author: By PERRY, J.

text:
    KINGDOM et, Trustees, Plaintiff, v. SAXBE, Attorney General, Defendant.
    Probate Court, Ashtabula County.
    No. 38657.
    Decided April 10, 1958.
   OPINION

By PERRY, J.

This is an action for judgment and direction of the court and for declaratory judgment with respect to the charitable trust created by Item X oí the Will of George J. Record. The petition seeks further construction of the will, confirmation and approval of exercise of discretion by the testamentary trustees, and for an order approving a plan devised by the trustees to carry out the testator’s general charitable purpose by the application of the equitable doctrines of deviation and, perhaps to some extent, cy pres.

The defendant is the attorney general of the State of Ohio, required by §109.23 if R. C., as well as by equity practice, to be made a party to the action as the representative of the cestui que trust, namely, the class of indefinite individuals who are the beneficiaries of the charitable trust. See 4 Scott on Trusts, 2nd Ed. p. 2768.

The attorney general is the party charged both at common law and by the Charitable Trust Act, §109.25 R. C., with the enforcement and protection of charitable trusts and uses in the State of Ohio in order that the interests of charitable beneficiaries may be protected and preserved. Sec. 109.25 R. C., reads as follows:

“The attorney general shall be a necessary party to and shall be served with process or with summons by registered mail in all proceedings, the object of which is: (1) To terminate a charitable trust or to distribute its assets to other than charitable donees, or (2) To depart from the objects or purposes of a charitable trust as the same are set forth in the instrument creating the trust, including any proceeding for the application of the doctrine of cy pres, or (3) To construe the provisions of an instrument with respect to a charitable trust. A judgment rendered in such proceedings without service of process upon the attorney general shall be void, unenforceable, and shall be set aside upon the attorney general’s motion seeking such relief. The attorney general shall intervene in any proceeding affecting a charitable trust when requested to do so by the court having jurisdiction of the proceeding, and may intervene in any proceeding affecting a charitable trust when he determines that the public interest shall be protected in such proceeding. No compromise, settlement agreement, contract or judgment agreed to by any or all parties having or claiming to have an interest in any charitable trust shall be valid if the compromise, settlement agreement, contract or judgment modifies or terminates a charitable trust unless the attorney general was made a party to all such proceedings and joined in said compromise, settlement agreement, contract or judgment, provided, however, that the attorney general is expressly authorized to enter into such compromise, settlement agreements, contracts or judgments as may be in the best interests of the public.”

George J. Record died on or about March 1, 1920, leaving a last will and testament which provides in pertinent part as follows:

ITEM X.

“It has been my intention for many years, should my means prove to be sufficient, to establish a Polytechnic Industrial School to the Glory of God, the Creator of all materials and substances, the central Power and Originator of all energies and forces and the Pounder of all arts and sciences, to the end that man may be instructed and enabled to divine and make use of the materials and apply the forces God has created and that thereby his comprehension may be widened to a full appreciation and understanding of the unlimited preparations and provisions with which his Creator has blessed and surrounded him.

“I am not in sympathy with theoretical religion. Solid facts innumerable are at hand and visible in all directions to be relied upon in formulating the faith and shaping the character, purposes and destinies of man, providing that these truths are properly brought home to man’s understanding. To teach the young these facts, to ennoble their purposes, to widen their comprehension of the real meaning of life, to give them a knowledge of their relations to God while learning the arts and sciences of which he is the Author, thus fitting them to meet the world’s demands, making them honest in purpose, noble in aspiration, reverent in faith, is the end which I have in view and desire to attain in making the devise set forth in this item of this my Last Will and Testament.

“Therefore I hereby give, devise and bequeath all the remainder of said residue of my said estate left after all the foregoing provisions of this my Last Will and Testament have been fully carried out, to The Guardian Savings and Trust Company of Cleveland, Ohio, and to its successors, in trust, nevertheless, for the purpose of establishing a Polytechnic Industrial School as hereinafter provided.

“Said School shall provide practical education for students of both sexes in the useful arts and sciences and in connection therewith the teachings of the Holy Bible shall be made a prominent feature in bringing to the minds of the young the practical value of following its precepts in the attainment of success in every day life. Said School shall be protestant in ethics and teaching, but otherwise undenominational and shall not exclude from its benefits those of any other faith. It shall be the rule of the School that all students, teachers and officers shall observe the Sabbath Day and attend Sunday School and preaching services and that each session shall be opened with scripture reading from the Bible and with prayer, and all students shall, as a condition to their admission to said School, pledge themselves to faithfully keep and observe these conditions which shall be rules of said School, as well as all other rules consistent herewith which may be formulated for the government of said School.

“My said Trustee shall first offer said remainder of said residue of my said estate to the corporate City of Conneaut, Ohio, to be used in the establishment of said School, on condition that said City shall provide therefor, free of cost to my estate, a suitable and ample site for said School, centrally located, and by the issuance of five (5) per cent bonds provide a sinking fund of One Hundred Thousand Dollars ($100,000.) to be forever maintained to provide income for the support and maintenance of said School, or otherwise secure to said School such fund as will at all times provide said School with an income of Five Thousand Dollars ($5,000.00) per annum. If the foregoing mentioned proposition is not accepted within one year from the date of said offer, then my said Trustee shall make the same offer to the Village of Geneva, in Ashtabula County, Ohio, and if not accepted by said Village within one year from the date of said offer, or if there be legal obstacles in the way of both said City of Conneaut and said Village of Geneva accepting said legacy for the uses and purposes aforesaid, then and in that event my said Trustee may by forming a corporation or by other lawful means in its discretion to be determined by it, proceed to and complete the organization of said Polytechnic Industrial School, or if it elects so to do may transfer and deliver over the remaineder of said residue of my said estate to some industrial school then well established, to be selected by it for the purpose of carrying out the principles and objects hereinbefore named.

“The School if established either in Conneaut, Ohio, or Geneva, Ohio, shall be known as the ‘Record Industrial School’ and if said remainder is given to an industrial school already established, it shall be known as ‘Record Memorial Industrial Fund’ and the department to which it is applied shall be known as the ‘Record Memorial Industrial Department’ and shall be operated upon the basis and fundamental ideas and to the ultimate end and purpose hereinbefore expressed.”

By Item IX of his will, Mr. Record had given a life estate in all of his residuary estate to his widow, Mary J. Record. Mrs. Record, who lived until 1938, made the following disposition of her estate by Item XI of her will:

“All of the residue of my estate of every kind and description and wheresoever situated, of which I die seized or entitled, or over which 1 have the right of testamentary disposition at the time of my decease, I give, devise and bequeath to the estate of my deceased husband, George J. Record, the same to be disposed of in the same manner as prescribed in his last will and testament for the disposition of the residue of his estate.”

After Mrs. Record’s death, H. G. Kingdom and Walter L. Findley were duly appointed as trustees under Item X of the will of George J Record and entered into the administration of the trust. George D. Kingdom and Robert W. Halliday are now the duly appointed trustees administering this trust, and they now have in their possession some $1,300,000.

As shown by the petition in the case at bar, this trust estate has been the subject of former litigation. In the initial litigation, which will not be set out here in detail, the rights of the City of Conneaut and the Village of Geneva were determined. These municipal corporations now have no claim or interest in this trust estate. The case of Findley v. Conneaut, 145 Oh St 480, 31 O. O., 161, and Case No. 28470, decided in this court in January, 1948, decided this question in regard to the Record trust estate.

Subsequent litigation has terminated both claims made by the heirs at law of George J. Record and by the Prosecuting Attorney of Ashtabula County, Ohio, for the benefit of the common schools.

This court, in case No. 34005, decided in 1954. held that the will of George J. Record, by Item X, created a valid charitable trust for education and, further, that any school which might be selected by the trustees to take this fund, if tlae trustees should decide upon the so-called fourth alternative plan, would hold this trust estate in a fiduciary capacity for the purposes expressed by this testator.

Upon appeal to the court of appeals for Ashtabula County, Ohio, that court held, in case No. 517, decided in 1955, that Item X of the will of George J. Record and Item XI of the will of Mary J. Record created valid charitable trusts for educational purposes and that any industrial school which might be selected by the trustees under the provision of Mr. Record’s will would take only the legal title as a charitable trustee for the purposes expressed by Mr. Record. The Supreme Court of Ohio, in case Nos. 34622-23, overruled a motion to certify the record.

Thus we have a valid charitable trust for educational purposes, and the corpus of this trust now amounts to some $1,300,000. It is, however, necessary that a plan be adopted in order that the charitable purposes so clearly and specifically expressed by Mr. Record may be accomplished. For this reason, the plaintiff trustees have now initiated the present action, so that they may receive the needed instructions and authorization from this court.

The answer of the attorney general admits the allegations of fact in the petition, and joins in the prayer of the petition.

From January 3, 1948, the trustees sought and received applications and requests from many colleges and universities and other schools to receive the trust fund. Upwards of twenty of those schools and applications were investigated and inspected by the trustees. They included colleges like Baldwin-Wallace, Oberlin College, Youngstown University, Fenn College, Hiram College, Ohio Northern University, and many others. Many of the institutions wanted to use the fund, partially, at least, to build and equip buildings on their campuses. Others asked to receive the fund on the ground that they were, in many ways, the sort of school that Mr. Record had in mind. As a result, the trustees had reached the conclusion that every institution wanting to have the fund planned to use it in one way or another for the accomplishment of its own purposes rather than the testator’s purposes, when in the spring of 1952 the George Record heirs made claim to the entire trust fund, claiming that the trust was void.

As a result, the testamentary trustees had to suspend further effort to carry out the 3rd or 4th alternatives, while fighting off an intensely determined effort of the heirs to have the trust declared void. The consequent litigation finally terminated on December 21, 1955, favorable to the trust, although it was not until April 21, 1956, the time for filing certiorari to the United States Supreme Court had expired.

The last-mentioned litigation not only resulted in a definite decision that this was a valid, vested charitable trust, but the court also decided that any school taking the fund under either alternative must take it, not beneficially for its own purposes, but rather as a charitable trustee to administer it exclusively for the testator’s charitable purpose.

Soon after the litigation was ended, the trustees made a decision that no well-established, accredited school or college or university was willing to take the fund as charitable trustee under those conditions, and that the trustees would therefore exercise their discretion against employing the 4th alternative at all.

The reasons for that exercise of discretion are as follows:

The testator stated a general charitable purpose in Item X of his will. He first made the observation that “Solid facts innumerable are at hand and visible in all directions to be relied upon in formulating the faith and shaping the character, purpose and destinies of man.” He went on to say, “To teach the young these facts, to ennoble their purposes, to widen their comprehension of the real meaning of life, to give them a knowledge of their relations to God while learning the arts and sciences of which He is the Author, thus fitting them to meet the world’s demands, making them honest in purpose, noble in aspiration, reverent in faith, is the end which I have in view and desire to attain. . .”

The testator then gave his residue to the testamentary trustees to accomplish that purpose. In order to accomplish it, he prescribed “Practical education for students of both sexes in the useful arts and sciences, and in connection therewith the teachings of the Holy Bible shall be made a prominent feature. . .” He also prescribed teaching that is Protestant in ethics,” and required that everyone connected with the teaching — students, faculty and officers — should observe the Sabbath and attend church.

From this language, it is apparent that the testator wanted to furnish the young with a rather special kind of education, a well-balanced college education that included a strong mixture of ethics and reverent religious education so that the recipient would not only be able to take his place in the struggle to make a living, and to realize his full stature, but also to enable him to graps the meaning of life, his relation to the infinite, and to develop faith and nobility of character. Admittedly, such an education runs counter to current popular thinking,, yet, such was Mr. Record’s general charitable purpose. It is not for us to say, nor do we actually believe, that such a purpose is socially unsound. On the contrary be believe that there is more need for sound religious education now than ever before. Most of our best colleges and universities were founded by men and women of deep religious faith and convictions. Knowledge of the arts and sciences has been rapidly developing during the last few years. Religion and ethics should keep pace with this rapid development to make a well-rounded and properly balanced person. Religion and education must continue on together. Each supplements the other. The one without the other would be disasterous to mankind.

This testator expressed a clear and overriding intention that his residuary estate should be used 'to help young men and women acquire an education. He did not intend, however, that such education include only the liberal arts and sciences, although these were important to him, but he wanted his beneficiaries to receive religious education and training.

It is apparent to the court that though several schools would have taken the fund and operated a department with it, it would still have been merely a department of that school, no different than such department now is, except that it would be given Mr. Record’s money and Mr. Record’s name. There would not be a separate entity where a group of students would receive the 'special treatment, the special mixture of college work and religious education, which is the sine qua non of Mr. Record’s purpose.

Mr. Record’s general charitable purpose would stand a very poor chance of being carried out by turning the fund over, even in trust, to an existing school, especially when no properly accredited Ohio School had offered faithfully to carry out the trust.

We say “a properly accredited Ohio School” because it is axiomatic that a trustee is always under the direction and guidance of the court and no court is going to appoint a trustee that will come under the jurisdiction of a foreign State, unless the testator himself named a foreign trustee, which in this case he did not do. This court has the right to appoint the trustees who will succeed the testamentary trustees.

Also if this court, for instance, ordered this fund turned over to the applicant Geneva College of Beaver Falls, Pennsylvania, the Pennsylvania Attorney General would replace the Ohio Attorney General as the representative of the cestui que trust.

It is said in 10 American Jurisprudence, 667, that

“Where the body of the trust fund is required to be kept in one jurisdiction and the income expended for the benefit of charity in another, the courts of each state will administer that part of the trust estate that is within its jurisdiction.” (Emphasis supplied.)

In other words, if this will required the trustee to be Harvard University, and required Harvard to pay the income to Oberlin College, the Massachusetts court would control the trustee and the Ohio court would control the use of the income by Oberlin. Such a provision in an Ohio will would be accepted and ordered to be executed, because it was the will of the testator. But no Ohio court would thus voluntarily abdicate its jurisdiction over a trust fund if the will did not specifically require it to name a foreign trustee.

It would have been easy for the trustees to have simply handed all of the money over to an existing, well established industrial school, but the money would have been used by such school to further its own purposes and would not have been used to carry out the purposes and intention of George J. Record. The trustees have shown to this court that the fourth alternative would defeat the very desires and purposes of the testator.

The court therefore confirms and approves the exercise of the trustees’ discretion not to resort to the fourth alternative. It should be pointed out that these two alternatives are not made consecutive by the testator. In fact, it is made plain by the language used that the trustees were not required to use the 4th unless they “elected to do so.”

Having eliminated the 4th alternative, the only thing left which is prescribed by the testator is the 3rd alternative — the formation of a corporation and the organization of the school to carry out the testator’s charitable purpose.

But the trustees, as shown by the evidence, have found that there is not sufficient money in the trust fund to found and operate a successful school. The evidence shows that a school of 400 students is the lowest economical unit for a college; that it would cost $4,000,000 to estabhsh campus, buildings and equipment for a new college of that size; that for a college of even 300 students, the annual cost of operation would be about $220,000 of which only $120,000 could be expected from tuition and fees, leaving a deficient of $100,000 per year.

The evidence shows that the trustees tried to interest a number of colleges of high standing to cooperate with the trustees in organizing and operating a branch at Conneaut which would carry out Mr. Record’s purpose, but without success. And the evidence shows that no college of high standing will cooperate with the trustees in operating such a school on its own campus.

Having reached these conclusions, the trustees had come to the end of the road as to carrying out the general charitable purpose by any one of the four methods prescribed by the testator. The next question was, could the general charitable purpose be carried out by a variation in the manner or method? The trustees believed that it could, and have submitted a plan to do so.

The greatest obstacle to the testator’s method was the religious angle. No well-established college, one that was financially sound and fully accredited, would think of having on its campus an organization, whether a separate school or a mere department, that required its students, to say nothing of its professors, to go to church, to open each session with prayer, to give teachings of the Bible prominent place in the curriculum. This is fully substantiated by the evidence. Yet the trustees by their survey found that certain prospective students from this section would not spurn an education that contained those requirements. Why shouldn’t the burden of taking the religious education, and complying with the religious conditions, be placed upon the individual students, rather than upon the school? Why not let the trust send students to colleges that have a deep Protestant religious heritage and atmosphere, colleges, if possible, that still provide chapel exercises where scripture reading and prayer are had regularly, colleges that provide Bible courses, colleges in towns where there is a wide selection of churches, and then have the trust require the individual students to go to chapel, take the Bible courses, observe the Sabbath, and go to church? In such colleges with a religious background, most of the professors are of high moral character, with a strong religious and ethical background, or they wouldn’t be there, and most of them go to church. But if you should try to make it a requirement of one of them, when employing him, that he go to church, there would be trouble. New would give up their constitutional right to stay in bed any Sunday morning they chose to do so or to play a round of golf and do all of the required teaching and other work, in addition, for the average faculty pay of $6000.00 per year.

We should now give some attention to the legality of the proposed deviation from the exact manner prescribed by the testator for carrying out his charitable purpose.

That there is a definite charitable purpose is not only apparent, but it is the foundation of the court’s decision in the case against the heirs. The plan devised by the trustees as above stated, accomplishes the testator’s charitable purpose without altering that purpose in anyway. It accomplishes the same purpose by merely changing the manner of operation presented by the testator. This sort of thing is an application of the doctrine of deviation, rather than the doctrine of cy pres.

The doctrine of deviation is described in 4 Scott on Trusts, 2nd Edition, Section 381, as follows:

“The power of a court of equity to permit or direct a deviation from the terms of the trust is at least as extensive in the case of charitable trusts as it is in the case of private trusts. The courts will direct or permit a deviation from the terms of the trust where compliance is impossible or illegal, or where owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust. . . .

“. . . Moreover in the case of charitable trusts the court has power not merely, as in the case of private trusts, to permit deviations as to matters relating to the administration of the trust, but also as to the purposes of the trust. This power of the court, under the so-called doctrine of cy pres, goes quite beyond anything which is permitted in the case of private trusts.”

It is evident from the above that where charitable trusts are involved, it may be difficult to determine in a particular instance just where the remedy used to carry out a charitable trust ceases to be mere deviation and where it starts to be cy pres. In fact, it becomes only of academic interest to try to label the remedy as one or the other.

In this case, it might be said that Mr. Record had a general charitable purpose to educate the young by a combination of college courses and religious training, and that he had a particular charitable purpose to do it by means of a Polytechnic Industrial School.

It is impossible to follow the exact method outlined by the testator to carry out this charitable purpose. It is necessary to deviate somewhat from the exact terms of the will by changing from the operation of a school to the operation of a scholarship foundation in order that Mr. Record’s general charitable purpose may be accomplished.

This appears to be a situation in which the doctrine of deviation may and should be applied. It is here suggested that there is nothing in the facts presented in the case at bar which makes it necessary to alter the ultimate purpose expressed by Mr. Record; only the method of accomplishing that fundamental purpose requires variation. This then, would be a situation in which the doctrine of deviation is applicable.

There are many cases cited in the attorney general’s Brief in which the doctrines of deviation and of Cy Pres have been applied by Ohio Courts.

We are confronted here with a situation in which the trustees have not been able to carry out this testator’s directions to the letter, but his general and overriding intention to provide young people with educational opportunities both in the arts and sciences and in religious education may still be accomplished. Certainly this testator evinced such a broad, general charitable intent that his ultimate purpose may be accomplished under the direction of a court of equity.

The court approves the plan presented by these trustees for providing scholarships and grants-in-aid for young men and women in existing educational institutions as a proper method of carrying out this testator’s charitable purpose.

The will of George J. Record, by Item X, vested in his trustees the duty to carry out the purposes he expressed and vested in them certain discretion in so accomplishing these purposes. The plan now proposed appears to be one which will fall within the general framework of this testator’s intention.

Whether the court deviates from the method of administration, or whether the court modifies a particular charitable purpose by cy pres in order to assure the carrying out of the general purpose, and to allow the carrying out of the particular purpose as near as possible, the equitable jurisdiction is there in either case. In discussing the doctrine of cy pres, Professor Scott in 4 Scott on Trusts, 2nd Edition, Section 399, page 2824 says,

“The principle under which the courts thus attempt to save a charitable trust from failure by carrying out the more general purpose of the testator and carrying out approximately though not exactly his more specific intent is called the doctrine of Cy pres. The phrase is in the Anglo-French and is equivalent to the modern si pres, meaning so near as or near. The intention of the testator is carried out as nearly as may be.” (Emphasis added.)

See also 2A Bogert on Trusts and Trustees, Sections 374 and 436.

It is not necessary, before resorting to deviation or to cy pres, that the particular purpose be absolutely impossible or illegal. The doctrine will be used if the particular purpose, or the manner of administration, is merely impracticable, as is stated in Scott at Section 399.4, as follows:

“In other words, the cy pres doctrine is applicable where it is impracticable to carry out the specific directions of the testator even though it is possible to do so.”

The doctrines of cy pres, as well as of deviation, are fully recognized and repeatedly applied by the courts of Ohio. One of the leading cases in Ohio on the subject is Gearhart v. Richardson, 109 Oh St 418. Thus, the relief sought by the trustees in the petition, and the plan suggested by the trustees for adoption, are fully authorized by precedent and authority, and by the necessity of our particular situation, and are well within the jurisdiction of this court.

A point that should be stressed as an additional reason for the adoption of this plan is that the corpus of the fund will be preserved, and as heretofore stated may in the future be augmented by gifts of other persons, and by increase in value. Sometime in the future, it may become possible and practicable for the Foundation actually to organize and operate the testator’s school at Conneaut. Should that become advisable, a petition to the court could readily terminate the deviation or cy pres application of the fund, and the court later could order the letter of the will to be carried out. If, instead of the solution herein sought, the fund were turned over to some school under the 4th alternative, the possibility of the school being founded in Conneaut would be forever lost. Under the trustee’s plan, until that time comes, the purpose of the trust will nevertheless be carried out by the Foundation.

The solution becomes apparent. The general purpose of Mr. Record can be fully accomplished without the slightest modification in that purpose, by the trustees incorporating a Foundation which will receive the entire trust fund in trust.

The court consequently orders that the plaintiffs now proceed to place said fund in the hands of a charitable trustee for the purposes of said trust as herein construed in the following manner:

Said trustees and their counsel, Stephen F. Perry, or their successors, shall as incorporators prepare and file articles of incorporation of this charitable trust in the office of the Secretary of State of Ohio, together with a copy of said will and of this decree, under the provisions of §1719.01 R. C., and of the general non-profit corporation laws of Ohio; the name of said corporation shall be The George J. Record School Foundation; said corporation shall have five trustees; said trustees, after the initial term, shall hold office for the term of five years or until their successors are selected and qualified, and shall be composed of individuals who are in complete belief and harmony with the purposes expressed by said George J. Record in said Item X and as herein interpreted, and who are of high moral character, intelligence and prominent standing, and shall be sworn to carry out said purposes. Said trustees, for the proper and efficient management of said trust shall at all times consist of a lawyer, an industrialist, a financier and an educator and one other person not falling within any of said classifications, and shall be and remain residents of Ashtabula County. And the court does, for the initial term of the members of the board of trustees of said corporation hereby order said incorporators to name the said George D. Kingdom, a lawyer, for the term of five years. Said Robert W. Halliday, an industrialist, for the term of four years. Jerry S. Benson, a person not belonging to any of the other mentioned professions for the term of three years. John C. Soet, a financier, for the term of two years, and J. Allan Pinkerton, an educator, for the term of one year, said respective terms to begin upon the filing of said articles of incorporation, and to end on the 5th, 4th. 3rd, 2nd and 1st annual meetings respectively following the first meeting after incorporation. Said articles of incorporation shall contain the provision that the number of trustees shall be restricted to five, that the board of trustees shall have the qualifications herein-before set forth, and that vacancies in the board of trustees caused by death, resignation, incapacity, non-residence of Ashtabula County, or expiration of term shall be filled by majority vote of the remaining members of said board.

Said corporation shall hold said fund in trust to carry out the purposes of the trust set forth in said Item X and as herein interpreted; it shall invest and reinvest said trust fund as provided by law, and shall apply the net income therefrom to carrying out the testator’s purposes in the following manner: Said corporation shall select and maintain currently at all times a list of educational institutions teaching the liberal and useful arts and sciences not receiving support from public taxation, each of said institutions having been found to be well-established and satisfactorily accredited, and the faculties and teachings of which having been found to be under a sound and healthy Protestant religious influence, and near which institutions are located a broad selection of churches and which institutions maintain a regular program of chapel exercises, or where similar services or exercises are easily available. Said corporation shall grant annual cost-of-education scholarships and grants-in-aid to carefully selected high-school graduates of both sexes on a priority basis, first from Conneaut and vicinity, then from Geneva and vicinity, and then from Ashtabula County and vicinity, selected on the basis of ability and character and such other qualifications as may be determined by said corporation in its regulations as being most apt to result in carrying out the testator’s said purpose. Said corporation shall require each student so selected, as a condition precedent to the payment of such scholarship or grant-in-aid, to obtain admission into one of the institutions currently on said list, and to agree to attend chapel exercises regularly, to take a course wherein the Bible or a part thereof is studied and taught, and to regularly observe the Sabbath and attend church services of such student’s choice. Said corporation shall determine from time to time the approximate per capita cost-of-education (exclusive of board, room, books, clothing and incidental expenses), of each institution on said list, and shall base the amount of each separate scholarship to attend any such institution upon such determination, so that no matter which institution a selected student chooses and enters, his or her cost-of-education for a year will be substantially prepaid However a maximum amount of such cost should be established from time to time by the corporation. The corporation shall exercise discretion in choice of institutions allowed to be and remain on the list, not only bearing in mind the excellence of academic standing, but also the per capita cost of education of such institutions, as any excessive cost may affect the number of students who might otherwise receive the benefits of the trust. Said corporation shall investigate and satisfy itself as to the progress of each student receiving said scholarships or grants-in-aid and as to their performance of said conditions, and, if satisfied that the development of any student is such that the purposes of the trust will be further carried out thereby, it may renew any student’s scholarship or grant-in-aid from year to year in the same or other institution on said list up to graduation, and for post-graduate study in exceptional cases of marked development of such student. While it was not the testator’s purpose to furnish said education primarily to the needy, said corporation should have the power, which should be very sparingly and cautiously exercised, to aid needy students who are found to be exceptionally qualified, in order that the benefits of the trust may be made available to exceptional students who might otherwise be eliminated because of financial reasons. Said corporation shall have power to accept in trust or otherwise for any of the purposes set forth in said will as herein interpreted, or in the articles, donations, gifts, grants, bequests and devises to its capital and income accounts from individuals, corporations, and decedents, said contributions to be held by said corporation either as separate funds or to become part of said George J. Record fund as directed by the donors thereof. Said corporation shall not expend the corpus of said fund transferred to it by plaintiffs trustees for any purpose, and the income therefrom shall be substantially used for the purposes of the trust and shall not be substantially accumulated. If, in the future, said corporation shall find that the establishment and operation of the school in Conneaut as contemplated by the testator as one of his particular purposes has become practicable and proper, by reason of increase in value or accretion of capital or for any other reason, and said corporation by resolution so finds upon its journal, it shall forthwith apply to a court of competent jurisdiction of this county in a proper action in which the attorney general of the State of Ohio is made party defendant, for authority to amend its charter to include establishment and operation of said school, and to establish and operate the same, if said court finds it proper so to do.

It is further ordered that upon the entry - of this decree the plaintiffs shall prepare and file their final account of their trust from the last prior accounting down to the date of the entry of this decree; that upon the incorporation of said The George J. Record School Foundation as above provided, said plaintiffs trustees shall proceed to transfer to said corporation all the securities and funds belonging to said trust in their hands as shown in said final account, in kind, except that they shall retain sufficient funds and securities in their hands to satisfy all claims against the trust estate for costs, administration expenses and other obligations known to the plaintiffs trustees, and shall report their proceedings to this court for confirmation, and shall include in said report an application for allowance of fees and expenses for approval. Upon such confirmation and approval, the decree of confirmation shall include a statement of the payment of said fees and expenses ordered to be paid by the court, together with a statement showing the payment of the full residue in their hands to said corporation, and together with vouchers evidencing such payments, and an order discharging said plaintiffs trustees.

And it appearing to the court that additional fees for legal services will be due, among others, to Stephen F. Perry, of counsel for plaintiffs, the judge of this court, J. Philip Perry, does hereby disqualify himself from hearing said report - and said motion for confirmation and the same will be heard by the judge of the court of common pleas of a foreign county assigned by the Chief Justice of the Supreme Court.

As a Foundation is to be authorized to carry out the Record trust purposes, there is no reason for restricting its functions to that purpose alone; the Foundation could also well serve as a community trust, analogous to the Cleveland Foundation, and could act as a focus for ether charitable giving in the community, thus spreading and diluting the cost of operation of the Foundation. The plaintiffs should be ordered to include such additional powers in the articles of incorporation.

The plan presented to the court in this case was worked out by the plaintiffs with the aid, cooperation and approval of the attorney general. The trustees have expressed a desire to collaborate fully with the attorney general in each of the steps to be taken under the order of this court, until the report under the order is finally confirmed.


source: Caselaw Access Project

author: By BRYANT, PJ.

license: Public Domain

text:
    SEAWAY TAVERNS, INC., d. b. a. BEN’S CAFE, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6207.
    Decided August 4, 1959.
    Louis E. Freedman, Cleveland, for appellant.
    Mark McElroy, Atty. Geni., John A. Hoskins, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BRYANT, PJ.

Seaway Taverns, Inc., d. b. a. Ben’s Cafe, holder of liquor permits issued by the Ohio Department of Liquor Control, was found guilty of a violation of the liquor laws and regulations after a hearing before the Board of Liquor Control, appellee herein, and a twenty-one day suspension was imposed by the Board. The permit holder appealed to the Common Pleas Court of Franklin County, which court affirmed the Board’s order of suspension and dismissed the appeal.

The journal entry of the court below, signed by counsel for both parties was filed April 20, 1959 at 11:48 A. M. according to the time stamp of the clerk of the court below. The permit holder filed his notice of appeal to this court Tuesday, May 12, 1959, or twenty-two days after the filing of the journal entry from which the appeal was taken. Said notice of appeal is as follows:

“Now comes Seaway Taverns, Inc., d. b. a. Ben’s Cafe, and herewith gives notice of appeal from the finding of the Court of Common Pleas as rendered by Judge Robert E. Leach in the above entitled matter.”

The sole question for decision at this time arises upon a motion filed on behalf of the Board to dismiss the appeal “for the reason that this court lacks jurisdiction to hear said appeal.” In support of the motion to dismiss, the brief of the appellee says that the judgment entry of the Court of Common Pleas of Franklin County was filed April 20, 1959, and the notice of appeal was filed May 12, 1959. Sec. 2505.04 R. C., provides in part as follows:

“An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer, or commission.”

See. 2505.05 R. C., requires the notice of appeal to state “whether the appeal is on questions of law or questions of law and fact.” The notice of appeal in this case does not designate the date of the order appealed from nor whether the appeal is on questions of law or questions of law and fact. In as much as only appeals on questions of law are permitted in this type of case, we will assume that that is the type of appeal which was intended and treat it accordingly.

As to the omission of the date of the order in the notice of appeal, the inclusion of other descriptive language naming the judge, whose order is appealed from, apparently will suffice to identify the order sufficiently.

That leaves the question raised by the motion to dismiss namely, whether a notice of appeal filed on May 12, 1959, from a judgment and final order journalized on April 20, 1959, is within time. The rule for computing time in such a case is set forth in §1.14 R. C., which reads as follows:

“The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that the last day shall be excluded if it falls on Sunday.”

The time within which the notice of appeal must be filed in case of an appeal to the court of appeals is twenty days computed according to the rule above set forth in §1.14 supra, R. C. This is provided in §2505.01 R. C., reading in part as follows:

“After the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

“ (A) Appeals * * * to courts of appeals, * * * shall be perfected within twenty days. * * *”

It is the contention of counsel for the Board that twenty-two days elapsed between the time of filing the journal entry and the notice of appeal. However, we judicially notice that the twentieth day, May 10, 1959, fell upon a Sunday so that in this case a notice of appeal filed on the twenty-first day would have been timely. On behalf of the appellant, a motion to dismiss the motion to dismiss has been filed and it is contended that the notice of appeal was filed May 11, 1959 “in plenty of time.” Unfortunately, the record indicates otherwise and the time stamp clearly shows that the notice of appeal was filed May 12, 1959, which was one day beyond the twenty-day period allowed.

It has been held that filing of the notice of appeal within the time prescribed by the statute is jurisdictional. In the case of the State, ex rel. Curran v. Brookes, Jr., et al., 142 Oh St 107, the seventh branch of the syllabus is as follows:

“The filing of notice of appeal, in the court from which the appeal is taken, within the time prescribed by law, is the only jurisdictional step necessary to perfect an appeal and where such notice is not filed within such time the reviewing court is without jurisdiction. to consider the appeal.” (Emphasis added.)

In Schwenkel v. Schwenkel, 23 Abs 321, the first and second branches of the syllabus read as follows:

“1. A notice of appeal from a final order and judgment dated and journalized May 21, 1936, filed on Thursday, June 11, 1936, is too late to effect the appeal.

“2. The time within which appeals must be filed is jurisdictional.”

To the same effect, see Searl v. Lyons, 43 Abs 112, and King v. Paylor, 69 Oh Ap 193. See also 3 O. Jur. (2d), 196, Appellate Review, §308, p. 196, et seq.

For the reasons above set forth, the motion to dismiss is well taken and will be sustained, the appeal will be dismissed and the judgment of the court below affirmed.

DUFFY, J, concurs.

MILLER, J, not participating.


author: By SATER, J.

text:
    STATE, ex rel. GIAMARCO, Plaintiff, v. SMITH et, Defendant.
    Common Fleas Court, Franklin County.
    No. 197337.
    Decided July 7, 1958.
    Richard C. Addison, Ralph G. Smith, for State of Ohio, ex rel. Giamarco.
    William B. Saxbe, Att-y. Geni., for defendants-respondents.
   OPINION

By SATER, J.

Relator Giamarco is a citizen of Ohio, a taxpayer, an assistant fire chief in Clinton Township of Franklin County, and a member of the Ohio State Firemen’s Association, Inc., at whose behest he has brought this action; giving relator the benefit of every doubt, we will proceed on the assumption that this action is brought for his individual benefit, for the benefit of all members of the Association of which he is a member and that there is present a public interest beyond that of those for whom he is here immediately speaking. Respondents are the members of the Civil Service Commission of the State of Ohio. The relief sought is a writ of mandamus requiring respondents to prepare and hold competitive examinations for the positions of the twenty-six fire inspectors 'none of whom admittedly have ever taken a civil service examination for their positions) in the bureau of inspection in the office of the state fire marshal who, in turn, is part of the state department of commerce.

In June, 1954, the Firemen’s Association by resolution petitioned the commission to hold such examination. By formal action in July, 1956, the commission determined that competitive examinations are practicable for these twenty-six positions and that on and after February 1, 1957, those positions should be in the competitive classified civil service. But in January, 1957, the commission with equal formality rescinded its action of July, 1956, primarily to “await the pleasure of the 102nd Ohio General Assembly” which was then in session. That Assembly, having enacted no legislation in the premises, this litigation was instituted.

From the foregoing, two questions arise:

1. Are these twenty-six positions in the competitive classified civil service?

2. If they are, is this proceeding the proper vehicle to compel the preparation and giving of competitive examinations for these twenty-six positions?

These two questions will be taken in the stated order, but two controlling matters should be noted in limine. First, if the first question is answered in the negative, the second question falls of its own weight. Second, if the twenty-six positions are not actually in the competitive classified civil service, no action by the commission, no matter how formal, can place them there. See §143.09 H R. C. That will be a matter for the legislature, and not for the commission or this Court. We now proceed with the first question.

Dates, as well as statutes, are in this case controlling. In June, 1954, relator and his Firemen’s Association sought respondents’ help. Two years later, after many conferences and much consideration respondent commissioners gave a favorable answer by formal action in July, 1956. Six months later, in January, 1957, respondents rescinded their favorable action. Did that rescission justify this present action? Or, put differently, are these twenty-six positions in the competitive classified service? Whichever way this question is framed, the answer is in the negative; the reason is that the statutes controlling this case exempt these twenty-six positions from civil service status, especially because those statutes all antedate the actions and negotiations between the parties to his litigation.

The posiion of state fire marshal goes back to the days of the Revised Statutes of Ohio. The start of its modern form is found in 95 Ohio Session Laws, 471, covering the year 1902. Eleven years later in 1913, the Civil Service Act was passed in 103 Ohio Session Laws, 698; this was the forerunner of §8143.01 and 143.08 R. C. Sec. 143.09 R. C., with all of its classifications did not come into full bloom until 1949-50, but even this was four years prior to relator’s resolution. 123 Ohio Session Laws, 862. In 1921, in 109 Ohio Session Laws, 105, 106, 109, there came into being the counterparts of §§121.04 and 121.14 R. C.

The material parts of §121.04 R. C. (§154-6 GC), read,

“Offices are created within the several departments as follows:

“In the department of commerce, Superintendent of building and loan associations, Fire Marshal.”

The material parts of §121.14 R. C. (§154-19 GC), is its second paragraph and reads as follows:

“All offices created by §§121.04 and 121.05 R. C., shall be in the unclassified civil service of the state.”

This same 109 Ohio Session Laws also created the State’s department of commerce in 1921 and into that department it placed six divisions on sub-departments; division of banks and banking, division of building and loan associations, division of insurance, the public utilities commission, division of securities, and the fire marshal. Of these six divisions or sub-departments, four existed prior to the creation of the department of commerce; division of building and loan associations, the public utilities commission, division of securities, and the fire marshal. Three were prior to even the Civil Service Act of 1913; division of building and loan associations, public utilities commission, and the fire marshal.

Thus, when it created the department of commerce in 1921, the General Assembly was extremely selective with regard to civil service coverage. From that department’s subdivisions it carefully lifted two, the office of the superintendent of building and loan associations and the office of fire marshal from classified civil service status even though they both antedated the Civil Service Act of 1913; and at the same time it Jeft under the classified civil service status all four of the other divisions and commissions, regardless whether or not they antedated that Civil Service Act. This was not accidental; it could not be. Though we do not have the facilities' to discover or fathom the reason for the General Assembly’s selectivity, there can be no question that a reason existed. Furthermore, it can no more be said that the words “Fire marshal” in §121.04 R. C., allude solely to an individual than it can be said of the words “Superintendent of building and loan associations”; the key lies not in what seems to be the designation of two separate individuals but rather in the word “offices” which not only appears in the first line of §121.04 R. C., but is also repeated, see above, in §121.14 R. C. The entire personnel of these two offices were deliberately exempted from classified civil service. Were it otherwise, the second paragraph of §121.14 R. C., auoted immediately below, would be automatically nullified and the action of chairman Willard Campbell’s Code revision committee would stand guilty of the gross and inexcusable error of having deleted the wrong sentence,

This conclusion is confirmed by the fact that in its original form, §121.14 R. C. (§154-19 GC), read:

“Each department may employ, subject to the civil service laws in force at the time the employment is made, the necessary employees, and, if the rate of compensation is not otherwise fixed by law, fix their compensation. Nothing in this chapter shall be construed to amend, modify or repeal the civil service laws of the state except as herein provided.” To this was later added the paragraph quoted above,

“All offices created by §§121.04 and 121.05 R. (C., shall be in the unclassified civil service of the state.”

Finally, with the adoption of the Revised Code, effective October 1, 1953, the second of the three sentences just quoted was finally deleted; it was long since then obsolete surplusage in view of the last quoted sentence. This deletion was eight months prior to the Firemen’s Association’s resolution and action of June, 1954.

Further confirmation of the civil service status of the fire marshal’s office is found in 122 Ohio Session Laws, 718-719 which in 1947 created the three subdivisions of the fire marshal’s office in §§3737.02, 3737.03 and 3737.04 R. C. (Secs. 820-1, 820-2 and 820-3 GC.) These sections broke down the office of the fire marshal into three then new bureaus: arson (§3737.02 R. C.), bureau of inspection (§3737.03 R. C.), which is the portion here under consideration, and bureau of fire prevention (§3737.0-4 R. C.). Again, the General Assembly showed and exercised selectivity. The first and third of these bureaus are specifically placed in the classified service of the civil service, but the second, which controls this case, is not.

The third sentence in §3737.02 R. C., creating the arson bureau, says: “The chief and his deputies shall be in the classified service of the civil service.”

The third sentence in §3737.04 R. C., creating the bureau of fire prevention, says:

“The chief shall be in the classified service of the civil service.”

No such provision appears in §3737.03 R. C., creating the bureau of inspection. This conceivably negative approach to the status of the twenty-six positions here in question is fortified beyond all doubt and question by positive action of the General Assembly. Senate Bill 179 of the 97th General Assembly is the bill which appears in final enacted form in 122 Ohio Session Laws, 718, above. When first introduced into the General Assembly, its second paragraph pertaining to the bureau of inspection that is now §3737.03 R. C. (§820-2 GC), read,

“The chief shall be a competent engineer or architect, and shall be experienced in the inspection of equipment and property for fire and other hazards. At least one assistant shall be a competent electrician, and at least one assistant shall, by education or experience, be qualified to pass upon the plans and operations of dry cleaning plants and hat cleaning shops, and to consult with and advise persons engaged in such industries. The chief and his assistants shall be in the competitive class of the classified civil service of Ohio.”

This last sentence which we emphasized was somewhere, somehow. lost by legislative action along the line between the introduction of Senate Bill 179 and its final emergence as §3737.03 R. C. (§820-2 GC). By reason of this deletion and by reason of the wording of §§121.04 and 121.14 R. C., all of which took place prior to the first action by either relator or the Firemen’s Association, it follows that the first question propounded above, Are these twenty-six positions in the competitive classified civil service? —must be answered in the negative. Although the matter of “spoils system” has been mentioned in connection with the rapid turnover m personnel, a second factor may be equally, if not actually, more, compelling — poor pay.

There is consequently no reason to consider the second question at all. Respondents were fully justified in the 1957 rescission of their earlier action, to await the pleasure of the General Assembly. Respondents could not remake nor revise the action of the General Assembly. Nor may this Court do so. Relator’s remedy is with the General Assembly, not in this action or in this Court, by motion or on the merits. It is not pleasant to be confronted with Judge Bartlett’s fear of a modern Neronic conflagration: but as was so accurately stated by the commission, the remedy for this fear must “await the pleasure of the legislature.”

The petition is dismissed at relator’s costs.


author: By MILLER, J.

text:
    MOGAVERO d. b. a. LOMBARDO’S RESTAURANT, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6095.
    Decided May 5, 1959.
    Tyack & Gertner, George E. Tyack, of Counsel, Columbus, for appellant-appellee.
    Mark McElroy, Atty. Geni., John W. Leibold, Asst. Atty. Geni., Columbus, for appellee-appellant.
   OPINION

By MILLER, J.

Submitted on motion of the appellee in this Court, seeking an order dismissing the appeal for the following reasons:

(1) The Bill of Exceptions required to portray the claimed error in the proceedings below has not been filed.

(2) The appeal is not properly taken pursuant to the provisions of 8119.12 R. C.

An examination of the record reveals that the hearing in the Court of Common Pleas was had upon the record made before the Board of Liquor Control, and that no additional evidence was taken. Therefore, the appeal before this Court is upon that same record as that considered by the Common Pleas Court and no bill of exceptions is required. The First Branch of 'the motion will be overruled.

•The Second Branch of the motion raised the jurisdictional question whether or not the Board has the right to prosecute this appeal under the provisions of §119.21 R. C. Counsel for the appellee urge that under this section the Board has no right of appeal as the Common Pleas Court did not pass upon the construction or interpretation of any rule or regulation of the agency, citing Katz v. Board of Liquor Control, 166 Oh St 229.

We note that an attempt has been made by the Board to bring itself within the provisions of the Revised Code, for the first assignment of error alleges that:

(1) The Court of Common Pleas erred to the prejudice of appelleeappellant in its interpretation and application of Regulation 53 of the Board of Liquor Control.

Now is the mere allegation by the Board that the court erred in its “interpretation and application of Regulation 53” sufficient to confer jurisdiction upon it to prosecute the appeal, or must the record support the conclusion also? We hold the latter to be correct; hence, it becomes pertinent to look to the journal entry and, in so doing, we find it states that the Court finds “there was no placing or taking of bets on the permit premises.” This was a factual finding contra to that of the Board. Therefore, the order of the Board was not supported by the proper degree of proof.

As we view the record, Regulation 53 of the Board of Liquor Control above referred to forbids gambling on the premises. Judge Reynolds of the Common Pleas Court held that the gambling, if any, occurred outside and away from the permit premises. As we view it, the question arising in such case is not a matter of interpretation of the Regulation. Interpret means to explain. Judge Reynolds based his ruling upon the facts.

It is, therefore, our conclusion that the Second Branch of the motion is well taken, and that the Board of Liquor Control under the circumstances in this case lacks the authority to prosecute an appeal to this Court under §119.12 R. C.

BRYANT, PJ, DUFFY J, concur.


author: By SKEEL, J.:

text:
    SUN FINANCE AND LOAN COMPANY, Plaintiff-Appellee, v. HADLOCK, Defendant, KLEIN, d. b. a. H. KLEIN BODY CO., Third Party Claimant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24874.
    Decided October 30, 1959.
    Joseph O. Coy, for plaintiff-appellee.
    George Lowy, Jerome W. Moss, for appellant.
   OPINION

By SKEEL, J.:

This appeal comes to this court on questions of law from a judgment entered by the Municipal Court of Cleveland denying the third party claimant’s prayer for possession of an automobile taken from his possession by the bailiff of the Municipal Court of Cleveland.

The bailiff had taken the automobile from the third party claimant in carrying out an execution on the automobile which was said to be the property of the defendant Hadlock. The certificate of title was recorded in his name. The execution was issued to satisfy the plaintiff’s judgment for $731.54 against the defendant Hadlock.

The defendant (Hadlock) purchased a 1954 Buick from W. M. Doraty, Inc., on March 18, 1958, and gave a cognovit note, secured by a chattel mortgage on the automobile, to the plaintiff, the note being for $900.00, the amount of the lien of the mortgage of which lien was noted on the certificate of title. Late in September, the defendant, Hadlock, was involved in an accident causing extensive damage to his Buick automobile. He called Henry Klein to tow the automobile to his body shop and ordered him to make the repairs, the cost of which totaled about six hundred and fifty dollars. Hadlock was notified that the work was completed but failed to call for the automobile or pay the value of the work. Klein retained possession of the automobile claiming an artisan’s lien against it for the amount of his repair bill.

The plaintiff’s cognovit note, secured by the mortgage as noted on the certificate of title, came into default and on November 19, 1958, a judgment by confession was taken for $731.54, and journalized in the Municipal Court of Cleveland. On November 20, 1958, a praecipe, directing the bailiff to levy execution upon the automobile, was issued. A motion to stay execution and sale was filed by Henry Klein on November 5 and granted on November 28, staying proceedings until December 2, 1958, subject to posting a bond in the sum of $1,000.00.

Henry Klein did not file the bond and on December 2, 1958, filed a third party claim setting out his lien on the automobile and the amount claimed, supported by affidavit. The automobile was then in the possession of the bailiff as a result of the execution issued by plaintiff on November 20, 1958. The third party claim was heard and submitted on December 11, 1958, and denied by the court on January 8. 1959, by which entry the court terminated the order staying execution.

The court’s bailiff took possession of the automobile against the strong protests of Henry Klein on November 21, 1958, and had it stored in another garage, making the following return on January 8, 1959:

“Received this writ Nov. 20, 1958, and by virtue of its order. I did on the 21st day of Nov. at the hour of 1:15 P. M. levy upon 54 Buick Tudor, Serial No. 4A3039103 and placed in storage at 3128 Fulton Road as the property of defendant and placed Ben Dieterich in charge as my custodian. I advertised the property for sale but did not sell. Proceedings Stayed 1/7/59 Third Party Denied, Pryatel, Judge, and for want of time, this writ returned Jan. 8th 1959. — no money made, not satisfied, leaving my levy still in force. * * *”

On January 14, 1959, a praecipe was filed directing the bailiff to sell the automobile. This execution was returned on March 19. 1959, showing that the bailifí sold the Buick automobile as the property of the defendant, Hadlock, to the plaintiff, the Sun Finance and Loan Company, for $565.00, the return showing that out of the sale price, the costs and storage of $110.34 were paid and the balance of $454.66 credited to the judgment.

Upon the foregoing facts, the plaintiff, by levying execution on the automobile as the property of the defendant to satisfy its judgment, waived its mortgage lien thereon.

There is no doubt from the record but that the common law lien of Klein was subject only to the chattel mortgage of the Sun Finance and Loan Company. Klein did not waive his lien by surrendering possession of the automobile, it being taken from him by force of law against which he had no power to resist. Prior to the time the third party claim was filed, the plaintiff had filed its praecipe for execution and possession of the automobile which had been taken by the bailiff as directed.

With the lien of plaintiff’s mortgage waived by its execution on the automobile of the defendant as the defendant Hadlock’s property, the artisan’s lien became the first and best lien by operation of law and the third party claimant was then entitled to continue in his possession of the automobile taken from him against his will by the bailiff.

Some claim is made that the artisan’s lien, not being recorded or noted on the certificate of title as provided by §4505.04 R. C., cannot be recognized or in force in a court of law or in equity. This section, in part, provides:

“No court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:

“A. By a certificate of title or a manufacturer’s or importer’s certificate issued in accordance with §§4505.01 to 4505.19 inclusive, R. C. * * * »

This section provides that no person “acquiring a motor vehicle from the owner * * * or otherwise, shall acquire any right, title, claim or interest in or to said motor vehicle” unless he has issued to him a certificate of title. The obligation of noting a mortgage and liens is provided by §4505.13 R. C. This section does not encompass a common law artisan’s lien.

These statutes must be strictly construed in favor of rules of the common law dealing with artisan’s liens which had their beginning in the very early development of the law of personal property and bailments. The artisan’s lien came into being in attempting to protect one whose work and materials have enhanced the value of another’s property when the common law did not recognize implied contracts. Certainly a rule which has found such complete acceptance for so many years in the law of bailments for the benefit of the bailee should not be set aside without a clear legislative provision to that effect dealing with certificates of title to motor vehicles or with the manner in which such title can be used as security for debt. Surely it could not be argued that the owner of a motor vehicle holding the certificate of title could use such evidence of title to seek repossession of the vehicle held in the possession pf & ¡bailee under a common law lien for services rendered and benefits bestowed upon the vehicle, the debt being due by virtue of a contract between the owner and the bailee. Furthermore, an artisan’s lien does not come within the terms “motor vehicle sold, or disposed of, or mortgaged or encumbered.”

We hold that the artisan’s lien, which is one imposed by law, was not destroyed by the “Certificate of Motor Vehicle Title Law.”

The judgment of the Municipal Court denying the third party claim seeking possession of the Buick automobile when, upon the record, the mortgage lien of the plaintiff had been waived, was in error, and is, therefore, reversed.

The cause is remanded with instructions to grant said third party claim and order the plaintiff to deliver said automobile to the third party claimant or if this is now impossible, to refund to him its value in an amount not to exceed- the amount of his lien.

HURD, PJ, KOVACHY, J, concur.


author: By DUFFY, J.

text:
    SEALY, Estate of, In re SEALY, Jr., Executor, Appellant, v. BOWERS, Tax Commr, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6062.
    Decided August 11, 1959.
    Albert H. Sealy, Jr., Dayton, for appellant.
    Mark McElroy, Atty. Geni., Theodore J. Stubbs, John M. Tobin, Joseph L. White, Asst. Attys. Geni., Columbus, for appellee.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

On December 26, 1956, Albert H. Sealy executed a trust agreement with his son and transferred to the trust property worth approximately $19,980.00. In 1957 the father arranged for a conveyance to the trust of property which was to come to him from the estate of his wife, who had died in November, 1956.

The trust originally provided for a possible sharing in the benefits by the father; but in February, 1957, his name was removed as a possible beneficiary under the trust. The remaining beneficiaries were his grandchildren, the children of his son.

At the time of the execution of the trust, the father was seventy-four years of age; and he died at age seventy-five, on January 15, 1958, of bilateral acute bronchopneumonia.

The Probate Court of Franklin County determined the inheritance tax and held that the trust property was valued at $39,346.67; that it was transferred without valuable consideration and within two years prior to the death of the transferor, and therefore, made in contemplation of death and subject to the inheritance tax of Ohio.

Albert H. Sealy, Jr., as executor of the estate and as trustee under the trust, filed exceptions to the determination of an inheritance tax, which exceptions were as follows:

“1. That the Court erred in determining that the property listed in Schedule D which was given by said Albert H. Sealy to said trust is subject to inheritance tax and in determining by split entry inheritance tax in the amount of $2,897.73 with respect thereto.

“2. That said gifts to said trust were not made in contemplation of the death of said Albert H. Sealy or intended to take effect in possession or enjoyment at or after such death within the meaning of Division (C) of §5731.02 R. C.

“3. That even if said gifts to said trust were subject to inheritance tax the rate applicable thereto would be that specified by Division (A) of §5731.12 R. C., and not by Division (C) thereof because the beneficiaries of the trust are the lineal descendants of said Albert H. Sealy (primarily his grandchildren) except that the trust could be extended to adopted children of lineal descendants, there being no adopted children presently in existence or contemplated.”

The Probate Court overruled the exceptions, and an appeal on questions of law has been made by the son as executor and trustee on the ground that the order, judgment, and decree of the Probate Court is against the manifest weight of the evidence.

The Probate Court took into consideration §§5731.01 (E), 5731.02 (c) (1), 5731.04 and 5731.28 R. C., in determining the taxability of the trust property.

Counsel for both sides have cited the following as the leading cases dealing with the problem of contemplation of death: Tax Commission of Ohio v. Parker, 117 Oh St 215; In re Estate of Robinson, 145 Oh St 55; In re Estate of Thompson, 147 Oh St 119; and In re Estate of Walker, 161 Oh St 564.

The appellant feels that the gifts in the instant case, having been made during the Christmas season, were more an act of generosity on the part of a grandfather towards his grandchildren and were made to take care of not only a future need, but the immediate need of the education of the three grandchildren. The' appellant believes that the evidence showed that the grandfather, as the donor, was not interested in any legal procedures involved in providing for the education of the grandchildren, but left that entirely to his lawyer son; that the fact that the donor executed a will on the same day that he instituted the trust agreement is of no significance in view of the testimony that the will was an afterthought on the part of the donor after he had signified his intention of providing for the education of the grandchildren; and that the signing of the will on the same day was only done as a matter of convenience to the donor.

The appellant cites many decisions of the Courts of Appeals of Ohio in support of his contention. See in the Matter of the Estate of Frantz, 62 Oh Ap 271; In re Estate of Brenholts, 66 Oh Ap 539; In re Estate of Seidensticker, 75 Oh Ap 73; In re Estate of Hildebrant, 86 Oh Ap 246; and In re Estate of Scott, 50 Abs 193.

Appellant further feels that testimony showing that the decedent intended to take a trip to visit relatives in his native country of England, medical evidence showing the good health of the decedent based on examination by a physician in March of 1957, and the relinquishment of all control over the trust funds by the decedent should have led the Probate Court to a decision that the acts of the donor in the instant case were not made with any thought of death.

The appellee feels that the testimony did not show any present need in the education of the grandchildren that was being fulfilled by the generous gift of the grandfather. The appellee further feels that, because of the recent death of the donor’s wife (November, 1956), the age of the donor (75), and the execution of the will on the date of the execution of the trust, a Probate Court could come to no other conclusion than that the gifts were made in the contemplation of death.

While it is true that the courts have difficulty in determining whether an act was performed in contemplation of death, as stated in the case of the Tax Commission of Ohio v. Parker, supra, “The controlling fact in determining whether a transferor made the transfer of property in contemplation of death is whether the purpose of the transferor was to distribute or partially distribute his estate, or was simply to do an act of generosity or kindness.”

In the instant case, it cannot be said that the Probate Court was not justified in finding that the distribution made at the time and under the circumstances shown in this case was the beginning of a “systematic distribution of property, such a distribution of property as a person would make by will, and had for its purpose such purpose as would actuate the mind of a person making a will * * See Tax Commission v. Parker, supra, at Page 223.

■ The order of the Probate Court overruling the exceptions to the determination of the inheritance tax will be affirmed.

BRYANT, PJ, WISEMAN, J, concur.