to certify was overruled by the Supreme Court. There it was clear that the parties had contracted for a joint account and that the Bank had, without authority, added the words of survivorship. The Court there held that the addition of the words “or the survivor” was without authorization, and that the account was a joint account in which the parties shared equally.

Buckley v. Buckley, 17 N. E. 2nd, 887 (Massachusetts), is cited to show that resort must be had to the contributions of the parties to show the ownership of the account. But in that case the trial court had specifically found that there was no gift to.the wife, that the wife had authority to withdraw for certain purposes, and if anything should happen to the husband, it was to be the wife’s property. The account was opened with money of the wife, but all subsequent deposits were made by the husband under the agreement or contract found to exist. That case is not on all fours with our case.

Syllabus 4 of Commercial Trust Co. v. White, 99 N. J. Eq., 119, says:

Where the donor and donee signed a signature card, by which a savings bank was directed to open an account in the name of “J. B. or L. A. D. as joint tenants, either and the survivor to draw,” or equivalent words, such form of deposit is evidence of a gift to the donee to take effect in praesenti, and the balance of the credit of the account belongs to the donee on the death of the donor, unless it appears from the evidence that the donor had no donative intent in naming the donee as joint owner.

Does the evidence in this case negative such “donative intent”?

Reference is also made to Union Properties, Inc., v. Cleveland Trust Co. et, 152 Oh St 430. There Union Properties, Inc., obtained judgment by default against John Allen in Municipal Court. The Trust Company was brought in on proceedings in aid of execution. The Bank did not comply with order to pay Union Properties but paid the sum claimed into Court. John Allen and his wife, Needa Allen, were made parties. Needa Allen averred that the money set -up in a joint and survivorship account in the bank was at all times her property. The evidence showed that John Allen had made a deposit of $100.00 in the Bank in July 1941. Later the name of Needa Allen was added on the records of the Bank, and either was authorized to draw money from the account, with balance payable to the survivor at death. John Allen testified that he had had no regular employment for years, that his wife' by reason of an injury could not go to the Bank, and that he took the money for her. Needa Allen testified that the remaining deposits were for the most part payments to her by. a nephew during his service in the United States Army. The lower Court held that the money belonged to the wife and might not be subjected to the payment of a judgment against the husband.

The Supreme Court says:

In the case of Cleveland Trust Co. v. Scobey, 114 Oh St 241, this Court laid down the rule since adhered to in principle that where one opens a savings account in a bank to the joint credit of himself and another, payable to either or the survivor, and it is apparent that the depositor intended to transfer to the person to whom he made the account jointly payable, a present joint interest therein equal to his own, the person to whom the account is made jointly payable is entitled to the balance of the money in the account upon the death of the depositor as against the claim thereto of the depositor’s personal representative. * * * Here we are concerned wholly with a subsisting deposit intact, and the rights, intention and attitude of the depositors with respect thereto during their joint lives. In our judgment in controversies like the present one, involving the deposit and arising during the joint lives of the depositors, the form of the deposit should not be treated as conclusive on the subject of joint ownership, and the door should be open to evidence that the deposit was in truth made and maintained on a different basis. In other words, the “realities of ownership” may be shown. (Citing 251 N. Y., 380; 301 Mass., 530; 57 R. I., 411.) * * * In general the cases concede or assume that parol or other evidence is admissible to show the truth of the intent of the parties to a formal joint account, even where by signature card or otherwise it would appear that joint and equal interests were created. * * * This Court does not weigh evidence. Both the lower courts found in effect on evidence probative force that notwithstanding the form of the account in the Bank, the money on deposit was in reality the sole property of Needa Allen, and that in opening the account and subsequently it was not the intention that John Allen should have a joint and equal interest therein.

In this case under consideration all the evidence available as to the condition and situation of the parties over the years as reflecting on the contributions of the husband and wife to the joint account and their intent in establishing it was presented and admitted. The contract did not contemplate an equal interest.

In the case of Foraker, Exr., v. Kocks, Admrx., 41 Oh Ap 210, it was held that, notwithstanding the non-existence of joint tenancy with right of survivorship, the parties may contract for joint ownership with such right, that, if joint tenancy is expressed without words of survivorship, it will be considered as a tenancy in common, and that where certificate of deposit and liberty bond were payable to husband and wife or either the presumption existed that the property was impressed with a contract of ownership wherein husband and wife had equal rights without any survivorship. In this case the husband and wife had a certificate of deposit which showed “Bernard or Katherine Noon, or either of them, has deposited with the Bank of Corning Company $1,100.00 payable to the order of either on the return of this certificate,” etc.; when new certificates were issued at the end of six months periods, the old were endorsed by either or the other or both; and the husband was working and the wife unemployed, although the wife had certain property of her own when married. The trial court had found the funds to be their joint earnings, but the reviewing court observed if that finding had not been made by the trial court, the presumption would arise that at the time the money was placed in the certificate of deposit it was impressed with a contract of ownership, without survivorship, wherein they had equal rights. 7 Corpus Juris., 640, is quoted, holding that “the presumption is that the interest of the joint depositors is equal.”

In 30 N. P. N. S., 515, In re Estate of Thatcher, Judge McClelland, of this Court, held, in a case where husband and wife died within three days of each other, being governed by §2105.21 R. C., that “if there is no provision as to the right of survivorship in the joint account in this case, * * * each shall be entitled to half of the account, there being no evidence to destroy the presumption that they held the account as tenants in common.”

In Baker v. Dollar Savings and Trust Co., 15 Abs 385, husband and wife had a joint bank account; the wife was a cripple and not a wage earner, but withdrawals had been made by her, and by him after her death; and no change in the name of the account had been made by him in the six weeks elapsing between her death and his.

Money in a joint bank account of husband and wife made up of the husband’s earnings, containing no provision as to survivorship, belongs one-half to the estate of the wife who first died and the balance to the estate of the husband who died shortly thereafter without having made any changes in the account.

In the case here under consideration there was a survivorship provision in the contract, which was rendered ineffective by the simultaneous deaths of the parties.

It was held in 120 Oh St 542, In re Estate of Hutchison:

Where a certificate of stock in a corporation is issued in the joint names of two persons by their agreement and consent, the delivery of the certificate to one is a delivery to both and the possession of one is the possession of both.

Where two persons purchase property to be owned by them in common during their joint lives and at the death of either to become the property of the other, each party has an undivided one-half interest and each has a vested estate in remainder in the one-half interest of the other.

In Schwaigert v. Fitzhum et, 26 Abs 442 (Probate Court of Franklin County), there was a certificate of deposit i'ssued to “C. F. or Katherine D. Vietmeier,” and the subscription or signature card provided that “all money paid or hereafter paid is paid by the undersigned, such shares being held by the Association for their joint account, and may be repurchased by either before or after the death or incapacity of either, and either is authorized to pledge them as collateral.” The Court held that, there being no other evidence as to ownership, half of the certificate belonged to C. F. and half to Katherine D.

Counsel for Josephine Markiewicz refers to the cases of Abrams, Gdn. v. Nickel et, 50 Oh Ap 500, and Waltenberger, Admr., v. Pearson et, 81 Oh Ap 51. In the Waltenberger case there was involved the contents of a lock box, the disposition of which the Court held invalid as a testamentary disposition without a will; but as to certain bonds registered in the names of one person “and” another it held that the ownership upon the death of one of the persons is equally divided between the survivor and the administrator of the estate' of such person. The Court refers to the holding in the Abrams case;

It has been held that the adjudication of lunacy and the appointment of a guardian of one of the parties to a joint and several account terminates the agreement, and, as each had a complete interest in the entire account, equity requires, in the absence of extraordinary circumstances, an equal division of the account between the parties as of the time the guardian was appointed.

The deaths of the members of the Markiewicz family in a common accident made impossible the carrying out of the survivorship provisions of the agreement, but certainly did not invalidate the agreement or contract as a joint ownership.

Numerous other cases and authorities have been cited by counsel and examined by the Court. None is exactly on all fours with this case. But by analogy we think many of their holdings may be applied to the decision of this matter.

In the earlier and leaner days the husband and wife in this case had both worked and apparently had pooled their endeavors and income in the common endeavor. This is indicated in part by the provisions of the partnership contract under which the Delmar organization was formed. The fact that in subsequent business the wife’s name was not included does not, in our opinion, negative this conclusion. The increasing diversity of his endeavors and the character of the organizations of which he was a part would account for that.

The agreements under which these deposits were held is evidenced by the signature cards and other documents of the financial institutions involved. Such contracts are binding upon the parties. “The agreement, though executed upon a form furnished by the bank for its own protection, is operative and valid between the parties.” 169 Calif, 257.

They show that Henry Markiewicz regarded his wife as a joint owner of the fund. His course of conduct was consistent. In all of the deposits he followed the same procedure. No revocation or attempt at revocation, even if a revocation had been possible, was made. We are constrained to believe that the contract was intended to and did vest in each party a one-half ownership, with a right of survivorship that failed because of the manner of death.

The possession of the pass books and other indicia of ownership by the husband does not of itself prove ownership in the husband.

The delivery of the bank book would not be essential since the contract takes the place of the delivery ordinarily required, 277 Mass., 395.

The deposit of money in a bank to the credit of the depositor or his wife, “or the survivor of them,” operates as a gift to the wife, though she never had possession of the pass book. 40 N. Y. S., 422.

The possession is given upon the creation of the estate; the rignrs are absolutely and conclusively fixed; and the only question which Is contingent (is) which of two or more joint tenants shall eventually own the entire estate. 66 A. L. R., 870.

Exclusive possession of a bank book by the creator of a joint and survivorship bank account does not necessarily operate prejudicially to the rights of the remaining joint depositors under the contract of deposit. 132 Oh St 377.

We are of the opinion that Henry Markiewicz by his contract intended to and did vest in Josephine Markiewicz a one-half ownership in the funds represented by the accounts^ in question here; that because of their simultaneous deaths the survivorship provisions were impossible of fulfillment, which did not affect the validity of the remainder of the contract; and that the estates of Henry Markiewicz and Josephine Markiewicz shall each receive one-half of such funds.

The exceptions of both parties are, therefore, sustained, and the inventories and appraisements may be .amended to show one-half of the amounts in these four accounts in each estate.

Entry accordingly.


author: PER CURIAM: By KOVACHY, J:

text:
    GRIMES & HAUER, INC., Plaintiff-Appellee, v. POLLOCK, individually, etc. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22855.
    Decided November 16, 1953.
    Stanley, Smoyer & Schwartz, Cleveland, for plaintiff-appellee.
    Smoot & Riemer, Cleveland, for defendants-appellants.
   OPINION

PER CURIAM:

This is an appeal on questions of law from a judgment of the Court of Common Pleas, granting plaintiff a permanent injunction enjoining and restraining the defendants from picketing, bannering or patrolling the streets or sidewalks adjacent to plaintiff’s places of business in Cuyahoga County.

Two grounds of error are assigned: (1) that the court lacked jurisdiction; (2) that the court erred in granting the injunction.

Decided May 26, 1954.

The essential facts are not in dispute. It is conceded that the picketing was for organizational purposes, there being no solicitation of plaintiff’s employees to become members of the Union. Instead there was tendered to plaintiff a proposed bargaining contract between plaintiff and defendants, by the terms of which plaintiff’s employees would be compelled to become members of the local union as a condition of their continued employment. Upon plaintiff’s failure to sign the proposed contract, defendants proceeded to picket and banner.

We have carefully - examined the record and have considered the arguments of counsel, both orally and by way of briefs, and have concluded that the judgment should be affirmed for the reasons generally set forth in the opinion of the trial court. The authorities therein cited and quoted are, in our opinion, controlling and decisive of the issues here involved.

Since the judgment in the instant case (March 19, 1953), 65 Abs 499, the Court of Apeáis of the Ninth Appellate District (Summit County), in the case of Bean v. Local Union No. 698, 94 Oh Ap 361, decided July 1, 1953, held in an opinion by Stevens J., as follows:

“In the absence of a dispute between employer and employees, or between the union and the employer or employees, a labor union may not engage in organizational picketing, even though peaceful, for the purpose of bringing pressure to bear upon the employer to require his employees to join the union.” (syllabus)

There is a very close analogy between Bean v. Union, supra, and the instant case. We are of the opinion that the reasoning and authorities therein cited are likewise applicable to the instant case.

Judgment affirmed. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.

ON REHEARING

No. 22855.

OPINION

By KOVACHY, J:

This is a rehearing of a previous decision of this court.

On November 16, 1953, we affirmed a judgment of the Court of Common Pleas which granted an injunction to plaintiff-appellee, prohibiting defendants-appellants from picketing its places of business in Cuyahoga County. Our decision was based upon the then prevailing policy of the State of Ohio, relating to injunctions in labor disputes. After our decision, the Supreme Court of the United States on December 14, 1953, handed down a sweeping decision in the case of Garner v. Teamsters’ Union, 346 U. S. 485, wherein it held that the National Labor Relations Board had exclusive jurisdiction in certain cases involving interstate commerce. Thereafter, and within term, an application for rehearing was filed by defendants-appellants, by reason of the Garner decision. It was because of the possible impact of that case upon the instant case that we granted a rehearing, to determine what bearing, if any, it may have on the case here before us on appeal on questions of law.

Plaintiff-appellee, Grimes & Hauer, Inc., is a corporation organized under the laws of Pennsylvania and licensed to transact business in the State of Ohio, and is engaged in interstate commerce processing poultry. It operates seven retail outlets for its products in Cleveland, five of them under concession agreements with the S. S. Kresge Company. Defendants-appellants are Sam Pollock, individually and as International Representative of Amalgamated Meat-cutters and Butcher Workmen of North America, A. F. L. Local Union 427, and the Union itself, Amalgamated Meat-cutters and Butcher Workmen of North America, A. F. of L. Local Union 427; Daniel J. DeSantis, Individually and as President of Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. of L. Local Union 427; Francis J. Kilbane, individually and as Business Representative of the Union; and Michael L. Koeber, individually and as Business Representative, of said Union.

The membership of the Union comprise a substantial number of persons employed in this industry in this locality.

The trial court’s conclusion was that the sole intent of the defendants was “to coerce the employer to assist it in its efforts to organize” and that the picketing, though lawful in manner, was unlawful in purpose and therefore, contrary to the public policy of the State as announced by the Supreme Court of Ohio in the case of Crosby v. Rath, 136 Oh St 352.

Our decision affirmed the judgment of the trial court, for the reasons generally set out in its opinion as well as on the authority of Bean v. Local Union No. 698, 94 Oh Ap 361, the syllabus of which reads:

“In the absence of a dispute between employer and employees, or between the union and the employer or employees, a labor union may not engage,in organizational picketing, even though peaceful, for the purpose of bringing pressure to bear upon the employer to require his employees to join the union.”

Defendants picketed plaintiff’s places of business for the purpose of coercing the plaintiff employer to get, its employees to join their Union through means of a written agreement entered into between plaintiff and defendants, or any other means. The picketing was peaceful and orderly in manner. Part of it amounted to secondary boycott since it included the Kresge stores. Four days after the commencement of the picketing, the plaintiff for the first time entered into written contracts with its employees for renewable three-month periols.

The controlling facts in the instant case are well nigh identical to those in the Garner case. Each employer is engaged in interstate commerce; each has twenty-four employees; none in this case belong to the Union — four employees in the Garner case; the pickets were not employees; no controversy, labor dispute or strike was in progress and the employers had not objected to their employees joining the Union; the picketing, ihoreover, was peaceful and orderly and primarily intended as a form of coercion on the employer to compel and influence its employees to join the Union.

The legal basis for the granting of an injunction by the trial court in each case, however, was dissimilar in that in this case the trial court relied upon the policy with respect of the matter established by the Supreme Court of Ohio, whereas in the Garner case, the trial court invoked its own State’s Labor Relations Act. The difference between such propositions of law, in our opinion, is one of form rather than of substance, and consequently alike in force and effect. In the practical affairs of life it makes no difference whether the policy of the State is determined by judicial decision or legislative enactment.

Now the Taft-Hartley Act of Congress deals with the same matter. It condemns the kind of conduct engaged in by the Union in each of these cases as unfair labor practice.

Sec. 8 (b), 61 Stat. 141, 29 U. S. C. (Supp. Ill) Sec. 158 (b):

“It shall be an unfair labor practice for a labor organization, or its agents * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a), (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * *

61 Stat. 140, 29 U. S. C. (Supp. Ill) Sec. 158 (a):

Subsection (a) (3) reads in part: “It shall be an unfair labor practice for an employer * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * *

The same act designates a secondary boycott as an unfair labor practice, 29 U. S. C. Sec. 158 (b) (4) (A):

“forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person;”

We are unanimously of the opinion, in view of the factual and legal identity of the instant case with that of the Garner case, that the ruling of the Supreme Court of the United States in the latter case is applicable to and controlling in this case.

The first paragraph of the syllabus of the Garner case reads:

“Petitioners were engaged in Pennsylvania in an interstate trucking business. Only a small minority of its employees were members of respondents’ union. No labor dispute or strike was in progress, and petitioners had not objected to their employees joining the union. Respondents képt two pickets at petitioner’s loading platform, to coerce petitioners into compelling or influencing their employees to join the union. The picketing was peaceful, but petitioners’ business fell off 95% because employees of other carriers refused to cross the picket line. Held: Petitioners’ grievance was within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices under the Labor Management Relations Act and was not subject to relief by injunction in the state courts.”

The complaint of the plaintiff, it would seem, is exclusively within the jurisdiction of the National Labor Relations Board and is not subject to relief by injunction in the state courts.

Plaintiff contends that even if the above be true that the defendants picketed to compel plaintiff to violate the provisions of its employment contracts and that the Taft-Hartley Act contains no remedy for inducing Breach of Contracts, whereas the law of the State of Ohio does confer jurisdiction in that regard upon the courts of the State. The trial court in its opinion stated:

“The defendants disclaim any intention to interfere with the employment contracts between the plaintiff and its individual employees. For this reason we predicate our conclusion solely upon the intent of the union to coerce the employer to assist it' in its efforts to organize.”

It cannot be denied that the picketing ir\ this case, if it attained its avowed purpose, would lead to the interference of the mentioned contracts, and the subsequent violation of the private rights of the parties involved herein. However, such effect, if it occurred, would be incidental to the violation of the public right recognized in the Taft-Hartley Act, which when enforced obviates the necessity of seeking judicial determination of the private rights.

It follows, therefore, that the National Labor Relations Board has the power alone to act in the matter, and to provide full relief for the wrongs complained of. To hold otherwise would deprive the National Labor Relations Board of the exclusive jurisdiction conferred upon it by Congress in a subject matter clearly within its purview, and prevent it from exercising such jurisdiction freely and fully and completely freed of all restraints from other tribunals. ' Capital Service Inc. etc v. National Labor Relations Board, decided by the Supreme Court of the United States, May 17, 1954, 22 L. W. 4241; and the following paragraphs of the syllabus of the Garner case:

“(b) The same considerations which prohibit federal courts from intervening in such cases, except by way of review or on application of the National Labor Relations Board, and which exclude state administrative bodies from assuming control of-such matters, preclude state courts from doing so.”

“(c) When federal power constitutionally is exerted for the protection of public or private interests, or both, it becomes the supreme law of the land and cannot be curtailed, circumvented or extended by a state procedure merely because such procedure will apply some doctrine of private rights.”

We accordingly hold that the Court of Common Pleas of Cuyahoga County lacked jurisdiction to hear a case involving violation of federal law, in an industry engaged in interstate commerce and it was therefore error to deny defendants’ motion to dismiss for lack of jurisdiction.

Judgment reversed and final judgment for the defendants! Exceptions. Order see journal.

HURD, PJ, SKEEL, J, concur.


author: By GRIESINGER, J:

text:
    CHALFANT, ANCILLARY ADMINISTRATOR OF THE ESTATE OF OLETT, Plaintiff, v. BIRNEY et, Defendants.
    Common Pleas Court, Jefferson County.
    No. 43450.
    Decided. July 21, 1954.
    Harry B. Chalfant, Samuel Freifield, Steubenville, on behalf of the plaintiff.
    Lee VanTilburg, Steubenville, on behalf of defendant, Dwain Birney.
    Carl F. Allebaugh, John B. Worley, Steubenville, on behalf of defendant, Lawrence C. Heil.
   OPINION

By GRIESINGER, J:

This case is before the Court on the first cause of action in the amended petition of the plaintiff, the answer and the first cause of action of the cross-petition of the defendant, Dwain Birney, and the answer setting up the alleged interest of Lawrence C. Heil, Executor, and the evidence.

The No. 8 vein of coal under the 140.75 acres was deeded to the plaintiff’s decedent. The Heils have deeds for the greater part of said 140.75 acres but in all of the said deeds the No. 8 vein of coal was expressly excepted or of a later date than the deed of the plaintiff’s decedent.

The defendant, Dwain Birney, claims title to fifteen acres of coal under said 140.75 acres in question by reason of an auditor’s deed, which was of a later date than the deed of the plaintiff’s decedent.

The defendant Birney received his deed as the result of a tax foreclosure sale. Taxes were levied against fifteen acres of minerals of the plaintiff’s decedent in said township and section. Plaintiff’s decedent not having paid said taxes it resulted in the tax foreclosure sale.

The minerals in the defendant Birney’s deed were described as follows: Situated in the Township of Smithfield, County of Jefferson and State of Ohio, and bounded and described as follows: “Wm. S. Olett, owner of the property in Smithfield Township described as: page 28, 3-18-13, 15.00 acres minerals.”

There are two questions we are called upon to decide:

First:'.Do the Heils, or any of them, have any interest in any of the No. 8 vein of coal underlying said 140.75 acre tract?

Secondly: Does the defendant, .Dwain Birney, own fifteen acres of coal under said 140.75 acre tract, or does all of the coal under said tract, whatever it may be, belong to the plaintiff’s decedent?

First disposing of the claim presented by the Heils, it is the opinion of the Court that they do not have any interest whatsoever in the Pittsburgh No. 8 vein of coal underlying said 140.75 acres and the Court so finds.

Now what about the claim of the defendant, Dwain Birney, to fifteen acres of the Pittsburgh No. 8 vein of coal. The defendant’s tax deed in substance calls for fifteen acres of minerals in said township and section and which were owned by William S. Olett, plaintiff’s decedent.

We can readily assume that by “minerals” is meant coal, and Pittsburgh No. 8 vein of coal, because Mr. Olett, as far as the record is concerned, owned no other minerals in said section, township and range. The evidence does disclose that he owned 5.4 acres of other No. 8 vein of coal in said section, township and range. The evidence also disclosed that there was more than fifteen acres of unmined Pitssburgh No. 8 vein of coal under said 140.75 acres at the time that the defendant Birney received his tax deed.

It would be very difficult to determine the intention of the parties, if any, from a tax deed. As a matter of fact there is nothing in this case tó show ■ that the auditor intended to convey or that defendant Birney intended to receive any particular part of the No. 8 vein of coal under said tract and amounting to fifteen acres. _

Greater strictness is required in the description in tax deeds than is required in conveyance inter vivos.

16 American Jurisprudence, Section 265, page 588.

It is generally held that if the property cannot be identified from the description in the tax deed the deed is void.

67 A. L. R., page 890.

51 American Jurisprudence, Section 1035, page 904, and Section 1085, page 944'.

Laffertys’ Lessee, v. Daniel Byers, 5 Ohio Reports, 458.

The same rule as to certainty of description applies to mineral rights as to surface rights.

27 O. Jur., Sec. 5, p. 42.

It is claimed by counsel for the defendant Birney that by looking at extraneous matters covered by evidence outside a deed it is possible to locate the fifteen acres of minerals and the Court is bound to do so, otherwise a gross injustice would be inflicted upon his client.

Now is it possible to locate these fifteen acres of minerals? It was developed by the testimony that there are more than fifteen acres of No. 8 coal under said 140.75 acre tract. There is nothing to indicate what part thereof is called for in the auditor’s deed.

The Court, therefore, finds that said fifteen acres of coal cannot be located and that said tax deed is void for uncertainty.

13 O. Jur., Sec. 127, p. 941.

It is further contended by counsel for the defendant, Dwain Birney, that by reason of §5723.12 (§5762 GO and §5723.13 JR. C. (§5762-1 GC), the defendant Birney’s deed after one year became absolute and no question could be raised regarding the same.

Sec. 5723.12 R. C. provides, in part, that:

“* * * which deed shall be prima facie evidence of title in the purchaser, his heirs or assigns. * * * Conveyance of such real estate by the auditor shall extinguish all previous title and invest the purchaser with a new and perfect title free from all liens and encumbrances.”

And §5723.13 R. C., in part, reads as follows:

“No action shall be commenced, nor shall any defense be set up to question the validity of the title of the purchasers at such sale for any irregularity, informality, or omission in the proceedings relative to the foreclosure, forfeiture, or sale, unless such action is commenced or defense set up within one year after the deed to such property * *

Under said sections of the Revised Code an auditor’s tax deed which is not void on its face, and where all jurisdictional steps have been taken, would be conclusive evidence of the legality of’ the proceedings under which said property was sold after a year.

But in the instant case the auditor’s deed is void on its face for uncertainty and passes no title by virtue of said sale and deed to the defendant, Dwain Birney.

5 A. L. R., second, 1021.

51 American Jurisprudence, Section 1095, page 952.

McHale, et al. v. Treworgy, 325 Mass. 381, 90 Northeastern, 2nd series, page 908.

It is, therefore, the opinion of the Court that the plaintiff’s prayer should be granted and the title of the plaintiff’s decedent to the No. 8 vein of coal under the 140.75 acres should be quieted as against all the defendants to this action. Special entry.


author: By SKEEL, PJ.

text:
    DOUGHERTY, Plaintiff-Appellee, v. FELLABAUM, Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1253.
    Decided October 14, 1952.
    Clarence H. Klinger, Warren, for plaintiff-appellee.
    Thomas H. Madden, Jr., Warren, for defendant-apellant.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the Eighth District sitting by designation in the Seventh District.)
   OPINION

By SKEEL, PJ.

This is an appeal on questions of law and fact from a judgment entered by the common pleas court of Trumbull County in favor of the plaintiff, yhe plaintiff in her petition alleges that she is the owner of Sublot No. 846 in the Crescent Drive Plat No. 2 Allotment as recorded in Vol. 11, page 9 of Trumbull County Records of Plats. Said Lot 846 has a frontage of 167.77 feet on the southerly side of Crescent Drive and extends back a distance of 113.6 feet along the southeasterly side, 170 feet along the northeasterly side, with a width in the rear of 90 feet.

The petition further alleges that the defendant is the owner of sublots 844 and 845 in said subdivision. The petition does not set out the dimensions of the defendant’s lots, but the plat of the subdivision introduced into evidence shows that sublot No. 844 has a frontage of 90 feet on the north side of Market Street and extending back 180 feet on both the westerly and easterly sides and is 90 feet wide in the rear. This last dimension is also the rear line of the plaintiff’s lot. Lot No. 845 has a frontage of 77.65 feet on the north side of Market Street and is 180 feet deep along the west side which is also the east side of lot No. 844, the west side of said lot being 241.48 feet deep along the east side of Golf Drive the rear of said lot being 113.6 feet which is also the southeasterly side line of the plaintiff’s property.

The petition further alleges that when the defendant purchased said lots they were subject of record to the following restrictive convenants pertaining to the use of the land, as were all of the other lots in said subdivision:

“2. Free or open spaces shall be left on every plot built upon, on both sides of every building erected thereon, which free spaces shall extend the full depth of the plot, and shall be in addition to and independent of any other building or any other plot. No part of any building shall encroach upon these free spaces. The aggregate width of such free spaces required on both sides of any building shall not be less than forty percent of the width of the building, nor in any case less than fifteen percent of the width of the building on any one side.”

The plaintiff then alleges that the defendant is engaged in the construction of a residence on the land owned by him and that the plans call for an attached garage to be constructed within one foot of the southeast lot line of the plaintiff’s property, in violation of the foregoing restrictive covenant and prays that the said defendant be enjoined from constructing any part of his residence closer than twenty feet to the plaintiff’s easterly line.

It should be noted that the easterly line thus referred to is the line described in plaintiff’s deed as the southeasterly side of plaintiff’s lot No. 846 and is also the rear line of defendant’s lot No. 845 running 113.6 feet from the intersection of Crescent and Golf Drives to the most easterly point of the rear line of plaintiff’s lot No. 846 and defendant's lot No. 844, and the most northerly point of the side line between defendant’s lots Nos. 844 and 845.

The defendant’s answer puts in issue the plaintiff’s claim that his proposed residence, as exemplified by his plans, is in violation of the restrictive covenants pleaded by the plaintiff. The defendant further alleges that the restrictions have been abandoned by reason of the fact that plaintiff and all other property owners acquiesced in its violation to such an extent that the plaintiff should now be estopped from attempting to enforce its provisions against the defendant. The defendant also claims that his motion for judgment at the end of plaintiff’s case should have been granted.

This court referred the case to a special master or referee to take the evidence and report his findings of fact and conclusions of law to the court. The report of the special master is before the court together with a transcript of the evidence taken, together with certain stipulations and the exhibits that were offered into evidence by the parties.

The special master or referee found against the defendant on his claim that judgment should have been entered for him at the conclusion of plaintiff’s case, by finding that plaintiff made out a prima facie case in support of her prayer for injunctive relief. While the reason given for such conclusion is in error, yet the record discloses that the defendant did not rely on his motion for judgment at the conclusion of plaintiff’s case, but proceeded with his side of the controversy, thereby accepting the overruling of his motion for judgment. For that reason we affirm the conclusion of the special master on that contention of the defendant. Senn v. Lacker, 91 Oh Ap 83, par. 5 of syllabus:

T‘A defendant whose motion for a directed verdict made at the close of plaintiff’s evidence is overruled and who accepts such ruling and proceeds with his defense, thereby waives any error in the ruling on the motion.” (Authorities cited at page 91 of the opinion.)

The special master or referee also found against the defendant on his claim of abandonment of the restrictive covenants. With this conclusion we agree and the finding is affirmed. Whatever violations there were (4 in number) were at the extreme west end of the allotment which in no way could possibly involve the rights of the plaintiff.

The special master or referee also found that the building of defendant’s residence so that the garage would come within two feet of plaintiff’s property, constitutes a violation- of restrictive covenants to which the defendant’s land was subject and that the injunction as prayed for should be granted. With this conclusion we are not in agreement for the following reasons:

The defendant’s property as set forth above, consists of two lots, both fronting on Market Street. These two lots make up the plot upon which the defendant’s house is being built. Under paragraph 5 of a recorded instrument setting forth the restrictive covenants of the allotment, it is provided that where an owner uses two lots upon which to build a single house, the restrictions shall be applied as if it were one lot.

The restrictive covenant dealing with the subject of “open space” as above set forth and which is in controversy here, in part provides:

“The aggregate width of such free spaces required on both sides of any building shall not be less than forty percent of the width of the building, nor in any case less than fifteen percent of the building on any one side.”

. The word “sides” of the building referred to that portion of the building that faces the sides of the lot. This construction is supported by the provision of the covenant which provides “which free spaces shall extend the full depth of the plot.”

It is clear, therefore, that it was intended by the restrictive covenant providing for free space that such space should be between the side line of the plot and the building. No provision is made with respect to space between either the front or the rear line of the plot and the building.

The 'dimensions of defendant’s house, if built with the garage attached, will be about 103 feet long facing Golf Drive and about 72 feet wide facing Market Street. It is, in design, shaped like an L. The living room faces Golf Drive while the bedrooms are in the wing facing Market Street. The location of the rooms, however, can in no way affect a change in the requirements of the restrictive covenants as to free space. Such space is provided for between the side lines of the plot and the part of the building facing such side lines.

The plans show that defendant’s residence is set back on the front from Market Street 100 feet, that on the east side it is more than 90 feet from the easterly side line of the plot, on the west side it is more than 35 feet from the east side of Golf Drive, and the garage as proposed will come about two feet south of the rear line. A building so located, with free space the full depth of each side line far in excess of the requirements of the covenant above quoted, does not violate the requirements thereof.

There is no provision in said covenant requiring free space between the end of the building and defendant’s rear lot line and for that reason the plaintiff is not entitled to injunctive relief as prayed for.

A decree is therefore entered for defendant at plaintiff’s costs for which judgment is rendered. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.