author: By BELT, J.:

text:
    NEFF, Plaintiff, v. BOARD OF COMMISSIONERS OF BELMONT COUNTY, Defendants.
    Common Pleas Court, Belmont County.
    No. 17333.
    Decided December 7, 1956.

      Lewis & Henry, St. Clairsville, for plaintiff.
    William H. Irwin, Pros. Atty., for Board of County Commissioners.
   OPINION

By BELT, J.:

The petition in this case contains two alleged causes of action. In the first cause of action, plaintiff alleges that he is a justice of the peace in and for Mead Township in this county, having been elected and qualified as such justice of the peace on December 22, 1953, for a term of four years, and has certain judicial jurisdiction in said township and in Belmont County.

It further alleges that on June 13, 1956, the defendants, the Board of County Commissioners of the county, purporting to act under the provisions of §1907.47 R. C., fixed the annual salary and expenses of the office of plaintiff in the total annual sum of $150.00. It is then alleged that said section of the Revised Code is unconstitutional and void in that neither said section nor any other provison of the statutory law of Ohio prescribes any standards or rules governing the exercise of the authority stated in said section vested in the defendants. It is further alleged that said provision of the statute referred to purports to be of a general nature but cannot be of uniform operation throughout the state as provided by the constitution of Ohio for the reason that no standards are fixed for uniform operation.

The prayer of the petition is that the Court declare said §1907.47 R. C. unconstitutional and void, and that if the Court does not declare said section void, to set aside so much of the resolution of the defendants dated June 13, 1956, as pertains to the salary of plaintiff and order and direct defendants to enter as the salary of plaintiff, from and after January l, 1956, the sum of $1,000.00 or more as the fair and reasonable annual salary for said office in said county.

To this petition the Prosecuting Attorney of the county filed a general demurrer, but upon a conference held between court and counsel, the demurrer is withdrawn and the cause finally submitted to the court on an agreed statement of facts which will later herein be referred to.

The Court has determined that this cause be submitted and determined under, and in accordance with, the provisions of §2721.03 R. C., the same being a part of the declaratory judgment act of Ohio, which section reads as follows:

“Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

Sec. 1907.47 R. C., being a part of the justice of the peace act, passed by the last legislature, reads as follows:

“The justices of the peace shall receive a fixed annual salary and such salary shall be determined by the Board of County Commissioners of the county in which such office of the justice of the peace is situated and may include a fixed annual allowance for supplies, forms and equipment.”

This act, of which the foregoing section is a part, became effective in part on September 30, 1955, and effective in toto as of January 1, 1956 The section referred to became effective September 30, 1955.

The agreed statement of facts consist of an answer by the defendants to certain interrogatories, together with the agreement as to the facts.

It is agreed that the questions and answers of defendants to the interrogatories in this cause is a correct statement of all of the features considered by the Board of County Commissioners and upon which the Board based its findings and judgments fixing the annual salaries of plaintiff and the other justices of the peace of the county. The further facts are that the Board investigated and ascertained the amount of fees reported by all of the justices of the peace of the county for a period of two years prior to the action of the defendant Board and that the respective salaries fixed were largely based on the fees collected by the various justices during any one-year period and that said salaries range from a high of $3600.00 per year down to a minimum of $25.00 for some of the justices. That is to say, if the earnings of a certain justice of the peace amounted to $1,000.00 per year, a salary was fixed at substantially that sum; and if the earnings were $3,000.00 per year, the salary was fixed at substantially that sum. All of the facts as to fees were obtained from the justices themselves together with their records. Some attention was paid by the county commissioners to a standard sum per case, and it was ascertained by them that $4.00 was about the average justice fee collected per case in the county. Many of the facts were elicited by the county commissioners by a questionnaire sent to the justices in which they were asked the number of civil cases docketed during an annual period, the number of criminal cases docketed, and a further question was: “What annual salary will be required to equal your justice of the peace income under the fee system, not including collection fees?” Armed with this information, the salaries were fixed. The upshot of the whole attempt made by the county commissioners to fix the justices’ salaries was based on their earnings in fees and costs for the previous periods.

The Court’s comment on the action of the commissioners is that perhaps the salaries as fixed, without having any standard or direction from the general assembly, was perhaps about as worthy an effort as could have been done, although the commissioners in the various others of the 88 counties may have, and in all probability did, employ other standards in determining the salaries.

The question presented is whether or not said Section 1907.47 R. C. is constitutional.

In order to satisfactorily dispose of that question, recourse must, of course, be had to the applicable constitutional provisions and the decided cases thereunder.

It is interesting to note that under the constitution of 1851, before its amendment in 1912, Section 1 of Article IV provided that the judicial power of the state shall vest in a supreme court, circuit court, courts of common pleas, courts of probate, justices of the peace and such other courts inferior to the supreme court as the general assembly may from time to time establish, which provision made justices of the peace constitutional courts. However, by Section 1, Article IV as amended September 3, 1912, justice courts ceased to be constitutional courts and the said section of the constitution now reads as follows:

“The judicial power of the state is vested in a Supreme Court, Courts of Appeals, Courts of Common Pleas, Courts of Probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.”

By reason of this constitutional change, it can now be safely asserted that the courts of justices of the peace are not constitutional courts but were created by legislative authority, and having been thus created, may be abolished and the compensation of justices of the peace changed at the will of the legislature, so long, of course, as the legislative act is in accordance with constitutional authority.

Section 20 of Article II of the present constitution reads as follows:

“The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

The constitution provides in Seetion 1 of Article II, with the limitations as provided in Section 20, Article II and Section 14, Article IV, that the power to fix salaries is conferred on the legislature by the general grant of legislative power and that Section 20 imposes upon the legislature the duty of exercising the power so granted and forbids any change in the salary of an officer during his existing term unless the office be abolished.

State, ex rel. Metcalfe v. Donahey, Auditor of State, 101 Oh St 490.

Keeping in mind that it is within the power of the commission fixing justice districts in any county to combine two or' more townships and parts of townships into one district, so to speak, a question is presented as to whether or not the office of township justice of the peace has been abolished by the passage of said act. The act in question grants to the presiding judge of the court of common pleas, the probate judge, and the president of the Board of County Commissioners in the various counties the authority to establish justice of the peace judicial districts in the county. It is unnecessary to decide that question in this case.

If §1907.47 R. C. is unconstitutional, it is apparently because the legislature has not furnished any instrument of measurement or yardstick by which uniformity may be obtained. Putting it in another way, the question is whether or not the general assembly has delegated legislative power to the Board of County Commissioners. The Supreme Court has spoken upon this question in the case of State, ex rel. Godfrey, a taxpayer, v. O’Brien, Treasurer et al, found reported in 95 Oh St 166. The applicable law is found in the Syllabus of the case and the pertinent parts thereof, here applicable, are as follows:

“1. County and township subdivisions are agencies of the state, and constituent parts of the plan of permanent organization of state government.
“2. Where the state seeks to exercise its sovereign power through the agencies of county or township officers, the statute creating the office and providing for the selection and compensation of the incumbent, must conform to the constitutional provisions with reference to such officers.
“3. A provision in an act of the general assembly of this state for the appointment instead of the election of a county or township officer, is in violation of Section 1 of Article X of the Constitution of Ohio and void.
“4. The general assembly of Ohio cannot delegate the authority conferred upon it by Section 20 of Article II of the Ohio Constitution, to fix the compensation of officers.
“5. The provisions of an act of the general assembly purporting to confer authority upon the county auditor, or the board of county commissioners, to fix the salary of county or township officers within certain limits, without providing a uniform rule for determining such compensation in the several counties of the state, are in conflict with Section 26 of Article II of the Constitution of Ohio, and void.”

Said section provides:

“All laws, of a general nature, shall have a uniform operation throughout the state; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the general assembly, except, as otherwise provided in this constitution.”

In the case of State of Ohio ex rel. Montgomery v. Rogers, et al., 71 Oh St 203, the Syllabus reads as follows:

“The act of April 25, 1904 (97 O. L., 313, 314), entitled ‘An act fixing the salaries of the county surveyors in various counties of the state,’ is repugnant to Section 20, Article 2, of the Constitution of Ohio, because the power conferred and the duty imposed by said act upon the judges of the court of common pleas, to fix the salaries or compensation of county surveyors, is purely a legislative power and duty and cannot be delegated. Said act is therefore unconstitutional and void.”

In the case of Belden, Appellant, v. The Union Central Life Insurance Company, Appellee, 143 Oh St 329, the first paragraph of the Syllabus reads as follows:

“The legislative power of the state is vested in the General Assembly by Section 1, Article II of the Constitution and that body may not abdicate or transfer to others the essential legislative functions with which it is vested.”

In the case of the State of Ohio, ex rel. Guilbert, Auditor, v. Yates, Auditor, Pickaway County, 66 Oh St 546, the Supreme Court held as follows:

“County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the general assembly, upon that subject is a law of a general nature which must operate uniformly throughout the state. Pearson et al. v. Stephens et al, 56 Oh St 126, overruled.”

From the constitution itself and the decisions of the Supreme Court hereinbefore cited, it is the conclusion of the Court that justices of the peace are officers; that it is beyond the authority of the legislature under Article II, Section 27, Ohio Constitution, to exercise any power of appointment. The “continuation in office” provision would be valid only in the event that there will be no abolition of the existing office and the creation of a new one.

It is the opinion of the Court that the chief legislative purpose in the provision of a salary for justices of the peace was to avoid the constitutional objection to the present fee system as pointed out by Chief Justice Taft in the case of Tumey v. Ohio, 273 U. S. 510. 73 L. Ed. 749, which case contains a headnote as follows:

“An accused is unconstitutionally deprived of due process of law if his liberty and property are subjected to the judgment of a court, the judge of which has a direct and substantial pecuniary interest in reaching a conclusion against him.”

It is further the conclusion of the Court that there is a definite lack of direction in the statute as to the matter of fixing an annual salary for justices of the peace under the new act, which in the opinion of the Court renders the salary provision referred to unconstitutional.

The Court observes that in the 88 counties of the state, there possibly could be 88 formulas for fixing salaries, which would be wholly contrary to Section 26, Article II, Ohio Constitution.

The Court further observes that a natural inquiry will be if the salary provision of the justice act is unconstitutional, what is the effect of the repealing clause. The Court is not answering that question, of course, but to those who are interested, reference is here made to Volume 10, Page 259, Section 179, and some of the following sections of O. Jur. 2d, together with the cases therein cited.

It is the conclusion of the Court that §1907.47 R. C., being part of the recent justice of the peace act passed by the last legislature, is unconstitutional and the Court so hereby holds and declares.

The entry:

“It is the finding and conclusion of the Court that §1907.47 R. C. is unconstitutional. A special entry may be prepared by counsel for plaintiff and submitted to the Prosecuting Attorney and the Court for approval.”


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    BERG, Plaintiff-Appellee, v. DEVORE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4881.
    Decided October 9, 1953.
    C. Wilbur Hatch, Columbus, for plaintiff-appellee.
    David H. Thomos, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law and fact appeal from the judgment of the Common Pleas Court of Franklin County in an action in equity. By stipulation the record taken below is presented as the record in this Court.

On April 20, 1951, plaintiff and defendant entered into three separate written agreements whereby the defendant in a franchise agreement granted permission to the plaintiff to open and operate an Unclaimed Freight Retail Store at 217 South Front Street, Columbus, Ohio, for four years or longer at the option of the plaintiff; and sublet the premises at 217 South Front Street to the plaintiff under a subrental agreement which provided for a month-to-month tenancy, or as long as the franchise agreement was in effect; and executed a bill of sale to the plaintiff for the store, together with the stock and fixtures located therein for a stipulated amount, which was paid part in cash and the balance in weekly payments.

Plaintiff took possession and entered upon the contract. Soon thereafter differences arose between the parties. Each charged the other with breaching the contract in certain particulars. Approximately seven •months after the execution of the agreements the defendant notified the plaintiff in writing that the franchise and subrental agreements were cancelled, and that plaintiff should vacate the premises.

Plaintiff brought this action to enjoin the defendant in the cancellation of the contracts, to prevent eviction, and to reform the franchise agreement, and for other equitable relief.

Defendant answered by way of general denial, and in his cross-petition seeks to enforce cancellation of the contracts, to dispossess the plaintiff, and other equitable relief. Plaintiff’s reply was a general denial.

We have read the entire record and carefully considered the claims of both parties. The agreements were drawn by the defendant without legal assistance. The difficulties which have arisen can be attributed largely to poorly drafted instruments, which did not precisely set forth the rights and obligations of the parties under conditions and circumstances which could be reasonably anticipated.

A court of chancery will aid the parties in the assertion of their rights and the enforcement of their obligations, and in maintaining the contractual relationship if it is possible to do so rather than to dissolve it. In equity trivial mistakes, grievances and even breaches of contract rights will be ignored in an effort to protect and maintain the larger and more valuable rights and obligations. Equity abhors forfeitures. The defendant himself, after cancelling the franchise and subrental agreements, expressed his willingness to continue the contract relationship as it first existed, provided plaintiff would consent to an increase of rental.

The issues are entirely factual and a recital of all of the charges and counter-charges would not serve a useful purpose. We make the same order as the Court below, and in addition order plaintiff to make payments as agreed, if any part of the obligation remains unpaid, and to purchase paint and painting supplies from the defendant as agreed when and if defendant is able to furnish same in the ordinary course of trade.

Judgment accordingly.

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


text:
    STATE, Plaintiff-Appellee, v. RUCKS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County
    No. 5300.
    Decided February 3, 1956.
    Samuel L. Devine, Pros. Atty., Fred L. Newsome, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Harold Lieberman, Columbus, for defendant-appellant.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury- finding the defendant guilty of illegally possessing burglary tools in violation of §2907.11 R. C. The errors assigned are as follows:

(1) The Court erred in the admission of evidence.

(2) The Court erred in overruling defendant’s motion for a directed verdict.

(3) The judgment is against the manifest weight of the evidence.

(4) The Court erred in its charge to the jury.

We have examined the entire record and find that the evidence was sufficient, if believed, to sustain the conviction. One of the alleged tools admitted in evidence was of such construction that it could serve no other purpose than breaking the combination lock off of an iron safe, if credit and belief were given to the testimony of several witnesses offered by the prosecution. The Court properly instructed the jury that before a verdict of guilty could be returned, it must be established that the tools were intended to be used burglariously. The evidence amply supports the verdict; hence the jury’s finding will be sustained.

We have considered all of the other errors assigned and find none of them well taken.

The judgment is affirmed.

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


author: By NICHOLS, PJ.

text:
    Appropriation of lands of WYATT et, etc.: BARNES, Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 174.
    Decided November 16, 1955.
    Frank H. Marshall, James J. Gilvary, Sidney, for defendant-appellee, Ruth Wilson Wyatt.
    E. J. Garmhausen, Sidney, for defendant-appellant, Raeburn E. Barnes.
    (NICHOLS, PJ, GRIFFITH, J, of the Seventh District; FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By NICHOLS, PJ.

This action arose in the Common Pleas Court of Shelby County and involves the diverse claim of Ruth Wilson Wyatt and Raeburn E. Barnes to a fund deposited in that court upon appropriation of certain lands by the Department of Highways for the construction and improvement of State Route No. U. S. 25 in Shelby County, Ohio, the Department having filed in the Common Pleas Court a sum of money equivalent to the value of the land taken, and having caused summons to be served upon the several defendants, including Ruth Wilson Wyatt and Raeburn E. Barnes. No appeal was taken from the determination of value and by order of the Common Pleas Court an easement for highway purposes vested in the State of Ohio. The sole question raised in the Common Pleas Court, and now before this Court, concerns the ownership of the property appropriated for highway purposes. On motion therefore the Common Pleas Court made the following finding of facts:

“1. On November 30, 1901, J. B. Wyatt was the owner in fee simple of the real estate described as follows:

“Situated in the Township of Franklin, County of Shelby, State of Ohio and described as follows, to wit:

“A part of the southwest quarter of Section Twelve (12) Township Eight (8) Range Six (6) East, Being a strip of land east and immediately adjoining the Wapakoneta and Sidney Pike and bounded and described as follows: Beginning at the intersection of the east line of the said Wapakoneta and Sidney Pike and the north line of said southwest quarter (%) nine hundred eleven (911) feet east of the northwest corner; thence southerly along the east line of said Wapakoneta and Sidney Pike twenty seven hundred and ten (2710); thence east sixty one (61) feet; thence northerly thirty (30) feet from and parallel to located center line of the Western Ohio Railway twenty seven hundred and ten (2710) feet; thence west ninety one and five tenths (91.5) feet to the place of beginning and containing four and seventy four hundredths (4.74) acres.
“2. On said 30th day of November, 1901, said J. B. Wyatt and Minnie B. Wyatt executed, acknowledged and delivered to the Western Ohio Railway Company an instrument in the form here set forth, viz:
“WARRANTY DEED
“J. B. Wyatt “to
“The Western Ohio Railway Company
“Know all men by these presents, that J. B. Wyatt of Swanders, Ohio, the grantor, for the consideration of Three Hundred Dollars ($300.00) and other considerations, received to his satisfaction of the Western Ohio Railway Company, the grantee, do give, grant, bargain, sell and convey unto the said grantee, its successors and assigns, the following described premises, situated in the Township of Franklin, County of Shelby, State of Ohio and described as follows, to wit:
“A part of the southwest quarter of Section Twelve (12) Township Eight (8) Range Six (6) East. Being a strip of land east and immediately adjoining the Wapakoneta and Sidney Pike and bounded and described as follows: Beginning at the intersection of the east line of the said Wapakoneta and Sidney Pike and the north line of said southwest quarter (%) nine hundred eleven (911) feet east of the northwest corner; thence southerly along the east line of said Wapakoneta and Sidney Pike twenty seven hundred and ten (2710); thence east sixty one (61) feet; thence northerly thirty (30) feet from and parallel to located center line of the Western Ohio Railway twenty seven hundred and ten (2710) feet; thence west ninety one and five tenths (91.5) feet to the place of beginning and containing four and seventy-four hundredths (4.74) acres.
“The above subject to right of way of Bell Telephone Company.
“To have and to hold the above granted and bargained premises with the appurtenances thereunto belonging unto the said grantee, its successors and assigns forever, upon the conditions, restrictions and limitations hereinafter set forth.
“And J. B. Wyatt said grantor do for himself and his heirs, executors and administrators covenant with said grantee its successors and assigns that at and until the ensealing of these presents he is well seized of the above described premises as a good and indefeasible estate in fee simple and have good right to bargain and sell the same in manner and form as above written; that the same are free and clear from all incumbrances whatsoever and that he will warrant and defend said premises with the appurtenances thereto belonging to said grantee, its successors and assigns forever against all lawful claims and demands whatsoever. The grant and conveyance herein made of the above described premises is upon the following conditions, stipulations and limitations, viz:
“1st. The premises hereby conveyed are to be used for electric street railroad purposes.
“2nd. If said premises be not used for electric street railroad purposes within one year from the date hereof, or if said premises be used for any other than for electric street railroad purposes, or in case the same shall, after being first occupied and used for electric street railroad purposes be abandoned or remain unused for the purpose aforesaid for the period of one year then and in every such case the estate hereby granted unto the said The Western Ohio Railway Company its successors, and assigns, shall cease and determine and the title to the above described premises shall revert and be reverted in the grantor his heirs and assigns without further act or deed.
“3rd. The grantee herein as a part of the consideration for the conveyance hereby made, covenants that it will and that its successors and assigns shall, at its or their own cost and expense, build and contract good and suitable crossings at all lanes, driveways or gateways along said premises and ever after so long as it or they shall use and occupy said premises for electric street railroad purposes, keep and maintain the same in constant good repair and upon its or their failure so to do it shall be lawful for the grantor, his heirs and assigns, to furnish the material and do and perform the labor necessary therefor at the cost and expense of the grantee, its successors and assigns.
“4th. It is further covenanted on the part of the grantee herein for itself, its successors and assigns, as a part of the consideration for this conveyance that it will, or that its successors and assigns shall build, construct, and so long as it or they shall use and occupy said premises for electric street railroad purposes maintain a good and substantial fence with the necessary gates, suitable to turn stock on the line of the above described premises between said premises and adjoining private property; and upon its or their failure so to do it shall be lawful for said grantor his heirs and assigns to furnish the material and do and perform the labor necessary therefor at the cost and expense of said grantee its successors or assigns.
“And I, Minnie B. Wyatt, wife of said J. B. Wyatt do hereby remise, release and forever quitclaim unto the said grantee its successors and assigns all my right and title of dower in the above described premises.
“In witness whereof the said J. B. Wyatt and Minnie B. Wyatt has hereunto set their hands this 30 day of November in the year of our Lord one thousand nine hundred and one.
“Signed and acknowledged in the presence of:
“J. E. Russell J. B. Wyatt
“L. Kah, Jr. Minnie B. Wyatt
“The State of Ohio, Shelby County, ss:
“Be it remembered that on this 30 day of November, A. D. 1901 before me the subscribed notary public in and for said county personally came the above named J. B. Wyatt and Minnie B. Wyatt who acknowledged that they did sign the foregoing instrument and that the same is their free act and deed for the use and purposes therein mentioned.
“In testimony whereof I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid.
“J. E. Russell, Notary Public
“Said instrument was on the 18th day of February, 1902, deposited with the Recorder of Shelby County, Ohio, and duly recorded in Volume 80 at Page 80 of the Deed Records of said county.
“3. On the 14th day of March, 1902, J. B. Wyatt was the owner in fee simple of the premises in paragraph one described except the determinable fee simple estate as had been conveyed to the Western Ohio Railway Company by deed described in paragraph two.
“4. On said 14th day of March, 1902, J. B. Wyatt and Minnie B. Wyatt executed and acknowledged and delivered to John H. Barnes and J. D. Barnes an instrument in the following form, viz:
“WARRANTY DEED
“John B. Wyatt and wife “to
“John H. Barnes and J. D. Barnes
“Know all men by these presents: That John B. Wyatt and wife Minnie Wyatt in consideration of Forty Seven Hundred Dollars to them paid by John H. Barnes and J. D. Barnes the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said John H. Barnes and J. D. Barnes the following premises situate in the County of Shelby and State of Ohio and bounded and described as follows:
“Being that part of the South West quarter of Section Twelve (12) Town Eight (8) Range Six (6) east which lies East of the Sidney and Wapakoneta Pike and containing about ninety acres more or less. Except the right and title of the Western Ohio Railway Company to about 4% acres lying immediately east of and along said pike.
“And all the estate, title and interest of the said grantors either in law or equity of, in and to the said premises. Together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same to the only proper use of the said grantees.
“And the said Grantors for themselves, and for their heirs, executors and administrators do hereby covenant with the said grantee their heirs and assigns, that they are the true and lawful owners of the said premises and have full power to convey the same; that the title so conveyed is clear, free and unincumbered and further that they will warrant and defend the same against all claim or claims of all persons whomsoever.
“In witness whereof, the said John B. Wyatt and wife Minnie Wyatt who hereby releases her right and expectancy of dower in said premises have hereunto set their hands this 14” day of March in the year of our Lord one thousand nine hundred and two.
“Signed, Sealed and acknowledged in presence of us:
“R. D. Mede J. B. Wyatt
“Bessie Wyatt Minnie B. Wyatt
“The State of Ohio, Shelby County, ss:
“Be it remembered that on the 14” day of March in the year of our Lord one thousand nine hundred and two before me the subscribed a Notary Public in and for said county personally came John B. Wyatt and Minnie Wyatt the Grantors in the foregoing deed, and acknowledged the signing and sealing thereof to be their voluntary act and deed, for the uses and purposes therein mentioned.
“In testimony whereof, I have hereunto subscribed my name and affixed my Notarial seal on the day and year last aforesaid.
“R. D. Mede, Notary Public for Shelby Co., Ohio
“Said instrument was on the 15th day of March, 1902, deposited with the Recorder of Shelby County, Ohio, and duly recorded in Volume 79 at page 253 of the Deed Records of said county.
“5. By subsequent conveyance all right, title and interest of John H. Barnes and J. D. Barnes was conveyed to Raeburn E. Barnes, the said Raeburn E. Barnes being the surviving spouse of J. D. Barnes and the said J. D. Barnes being the son and sole heir at law of John H. Barnes. In said subsequent conveyance the description was in the identical language in the deed from J. B. Wyatt and Minnie B. Wyatt to John H. Barnes and J. D. Barnes.
“6. On or about June 16, 1932, the Western Ohio Railway Company ceased to operate its railway and has not, since said date, in any manner occupied, used or been in possession of any part of the premises described in the instrument set forth in paragraph two but has, since said date, been out of possession and having abandoned the same.
“7. On or about April 29, 1933, J. D. Barnes and Raeburn Epler Barnes, his wife, and Mary Barnes, widow of John H. Barnes, granted an easement to the Central Ohio Light and Power Company to erect, lay, construct and maintain its transformers, poles, etc. across the land described in deed recorded in Book 80 at page 80 and copies herein in paragraph two. Said lease was filed for record in Lease Book 8 at page 23 in the Lease Records of the Recorder of Shelby County, Ohio.
"8. Continuously from and after June 16, 1932, the said Raeburn E. Barnes and/or her predecessors in title have openly occupied the land described in Book 80 at page 80 and copied herein in paragraph two.
“9. J. B. Wyatt died January 5, 1936 leaving Ruth Wilson Wyatt as sole devisee, under his Last Will and Testament of his entire estate of whatever nature.”

Upon such facts found by the Common Pleas Court judgment was rendered in favor of Ruth Wilson Wyatt and appeal therefrom has been prosecuted to this Court by Raeburn E. Barnes. The notice of appeal recited that it was made upon questions of law and fact, but the cause has been submitted here upon questions of law and assignments of error filed. This Court adopts the finding of facts as made by the Common Pleas Court, but differs from that Court in its conclusions of law from the recited facts. This Court finds that the deed of John B. Wyatt and Minnie Wyatt to the Western Ohio Railway Company clearly shows that only a limited title to a right of way over the four and three-fourths acres above referred to was conveyed to the Western Ohio Railway Company and that all right and title of that Railway Company ceased and determined when it abandoned the tract for its use as a railway.

It is conceded that since June 16, 1932, the Western Ohio Railway Company has been out of possession of the four and three-fourths acres conveyed to it by Wyatt and wife on November 30, 1901; said lands have been abandoned by the Railway Company for railway purposes and ever since the Barneses have been in exclusive possession thereof.

At the time of the appropriation made by the Highway Department Ruth B. Wyatt was the successor in title as sole devisee under his will, to whatever rights or estate, if any, J. B. Wyatt was possessed at the time of his death. At the time of the appropriation by the Highway Department it is conceded that Raeburn E. Barnes was the successor in title to all of the estate conveyed to John H. Barnes and J. D. Barnes by J. B. Wyatt and his wife on November 14, 1902.

The Common Pleas Court determined that Ruth Wilson Wyatt was entitled to the fund deposited by the Highway Department for the easement appropriated. Raeburn E. Barnes has appealed to this Court of Appeals from the judgment of the Common Pleas Court and claims to be entitled to the fund in question. The decision upon this appeal depends upon the construction which must b.e placed upon the two deeds hereinabove referred to. The rule for determining the estate conveyed by a deed is that if the intention of the parties is apparent from examination of the deed from its four corners such intention will be given effect regardless of technical rules of construction. Both claimants concede this to be the correct rule of interpretation. Hinman v. Barnes, 146 Oh St 497. Adopting such appropriate rule, this Court finds that at the time of conveyance by Wyatt and wife to John H. and J. D. Barnes, J. B. Wyatt reserved and excepted from such conveyance only the limited title to a right of way or easement conveyed by them to the Western Ohio Railway Company on November 30, 1901, and that upon abandonment of that easement or right of way the title thereto passed to his assigns by his deed to John H. and J. D, Barnes, and no right or title to the appropriated premises remained in J. B. Wyatt or his successors and that the title to the premises appropriated at the time of the appropriation thereof is vested solely in Raeburn E. Barnes who is entitled to the fund deposited by the Highway Department in the Common Pleas Court of Shelby County.

The judgment of the Common Pleas Court in favor of Ruth Wilson Wyatt is contrary to law and must be and is reversed and final judgment rendered for Raeburn E. Barnes, and such fund is ordered paid to her.

GRIFFITH and FESS, JJ, concur.


author: By BIRRELL, J.

text:
    ORR, Plaintiff, v. BUREAU OF UNEMPLOYMENT COMPENSATION et, Defendant.
    Common Pleas Court, Trumbull County.
    No. 64615.
    Decided February 17, 1954.
    William W. Weir, for plaintiff.
    John W. Hardwick, Asst. Atty. Geni., for Board of Review, and Bureau of Unemployment Compensation.
   OPINION

By BIRRELL, J.

In this case the decision of the Administrator granted compensation to the claimant. On appeal the Referee modified this decision and allowed claims for benefits for six weeks, and disallowed the claim for five weeks. On appeal to the Board of Review the Board disallowed “the claimants application to institute further appeal.” The case comes to this Court on. appeal by the claimant under the provisions of §4141.28 R. C.

The section above referred to in its last paragraph contains the following provisions:

“The Board, upon written demand filed by appellant shall, within thirty days after the filing of such demand, file with the Clerk a certified transcript of the record of the proceedings pertaining to the decision complained of, and the evidence considered by the Board or the Referee or both in making such decision, and the appeal shall be heard upon such transcript, and the evidence certified by the Board.”

A preceeding paragraph with reference to an appeal from the Administrator’s determination provides:

“A record shall be made of all hearings by the Referee, and all testimony shall be recorded but need not be transcribed unless such claim is further appealed.”

The Referee, in modifying the decision of the Administrator places great stress upon certain “little white slips” which are referred to in the examination of the claimant at page 4 of the transcribed testimony. The Referee’s opinion evidently based upon these “little white slips” states:

“In the instant case, out of 13 weeks under consideration, there were two weeks in which allowance of benefits was clearly warranted; the first (week ending February 6, 1954) in which claimant had some employment, and the last (week ending May 1st, 1954) in which she reported five employer contacts. With respect to the remaining 11 weeks there were three (weeks ending March 6, 13, and 20) for which no records were available, and in giving claimant the benefit of any doubts, said weeks are allowed. In three other weeks (weeks ending March 27, April 10, 24, 1954) claimant appeared to have made fresh employer contacts which were not mere call-backs from the weeks immediately preceding them. Therefore benefits for said three weeks are allowed. With respect to the remaining five weeks (weeks ending February 13, 20, 27, April 3, and 17, 1954) claimant’s efforts to find work did not constitute even a bare minimum or ‘token’ compliance with statutory requirements and benefits are denied for said weeks.”

It is evident from reading the record of the examination of the claimant, which contradicts these weekly reports, that the Referee used the “little white slips” and relied upon them in forming his decision to modify the previous decision of the Administrator. It should be noted also, at page 7 of the Referee’s record of the examination that the Claimant’s attorney, asked the Referee:

“Do we have the burden of getting them (little white slips) in to the record?”
to which the Referee answered “no.”

To this Court, on whom the burden rests of determining this appeal upon “the evidence certified by the Board,” the failure of the Referee to include in his record “all testimony” is a glaring defect. Without the “little white slips” there is no evidence in this record other than that of the claimant who states that she regularly, each week, called upon all of the stores in the town which furnished the type of employment for which she was fitted, and that she had been prevented from reporting more than two names each week by the Clerk of the Unemployment Bureau, who told her that she must write only two names, as appears from the following questions by the Referee:

“Q. Were you required during your reporting to make statements on little white slips as to where you had looked for work?
“A. That’s right. When I first went in the girl told me just to write two names down. Well then a little later on another girl told me I should have three or four.
“Q. Regardless of how many places you looked for work you were supposed to put it down?
“A. Well I asked her if she wanted more and she said ‘no.’ ”

This Court cannot find that the decision of the Administrator, later affirmed by the Board of Review, is either lawful or reasonable or sustained by the evidence when the evidence on which the Referee relied, as the basis for his modification of the five weeks benefits, is not included in the record.

Sec. 4141.29 R. C., at subsection (C) (6) provides, as one of the exceptions to the payment of compensation.

“that the claimant has failed to report to the Bureau * * * as required by its rules.”

This Court does not take judicial notice of the rules of the Bureau of Unemployment Compensation, and no rules have been presented or even suggested in this case. If the Referee is laying down a rule to sustain his decision it is certainly unreasonable in view of the instructions given to this employee of the number of places she must report each week.

The Court observes that §4141.28 R. C., contains this paragraph:

“In making determinations on applications for determination of benefit rights and claims for benefits, the administrator and his deputy shall follow decisions of the Unemployment Compensation Board of Review which have become final with respect to claimants similarly cited.”

This, of course, means that were the decision of this Referee to be approved by this Court, the result would be that hereafter this precedent must be followed. We do not know whether the Administrator, in allowing all of these weeks, was following some previous precedent. It would seem proper for this Court to assist the Bureau in determining a reasonable precedent to be followed in the future, which should include the requirement that the Bureau must include in its transcript all the evidence, and exhibits on which the Referee and the Board depends for their decision in accordance with the provisions of the Statute above cited.

As above suggested, this Court finds that the decision made by the Referee, and approved by the Board of Review is unreasonable and against the manifest weight of the evidence presented in their record. It would seem proper, therefore, that such decision be modified and final judgment be entered by this Court requiring payment of the five weeks of benefits disallowed by the Referee. The Court assumes, of course, that the six weeks which have already been allowed have been paid in accordance with the Referee’s decision. If they have not been paid the requirement of such payment may be included in the order.


author: Per CURIAM.

text:
    DELMONTE CAFE, INC., Appellant-Appellee, v. DEPARTMENT OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5457.
    Decided May 21, 1956.
    Jerome Jesionowski, Toledo, for appellant-appellee.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

Per CURIAM.

Appeal on questions of law from a judgment of the Common Pleas Court finding that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law; but also finding that the 45 day suspension “is unreasonable, considering the nature of the offense,” and adjudging that the order of the Board be modified by reducing the suspension to a period of 15 days.

The decision of the Court was rendered November 8, 1955, prior to the publication on November 28, 1955, of the decision of the Supreme Court in Andrews v. Board, 164 Oh St 275. It does not conclusively appear from the opinion of the Common Pleas Court that the Court failed to comply with the procedure delineated in the Andrews case. Cf. Petropulos v. Board, Franklin County Court of Appeals, March 13, 1956, unreported. Furthermore, no error is assigned with respect to the finding that the order is supported by reliable, probative and substantial evidence and is in accordance with law.

Sec. 119.13 R. C. provides in part:

“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative and substantial evidence and is in accordance with law. The judgment of the court shall be final and conclusive unless reversed, vacated or modified on appeal.” (Emphasis added.)

The Court having found that the order is supported by reliable, probative and substantial evidence and is in accordance with law had no power under the statute to modify the penalty by reducing it from 45 days to 15 days.

Judgment of the Common Pleas Court is therefore modified by deleting that portion thereof with respect to the modification of the penalty and in lieu thereof ordering that the order of the Board of Liquor Control be affirmed.

Judgment as modified affirmed and cause remanded to the Board of Liquor Control for further proceedings, if any be necessary.

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


author: By STEVENS, J.

text:
    CLARK, Estate of, In re: CLARK, Plaintiff, v. CLARK et, Defendants.
    Probate Court, Ross County.
    December 29, 1955.

      John Scott Phillips, Chillicothe, for Pauline D. Clark, plaintiff.
    Thomas Boulger, Chillicothe, for defendants, Ralph Clark and Margaret Simmons.
   OPINION

By STEVENS, J.

This matter is before the Court upon the petition of Pauline D. Clark, surviving spouse of Roy B. Clark, deceased, to purchase certain real estate left by decedent and not specificially devised or bequeathed; the separate answers of Ralph Clark and Margaret Simmons, the children of decedent, and the reply of Pauline D. Clark thereto; the testimony of witnesses; the exhibits; and the arguments and briefs of counsel.

The pertinent facts as disclosed by the evidence are that the decedent and plaintiff were married in 1920 and had lived continuously on the farm, which decedent had inherited, since 1924. The farm consisted of three tracts of 7.25, 28.29 and 65.75 acres. The first and second tracts referred to above are separated by the Westfall road. The second and third tracts are separated by the Ragged Ridge road. The seven room frame residence, milk house, smoke house, brooder house, wash house as well as the garden are situated on the first named tract. The fences, described as “such as they are” apparently are in poor condition. There is an old three room house and two old barns on the second tract used for a “catch-all.” There are no buildings on the third tract.

The farm has been operated as a single unit for almost fifty years (since 1906). The fields are rotated in corn, wheat, oats, clover and pasture. Wheat, straw and clover seed was sold while most of the com raised on the farm was fed to hogs.

The question for determination is does plaintiff have the right to purchase the three tracts constituting the farm described above or is she limited to all or part of the first named tract of 7.25 acres upon which is located the dwelling, garden and other outbuildings.

The three tracts were appraised as a whole for $12,500.00 and no exceptions made to the Inventory and Appraisement. Plaintiff’s right to purchase is founded on sub-section “(A)” of §2113.38 R. C., since the gross appraised value of the estate prevents her from purchasing under sub-section “(C)” of this statute.

As opposed to plaintiff’s contention that a liberal and literal construction of the statute entitles plaintiff to purchase the farm as a whole, defendants contend that the statute merely embraces the common-law doctrine of “curtilege” and therefore must limit the plaintiff’s right to purchase to the mansion house, the yard, garden and ground upon which the residence and outbuildings are situated.

The statute governing in this case reads as follows:

“Sec. 2113.38 R. C. SURVIVING SPOUSE MAY PURCHASE PROPERTY. (Sec. 10509-89 GO. A surviving spouse even though acting as executor or administrator, may purchase the following property, if left by the decedent and if not specifically devised or bequeathed:
“(A) The mansion house, including the parcel of land on which such house is situated and lots or farm land adjacent thereto and used in conjunction therewith as the home of the decedent, arid the household goods contained therein, at the appraised value as fixed by the appraisers;—”
“—(C) Any other real or personal property of the decedent not exceeding, with the mansion house and land used in conjunction therewith and such household goods as the spouse elects to purchase, one third of the gross appraised value of the estate, at the appraised value as fixed by the appraisers.—”

(125 v. S. 361. Effective 10-1-1953.)

“On the hearing of the application or petition, the finding of the Court shall be in favor of such surviving spouse unless it appears that the appraisement was made as a result of collusion or fraud or that it is so manifestly inadequate that a sale at such price would unconscionably prejudice the rights of the parties in interest or creditors.—”

No claim of collusion or fraud or inadequacy of appraisement has been made or appears from the evidence. ,

At the outset we do not feel called upon to elaborate upon common-law “curtilege” for the reason that our legislature has gone beyond this term. The Ohio statute covers not only the curtilege, namely: the mansion house, garden and buildings appurtenant to the residence, but lots and farm land adjacent thereto and used in connection therewith as the home of decedent. What may be termed the “right of curtilege” had already been given to the surviving spouse prior to the amendment of the statute to cover “lots or farm land” adjacent thereto.

An examination of the history of statutory provisions analogous to our present law dealing with the rights of a surviving spouse to property of the deceased consort reveals that the subject has been before our legislature a number of times starting with §6074 R. S. and running through S & C 578; S & C 614; 38 v. 146; 45 v. 25; 87 v. 298; 88 v. 348; 103 v. 464; 108 v. Pt. I, 703; 110 v. 57; 114 v. 320 (420); 116 v. 385 (396); 119 v. 394 (406); 123 v. 460 (461), and 125 v. S. 361.

As we examine each enactment or amendment we discover a definite pattern which consistently seeks to liberalize and increase the rights of the surviving spouse. Commencing with the limited right to personal property the legislature has gradually expanded the rights of the spouse both in amount and kind.

At the risk of digression but so that no confusion may arise from the use of the phrase “—and lots of farm land—” in some of the cases, attention is called to the fact that this phrase was used in 119 v. 394 (406) in 1941. However both before 114 v. 320 (420) in 1931 and 116 v. 385 (396) in 1935, and thereafter 123 v. 460 (461) in 1949-50, the phrase “—and lots or farm land—” is employed.

Coming now to examine §2113.38 R. C. (§10509-89 GC), whether under the guise of construction, interpretation or definition, we find the first phrase demanding attention is “—and lots or farm land adjacent thereto—.”

“In general ‘farm’ means any tract of land used for raising crops or rearing animals.”
“A farm is a tract devoted to cultivation under a single control, whether it be large or small, isolated or made up of many parcels.”

Words and Phrases, Vol. 16, page 248; Bouvier’s Law Dictionary; Webster’s Dictionary.

“The phrase ‘parcel of land’ as used in this section means a continuous tract or plot of land in one possession, no part of. which is separated from the rest by intervening land in another possession.”

Words and Phrases, Vol. 2, page 61.

“A ‘parcel of land’ or ‘parcel of real property’ means a contiguous quantity of land in possession of, or owned by, or recorded as the property of, the same claimant, person or company.”

Words and Phrases, Vol. 2, page 56.

A farm has been defined as:

“—A considerable tract of land, cultivated or used in some one of the usually recognized ways of farming; an indefinite quantity of land, some of which is cultivated; whether it is large or small, isolated or made up of many parcels, for a farm may be of any size, of any shape, of any boundaries, and may include less than one lot or comprise several lots or parts of lots;—”

35 Corpus Juris Secundum, page 746.

We come now to the word “adjacent” as employed in the phrase “—and lots or farm land adjacent thereto—.”
“The word ‘adjacent’ is defined by Webster and other lexicographers to mean ‘to lie near,’ ‘close,’ or ‘contiguous.’
“In some decisions courts have held it to mean ‘in the neighborhood or vicinity of’; in others ‘adjoining or contiguous to—.’
“ ‘Adjacent’ does not at all times mean ‘adjoining’ or ‘abutting,’ but it is many times so used, and the purposes of its use are to be known from the context.”

Words and Phrases, Vol. 2, page 607.

The word adjacent has also been held to mean lying near to or by; close to or by; neighboring or in the vicinity of, yet such words have no arbitrary meaning or definition but their meaning must be determined by the object sought to be accomplished by the provision in which they are used.

Adjacent, it is said, conveys the idea merely of nearness, and not of immediate proximity. Its meaning is not restricted to the more confining words adjoining, contiguous to, contacting, touching, abutting, along, fronting, next to, attached, beside or bordering. Even the last above words do not necessarily imply that the things spoken of are in contact.

We come next to the phrase “—and used in conjunction therewith as the home of the decedent,—”

“Conjuncta in the civil law means things joined together or united, as distinguished from disjuncta, things disjoined or separated.”

“The primary definition of the word ‘conjunction’ is a joining or meeting of individuals or of distinct things; union; connection; combination; association.”

Words and Phrases, Vol. 2, pages 155, 156.

Since “conjunction” is defined by Webster as meaning a combination, connection or association, the phrase “—and used in conjunction therewith as the home of the decedent,—” can logically be held to mean lots or farm land used or operated by the decedent in combination, connection or association with the mansion house, including the parcel of land on which such house is situated, as the home of the decedent.

To overemphasize any one word or phrase of the statute at the expense of the others would be to give the statute a stinted meaning. We must remember that the legislature is permitting the spouse to elect to purchase not only the home but lots and farm land. A mansion house, alone, without the farm land used by the decedent would hardly constitute a farm. The old expression so often heard “home farm” connotes both a place to live and a place to work.

Attention must be called to the fact that the statute extends the right to purchase to all surviving spouses,—the wife as well as the husband. We believe that it would be consonant with the language of the statute and conducive to its intent and the purpose to be accomplished to infer that on the passing of the husband or wife the other should be permitted, by making adequate compensation for the other parties in interest and creditors therefor as the law provides, to continue to occupy the home and operate the farm as their own. Equal rights have definitely been given to husband and wife.

Some emphasis has been placed upon the fact that the three tracts used and farmed by decedent as his home are traversed by public roads, and are therefore separated to the extent that they are not adjacent to each other. Roads and highways are to farms assets or liabilities depending upon a great many circumstances and conditions. They may be constructed by the owners of the farm, relocated or abandoned. They may be on the farm when it is acquired or forced upon the owner by condemnation proceedings. The generally accepted principle that the owner of real estate in the country owns to the center of the road, except for highway purposes, prevails. Therefore, we do not feel that any general principles can be drawn from the fact that this farmland is intersected by roads which would prove of any material benefit in this type of case.

Coming to the case law, the State of Ohio appears to be unique in its liberality to a surviving spouse and therefore there is little or no case law to be found in other jurisdictions. Considerable hope was raised when we found that annotations under §2113.38 R. C. indicated comparative legislation in the states of Indiana, Kentucky, Pennsylvania and Tennessee. However a search of these statutes only indicated rights of the widow and minor children to the use of certain property, years support or exemptions, all of which are inapplicable to the present question of the right to buy realty at the appraised value. The only significant value to be gained from the cases in other jurisdictions is the fact that the courts were universally liberal in construing such remedial statutes.

In Ohio the case nearest in point is that of In Re Burgoon, 80 Oh Ap 465, 36 O. O. 200, 76 N. E. (2d) 310, wherein the Court of Appeals of Henry County on 1-18-1946 held that §10509-89 GC did not entitle a surviving spouse to purchase at the appraised value, the entire lot on which the mansion house was situated, where there were located on the same lot two other buildings, a pool room and restaurant, which were rented and used for business purposes, not in connection with the mansion house, but limited such spouse to the purchase, at the appraised value, of only that portion of the lot which was not occupied by such other two buildings.

We are in entire accord with the opinion in this case.

In the case of Dorfmeier v. Dorfmeier, 69 Abs 15, 123 N. E. (2d) 681, decided 6-19-1954 by Hon. Rodney M. Love of the Probate Court of Montgomery County, Ohio, it was held in Syllabus 4:

“Where a husband and wife occupy a non-divisible urban house as a home, the mansion house character of the premises attaches and is not destroyed either in whole or part by the fact that the husband and wife use part of the house for rental or other commercial purposes unless the commercial use becomes so pretentious that the occupancy as a home is merely incidental to the commercial use of the premises.”

The judge in this case emphasized the fact that §2113.38 R. C. gave to a surviving spouse a valuable property right and further pointed out that:

“In determining legislative intent it is necessary to ascertain the defect in the preexisting law, the remedies provided by the statute under construction, and the reason for the remedies.”

Other Ohio cases illustrative of the fact that such remedial statutes should be liberally construed so as to furnish all of the remedy and accomplish all of the purposes intended by the statute are:

State, ex rel. Maher v. Baker, 88 Oh St 165; Scobey et al. v. Fair, Adm’r., 70 Oh Ap 51, 24 O. O. 371; Passoni v. Breehl, 14 O. Supp. 100, 29 O. O. 220, 41 Abs 315; Strawser v. Stanton, 66 Abs 121, 47 O. O. 255, 103 N. E. 2d 797; In re Reed, 65 Abs 129, 113 N. E. 2d 700; In re Melott’s Estate, 162 Oh St 113, 54 O. O. 53, 121 N. E. 2d 7.

In contemplating legislative intent, defects and remedies we must recall that preexisting statutes provided only personal property for the surviving spouse. The Ohio legislature has consistently enhanced the rights and benefits of such spouse. For this reason and to remedy the former limited provisions, rights to purchase other personal property as well as the mansion house and finally lots or farm land adjacent thereto and used in conjunction therewith as the home of the decedent regardless of its value, and likewise any other real or personal property, not exceeding with the above mentioned, one third of the gross appraised value.

As the statute is now worded we would be wholly unauthorized in limiting or enlarging the amount of farm land the surviving spouse may purchase. The statute fixes it as lots or farm land adjacent to the mansion house and used in conjunction therewith as the home of decedent. Courts should assiduously avoid exercising the legislative power of amendment under the guise of statutory interpretation.

In trying to reach a sensible construction of §2113.38 R. C. as applied to the facts in this case we have kept in mind the rights of all parties in interest, heirs, creditors as well as those of the surviving spouse.

The Court accordingly finds that the mansion house including the parcel of land on which such house is situated, together with the other real estate described in plaintiff’s petition, is farm land adjacent thereto and was used in conjunction therewith as the home of the decedent, Roy B. Clark, and therefore concludes that the plaintiff, Pauline D. Clark, as surviving spouse of said decedent, is entitled to purchase all of such property described in her petition at the appraised value as fixed by the appraisers.

An appropriate entry may be drawn.